One Man’s Bitter Odyssey into a Reverse NAFTA, or How I Learned to Stop Worrying and Love the Department of Homeland Security: Canadians and Mexicans after 9/11

COHA received the following article from a reader, Dr. Mark T. Berger, who details his personal experience of the Department of Homeland Security’s involvement in immigration cases post-9/11:

Is my wife a ‘terrorist’? Is my stepdaughter a ‘terrorist’? Do they represent a threat to the national security of the United States? I didn’t think so, but Homeland Security does. In August of 2007 they over-ruled a decision by US Immigration to approve a visa waiver application and denied my wife and stepdaughter entry into the United States.

Earlier in August, the deputy head of non-immigrant visas in Tijuana had approved my wife’s visa waiver application, which included my stepdaughter who was then five and is now seven years old.

The point of the visa waiver application was so that they could get non-immigrant visas to be with me during my period of employment in the United States. I am a Canadian citizen and have had, since July 2006, a non-immigrant visa (also known as a TN visa) that allows me to work in the United States as a civilian contractor for the U.S. Department of the Navy.

TN visas were introduced in the wake of the North American Free Trade Agreement (NAFTA), which came into effect in 1994. In theory, TN visas make it possible for Canadian and Mexican professionals to obtain multiple entry work visas for the United States as long as they arrive at the border with their passport, a letter from their prospective employer and evidence of their professional qualifications. The TN visa also includes a provision for immediate family to apply for what are called TD visas. TD visas allow them to enter the United States to be with the TN visa holder for the duration of the latter’s period of work.

While I am a Canadian passport holder, it may or may not be significant that my wife and stepdaughter are Mexican citizens and hold Mexican passports. I first met my wife, a month before I became a civilian contractor for the U.S. Department of the Navy. I work as a Professor at the Naval Postgraduate School in Monterey California where I have security clearance and am treated extremely well both by my department and the institution.

Moving to Monterey also allowed my relationship with my future wife to develop. Monterey was closer to Mexico than Vancouver, where I had been working previously. But, we soon reached that point where decisions needed to be made about where the relationship was going. For me, the solution was obvious. The intensity of the feelings (“love” is the technical term) I felt for my future wife was as strong, if not stronger, than I had felt about any woman in my life, and it was fully reciprocated.

Initially, my wife was not enthusiastic about living in the United States, and was doubtful about her chances of getting a visa. She liked Canada, was somewhat tired of Cabo San Lucas where we had met and where she and a number of other members of her family had lived for many years. In fact, prior to meeting me, she had been planning to move back to Guadalajara where she was born. I used all the persuasive powers at my disposal to convince her to move to Monterey for as long as my job with the Department of the Navy kept me there. After that, we expected to live in Canada or Mexico.

Despite making a decision at the end of 2006 that we would do whatever it took to live under the same roof, we expected it would take some time. In the meantime, I continued to go south as often as I could and we traveled to Canada on more than one occasion (via direct flights from Mexico City to Vancouver). We were married in a civil ceremony in the backyard of my parent’s house on a beautiful summer day on the 23rd of June 2006.

For my wife and I this was not something we entered into lightly. I wanted her to be my wife and she wanted me to be her husband. At the same time, US consular officials in Vancouver, Ottawa and in Tijuana assured us that the necessary paperwork so that my wife and stepdaughter could join me in Monterey would not be difficult to obtain.

I spoke on a number of occasions via telephone, communicated via email and made it clear to the consular officials repeatedly and up front, that prior to our meeting, my wife had in fact been apprehended at the US-Mexican border for attempting to enter the U.S. illegally. We were told that our changed circumstances meant that although that incident was a black mark against her, she could apply for a visa waiver and if granted, she and my stepdaughter would be permitted to enter the United States. At no point in this process did the consular officials tell us that Homeland Security would need to be consulted, or as we would later discover the Department of Homeland Security has a blanket policy of not even accepting visa waiver applications: a policy that they appeared to have not passed on down the line to Immigration very effectively.

We duly applied for a visa waiver and paid the 200-dollar fee (100 for my wife and 100 for my stepdaughter) required to apply for non-immigrant TD visas. Because of the rules governing the visa application process my wife drove from Cabo San Lucas (at the tip of the Baja peninsula in the Mexican state of Baja California Sur), to Tijuana (which is the dedicated consulate for her state of residence) to submit her application and be interviewed.

Following some initial confusion the head of non-immigrant visas at the U.S. consular annex in Tijuana approved my wife and stepdaughter’s applications. I thought all my Christmases had come at once and that the entire family would soon be able to live under the same roof in Monterey.

The glitch in this tale, however, was about to emerge. We had been concerned that my wife’s earlier misguided efforts to enter the US illegally would hamper our efforts severely. However, for the better part of six months we repeatedly had dealings with both the US consulate in Vancouver and the US consulate in Tijuana, and had also exchanged to phone calls and email with the US Consulate in Ottawa. While they had not promised my wife would get a visa, they had assured us that a visa waiver application was, under the circumstances, a standard procedure as far as Immigration was concerned. It was only after the deputy head of non-immigrant visas in Tijuana had approved the application that we were told there was still another step in the process.

After having jumped through all the hoops with Immigration, we were under the impression that we were ‘good to go’. We had put all our cards on the table, but as it turned out Immigration had a card up their sleeve that they had forgotten to mention (or had got lost in the fine print). It was at this point and only at this point that we were told that Immigration could not issue the visas without first checking with Homeland Security and Border Control in Washington.

At first it sounded like a formality, for after all, this was an immigration issue. It was about visas, non-immigrant visas at that. And Immigration had already ‘approved’ the visa waiver and was ready to issue the non-immigrant TD visas that would allow my wife and stepdaughter to enter into the United States for the duration of my employment with the Department of the Navy.

