Tag Archives: expedited removal

Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited)

If you had a baby in the United States, made frequent/extended trips to the country, or applied for a change in immigration status during a prior stay as a visitor, you may be stopped from entering the U.S., even though these activities are not strictly prohibited.

This problem arises especially when the U.S. Consulate or U.S. Customs & Border Protection determines you misrepresented the purpose of your visit when you applied for the B-1/B-2 visitor visa and used it or the Visa Waiver Program (VWP) to enter the United States.

Section 214(b) of the Immigration & Nationality Act presumes that most nonimmigrant visa applicants intend to immigrate permanently to the United States. Only certain categories, such as the H-1B  (professional worker) and L-1A/L-1B (intracompany transferee), allow dual intent (i.e. intent to immigrate in the future while maintaining temporary status in the present). Otherwise, nonimmigrant visa applicants must show they have no intent to immigrate and simply seek a temporary stay in the U.S.

When you engage in any of the following 3 activities, you could have problems getting a new visa or gaining re-entry to the U.S. for a temporary stay, although each one, by itself, does not violate U.S. immigration law or make you inadmissible to the United States:

1. Traveling to the United States to have a baby (“Birth Tourism”)

Traveling to the United States on a visitor visa for the purpose of giving birth to a child is commonly known as Birth Tourism.  Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges.

Furthermore, birth citizenship provides the  foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the immediate relatives category, which has no numerical limits on immigrant visas available.  A parent who overstays in the United States and is placed in removal proceedings may qualify for Cancellation of Removal and Adjustment of Status (to permanent residence) if she has been continuously present in the United States for at least 10 years, has not been convicted of certain offenses, has good moral character, and her removal would result in exceptional and extremely unusual hardship to her U.S. citizen child.

There is no specific criminal law or immigration law prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

If the officer sees you are pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny your entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant.

A consular officer may deny your request for a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) by finding you intend to immigrate due to your having a U.S. citizen son or daughter, or based on mere suspicion that you will use a new visa to give birth in the U.S. again. The U.S. Consulate has sole discretion to make a factual determination on whether you have strong ties to your country to overcome the presumption of immigrant intent.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S.  may deny your request for admission on a temporary visa and further issue an expedited removal order under INA 212(a)(7)(lack of proper visa or other travel documents), which carries a five-year bar. To be excused from this five-year bar to being admitted to the United States, you need an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made by the U.S. Consulate or CBP, there is little or no recourse other than to appeal directly to the agency to reconsider and rescind the decision. As long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you are upfront and declare you are coming to the U.S. to give birth, the officer decides, on a case-by-case basis, whether to grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, and sufficient funds to cover all medical costs.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is consistent with the purpose of a visitor visa, regardless of whether you cover the medical expenses and do not become a public charge by receiving Medicaid (government assistance) to pay the medical bills.

2. Making frequent, extended visits to the United States

U.S. immigration law allows visitor visa holders to conduct legitimate B-1/B-2 activities for a temporary period, up to six months. Using ESTA (Electronic System for Travel Authorization) if you are an eligible applicant from a Visa Waiver Program-eligible country allows you visit the United States for 90 days or less.

The U.S. consular officers and customs officers expect you to use the visitor visa or ESTA/Visa Waiver program to engage in tourism and recreational activities, visit family and friends, and conduct other temporary visit activities. Remaining in the U.S. for the maximum or close to the maximum time allowed and then quickly returning to the U.S. (e.g. within a month) for another extended stay do not reflect the travel patterns of a real visitor.

Frequent, extended trips to the United States will likely cause the customs officer to suspect you are really living, studying or working in the country without authorization. You may end up with a shorter authorized stay or a warning from the officer. You could also be placed in secondary inspection and questioned extensively so the officer can find legitimate grounds to deny your entry.

You may be asked to withdraw your application for admission or be issued an expedited removal order due to lack of proper travel documents and even due to willful misrepresentation to enter the U.S.  A visa revocation will likely affect your eligibility for a new visa. An inadmissibility finding will stop you from using the ESTA/Visa Waiver program.

There is no minimum time you must stay in your country before returning to the U.S. for another visit. But if you are constantly traveling to the U.S. and staying for long periods, you can expect to run into problems later, even if you were previously lawfully admitted as a visitor without any complications.

3. Applying for a change of status after entering the United States in another status

U.S. immigration law allows nonimmigrants to change from one status to another (such as B-1/B-2 visitor to F-1 student, H-1B professional worker, or H-2B nonagricultural seasonal worker) or file for asylum within the U.S. if they meet the eligibility criteria.

