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DO BORDER CONTROLS REALLY AFFECT YOU ?
(Or Are You Just Paranoid?)
Most of you probably already know that transporting cash across borders is perfectly legal, but you just have to declare it above certain limits. The amount of $10,000 has become almost commonplace regardless of the local currency. However, it is a crime not to report the transfer, and you almost certainly risk forfeiture or a heavy penalty if you don’t.
One famous U.S. case was compliments of a Mr. Bajakajian who failed to report he was transporting US$ 357,144 in cash across the U.S. border. The money was all perfectly legal and earned, and his only crime was failing to fill out a piece of paper declaring he was carrying cash to pay a legal, legitimate debt.
When U.S. Custom agents discovered the cash, all US$ 357,144 was seized and declared forfeited because Mr. B failed to disclose his transfer of cash stemming from his distrust of government bureaucrats…. hummmm, imagine that!
After a lengthy and very expensive appeal to the U.S. Supreme Court, it was held Mr. B’s $357,144 fine was excessive for failing to fill out a piece of paper, and the fine was reduced to $15,000. So B-careful not to fail to disclose cash transfers across the border, even though legally acquired.
And as a further reminder for U.S. citizens, there is the additional burden of filing IRS form TD F 90-22.1 for amounts in excess of US$ 10,000 held offshore.
What you might not be aware of is that there is another significant change underfoot globally with increased border restrictions and controls on persons and their properties moving across political boundaries. The days of simple, easy passage, inside and out a country is quickly becoming a throw back to recent history.
Worse yet, the future looks even more dismal.
II you think it’s bad enough to unpack and reload your laptop during airport inspections, the actual contents have also become subject to thorough examination when entering the U.S. and U.S. wannabie jurisdictions.
That’s right, the “war against terrorism” has taken another causality resulting in a very controversial decision by the 9th Circuit Court of Appeals in California which held the U.S. Customs Officials may seize and search the contents of travelers' laptops when entering the U.S……. even in the absence of a search warrant or probable cause.
Is this supposed to be happening in America?
The traditional 4th Amendment protection offered by the U.S. Constitution does not apply to airport searches, at least so says one court. "The government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant," the court stated.
Another U.S. district judge in California recently issued a contradictory ruling concluding that Customs was in fact required to have "reasonable suspicion" of wrongdoing in order to search your laptop. That's still a lower burden of causality than "probable cause", which is the typical criminal law standard… all of which means your procedural safeguards are lessened at the border.
Therefore at least "reasonable suspicion" now appears to be the standard in Los Angeles before U.S. Customs agents can conduct a body cavity search, X-ray or other invasive examination to you or your property
However, if you're crossing the border anywhere else into the U.S., Customs officials can still conduct a search for any reason they desire, or no reason at all. This issue won't be resolved until competing appeals reach the U.S. Supreme Court in the years ahead.
And there is more.
If the U.S. government gets its way, beginning soon we'll all be on “no-fly” lists, unless and until the government grants us permission to leave or re-enter the United States. The U.S. Department of Homeland Security (DHS) has proposed that all airlines, cruise lines, even fishing boats, be required to obtain clearance for each and every passenger they propose taking into or out of the United States.
No longer is a U.S. passport a document sufficient for free travel. Your passport has become nothing more than a means for government busybodies to watch your every move and catalogue your activity in and out of the country.
The supposed objective of our hardworking bureaucrats is to catch terrorists, even if the odds of achieving this is very slim.
We are no longer in Kansas Dorothy!
Even for U.S. citizens, it doesn't matter if you have a U.S. passport “travel document” which currently, absent a court order to the contrary, grants you virtually an unqualified right to enter or leave the United States, any time you want. However, if the new DHS system comes into effect as proposed, and DHS says “no” to a clearance request - or fails to timely respond - you won't be permitted to enter or leave the United States.
By way of example, consider you are a U.S. passport holder living or working outside of the U.S. Your visa is about to expire. You board your flight back to the United States. DHS has failed to respond and grant you permission to board your plane.
Your boarding is denied and the local immigration official quickly escorts you to a poorly lit, dungy detention center, where you are now effectively a “stateless person” and detained until your immigration status is sorted out…. your new status is classified “indefinite.”
Can’t happen to you? Of course not, click your heals twice and it will all disappear. Read on.
