Joseph Decunha, U3 Physics, was refused entry into the United States at the St-Bernard-de-Lacolle crossing border crossing on the night of Jan. 19. He was planning to attend the Women’s March on Washington, a day-long protest calling for action on a broad range of issues, such as women’s rights, racial inequality, and environmental justice.
Decunha, a Canadian citizen, was travelling with two other McGill students when he was stopped and questioned by the U.S. Customs and Border Protection (CBP). When he informed the officer that he was going to the Women’s March, he was directed to secondary inspection for further questioning.
“The first question he asked was, ‘Are you anti or pro-Trump?’” Decunha wrote in an email to The McGill Tribune. “Which sounds very malicious now knowing the outcome but was said in a very friendly way. I spoke briefly about the affordable care act and some of the racist remarks made by the [then] President-elect. His responses were friendly and I assumed that he also was not a Trump supporter.”
According to Decunha, the CBP officer also asked whether they were violent or radical protesters. After a series of questions, the officer noted that he would speak to his supervisor.
“He came back and first explained that he classified my behavior in the U.S. as ‘silent disruption,’ a term which he dropped on a number of occasions as though it were a legal term,” Decunha wrote. “After explaining that the events we were attending had official permits, he moved on from using this pseudo-legal jargon and then used a different explanation.”
Decunha believed that he was denied entry into the U.S. solely on political grounds.
“When we posed the question if simply attending the inauguration without going to the Women’s March would constitute tourism and satisfy that requirement, we were told [by the officer] ‘Sure, but now you’ve already told me the truth and to change your story now would be to lie to a federal agent,’” Decunha wrote.
Over 400,000 people cross the U.S.-Canada border each day. Due to a reciprocal arrangement between Canada and the United States, citizens do not need a visa to enter either country on a short-term basis.
Less than 0.1 per cent of travellers are denied entry, for reasons which include national security concerns or participating in prohibited activities. According to Evan Fox-Decent, an associate professor of law at McGill who specializes in immigration and refugee law, he has never heard of the term “silent disruption” as a reason to deny entry into the U.S..
“I’d be very surprised to find a judicial review decision to bar somebody from entering because they looked like they were going to […] be involved in some form of silent disruption,” Fox-Decent said.
Border control officers have the discretion to refuse entry, but officers must offer a legitimate reason in doing so, according to Fox-Decent. In Canada, Fox-Decent said, both citizens and noncitizens cannot generally be barred entry for protesting.
“Typically, the protections of the Charter [of Rights and Freedoms] extend to non-citizens as well as citizens. So if you’re here for a short period of time, you’re entitled to protest as much as […] a citizen,” Fox-Decent said. “The fact that you’re coming to protest, so long [as] there is no evidence you intend to do so unlawfully, or violently, […] that could not be a ground for barring entry.”
Fox-Decent acknowledged that he is not a U.S. constitutional scholar, but remains highly skeptical that protesting is regarded as sufficient grounds for barring entry into the United States.
“I would be very surprised if that [protest] could withstand scrutiny [as a valid reason to deny entry],” Fox-Decent said.
Rex Brynen, a professor of political science at McGill University, believes that the United States government has every authority to bar Decunha’s entry.
“The U.S. has a perfect legal right to control the admission of foreign nationals and is under no obligation to admit protesters,” Brynen wrote in an email to The McGill Tribune. “Protest, it could be argued, doesn’t constitute a valid reason for entering the U.S.. In this case, there was likely heightened sensitivity for fear that anti-Trump protests could get out of hand or be targeted.”
Brynen added that it is unlikely for the Trudeau government to act in response to multiple Canadians being denied entry for attending the Women’s March.
“I’m not sure that Americans wanting to enter Canada to attend a protest would be admitted either,” Brynen wrote. “There’s nothing Canada would want to do [in response,] since we certainly would want to retain our own ability to bar Americans entering Canada.”