We were told in Tijuana that the approved applications would be sent to Washington and we would be notified in 3 weeks to a month with regard to whether final approval had been granted by Homeland Security and Border Control. What we did not comprehend at this stage, was how much power had accrued to Homeland Security and Border Control and how much clout had been lost by Immigration since 9/11. About ten days later my wife received a phone call from Tijuana telling her that her visa waiver application had been rejected and that she could not apply for a visa for ten years although she was free to apply for a visa waiver again if she so wanted to.

I tried to find out what exactly the basis for Homeland Security and Border Control’s decision had been. Their only answer was that my wife had tried to enter the US illegally before she and I had met. I pointed out that hardly constituted an explanation, as the whole point of the visa waiver application was because we knew that she had done so, and we knew that they knew and the visa waiver process was about acknowledging her previous error. What she had done was wrong, but it was hard to see what it had to do with ‘national security’. The logic behind their rejection of the application made no sense. The Department of Homeland Security was set-up after 9/11 to enhance the security of the United States and prevent any such subsequent attacks. The security implications in relation to their decision about my wife’s visa were, at least in my view, nonexistent. In fact, the Department of the Navy had already run me through a much more detailed security check that included more information about my wife and her family than Immigration had asked for.

What she had filled out was a visa waiver application, and yet the only explanation for over-ruling immigration’s approval of the visa waiver application was to refer to my wife’s earlier misguided attempt to enter the United States illegally. I may have been expecting too much, but their rejection of the application contradicted the whole reason for having made the application in the first place. As I understood it they were saying no to the visa waiver application because it was a visa waiver application and this was later confirmed at least indirectly, months later (I will return to this point in a moment).

That was in August 2007. My wife and I tried to keep going. I even looked for and was offered work at the Universidad Autonoma de Guadalajara, (Autonomous University of Guadalajara) but the salary was extremely low. I also contemplated commuting from Monterey to Guadalajara on a weekly basis, but the rising price of airline tickets and the elimination of inexpensive flights and routes made that impossible.

Meanwhile, my wife and I were both damaged in different ways by the experience of having had our hopes raised and then subsequently shattered. The plan that we would be together in Monterey and that I would be making enough money to support her and my stepdaughter never even got off the drawing board.

Our relationship was damaged more generally by the fact that there was now plenty of unresolved anger and guilt to go around and we still had not been able to find a way to live under the same roof and support ourselves. Our marriage collapsed on Valentine’s Day, February 14, 2008. We formally separated for most of 2008, but remained in contact, and the passage of time healed some of the wounds for us to increase our contact and at least see each other when we could. We still hold out hope, not about getting the visas, but about some kind of change in our circumstances: such as a job for me in Canada.

For months I puzzled over the rapidity and definitiveness of the decision made by Homeland Security and Border Control. Was it because I was Canadian and worked for the Department of the Navy? Was it because refusing Mexicans entry into the United States had become a ‘national pastime’ in an election year? If my wife and stepdaughter really are a danger to the national security of the United States then things are much more dire than even the most gloomy assessment of the current status of the Global War on Terror (GWOT), or the ‘Long War’ as both the outgoing and current Secretary of Defense have increasingly characterized it.

One evening in May of (2008), I found myself watching one of the C-SPAN channels on the television in my room in the Bachelor Officer’s Quarters at the Naval Postgraduate School. I am neither a bachelor nor an officer, but as a contractor on short term contracts, it is the logical place to house me. The head of Homeland Security and Border Control was either giving a speech or being interviewed, I can’t remember which. I initially paid little attention to what seemed to be a set of remarks that were aimed at reassuring anyone who happened to be watching, that his organization was doing an outstanding job.

According to him, Homeland Security and Border Control was so vigilant that they didn’t just prevent entrance to the United States by people who were from countries that were on the list of usual suspects as far harboring or producing terrorists were concerned. The head boasted that they not only said no to people from all over the world, but they did have a heart. This was proved by the fact that he brought up the subject of waivers. He had my full attention now. He assured me, via the television set that, in fact they did always reject visa waiver applications. There it was. I had my answer: his organization may well not even have opened my wife’s visa waiver application even though they certainly turned it around in record time. Apart from everything else, I wish someone along the line had done the neighborly thing and informed us that as a Canadian and as Mexicans, we were wasting our time trying to get a visa waiver in a post-9/11 world. As it transpired we were finally told this in February of 2009.

This past January, my wife and I decided to try and submit visa applications again. We were not confident and were resolute about not getting our hopes up. I contacted the US consulate in Vancouver, whose formulaic response said we could apply, but there were protocols and of course no guarantee (although again no mention of Department of Homeland Security). I also contacted the deputy chief of non-immigrant visas in Tijuana again. She was more forthcoming and more helpful; however, her missive made it clear that applying would be a waste of time. In fact, she told me that accepting the application the last time was a ‘mistake’ on the part of the US consulate in Tijuana and Immigration would not even accept an application from my wife until 2015. As far Homeland Security was concerned, and Immigration had to follow their lead, a visa waiver application would not even be considered. Finally, at least, I felt we had got to the bottom of the matter. However, if Homeland Security so routinely rejects visa waiver applications or refuses to even consider them (and I don’t know what the exact criteria is), then the actual category of application should be abolished, as its continued existence is at best misleading and at worst an easy way to extract 100 dollars from prospective applicants who have no hope of ever getting the visa. That is how I learned to stop worrying and love the Department of Homeland Security.

(The views expressed here are obviously my own and should not be construed as having any relationship to my employer, the Department of the Navy).