A request for change of status through the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status, or Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship & Immigration Services is often met with several obstacles. One is that USCIS will not approve the status change request unless you are maintaining lawful B-1/B-2 status or other nonimmigrant status.

Questions regarding whether a willful misrepresentation of material fact to gain an immigration benefit might arise when you file for a change of status within the U.S., instead of apply for the appropriate visa at the U.S. Consulate.

B-1/B-2 visitor visa holders, for instance, may be found to have misrepresented the purpose of their stay if they applied to schools or sought employment after arriving in the United States. Even if you did not attend school or work without authorization in the U.S., your taking steps toward a change in status that permits school attendance or employment in the U.S. could signal to the consular officer that you were not a genuine visitor.

Immigration problems can also occur when you apply for adjustment to permanent resident status instead of file for an immigrant visa at the U.S. Consulate. One of the most common ways for a B-1/B-2 visa holder to adjust to permanent resident (green card) status is to enter into a bona fide marriage to a U.S. citizen and have the citizen file an immigrant petition on his or her behalf. While an overstay, by itself, does not prevent adjustment of status based on marriage to a U.S. citizen, providing false information to a consular officer or customs officer about the purpose of the visit creates immigration problems.

In general, the U.S. Consulate applies a 30/60 day rule in determining whether a misrepresentation was made if you conduct yourself in a manner inconsistent with representations made to the consular officers concerning your intentions at the time of visa application or to customs officers when you requested admission.

If a B-1/B-2 visitor, for example, marries a U.S. citizen and applies for a green card within 30 days of arrival, the consular officer may presume the applicant misrepresented his intentions in seeking a visa or admission to the U.S. There is no presumption of misrepresentation if the request for change of status is made more than 30 days but less than 60 days after arrival. But depending on the facts of the case, the officer may still have a reasonable belief that misrepresentation occurred, in which case the applicant receives an opportunity to present countervailing evidence. While USCIS is not required to follow the Consulate’s 30/60 day policy, it sometimes uses it as guidance. 

Seeking asylum in the United States, through a credible fear interview process at the U.S port of entry or through the filing of a Form I-589, Application for Asylum and for Withholding of Removal, after being admitted to the U.S., also signals immigrant intent. If asylum is not granted, it will be very difficult (if not impossible) for you to be re-admitted as a visitor or in another status that requires nonimmigrant intent, at least in the near future.

Conclusion

Having a baby in the U.S., making frequent, extended trips to the country, and applying for a change in status following arrival in another status are not prohibited by U.S. immigration law. Still, if you engage in any of these three things, a U.S. consular officer or customs officer may find that you gamed the immigration system or took unfair advantage of immigration loopholes.

Use proper caution and be aware of the immigration risks and consequences associated with these activities. If you are refused a visa, denied admission or issued an expedited removal order for any of these reasons, consult an experienced immigration attorney to discuss possible remedies.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

When you seek to enter the U.S. for tourism or a temporary visit, the B-2 visa or combined B-1/B-2 visa is appropriate. Only certain activities are allowed on this visa. The U.S. consular officer will not grant the B-2 visa and the U.S. customs officer will deny your entry on this visa if your reasons for travel do not fit the criteria.

WHICH ACTIVITIES ARE ALLOWED ON THE B-2 VISA? 

Legitimate B-2 visitor activities are described below. The list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for the consular officer to issue the B-2 visa.

Visitor for Pleasure

You may use the B-2 visitor visa to:

  • Engage in tourism, i.e. take a vacation (holiday) and visit places of interest
  • Make social visits to family members and friends
  • Receive medical treatment to protect your health
  • Participate in social events hosted by fraternal, social, or service organizations
  • Participate in entertainment or athletic activity (e.g. event or contest) as an amateur who is not a member of any profession associated with the activity, but instead normally performs without compensation (except for reimbursement of incidental expenses)
  • Take a short course of study, which is incidental to the visit and not for credit toward a degree
  • Temporarily stay as dependent of alien member of any branch of the U.S. Armed Forces temporarily assigned for duty in the U.S.
  • Temporarily stay as dependent of D visa crewman if you are coming to the U.S. solely to accompany the principal D visa holder

Visitor Under Special Circumstances

You may also receive the B-2 visitor visa under the following special circumstances:

Fiancé(e) of U.S. Citizen or Permanent Resident

Foreign nationals must obtain a K-1 fiancé(e), instead of the B-2 visa, if they seek to come to the U.S. to marry a U.S. citizen and apply for adjustment to permanent resident status (green card).  The U.S. Consulate, however, may grant the fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) a B-2 visa if it determines the fiancé(e) will return to a residence abroad soon after the marriage.

