Backing Out of Havana

Impulse buying, with a bit of liquid courage, got us in a situation where we could have gotten in some trouble.  You see, Cuba has been calling us.  We’ve been eyeing it up for a while, thinking about how we can get in there.  After all, our neighbors to the south (not those… The Canadians!) get to go whenever they want.

Many people don’t realize that Windsor, Canada, is actually part of the metro Detroit area.  I’ve worked with many people in the auto industry who cross a major international border daily during their morning commute.  One of them, John, actually had a shorter afternoon commute than I did during construction season.  Anyway, he was shocked to see the restrictions imposed on our ability as Americans to simply search for flights to Cuba from an IP address originating in the United States.  Yet crossing the river unlocks the chains and suddenly skyscanner.com and aircanada.com are more than happy to show you their offerings to Havana.  Many Americans have taken advantage of proximity to Canada to travel where the Department of Treasury, and more specifically the Office of Foreign Assets Control, doesn’t want them to go by breaking the rules.

Everything changed in January 2016.  The Obama Administration  loosened the reins a bit and started talking about doing away with the embargo completely.  Baby steps first, though.  The first real change was to modify the rules for certification to allow Americans who fit one of the 12 admissible categories to “self certify” instead of submitting a written request to OFAC for permission to travel.  And suddenly our IP addresses were unblocked.  Now a search on Skyscanner works, but does give you a warning:

Well, we’re journalists, right?  We have an ultra-successful blog and we couldn’t pass up an opportunity to write about an adventure like this.  Of course we could self-certify.  “Nobody cares anymore” we told ourselves and started making plans.

A friend who planned to travel with us found Sunwing Airlines and their all inclusive offerings from Toronto for just $440.   We had planned to spend the week of July 4th in my Toronto apartment anyway, so what the heck, let’s go to Havana!  What a great opportunity and the prices were great (only $440 each for roundtrip air plus hotel).  We would get the chance to see Cuba before it was officially open and Starbucks began the process of westernizing the island.

We talked ourselves into the adventure and bought the trip.  We were going!  I started getting advice from Canadian friends who had been there.  We were excited for the adventure. And then the doubts crept in.

I had just that week heard about how easy it is to lose one’s Nexus card privileges.  One of my colleagues had his, being a Canadian and working in metro Detroit (on the American side).  He was crossing into Canada with some friends who didn’t have cards, so he was in the general immigration line.  The lines were pretty full so he jumped over to the empty Nexus line.  One of the rules drilled into me when I went to my Nexus interview was that everybody in the car had to have the card or you can’t take advantage of the faster lane.  Well, when Dopinder got to the border agent he was sent over to the secondary inspection.  Instead of a crisp high five from Mr. Pool, the Canadian border agent confiscated his card on the spot and told him he wouldn’t be eligible to apply for another for SEVEN long years.  That’s a heavy penalty for someone who crosses every day.

We began to worry.  All three of us have our Nexus cards.  They’ve proven invaluable on countless occasions.  Could traveling to Cuba violate the rules and cause us to lose our Nexus cards?  What do the rules say?  Here are the reasons one could be deemed ineligible from the American website.  The Canadian rules are essentially the same, just in a different order.

Reasons for Ineligibility

You may not be eligible for participation in the NEXUS program if you:

• Provide false or incomplete information on the application;
• Have been convicted of any criminal offense or have pending criminal charges or outstanding warrants (to include driving under the influence);
• Have been found in violation of any customs, immigration or agriculture regulations or laws in any country;
• Are the subject of an ongoing investigation by any federal, state or local law enforcement agency;
• Are inadmissible to the United States under immigration regulation, including applicants with approved waivers of inadmissibility or parole documentation; or
• Cannot satisfy CBP (Customs and Border Patrol) or Canada Border Services Agency of your low-risk status.

It’s safe to assume that the Canadian border agents in Toronto know what flight we would be arriving on since our names and passport numbers would be on the flight manifest.  And in this day and age the Canada Border Services Agency would surely record that information in the same database the American border patrol agents would have access to when we approach the border to return home.  “Where are you coming from?” is a frequent question, and I suspect when we’ve flown out of and back into Pearson they know some of the answer, so lying is out of the question.  We’re “Trusted Travelers”, and their computer would likely be flashing “CUBA” in bold letters anyway.  So are we breaking the rules?  Can we self certify?

The Office of Foreign Assets Control (OFAC) rules state:

9. Who is generally authorized to engage in travel and travel-related transactions for “journalistic activity”?

OFAC has issued an expanded general license that incorporates prior specific licensing policy and authorizes, subject to conditions, travel-related transactions and other transactions that are directly incident to journalistic activities in Cuba. Among other things, this general license authorizes, subject to conditions, full-time journalists, supporting broadcast or technical personnel, and freelance journalists to travel to Cuba. The traveler’s schedule of activities must not include free time or recreation in excess of that consistent with a full-time schedule. An entire group does not qualify for the general license merely because some members of the group qualify individually. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.563.

We’re not full time journalists, and it is a stretch to claim we’re freelance since we don’t sell stories for money.  Additionally, I have a Canadian work permit that explicitly details my employer along with my resume and it’s linked to my Nexus card.  They know I’m not a freelance journalist.  Trying to claim otherwise would violate our laws, I’m afraid.  Even if blogging counted and our travel partner could write an entry for our blog and maybe that would get us all under the umbrella of “freelance” there is the clause about our schedule not including free time in excess of a full-time schedule.   Reading on, that gets defined a bit more:

21. What are examples of a full-time schedule of activities for authorized travelers?

An individual traveling pursuant to the authorization for journalistic activities could engage in three full days of interviews with local residents, followed by one full day of follow up investigative research at local institutions.

Our plan was to spend two nights in a hotel in Havana and walk around taking photos of whatever we see and then write about it later.  Would that count?  Is it worth the risk?   We decided it probably wasn’t.

We agonized over the implications of violating the OFAC rules.  It didn’t seem like it would be hard for a border agent to decide we didn’t qualify enough to self certify and therefore determine that we were in violation of customs or immigration laws.  Maybe not immediately but what about when renewal time came up and our applications were reviewed again?  Leaving pertinent information off the application is clearly a violation rendering us ineligible.

We ran every scenario, trying to figure out if we would be able to travel and still keep our Nexus cards.  What if we used Nexus to enter Canada at the airport and then used our passports to cross?  I’m fairly certain the NFC detection they have is good enough to read the cards within the car.  I’ve had the border agent greet me by name without holding my card up to the reader before.  I doubt it was the license plate reader because I was in a company car.  To avoid that maybe we could cross at one of the ferry crossings.  We agonized right up until an hour before the 24 hour deadline Sunwing gave us to make changes to our itinerary.  Bella trusted her gut instincts and pulled the plug on Cuba.  I’ve heard that the wisest people are those who learn from other’s mistakes.  We’re thankful that Dopinder shared his tale of woe with me.

We’re heading to Punta Cana, Dominican Republic instead.  Once we made that change, all three of us were relieved.   We will get to Cuba some time soon.  This just seemed a bit too much right now.  None of us want to lose our Nexus cards and get relegated to seven long years of waiting in line at airports and crossing the border.  It’s a relief to not be jeopardizing our trusted status.  As Nicolas Boileau-Despréaux said “Honor is like an island, rugged and without a beach; once we have left it, we can never return.“  We don’t want to trade the island of our honor for a few hours on the forbidden island of Cuba.

~Freddy