Tag Archives: I-212 waiver

Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law.

An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when there was no providing false testimony or fabricated documents or the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations under 22 CFR 42.81 allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons for Visa Refusal or Visa Denial.

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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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 (Form I-860) 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 or emails on your phone 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 visitor. Birth certificates, identity documents and other immigration-related paperwork that are not necessary for temporary travel may cause the CBP to doubt whether you will timely depart the U.S.

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 request for Consent to Reapply or 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.  These type of motions are very rarely filed because it is very difficult to get CBP to lift an already issued removal order. In rare cases – when such a motion is granted – it spares the applicant from needing a waiver of inadmissibility.

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 or Consent to Reapply request 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 request for Consent to Reapply or Form I-212 application at any time, in connection with your 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

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

You may face expedited removal from the U.S. if the Customs & Border Protection (CBP) finds you inadmissible and denies your entry, usually at an airport, seaport, or land border checkpoint. The Form I-860, Notice and Order of Expedited Removal, requires you leave the U.S. immediately and brings serious consequences, such as a visa cancellation with prejudice and minimum 5-year bar to reentry.

On What Grounds May Expedited Removal Be Ordered?

CBP officers must verify whether you are admissible to the U.S. before they let you into the U.S. The CBP not only checks your travel documents, but may also interview you extensively to confirm the true purpose of your trip. The CBP may also check its records to determine whether you have a criminal history, immigration violation or other grounds that make you inadmissible.

Your mere possession of a travel document that is valid on its face does not guarantee your entry into the U.S. Section 235(b)(1) of the Immigration & Nationality Act (INA) permits the CBP to issue an expedited removal order if it finds you are inadmissible under section 212(a)(6)(C) or 212(a)(7). The inadmissibility grounds for an expedited removal order are:

1. Section 212(a)(6)(C)(i) (Misrepresentation), i.e. by fraud or wilful misrepresentation of a material fact, you seek to procure (or have sought to procure or have procured) a visa, other documentation,  admission into the U.S. or other immigration benefit.

2. Section 212(a)(6)(C)(ii) (False Claim to U.S. Citizenship), i.e. you falsely represent or have falsely represented yourself to be a U.S. citizen for any purpose or benefit under immigration law or federal or state law.

3. Section 212(a)(7)(A)(i)(I), (Immigrant Without Proper Visa or Travel Document), i.e. you are an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by immigration law, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required by the regulations.

4. Section 212(a)(7)(A)(i)(II) (Immigrant With Improperly Issued Visa), i.e. you are an immigrant who, at the time of application for admission, has a visa that was not issued in compliance with immigration law.

5. Section 212(a)(7)(B)(i)(I) (Nonimmigrant Without Valid Passport), i.e. you are a nonimmigrant who, at the time of application for admission, is not in possession of a passport valid for a minimum of six months from the date of the expiration of your period of admission or period of authorized stay.

6. Section 212(a)(7)(B)(i)(II)(Nonimmigrant Without Proper Visa or Travel Document), i.e. you are a nonimmigrant, who at the time of application for admission, does not have a valid nonimmigrant visa or border crossing identification card.

Who is Subject to Expedited Removal? 

Expedited removal applies to certain groups or classes, including:

1. Arriving aliens at designated port of entry (e.g. airport, seaport, or land border crossing)

As of April 1, 1997, all “arriving aliens” who seek admission to the U.S. or transit through the U.S. at a designated port of entry may be issued an expedited removal order upon inspection, if CBP finds they are inadmissible under sections 212(a)(6)(C) and/or 212(a)(7).

Currently, expedited removal does not apply to Cuban nationals who arrive at a U.S. port of entry by aircraft.

The expedited removal process may not be used at pre-clearance or pre-inspection units. If the CBP wishes to proceed with expedited removal, it must defer action until the vessel (e.g. aircraft) has arrived in the U.S.

2. Certain other aliens who are already in the U.S. 

Under the April 1, 1997 law, expedited removal also applies to noncitizens who have not been admitted or paroled into the U.S. following inspection by an immigration officer at a designated port of entry, and who have not been physically present in the U.S. continuously for the 2-year period prior to the date of determination of inadmissibility.

3. Foreign nationals arriving by sea, but not at designated port of entry

As of November 2002, foreign nationals who arrive in the U.S. by sea, and not at a designated port of entry, or who are intercepted at sea and brought to the U.S., may be subject to expedited removal if they were not admitted or paroled into the U.S. and have not been continuously present in the U.S. for at least two years.

Currently, expedited removal does not apply to Cuban nationals, crewmen or stowaways. [UPDATE: On January 12, 2017, the Obama Administration announced the U.S. is eliminating this exemption. Expedited removal proceedings may now be initiated against Cubans.]

4. Undocumented immigrants within 100 miles of a U.S. border 

As of August 2004, expedited removal may apply to noncitizens who are encountered within 100 miles of any U.S. land or sea border and who entered the U.S. without inspection less than 14 days before the time they are encountered.

As a matter of discretion, CBP generally applies such expedited removals against third-country nationals not from Mexico or Canada, or Mexican or Canadian nationals with criminal histories or immigration violations.

What are the Consequences of an Expedited Removal Order?

By itself, an expedited removal order carries a 5-year 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.

Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It

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.

Your best strategy is to avoid an expedited removal order whenever possible. At the very least, work to develop a strong factual record to later challenge it through a request for review with the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or RemovalI-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.

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

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

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: friend JAD

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

When you present yourself for admission into the U.S. at a designated port of entry (e.g. international airport), you may be denied entry and issued an expedited removal order if the U.S. Customs & Border Protection (CBP) finds you inadmissible on certain grounds.