B-2 status may also be granted if you are traveling to the U.S. to:

  • Meet the family of your U.S. citizen or permanent resident fiancé(e);
  • Become engaged;
  • Plan the wedding; or
  • Rekindle or maintain a relationship with your prospective spouse

In reality, however, B-2 visas are not routinely granted in this situation. The Consulate tends to find that fiancé(e)s of U.S. citizens (in particular) or permanent residents (in some cases) will simply overstay until they can eventually get a marriage-based green card within the U.S. Therefore, it’s necessary to present strong evidence and persuasive testimony showing you will in fact depart on time, following a temporary visit, before you proceed with the K-1 or immigrant visa process.

Fiancé(e) of Nonimmigrant in United States

Fiancé(e)s who have a residence abroad to which they intend to return, and who are eligible to receive visas, may receive B-2 visas if the purpose of the visit is to marry a nonimmigrant in the United States, who has valid nonimmigrant F, H, J, L M, O, P, or Q status.  The U.S. Consulate will not grant the visa if it determines you will remain in the U.S. after admission and apply to adjust to permanent resident status, or request a change to a non-immigrant status that does not require a residence abroad.

Proxy Marriage Spouse of Nonimmigrant in United States

A spouse married by proxy to a foreign national in the United States in valid nonimmigrant status may receive a B-2 visa to join the spouse.  Following entry to the U.S., the joining spouse must file a timely request to change to the appropriate derivative nonimmigrant status (e.g. H-4 or F-2) after the marriage is consummated.

Spouse or Child of U.S. Citizen or Permanent Resident

A foreign national spouse, biological child, or adopted child of a U.S. citizen or permanent resident may be issued a B-2 visa if he or she is only accompanying or following to join the spouse or parent for a temporary visit.

Cohabitating Partners, Extended Family Members, and Other Household Members Who Do Not Qualify for Derivative Status

 The B-2 visa is issued to those who belong to the same household of another person in long-term nonimmigrant status, but who are ineligible for derivative status. These include cohabitating partners or elderly parents of temporary workers, students, diplomats assigned to the U.S. and accompanying parent(s) of minor F-1 student. It is also appropriate for persons who belong to the same household of a U.S. citizen who normally lives and works overseas, but will be in the U.S. temporarily.

The B-2 visa is also granted to a spouse or child who qualifies for derivative status (other than derivative A or G status) but who finds it difficult or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, as long as he or she intends to maintain a residence outside the U.S. and is eligible for the B visa. Those who plan to remain in the U.S. for more than six months may request a one-year stay when they apply for admission at the U.S. port of entry.  They may then apply for extensions of stay, in six -months increments, while the principal applicant holds nonimmigrant status in the U.S.

Foreign Nationals Seeking Naturalization under INA 329 (Naturalization Through Active Duty-Service in the Armed Forces During World War I, World War II, the Korean Hostilities, or in Other Periods of Military Hostilities) 

A person who qualifies for naturalization under INA 329, and who seeks to enter the U.S. to make use of this benefit, may receive a B-2 visa without being required to maintain a foreign residence.

Children Seeking Expeditious Naturalization under INA 322 (Children of U.S. citizens who are born and residing outside the U.S. and meet the conditions to acquire certificate of citizenship)

The U.S. Consulate may grant a B-2 visa to a foreign-born child who is eligible for expeditious naturalization under INA 322.  But even when the child intends to naturalize, he or she must intend to return to a residence abroad after naturalization, i.e. overcome the presumption of immigrant intent.  The child whose parents are living abroad will normally meet this requirement, but a child whose parents reside in the U.S. will not.

The U.S. Consulate may also issue a B-2 visa to an adopted foreign-born child of a U.S. citizen who seeks to naturalize under INA 322 if he or she presents a DHS-issued Form G-56, General Call-In letter for a naturalization interview; maintains a residence abroad and does not intend to stay permanently in the U.S,; and meets other eligibility requirements.

Dependents of Alien Members of U.S. Armed Forces Eligible for Naturalization under INA 328 (Naturalization Through Service in the U.S. Armed Forces) 

A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under INA 328 and who seeks to accompany the spouse or parent on the service member’s assignment to the U.S. may be issued a B visa. The possibility of adjustment to permanent resident status does not require a visa denial.

Foreign Nationals Enrolled in an Avocational or Recreational School

A person may receive a B-2 visa to attend a school for recreational or avocational purposes.  When the U.S. Consulate is unable to determine the nature of the school’s program, it normally asks DHS to confirm whether approval of Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students (for an F-1 student visa) is required.

