Statement of Mutual Understanding on Information Sharing

among

The Department of Citizenship and Immigration Canada (CIC)

and

The U.S. Immigration and Naturalization Service (INS)

and

The U.S. Department of State (DOS)

 
The Department of Citizenship and Immigration Canada (CIC), the U.S. Immigration and Naturalization Service (INS), and the U.S. Department of State (DOS) and their successors, (hereafter collectively referred to as the Participants) stipulate as follows:

This Statement of Mutual Understanding (SMU), consisting of this preamble and the sixteen articles that follow, sets forth the understanding among the Participants to share information in the manner described herein. In addition, Annexes to this SMU are hereby incorporated by reference. The provisions of the SMU apply at all times to all exchanges of information unless otherwise specified in the Annexes. The Annexes address any additional requirements or provisions applicable to specific types of information described in the Annexes to the extent that those provisions are different from, or not described in, the SMU. Notwithstanding any language used herein, however, nothing in this SMU is intended to give rise to rights or obligations under international law; the SMU reflects the firm political commitments of the Participants to operate in accordance with the provisions detailed herein.

Recognizing that border security and border management are based upon cooperation and collaboration, Canada and the United States are building on their existing joint cooperative efforts under mechanisms such as Border Vision, the Accord on Our Shared Border, and documents such as the Joint Statement on Cooperation on Border Security and Regional Migration Issues and the Smart Border Declaration;

Recognizing that moving the focus of control of the movement of people away from our shared land border to overseas, where potential violators of citizenship or immigration laws are interdicted prior to their arrival in the United States and Canada, enables Canada and the United States to manage more effectively their movement into and within North America. Canada and the United States are pursuing a regional approach to migration based on the Multiple Borders Strategy. The Multiple Borders Strategy views the border not as a geo-political line but rather a continuum of checkpoints along a route of travel from the country of origin to Canada or the United States. At every checkpoint along the travel continuum — visa screening; airport check-in; points of embarkation; transit points; international airports and seaports; and the Canada-United States border — there is an opportunity for the Participants to link the person and the document and any known intelligence;

Considering that the effective administration and enforcement of citizenship and immigration laws in the United States and Canada are important to protect the health and safety of our populace, to maintain the security of our societies, and to promote international justice and security by fostering respect for human rights and by denying access to our territories to persons who are criminals or security risks;

Being convinced that greater cooperation through the exchange of information can make their actions in achieving these objectives more effective;

the Participants have reached the following understandings:

Article 1
Definitions

For purposes of this SMU the following definitions apply:

  1. “Citizenship and immigration laws” means the laws and regulations of the United States and Canada relating to admission, temporary entry, removal, naturalization, denaturalization, or loss of nationality.

    1. On the United States side, this includes, but is not limited to: (a) the Immigration and Nationality Act (INA); (b) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment; (c) other immigration-related laws under any title of the United States Code or any other public laws; and (d) immigration-related Presidential Proclamations or Executive Orders.

    2. On the Canadian side, this includes, but is not limited to: laws and regulations relating to (a) the consideration of requests for protection under the 1951 Convention relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees, or from torture within the meaning of Article 1 of the Convention against Torture or risk to life or to a risk of cruel and unusual treatment or punishment; (b) any offences contained in the Immigration and Refugee Protection Act, the Citizenship Act, or the Crimes Against Humanity and War Crimes Act; and (c) any other immigration-related laws contained in an Act of Parliament.

  2. “Immigration-related laws” includes, but is not limited to, offences under the respective participants’ citizenship and immigration laws recited in (a) or any other conduct or circumstance, including criminal activity, that would render a person inadmissible to or removable from Canada or the United States or would otherwise affect the person’s immigration status.
  3. “Need to know” means a determination made by a Participant that specific information is needed by the requesting Participant in order to perform or assist in a lawful and authorized government function.
  4. “Information” includes, but is not limited to, all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics including electronic format, made or received by a Participant that concerns persons, businesses, organizations, entities, activity or statistical data.
  5. “Compelling need” means extraordinary circumstances where a Participant perceives that there is an urgency to take action and where failure to take the action could reasonably pose a threat to the life or physical safety of an individual or group of individuals.

Article 2
Purpose and Scope

Nothing in this SMU is intended to change or modify the laws of the Participants.

Subject to the domestic laws of the United States and Canada, the Participants are to assist each other by sharing information in accordance with the provisions of this SMU for the following purposes:

  1. to assist in the effective administration and enforcement of the Participants’ citizenship and immigration laws;
  2. to facilitate the secure flow of people to Canada or the United States through co-operative border management among the Participants;
  3. to promote international justice and security by fostering respect for human rights and by denying access to the United States and Canada to persons who are criminals or security risks.

