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China (And Other) Border Guards. Hate 'Em At Your Own Peril. R-E-S-P-E-C-T.

By Dan Harris and Steve Dickinson

When I was in BigLaw back in the Midwest, one of my favorite activities was engaging in Britt Airways stories with other lawyers during long pauses in depositions or hearings. I usually reeled out two stories. The first was how I once had to go from Bloomington, Indiana, to Minneapolis, Minnesota and how my luggage went to Bloomington, Minnesota and then, after I complained, was sent on to Bloomington, Ilinois. My other story involved two vomiting kids and angry passengers who blamed the vomiting (probably rightly so) on the pilot. My favorite story that happened to another lawyer was of a plane held up on the runway for hours and the lawyer constantly being denied the right to use the bathroom or go into the airport. Finally, he just walked off the plane, walked around 50 feet, did the deed, and returned to the cheers of everyone in the plane. Britt Airways, may it rest in the same place it always inflicted on its passengers. Now that I've gone international, I love telling border guard stories and here goes: 1. I am in Busan, Korea, flying to Seoul, Korea, and then on to Seattle. I take a delicious looking apple from my hotel room, put it in my suitcase and start thinking of how much I am going to enjoy eating it during my long Seoul layover. Maybe 16-17 hours later, I land in Seattle, where a customs official asks me if I am taking any food in. I tell him no. He then asks me if I am sure and in a really frustrated voice, I tell him yes. He then asks if I am bringing in any fruits or vegetables or anything like that and in my most frustrated voice, I point out that fruits and vegetables are food, that I know they are food and that my answer is no. He then opens up my suitcase, points out the gorgeous apple, and tells me he can fine me $500. I then apologize (very nicely), explain how it is that I have the apple in my suitcase and of how I had failed to eat it, and tell him that if he wants to fine me, then all I can do is pay. I point out that I am from Washington and I understand the need to protect "our" apple crop. He lets me go. 2. I am flying from Seoul to Qingdao (why always Seoul?) and maybe 3/4 of the way through this short flight, I check my Chinese visa and I start sweating profusely. It was a one year visa (as I had thought), but it was a single entry visa, not the multiple-entry one I usually get. I land in Qingdao, make nice with the customs people there and convince them that it makes better sense for them to send me back to Seoul than to detain me in Qingdao. 3. I'm coming from Shanghai (or Beijing?) and I land 45 minutes late in SFO, making my connection to Seattle perilously tight. I bolt off the plane and customs (or was it security) decides to take an inordinate interest in me. About five minutes into the procedure, I ask them in as nice a tone as I can muster, whether there is any way they can speed it up so that I can catch my flight. Some guy responds in a pissed off voice that I should have gotten to the airport earlier. I very quickly and sarcastically respond by saying, "seeing as how I just got in from China, maybe you should be telling that to the pilot and not to me." They then proceed to come up with about ten minutes worth of new questions on my trip and I miss the flight. 4. I'm coming from Canada to the United States, by car, and I answer yes to having citrus, but add that it is two oranges I bought in the United States and never ate while in Canada. I am told to drive my car to a spot and wait inside. I start to tell them where the oranges are, but they quite rudely tell me they do not want to hear it. About 20 minutes into their search, I ask someone at the desk whether it might not just make sense for me to tell them where the oranges are and I am again rudely waved off. About thirty minutes into the search, an officer comes in and not very politely asks me to tell him where the oranges are. And I just go to town. I remind him of how he had boasted that he could find them. I remind him of how I tried to help him and his cronies twice on finding them, but was assured they could find them themselves. I point out this was before they had turned my entire car and its contents upside down and inside out. I then ask him if I have any obligation to tell him where they are because I am by this point nearly done with my book and I have no problem sitting in this brightly lit room and finishing it. The officer stammers and essentially says they cannot make me tell them anything I don't want to tell them but that they can stop me from entering the United States with the citrus. I then tell them I have no desire to take the citrus into the US and that I will let them know where the oranges are after I finish my book, if they have not found them in the meantime. Twenty minutes later, they come in with the two oranges, tell me they are seizing them and that I can go on my way. I smile and leave. I could go on and on. I thought of these stories today after reading a post by Cyndee Todgham Cherniak on the always enjoyable Trade Lawyers Blog. The post is entitled, "Treat Border Guards With Extreme Respect - Your Freedom Is In Their Hands," and if I may grossly summarize it, it says you should be nice to border guards:

When travelling to the Canada-United States Border (or any border crossing for that matter), remember to be humble, remember to be respectful, remember that the border officers have great power. Have you been in the military? --- remember to respond respectfully "Yes Sir", "No Mam". Do you remember spending time with your Grandmother? --- "What can I do to be helpful?". Do you have a demanding boss? --- "Let me answer that question for you as best I can".