Lawful Permanent Residents Who Need to Come to the U.S. for an Emergency Temporary Visit 

 The I-551, Permanent Resident Card, becomes invalid for re-entry if the lawful permanent resident (LPR) remains outside the U.S. for more than one year. If the LPR needs to return to the U.S. sooner than when a returning resident visa can be obtained, the U.S. Consulate may issue a B-2 visa for re-entry purposes.

Adoptive Child Traveling to the U.S. to Acquire Citizenship foreign-born children who did not acquire U.S. citizenship at birth through a U.S. citizen parent to acquire U.S. citizenship automatically upon fulfillment of certain conditions while under the age of 18.

The U.S. Consulate may grant a B-2 visa to a child seeking to enter the U.S. to acquire U.S. citizenship under the Child Citizenship Act of 2000 (Public Law 106-395), as long as the child shows an intent to leave the U.S. after a temporary stay.

WHO IS ELIGIBLE FOR THE B-2 VISA? 

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment. If the U.S. Consulate has doubts about your intent, you may offer to leave a child, spouse, or other dependent abroad.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer will likely conclude that you will work in the U.S. without authorization to defray expenses. You could even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. . A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-2 is under the same B-visa classification as the B-1 Temporary Business Visitor visa, but is more limited. If you have only a B-2 visa – and not a B-1 visa or combined B-1/B-2 visa, you may not engage in any business visitor activities, such as attend business meetings or negotiate contracts.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-2 or combined B-1/B-2 visa.

For more information, read our related articles, B-1 Visitor Visa: Traveling to the U.S. for Business and B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Richard Burger

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

On day five of his Administration, January 25, 2017, President Donald Trump issued his first executive order on immigration, titled, Border Security and Immigration Enforcement Improvements. It prioritizes the detention and removal of unauthorized immigrants apprehended at the U.S.-Mexico border.

Here is a description of Trump’s executive order on border security and immigration enforcement, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), the Secure Fence Act of 2006, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

Policy Highlights: 

1. Physical Wall. The executive order instructs the Secretary of Homeland Security to take steps to immediately plan, design and construct a physical wall along the southern border. The Secretary must identify and allocate federal funds for planning, designing and constructing the wall.

“Wall” means “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The “southern border” means “contiguous land border between the United States and Mexico, including all points of entry.”

2. Detention Facilities. The executive order instructs the Secretary to allocate resources to immediately construct, operate, control, or establish contracts to construct, operate or control facilities to detain aliens at or near the land border with Mexico. The Secretary shall immediately assign asylum officers and immigration judges to detention facilities for the purpose of conducting reasonable fear determinations and removal proceedings, respectively.

3. Detention for Illegal Entry (End “Catch-and-Release”). The executive order instructs the Secretary to take immediate, appropriate actions to ensure the detention of aliens apprehended for violating immigration law, pending the outcome of their removal proceedings or their removal from the U.S. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel on detention use, including the termination of “catch and release,” which involves persons being released in the U.S. shortly after their apprehension, and while their removal proceedings are pending.

4. Additional Border Patrol Agents. The executive order instructs the Secretary to take appropriate action to hire 5,000 additional Border Patrol agents, and ensure they are assigned to duty as soon as is practicable.

5.  Foreign Aid Reporting. The executive order directs all executive departments and agencies to quantify federal aid or assistance to the Government of Mexico on an annual basis for the past 5 years.

6. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

7. Parole, Asylum, and Removal.  The executive order instructs the Secretary to take immediate, appropriate action to ensure the parole and asylum provisions of immigration law are not exploited to prevent the removal of otherwise removable aliens.

8. Priority Enforcement. The executive order instructs the Attorney General to establish prosecution guidelines and allocate resources to ensure federal prosecutors give high priority to prosecutions of offenses connected to the southern border.

Effects and Impact:

1.  Building the wall 

The estimated cost of building the wall is at least $10 billion. During his election campaign, Trump stated Mexico will pay for it.  But his  executive order calls for the allocation of federal funds to plan, design and construct the wall. Congress must approve funding for any new physical barrier along the southern border. This means American taxpayers will front the cost for the wall.

Trump says Mexico will pay the money back later. His Administration suggested imposing a 20% tax on goods imported  from Mexico to pay for the wall. But experts say this will lead to higher prices for American consumers, result in trade wars, and jeopardize U.S. jobs.

Another idea floated by the Administration is seizing or taxing remittance payments from immigrants sending money earned in the U.S. (their country of residence) to their families in Mexico (their native country). Trump has said the USA Patriot Act anti-terrorism law may be used to accomplish this feat, but such an action will likely be met with legal battles, logistical obstacles, and economic drawbacks.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

In 2006, under the Bush Administration, Boeing and other companies were awarded a federal contract, named Secure Border Initiative Net (SBInet), to build a high-tech, “virtual fence” along the southwest border. Most of the 2,000-mile border between Mexico and the U.S includes desert plains, steep hills and other natural barriers that are hard to cross. At the time, about 88 miles of physical fencing existed and the U.S. government planned to increase the physical fences to 370 miles by the end of the following year.

