Awaiting a Decision in Smith v. CBP, CA9

"A curious case is currently under review in the U.S. Court of Appeals for the Ninth Circuit. John Smith, a Canadian vacationer, attempted to enter the United States to visit Arizona where he had been photographing skydiving and motorcycle events for a number of years. CBP officers smelled a rat. He was issued an expedited removal because the "CBP determined that petitioner was inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), on the basis that he was an immigrant not in possession of a valid entry document who intended to work in the United States as a photographer for compensation."

Smith's counsel entered a habeas petition with district court in Washington State, arguing that non-immigrant Canadians were exempt from expedited removals because they were exempt from having to present valid documentation. In other words, Canadians were not aliens arriving at the border. The district court was unconvinced.

'Under subsection 1252(e)(2), the habeas court is limited to determining whether the petitioner is an alien, whether the petitioner was ordered removed under the expedited removal process, and whether petitioner can prove that he is a lawful permanent resident of the United States, refugee or asylee. 8 U.S.C. § 1252(e)(2). “With respect to expedited removal orders, ... the statute could not be much clearer in its intent to restrict habeas review.” Li v. Eddy, 259 F.3d 1132, 1134–35 (9th Cir.2001), vacated on reh'g as moot, 324     F.3d 1109, 1110 (9th Cir.2003); see also de Rincon, 539 F.3d at 1141.'

Smith satisfied none of the aforementioned three criteria that allow a habeas challenge to an expedited removal. He nonetheless filed a timely petition with the Ninth Circuit Court of Appeals. They took the petition, perhaps as a test case of first impression, both for the alien exemption of Canadians and institutional bias of the CBP against Canadian visitors and those Canadians working in the US under NAFTA TN visas. Smith went to court with friends, many of whom were interested in the implications of his case for cross-border trade.

The amici brief took aim at the heart of INA 235:

'As part of this rule, at 8 C.F.R. § 235.3(b)(2)(i), the Attorney General specifically exempted from expedited removal those “ for whom documentary requirements are waived under ... [8 C.F.R.] § 212.1.”'

Given this regulation, Amici assert that judicial review is available where CBP has abused its authority and placed one “for whom documentary requirements are waived under… [8 C.F.R.] 212.1” into expedited removal.

The brief, intent on pointing out the northern border is between two friendly nations with a half billion dollars of commerce a year,  moves in for the kill in its conclusion:

'Canadian citizens must be able to approach the U.S. border without fear of being subjected to a five year ban for which there is no recourse. The District Court’s decision denying judicial review of CBP’s imposition of expedited removal on a non-immigrant Canadian not only renders 8 C.F.R. § 235.3(b)(2)(i) meaningless, it has a significant long term chilling effect on the USA/Canada trade relationship.

Oral arguments were held in August 2013 and a ruling is imminent." - Timothy Dugdale, Dec. 9, 2013.