Article 3
Conditions for Exchange of
Information Under the SMU

Unless otherwise specified in any Annex to this SMU, the Participants are to share information under the SMU consistent with domestic law and the purposes set out in Article 2 if any of the following circumstances exist:

  1. there are reasonable grounds to suspect that the information would be relevant to the administration or enforcement of the citizenship or immigration laws of either Canada or the United States;
  2. there are reasonable grounds to suspect that the information would be relevant to the prevention, investigation or punishment of conduct that would constitute a crime rendering a person inadmissible or removable under the citizenship or immigration laws of either Canada or the United States; or
  3. the information is to be used for statistical or research purposes, provided that the use of the information does not identify persons, and complies with each Participant’s policies, instructions and agreements for such exchanges of information.

Article 4
Procedure for the Exchange of Information

  1. The sharing of information between the Participants is to be in accordance with the provisions of this SMU.
  2. All exchanges of information under this SMU, and requests therefor, are to be made through the points of contact established pursuant to Article 7.
  3. Exchanges of information pursuant to this SMU may take place upon request for records pertaining to specific persons or entities, or for records pertaining to groups of persons. Where provided for in the Annexes, exchanges of information may also be by systematic exchange of information maintained in databases.
  4. Information may also be shared at the initiative of the providing Participant, where that Participant has reason to suspect that the receiving Participant has a need to know the information for purposes of enforcing or administering its citizenship or immigration laws.
  5. The Participants are to make requests for information pursuant to Article 3, and in all cases requesting Participants are to provide the background and information necessary to enable the providing Participant to respond. All requests should identify the reason for the request, as well as the intended use of the information.
  6. When reasonably practicable, requests for information should be made in writing in either a paper or electronic format. If it is not reasonably practicable for a Participant to make a written request for the information prior to its receipt, the requesting Participant is to confirm the request in writing as soon thereafter as is possible.
  7. The Annexes to this SMU constitute prior written arrangements for the sharing of the information specified in the Annexes. Therefore, unless otherwise indicated in an Annex, further written requests for the information specified in the Annex are unnecessary.

Article 5
Types of Information to be Shared

Information shared must be relevant to the request made and, may include, but is not limited to:

  • name
  • alias(es)
  • gender
  • physical description
  • date of birth
  • country of birth
  • country of last permanent residence
  • nationality or nationalities
  • biometrics including photographs and fingerprints
  • work history
  • military service
  • links with terrorist and/or organized crime groups
  • citizenship or immigration enforcement status and history
  • travel carrier information
  • passport and travel document information
  • personal identification numbers
  • travel routing, itinerary and history
  • telephone numbers
  • addresses
  • marital status and family composition
  • immigration status
  • previous immigration violations
  • outstanding immigration and criminal warrants for arrest
  • criminal history and convictions for which no pardon has been granted in Canada or the United States
  • occupational information
  • education
  • grounds of inadmissibility
  • grounds of removal
  • documents submitted in support of an application to CIC, INS or DOS or to their successors
  • other criminal and security intelligence relevant to the purposes of Article 2.

Article 6
Subsequent Uses and Treatment

Subsequent uses and treatment of information shared under this SMU and its annexes are restricted by the following conditions:

  1. Information is shared between the Participants pursuant to an express understanding of strict confidentiality. Such information, as well as inquiries and requests for information, received by a Participant under this SMU is to be accorded protection from disclosure to third parties as provided under the policies, instructions and agreements of the receiving Participant with regard to such information;

  2. Receiving Participants are not to use or disclose the information provided under this SMU except for the purposes enumerated in Article 2 or the Annexes, or as otherwise required by the laws of the Participant;
    1. The Participants are to obtain written permission for the disclosure to third parties of any confidential information received pursuant to this SMU prior to such disclosure, or as specified in the Annexes, unless there is a compelling need that would justify a Participant’s not making such a written request, in which case the requesting Participant is to give written notice of the disclosure to the providing Participant as soon as practicable; however

    2. The Participants acknowledge that written permission is not required for disclosure of information to agencies participating as signatories of the SMU and other agencies in the performance of their citizenship, immigration or border management functions (including the U.S. Coast Guard, U.S. Customs Service, U.S. Department of Agriculture, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Department of Defense, Canada Customs and Revenue Agency, Canadian Food Inspection Agency, Health Canada, Canadian Security Intelligence Service, Canadian Department of Fisheries and Oceans, Canadian Department of Foreign Affairs and International Trade, Canadian Department of National Defence; Royal Canadian Mounted Police, or their successors and with oversight and review agencies within the United States and Canada);