The Obama Administration embraced SBInet, but cancelled the project in 2011, following mounting questions from Congress regarding feasibility, viability, cost and effectiveness. By that point, about $1 billion had been spent.

Skepticism concerning Trump’s proposed wall is warranted. John Kelly, who was recently sworn in as Secretary of Homeland Security, said a physical barrier is not enough. In his confirmation hearing, he stated, “If you build a wall, you would still have to back that wall up with patrolling by human beings, by sensors, by observation devices.”

2. Increasing Detentions and Expedited Removals

Enormous amounts of manpower, resources, and technology are already dedicated to securing the nation’s borders. In 2014, the number of Border Patrol agents grew to nearly 21,000, over a 500%  increase from 1992 when there were about 4,000 agents.

In July 2006, then-Secretary of Homeland Security, Michael Chertoff, announced the  end of the”catch and release” policy. Since then, the Department of Homeland Security (DHS) began detaining more individuals while they wait for their immigration court dates. On average, in 2006, DHS detained 21,450 people on a daily basis, compared to over 40,000 this year.

DHS also increased the issuance of expedited removal orders to persons caught at the border, rather than allow them to return without the legal consequences of a removal. In 2014, DHS removed 414,481 persons, compared to 280,974 persons in 2006.

Trump’s executive order aims to increase the size of the enforcement agencies, create more detention facilities for persons apprehended along the southern border, and end “catch and release.”

Although the “catch and release” policy ended under the Bush Administration, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal or undocumented immigrants, which some labeled as “catch and release 2.0”. The policy divided enforcement priorities into three general categories: Priority 1: Aliens who pose a threat to national security, border security, or public safety. Priority 2: Aliens who are misdemeanants and new immigration violators.  Priority 3: All other immigration violators.

The Policy Memorandum instructed the agencies to focus on priority one and priority two offenders, instead of wasting resources on arresting and detaining priority three offenders. Because Trump’s executive order does not make these distinctions, it gives immigration enforcement agents more freedom to apply the detention and expedited removal process to all persons who they find ineligible for relief, particularly those apprehended at the border.

Federal funds must be allocated to operate detention facilities and detain hundreds of thousands of immigrants each year. The use of detention facilities is a very costly way to deter illegal crossings or other immigration violations. More affordable alternatives include parole/release on own recognizance, bonds, regular check-ins with immigration agents, regular home visits and check-ins, telephonic monitoring, and electronic ankle bracelet monitoring.

The executive order, which claims abuse of parole and asylum provisions, could also result in due process issues for asylum-seeking families fleeing to the border. This includes women and children from the Northern Triangle (Honduras, Guatemala and El Salvador) with credible asylum claims. Human rights groups and immigration advocates have raised concerns about detaining individuals escaping violence and persecution in their home countries. There are more humane and cost-effective alternatives to detention.

3. Deputizing State and Local Law Enforcement Officers to Perform the Duties of Federal Immigration Agents

Section 287(g) of the INA allows delegation of immigration authority to state and local law enforcement officers.  The 287(g) program permits a state or local law enforcement entity to partner with U.S. Immigration & Customs Enforcement (ICE), under a joint Memorandum of Agreement, to enforce federal immigration law in their jurisdiction.

The 287(g) program was criticized for damaging public safety, being prone to racial profiling, and lacking oversight.  In 2009, ICE revised the 287(g) program to prioritize the arrest and detention of undocumented immigrants with criminal histories. In a December 2012 news release, ICE announced it would not renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program.

At that point, ICE concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases. Introduced in 2008, Secure Communities was a DHS program designed to identify immigrants in U.S. jails who are removable under immigration law. Participating jails sent the arrestee’s fingerprints not only to criminal databases, but also to immigration databases. No local law enforcement agencies were deputized to enforce immigration laws and ICE had only a technological presence in jails and prisons.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program, and replacing it with the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to revive the 287(g) program, which allows states and localities to engage in immigration enforcement to supplement federal efforts. This practice can create mistrust of local law enforcement and involve the use of limited resources to detain and subsequently remove persons with only traffic stops or minor infractions.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. 287(g) agreements fail to prioritize dangerous criminals over undocumented immigrants who pose no threat to public safety. They also tend to reduce cooperation from immigrant communities, which is crucial to preventing and investigating crimes.

