Canada: Trump's New Travel Restrictions May Affect Canadian NEXUS Cardholders From Venezuela And Chad

Last Updated: September 27 2017
Article by Cyndee Todgham Cherniak

Here we go again! On September 24, 2017, President Trump issued " Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats" (the Presidential Proclamation"), which should make Canadian dual-nationals and Canadian permanent residents from Venezuela, Chad (and North Korea, if any) with approved and fully vetted NEXUS memberships by the nervous. This new Presidential Proclamation is more robust that the previous executive orders that have been challenged in the United States courts. LexSage was active at the time of the last travel ban and travel restrictions and will speak out again if necessary. 

Venezuela, Chad and North Korea are new countries added to the new Presidential Proclamation. While North Korea is not particularly surprising given the recent war or words between President Trump and the North Korean Supreme Leader and that North Korean persons traveled to Singapore last year to assassinate the Supreme Leader's brother with poison in a public airport, Venezuela and Chad are unexpected.  While the United States and Canada have imposed unilateral sanctions and a travel ban against a number of Venezuelan officials in the Maduro Regime, travel restrictions that impact all Venezuelan citizens seems very broad.  The travel restrictions affecting foreign nationals from Chad, Venezuela and North Korea go into effect at 12:01 a.m. eastern daylight time on October 18, 2017.  The travel restrictions in the Presidential Proclamation will be in place for 180 days and can be repeated.

The Presidential Proclamation also re-imposes travel restrictions against persons from Iran, Libya, Somalia, Syria, and Yemen, but ends the restrictions relating to Sudan. These restrictions and limitations are effective at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals who (i) were subject to entry restrictions under section 2 of Executive Order 13780, or would have been subject to the restrictions but for section 3 of that Executive Order, and (ii)  lack a credible claim of a bona fide relationship with a person or entity in the United States.

When President Trump issued previous Executive Orders imposing travel restrictions on Iran, Iraq (1st order), Libya, Somalia, Sudan, Syria and Yemen, many Canadian dual citizens and permanent residents were informed by the United States and Border Protection ("US CBP") that their NEXUS memberships had been cancelled.  Based on calls to my office, many Canadian citizens born in is Pakistan and Saudi Arabia also were informed by the US CBP that their NEXUS memberships had been cancelled.

If the US CBP cancels NEXUS memberships of Canadian dual citizens/permanent residents from Chad, Venezuela and North Korea, these individuals will not be able to use NEXUS lanes into the United States and into Canada.  The travel restrictions may also restrict travel of Canadian dual citizens and permanent residents from Chad, Venezuela and North Korea.  This is because the President Proclamation affects immigrant and non-immigrant entry into the United States on the basis that such entry "would be detrimental to the interests of the United States" without restrictions.

The Presidential Proclamation states in part that its is made against the current list of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen because "the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries ... remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices.  In some cases, these countries also have a significant terrorist presence within their territory."

That being said, the Section 2 of the Presidential Proclamation describes the restrictions on a country by country basis.  With respect to Venezuela, the Presidential Proclamation appears to limit the restrictions to government officials.  The Presidential Proclamation says that "... the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies [ in verification procedures]."  The Presidential Proclamation goes on to say that:

"the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures — including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations — and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.  Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current. "

With respect to Chad, paragraph 2(a) of the Presidential Proclamation indicates that while there is adequate information sharing by the Government of Chad with the Government of the United States, the concerns relate to "several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa'ida in the Islamic Maghreb."  As a result, the "entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended."

With respect to North Korea, paragraph 2(c) of the Presidential Proclamation indicates that "North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements".  As a result, the "entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended."

Canadian dual nationals and permanent residents from one of the restricted countries should exercise caution if planning to travel to the United States.  There are many Canadian dual nationals and permanent residents (e.g., from Venezuela) with NEXUS membership approvals who have passed the NEXUS approval procedures and are trusted travelers.

The problem is that a NEXUS membership card may be cancelled or revoked at the discretion of the United States government or the Canadian Minister of Public Safety and Emergency preparedness.  The NEXUS Program is a discretionary program – meaning that the governments have discretion to grant and revoke/cancel memberships.  One of the basis for revoking or cancelling a NEXUS membership is an immigration law violation.  Another basis for cancelling a NEXUS membership is that the traveler is no longer eligible or considered to be "of good character".  While a breach of a law is a question of law, the interpretation of the law involves discretion of front-line officers.  With NEXUS, it is common for US CBP Officers to exercise their discretion to cancel a NEXUS Membership and leave it to the traveler to appeal the decision.

The Presidential Proclamation does not contain any process that will permit the reinstatement of NEXUS memberships.  The current U.S. process for appealing the cancellation of a NEXUS membership by the United States allows an individual to appeal a NEXUS membership cancellation to the US CBP Ombudsman.  However, based on our experience, the process is not a robust and procedurally fair process.  A person files an letter an never receives the reasons for the cancellation of their NEXUS membership.  After 10-12 months, the individual receives a brief letter that upholds the original decision and does not set out the facts or reasons in support of the decision.

What to Do?

  1. Exercise caution by not traveling to the United States until the entry ban period(s) has expired.
  2. Contact a U.S. immigration lawyer to ask whether your travel would be banned or whether there is a visa you can apply for.
  3. Do not use your NEXUS Card for travel to the United States (however your status can be revoked or cancelled even if you do not use a NEXUS Card for entry).
  4. If your NEXUS Card is cancelled, file an appeal with the U.S. CBP Ombudsman (despite the fact that the process is not robust or fair). We would be pleased to assist you.
  5. Contact the Minister of Public Safety & Emergency Preparedness (Mr. Ralph Goodale) if your NEXUS Card is confiscated by U.S. Customs and let the Government of Canada know about the way the U.S. is exercising its discretion.
  6. Contact your Local MP.
  7. Contact us so that we can write about your story and help others.  We will work with Canadian reporters and the Canadian government to ensure NEXUS memberships unfairly cancelled are restored.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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