Why might the DHS deny you permission to leave or enter the United States? No one knows, because the entire clearance procedure under the new policy would be a secretive administrative determination, with no right of appeal.
Worse yet, the decision is made without a warrant, without probable cause and without even any suspicion of wrongdoing. Basically, if you end up by error on the DHS list – or the DHS fails to timely respond – your “indefinite” detention continues even if you are a U.S. passport holder.
If the U.S. treats it own citizens this way, what type of treatment do you think this means for foreign travelers coming into the U.S.?
Importantly, the U.S. Supreme Court has long recognized there is a constitutional right to travel internationally. The highest court in the U.S. has clearly declared the right to travel is "a virtually unconditional personal right." The United States has even signed treaties with foreign governments guaranteeing “freedom of travel.”
But constitutional and international law has never gotten in the way of a Congressman wanting to pass a new law.
So you are convinced this really can’t happen? Sorry to say, it already has.
Earlier this year, DHS failed to provide permission to an airline transporting an 18-year-old native-born U.S. citizen back to the United States. The prohibition lasted nearly six months while the mess was untangled.
My daughter is 18 years old and travels internationally - alone – when returning home from her university studies. For those of you that are parents like me, this would be one of my worse nightmares for her to be caught up in a DHS fiasco like the one this young adult experienced.
The U.S. is not alone. Not to be outdone, now the Canadian frontier “freedom of passage” is becoming an oxymoron. Like it or not, the Canadians Mounties are busy in dealing with historical trivia of days gone by.
At the Canadian border thousands of innocent tourists are denied entry because of relatively minor offenses occurring decades earlier.
Did you experience an inconvenient discretion when you were young and get caught? Even a simple misdemeanor possession of marijuana and Canada’s borders are closed off to you. Maybe this is why Bill Clinton didn’t travel north of the border during his presidency.
What’s more, any criminal offense you committed as an adult is now part of a vast database shared with Canadian immigration authorities.
Even convictions for trespassing, public intoxication and shoplifting will forbid you from crossing the border. While you may think your youthful indiscretions were trivial and long forgotten, the computer has a memory powered by the energizer bunny… it just keeps on going.
Think you are immune living in other parts of the world?
The cross-border restrictions between Canada and the U.S. are only a small part of a new information-exchange agreement that is spreading globally. Importantly, other countries are beginning to tap into the “Smart Border Action Plan” and you can count on more of this type of infringement to freedom of your travel in the days ahead.
The U.S.-Canadian model is now used with all other countries under "Visa Waiver" Agreements with the United States. These programs provide immigration officials in countries around the world the ability to access U.S. arrest and conviction data complied by the Department of Homeland Security database, and gives U.S. officials access to comparable data in many other countries.
As a litigation attorney and former judge practicing for going on three decades, I can attest there is a hideous amount of court and government records kept on the average person that goes back to our days of young indiscretions that we thought were long forgotten…. you can take my personal experiences on this as being unfortunately accurate.
It is depressing to watch America, Australia, Canada and the European countries take the long march down the road assaulting natural rights and freedoms, saying nothing to established international laws. As these impediments to the free and natural movement of people and property worsen, being able to manage risk across political boundaries becomes increasingly important.
And if you think the restrictions to our personal freedoms are increasingly inhibited, guess what the future holds for the free movement of your capital across international borders?
Stay tuned for more on this topic in later newsletters.
In the meantime, if you care to learn more about using international trusts for asset protection, privacy and portfolio diversification, admittedly I am biased, but there are two good books to help get you started at www.DavidTanzer.com.
Offshore risk management and capital preservation becomes essential for those looking beyond the horizon.
Until next time.
David
David A Tanzer, Esq.
JD, BSc, Ph.D (Hon)
David A Tanzer & Assoc., PC.
Datlegal@aol.com
DAT@DavidTanzer.com
www.DavidTanzer.com
Vail, CO USA:
Tel. (970) 476-6100
Fax (720) 293-2272
Auckland, New Zealand:
Tel. (64) 9 353-1328
Fax (64) 9 353-1328
Brisbane, Australia:
Tel. (61) 7 3319 6999
Fax (61) 7 3319 6999
(Licensed to Practice Law in U.S. States & Federal Courts;
Assoc. Member Auckland, N.Z. District Law Society - Foreign Lawyer; &
Assoc. Member Queensland Law Society, AU - Foreign Lawyer)
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