Conclusion

Building a wall, increasing detention, and deputizing state and local law enforcement officers to enforce immigration law are consistent with Trump’s campaign promises. But they could very well backfire in the form of wasted taxpayers’ money, squandering of limited resources, unbearable pressure on the already backlogged immigration court system, and reduced cooperation between immigrant communities and their state and local law enforcement entities.

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Clive Darra

Grant of Motion to Vacate Expedited Removal Order + Rescission of Misrepresentation Charge = A True Success Story

On November 9, 2016 – several hours after Donald Trump gave his acceptance speech as U.S. President-elect – I received a telephone call from the U.S. Customs & Border Protection (CBP) on a Motion to Vacate Expedited Removal Order I had filed on October 31st (only 9 days earlier). I had appealed to the CBP Field Office, which denied my client admission at the U.S. port of entry, to rescind the removal order and the charge that she willfully misrepresented material fact to gain entry into the U.S. as a visitor.

My client sought entry into the U.S. on a valid B1/B2 visitor visa, which she obtained six months before she married her U.S. citizen spouse. Following the marriage in her home country, she and her elderly parents arrived at an international U.S. airport for a temporary visit. Her American spouse also accompanied them on their first trip to the U.S.

Her plan was to tour the U.S. with her parents and get accustomed to the American lifestyle and culture before she returned to her home country to start the marriage-based immigrant visa process. They had return airline tickets to leave the U.S. within two weeks.

At primary inspection, she and her parents presented the proper travel documents (valid passports) and entry documents (unexpired 10-year, B1/B2 visitor visas) to the CBP officer. While her parents were admitted as visitors, she was pulled into secondary inspection.

During secondary inspection, the CBP officer questioned her about the purpose of her trip. She explained the temporary nature of her visit and, while she was reaching for her return airline ticket, the officer took her personal belongings and searched through them.

Among her personal belongings was a folder containing several documents. In the folder, the CBP officer found two letters from an employer in her home country that were contradictory. The first letter stated she had resigned from her position, indicating she was no longer employed. The second letter stated she was on a leave of absence, implying she still had a job.

She immediately clarified that the second letter contained false information and she had in fact resigned from her job. She described her plans to return to her home country on time and later apply for an immigrant visa, based on her marriage to a U.S. citizen.

Instead of allowing her to withdraw her application for admission due to lack of a proper visa, the CBP detained and interrogated her for at least five hours. She was questioned by two CBP officers until her Sworn Statement was taken about eight hours after she arrived at the airport.

Using a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, the CBP officer documented her testimony in a question and answer format. My client signed the Sworn Statement and initialed each page without fully reading or understanding the contents.

The CBP issued a Form I-860, Notice and Order of Expedited Removal Order, finding her inadmissible, denying her entry, and ordering her expeditiously removed on two counts. The first charge was under INA 212(a)(7)(A)(i)(I), i.e. lack of proper travel documents. The second (and more serious) charge was under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to gain admission into the U.S. by presenting a fake letter.

My client was sent back to her country the following day on the next available flight. Her spouse and parents booked airline tickets and returned there as well. A week later, she and her spouse completed a video consultation with me via Skype.

In the consultation, I explained that the expedited removal order, by itself, subjects you to a 5-year bar to reentry. And a charge of fraud/willful misrepresentation under section 212(a)(6)(C)(i) furthers bars you permanently from entering the U.S.

I  described the two main options to immigrate to the U.S. following an expedited removal order with a misrepresentation charge.

Option A is to submit a Motion to Vacate the Expedited Removal Order to the CBP Field Office that issued the order. Because this request is, in essence, a motion to reopen or reconsider to the Service, the CBP must receive it within 30 days of the date of the order.

Option A is available if the applicant has factual grounds and legal claims to challenge the CBP’s determination that she is inadmissible to the U.S. and must be expeditiously removed from the U.S.

Option B is to file an  I-212, application for permission to reapply for admission after removal, to overcome the 5-year bar. Plus file an I-601, application for INA 212(i) waiver of inadmissibility, to be excused from the section 212(a)(6)(C)(i) charge – a permanent bar. Both waivers must be filed in conjunction with the immigrant visa application, and are typically submitted at or after the visa interview.

Option B is available if the applicant meets the eligibility requirements for the I-212 waiver and I-601 waiver. To get the I-212 waiver, the applicant must have favorable factors (e.g. close family ties in the U.S.) that outweigh the unfavorable factors (e.g. bad moral character). To receive the I-601 waiver, the applicant needs a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if she is not admitted to the U.S.