    3. A receiving Participant is to provide notice to any third party to which it discloses information received in confidence under the SMU that the third party is prohibited from further disclosure unless it obtains authorization from the providing Participant; and

  3. To prevent the unauthorized disclosure, copying, use, or modification of information provided to a Participant under this SMU, receiving Participants are to restrict access to such information on a need to know basis, and use recognized security mechanisms such as passwords, encryption, or other reasonable safeguards to prevent unauthorized access.

Article 7
Designation of Officials

  1. The Participants are to designate officials for the purpose of exchanging information under this SMU, and inform the other Participants in writing or electronically of any such designation or change to an existing designation.
  2. All exchanges of information pursuant to this SMU are to be between or among designated officials of the respective Participants.

Article 8
Original Documents

  1. Where a Participant receives original documents, such documents are to be returned to the providing Participant as soon as possible, or upon request of the providing Participant. If such documents cannot be returned within 15 calendar days of the receipt of the providing Participant’s request for their return, the receiving Participant is to notify the providing Participant so that the Participants may mutually determine the date by which the documents are to be returned.
  2. When requested to do so by the receiving Participant, the providing Participant is to certify copies of records as true and correct, in a form acceptable to each Participant.

Article 9
Exemption from the Obligation
to Provide Information

Where the designated official of the Participant who would otherwise provide information pursuant to this SMU is of the opinion that to do so would likely be inconsistent with its laws, or detrimental to its national sovereignty, security, public policy, or other important national interest, the Participant may either decline to provide the information in whole or in part, or offer to provide the information in whole or in part subject to such terms and conditions as it may specify. The Participant requesting the information is to comply with such terms and conditions as a condition precedent to the information being provided.

Article 10
Procedure for Amending
and Deleting Information

Where a Participant has supplied information that is later subject to amendment for reason of accuracy of information, official policy, or legislative requirement, that Participant is to update the information in its system. For periodic exchanges of information between the Participants, the receiving Participant is to update its records with the revised information. For specific case information, the receiving Participant bears the responsibility of checking the providing Participant’s information for subsequent updates. Participants are to exercise due diligence to ensure any actions taken are based on the most current information.

Article 11
Retention and Disposal

The Participants’ respective domestic policies, instructions and agreements regarding the retention and disposal of information received pursuant to this SMU are applicable.

Article 12
Resolution of Disputes

The Participants intend to resolve any disputes arising under this SMU by consultation among the Participants. A Participant who believes that information received under the SMU may have been improperly used or disclosed is to immediately notify the providing Participant. Participants are to take such steps as they mutually decide are reasonably necessary to ensure that no further improper uses or disclosure of information provided under this SMU occur.

Article 13
Review

The Participants to this SMU are to cooperate in a joint review of its provisions five years from the date of signature and every five years thereafter, or upon written request of a Participant. Failure to conduct a review does not, however, result in termination of this SMU.

Article 14
Amendment

This SMU and its Annexes may be amended only by written decision of the Participants.

Article 15
Miscellaneous

  1. Participants are to advise the others of all changes to their respective laws, regulations, or policies that could affect the operation or interpretation of this SMU.
  2. Participants intend to develop implementing guidelines for this SMU. Participants plan to share these guidelines with each other. Nothing in this provision is intended to impose a specific timetable for the issuance of such guidance.

Article 16
Duration

Activities under this SMU commence on the date when all Participants have signed. Activities under the SMU cease sixty days after one Participant provides written notice to the others of its intention to no longer participate in the SMU. Any Annexes added after activities commence under this SMU become part of the SMU on the date specified in the Annex.

Any exchanges of information under the previous Statement of Mutual Understanding dated July 22, 1999 remain valid under this SMU.

In Witness Whereof, the Participants have signed this Statement of Mutual Understanding:

FOR THE U.S. IMMIGRATION AND NATURALIZATION SERVICE:

______________________
Johnny N. Williams
Executive Associate Commissioner
Office of Operations

______________________
Date

FOR THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION CANADA:

______________________
Daniel Jean
A/Assistant Deputy Minister
Programs and Policy

______________________
Date

FOR THE U.S. DEPARTMENT OF STATE:

______________________

Maura A. Harty
Assistant Secretary

______________________
Date

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