Ms. Cherniak goes on to point out that "border officers have a lot of power and can send you straight to jail" and "a small disagreement can turn into criminal charges and that will cost you a lot of money and possibly your freedom." She then backs this up with the example of Peter Watts, "a well known and respected Canadian writer." Here is what transpired:

He [Watts] found himself in a disagreement at a U.S. border crossing and on March 19, 2010 was convicted of assault, obstruction and resisting an officer. The facts seem unclear --- except that he and a border officer had a disagreement and the border officer overreacted. There were no illegal goods in Mr. Watt's car and there was no border problem other than the disagreement. Mr. Watt's was arrested at the disagreement and he ensured the humiliation, stress and cost of a jury trial. In the final analysis, we has convicted and is yet to be sentenced --- possibly up to two years in jail.

According to Watts, who wrote of the incident on his blog, the following occurred:

What constitutes "failure to comply with a lawful command" is open to interpretation. The Prosecution cited several moments within the melee which she claimed constituted "resisting", but by her own admission I wasn't charged with any of those things. I was charged only with resisting Beaudry, the guard I'd "choked". My passenger of that day put the lie to that claim in short order, and the Prosecution wasn't able to shake that. The Defense pointed out that I wasn't charged with anything regarding anyone else, and the Prosecution had to concede that too. So what it came down to, ultimately, was those moments after I was repeatedly struck in the face by Beaudry (an event not in dispute, incidentally). After Beaudry had finished whaling on me in the car, and stepped outside, and ordered me out of the vehicle; after I'd complied with that, and was standing motionless beside the car, and Beaudry told me to get on the ground -- I just stood there, saying "What is the problem?", just before Beaudry maced me. And that, said the Prosecutor in her final remarks -- that, right there, was failure to comply. That was enough to convict.

Ms. Cherniak nicely analyzes the event as follows:

What strikes me the most is how the disagreement could have been avoided if Mr. Watts had appreciated the power of the border officer and just taken a more obsequious approach. I am not criticising Mr. Watts as I have friends and family members who could have been in Mr. Watt's shoes. What I say to friends and family members is to let the border officers do their job and to help them do your job. If the individual crossing the border does not have anything to hide, they should just open their kimono (car doors, truck, hood, bags, etc.). Report all acquisitions outside the jurisdiction truthfully. Answer all questions truthfully and respectfully. If you do not understand a question say "I am sorry sir, I want to answer your question, but I do not understand your question, would you help me give you a responsive answer by clarifying your question for me?"

She then tells her own story, which no doubt will sound very familar to many:

This reminds me of my own disagreement at the border a few years ago. I was asked 'Where do you work". I said "Toronto". I was then asked "Where do you work". I responded again 'Toronto". I was asked again, "Where do you work". I responded "downtown Toronto". The officer then shouted at me, 'Are you an idiot, where do you work? You are not answering my question." At this time I tried a different approach, "I answered 'I am a lawyer with Lang Michener". The officer asked 'Was that so hard?" I answered "No sir". I then was passed through U.S. Customs and was allowed to board my plane. Phew, I could have landed in jail if I had not figured out the real question was "Who is your employer?"

Now I know most of you know this already, but I am going to remind you of it just the same, because when you most need to know this is when you are most likely to forget it, so here goes. The border officer, be he or she be in China, Canada, the United States, or anywhere else, has, for the most part, a pretty routine job and you do not want to be the thing that spices it up. Give them the respect they crave and treat them as nicely as you possibly can. Unless you want a jury trial with that.

Full post as published by China Law Blog on March 22, 2010 (boomark / email).