The foreign national and her American spouse chose Option A as their primary solution, and Option B as their backup plan. Both options require strong documentary evidence, favorable facts, and persuasive legal arguments for an approval to be possible.

During the next three weeks that followed the consultation, I counseled my client and her spouse on the documentary evidence to gather for the request to vacate expedited removal order. The evidence demonstrated the temporary nature of the planned visit, my client’s ongoing ties to her home country, and her and her spouse’s good moral character.

Furthermore, I reviewed the Sworn Statement and Notice and Order of Expedited Removal Order, the agency’s policy manual, and applicable case law to formulate the strongest legal arguments to support the motion.

In the Motion to Expedite Removal Order, I noted that my client had proper travel documents in the form of an unexpired passport and valid visitor visa. I argued she was not inadmissible under INA 212(a)(7)(A)(i)(I) because it was appropriate for her to travel to the U.S. on a valid B1/B2 visa for a temporary visit, even though she was married to a U.S. citizen.

In addition, I explained why the CBP made an error by making a willful misrepresentation charge under INA 212(a)(6)(C)(i). I pointed out that my client did not affirmatively provide the fake leave of absence letter to the CBP officer, who found it during his search of her personal belongings. I added that even if she had misrepresented a material fact, she timely recanted it by admitting the letter contained wrong information and clarifying she was unemployed in her home country.

I pointed out the CBP should have at least given her the opportunity to withdraw her application for admission, rather than issue an expedited removal order that subjected her not only to a 5-year bar, but also to a permanent bar.

The normal processing time for a Motion to Vacate Expedited Removal Order is 6 months. To my pleasant surprise, it took less than 10 days for CBP to review the motion and make a decision in this case.

Four days after the CBP Field Office received the motion, a CBP officer telephoned me to convey they were taking the request into serious consideration.

On November 9th, which was 9 days after receiving the motion, the Watch Commander at the CBP Field Office called to say he would vacate the expedited removal order and treat the case as a withdrawal of application for admission to the U.S. He noted that my client was no longer barred from entering the U.S.

The foreign national no longer has a 5-year bar to reentry due to the removal order or a permanent bar to reentry due to the willful misrepresentation charge. She now readily qualifies for a marriage-based immigrant visa without needing any waivers of inadmissibility.

The rescission of the removal order and dismissal of the section 212(a)(6)(C)(i) charge means my client will not need an I-212 waiver or I-601 waiver to get the immigrant visa. This will make it significantly easier and faster for her to immigrate to the U.S. (because waiver requests often take 6 to 12 months to be adjudicated).

My client, her spouse and I communicated by Skype, telephone and email. They decided to hire me upon completing the initial video consultation, in which I laid out a strategy and action plan to resolve their immigration predicament.

Although we never met in person, we worked together effectively to create a desired and expeditious outcome. I continue to represent them in their I-130 immigrant petition and immigrant visa process.

The speedy approval of the request to vacate expedited removal order and dismissal of the misrepresentation charge is a true success story in 2016 for Dyan Williams Law PLLC.

I enjoy taking on challenging cases in which foreign nationals seek to enter the U.S. lawfully as an immigrant or nonimmigrant, after they have been found inadmissible or issued an expedited removal order. Getting I-212, I-601 and 212(d)(3) waivers are among my top areas of expertise.

Under the new administration – which begins on January 20, 2017,  and is expected to be more hardline on immigration – lawful entries into the U.S. will be more critical than ever.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Ian D. Keating

Expedited Removal: How Do You Avoid, Challenge or Overcome It?

At U.S. ports of entries (e.g airports, seaports and land border crossings), the U.S. Customs & Border Protection (CBP) has broad discretionary power to issue you an expedited removal order when it denies your admission on certain grounds.

Avoiding, challenging or overcoming an expedited removal order is necessary if you want to return to the U.S. as a nonimmigrant or immigrant within 5 years in all cases, and within your lifetime, in some cases.

Consequences of an Expedited Removal Order

CBP officers are instructed to exercise restraint and consider, on a case-by-case basis, whether you qualify for any waivers, withdrawal of application for admission, or deferred inspection, instead of issue an expedited removal order.

Nevertheless, expedited removal orders are commonly issued at U.S. ports of entries when the CBP finds you inadmissible under INA section 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefits), section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper visa or other travel documents).

An expedited removal order, in and of itself, carries a 5-year bar to reentering the U.S. This means you may not obtain an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

How to Avoid an Expedited Removal Order 

You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court. You have no right to counsel during primary inspection, secondary inspection, or at any other time you request admission to the U.S.

After traveling on a long flight, waiting for hours to be interviewed in secondary inspection, or enduring intense interrogation with the same questions asked repeatedly, you could be tempted to do whatever it takes to just get out and go home. You might think the simplest thing to do is admit to the officer’s allegations, accept the expedited removal order, and perhaps challenge it later after you are sent back to your country or last destination.

But your best strategy is to avoid an expedited removal order to the fullest extent possible. Stay calm and respectful, but don’t make harmful, untrue admissions to leading questions just to please the officer.

Be prepared to present supporting documents, such as a return airline ticket, bank account statement, and property ownership if you seek entry as a visitor.

If you provided false documents or presented false testimony to the CBP to gain entry into the U.S., you may timely recant the misrepresentation during the interrogation – at the first opportunity – to avoid a section 212(a)(6)(C) finding.

Silence, non-cooperation or refusal to answer the CBP officer’s questions will not get you admitted to the U.S. But you also do not want to babble, lie, or volunteer negative information that makes you inadmissible to the U.S.

You may ask to withdraw your application for admission, especially if there is no obvious fraud, you have favorable factors, and the CBP officer gives you this option. A withdrawal allows you to return to your country to obtain the proper entry document, without having an expedited removal order in your record and a 5-year bar.

Be mindful about what you bring on your trip. The CBP has authority to search you, your luggage, and your electronic devices (e.g. cell phone, laptop and tablet). For example, job applications in your bag and text messages related to seeking employment in the U.S. will raise red flags concerning the true purpose of your trip if you seek entry as a temporary visitor.

At the very least, you should work to develop a strong factual record to later challenge or overcome the expedited removal order, if one is issued. You will be handed a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

Do not sign your sworn statement or initial the pages unless you have full opportunity to read it or have it read to you. Ask for an interpreter if necessary. Ask for corrections to be made. By signing the Form I-867A & B and Form I-831 (Continuation Page), you affirm that you have read your statement, your answers are true and correct, and the statement is a complete, true and correct record of your interrogation.

How to Challenge or Overcome an Expedited Removal Order

When you are unable to avoid an expedited removal order, you have two main options to challenge or overcome it:

1. Request Permission to Reapply for Readmission and,When Necessary, a Waiver of Inadmissibility

To overcome an expedited removal order and be eligible for a visa or admission to the U.S. before the 5-year bar expires, you must file a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and get it approved.

If the expedited removal order further states you are inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you must obtain an I-601 immigrant waiver under section 212(i), when seeking reentry as an immigrant, or a nonimmigrant waiver under section 212(d)(3), when seeking reentry as a nonimmigrant.

The lifetime ban under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) may be excused with a 212(d)(3) nonimmigrant waiver, but there is no immigrant waiver for it. There are, however, several exceptions and defenses. For example, if you reasonably believed, at the time of making such a representation, that you were a citizen because each of your natural parent is or was a citizen and you permanently resided in the U.S. prior to turning age 16.

If you receive a Form I-212 grant as well as any required waivers, you may then reenter the U.S., despite your inadmissibility, as long as you have the proper travel documents (e.g. valid passport and appropriate visa).

2. Request Reconsideration and Rescission of the Expedited Removal Order

An Immigration Judge may not review an expedited removal order. The federal appellate courts have also found an expedited removal order is not subject to judicial review, except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.

You may submit a written request for review to the CBP Field Office that issued the expedited removal order. You must include supporting documentary evidence showing why the expedited removal order was improper. The federal regulations state that motions to reopen and motions to reconsider must be filed with the Service within 30 days of the decision. Failure to file on time may be excused in the Service’s discretion where you demonstrate the delay was reasonable and beyond your control.

The CBP has discretionary authority to vacate the expedited removal order in its entirety or withdraw certain charges in the removal order, based on your documentary evidence and legal argument.

DHS Traveler Redress Inquiry Program (DHS TRIP) Is Not a Good Option to Overcome an Expedited Removal Order

You may use the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to submit inquiries or seek resolution regarding difficulties you experience during your  travel screening at airports or border crossings.

You  file a complaint or apply for redress through the DHS TRIP program, which routes your request to the appropriate office for review and adjudication. You will be assigned a record identifier or Redress Control Number.

The DHS TRIP program is for limited purposes, and challenging an expedited removal order is not one of them. Normally, the most you will get is a response stating you need to file a Form I-212 to be readmitted to the U.S. before the 5-year bar expires.

Consult an Experienced Immigration Attorney Soon After You are Issued an Expedited Removal Order

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP. Otherwise, to be excused from the 5-year bar, you may file the Form I-212 application at any time, in connection with an immigrant visa or nonimmigrant visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: When Does It Apply and What Are the Consequences?

Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns? 

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Dan4th Nicholas