The CBP must complete several steps before it issues an expedited removal order (Form I-860).

What Are the Steps in the Expedited Removal Order Process? 

The expedited removal process is governed by federal statute and regulations, plus the CBP’s policy outlined in the Inspector’s Field Manual (IFM). The CBP has broad authority to expeditiously remove you if it finds you inadmissible under sections 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit, section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper travel documents).

Before issuing an expedited removal order, the CBP must perform several procedural steps:

1. CBP Conducts Primary Inspection Upon Your Arrival at the Port of Entry

When you arrive at a designated port of entry, you will join the appropriate customs line for a CBP officer to review your passport and travel documents. U.S. citizens, permanent residents and visitors typically have different waiting lines.

You may be at your final destination or transiting to another U.S. destination or non-U.S. destination. Either way, you will have to request admission to the U.S. at primary inspection. The CBP officer will scan your passport or enter the number into the computer. The officer will also examine your visa(s) and may review the pages in your passport reflecting your travel history. If you are not a U.S. citizen, you will also have your photograph and fingerprints taken.

You can further expect the CBP officer to ask for details about your trip, including its purpose, where you will stay, with whom you will stay, how long you will stay, and whether you have any immediate relatives in the U.S. and their immigration status (if any).

If the CBP officer finds you are absolutely admissible to the U.S., your passport will be stamped for lawful entry. But if you are not clearly admissible, you will be referred to Secondary Inspection.

2. CBP Conducts Secondary Inspection (One) if You Do Not Clear Primary Inspection

The primary CBP officer will note in the system why he or she believes you are inadmissible and you will be escorted to Secondary Inspection. You may have to wait a long time (several hours) to be called for questioning by another CBP officer, usually at an open counter. The CBP officer might also check your personal belongings, including review your messages and communications on electronic devices (cell phones, laptops and tablets).

[UPDATE: On November 12, 2019, in Alasaad v. McAleenan, the U.S. District Court, District of Massachusetts, ruled the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, are unconstitutional because they do not require reasonable suspicion that the devices contain contraband for non-cursory searches and/or seizure of electronic devices. The Court, however, denied the request for injunctive relief to prevent the agencies from “searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws,” and “from confiscating electronic devices, with the intent to search the devices after the travelers leave the border, without probable cause and without promptly seeking a warrant for the search.” The ruling does not outright prohibit CBP from checking electronic devices. Furthermore, Plaintiffs in this case included 10 U.S. citizens and one permanent resident.]

If you are admitted at Secondary Inspection — after CBP confirms you have no grounds of inadmissibility and you have the proper travel documents — you may then claim your luggage and clear customs.

If you are found to be inadmissible at Secondary Inspection due to lack of proper travel documents, immigration fraud or misrepresentation, prior U.S. immigration violations, criminal history, or other grounds, you will be referred to Secondary Inspection Two.

3. CBP Conducts Secondary Inspection (Two) if You Do Not Clear Secondary Inspection One

Secondary Inspection Two is the last opportunity for you to be admitted to the U.S. or be denied entry, detained, and sent back to your country – with or without an expedited removal order.

During Secondary Inspection Two, a CBP officer may search and inspect your personal belongings and luggage, and ask you questions about your trip and travel history. Another, more experienced CBP officer will usually conduct the formal interview and interrogation.

4. CBP Determines Whether Other Options, Besides Expedited Removal, are Available if You Are Not Admitted

If you are not admitted at Secondary Inspection Two, the CBP has several options besides issuing an expedited removal order.

Deferred Inspection

You may be granted Deferred Inspection if the CBP believes you are probably admissible, but lack complete documentation to be admitted at the port of entry. The CBP may schedule you to report to a Deferred Inspection Site at a future date in order to present the necessary documentation and/or information. You will be given a Form I-546, Order to Appear-Deferred Inspection, explaining what information and/or documentation you must present to resolve the discrepancy.

In deciding whether to grant Deferred Inspection, the CBP will consider several factors, such as the likelihood of your establishing admissibility; the type of documents needed and your ability to obtain them; your identity, nationality, age, health, and family ties; the likelihood you would appear at deferred inspection; the nature of the ground of inadmissibility; and the danger you will pose to society.

Being paroled into the U.S for Deferred Inspection is not the same as a formal admission. If you fail to appear for Deferred Inspection, you will be issued a Notice to Appear in Removal Proceedings before an Immigration Judge and your name will be added to the National Automated Immigration Lookout System.

At Deferred Inspection, the CBP officer will review the Form I-546, review your documents, and decide whether to formally admit you, continue your parole, permit you to withdraw your application for admission, or issue you a Notice to Appear in Removal Proceedings before an Immigration Judge.

Permission to Withdraw Application for Admission

You may be given the opportunity to withdraw your application for admission and leave the U.S. immediately (e.g. on the next available flight). The withdrawal spares you from being issued an expedited removal order. But the withdrawal is noted in your record and your visa may still be cancelled, which could affect future visa applications.

The regulations allow CBP in its discretion to permit you to withdraw your application if you intend to and are able to depart the U.S. immediately. CBP officers are instructed to balance the favorable factors and unfavorable factors to reach a fair decision.  Factors to consider are (1) the seriousness of the immigration violation; (2) previous findings of inadmissibility; (3) intent to violate the law; (4) ability to easily overcome the grounds of inadmissibility; (5) age and poor health of the applicant; and (6) other humanitarian or public interest considerations.

5. CBP Completes Expedited Removal Process if it Determines No Other Option is Available to You

If the  CBP does not grant Deferred Inspection or Withdrawal of Application for Admission, it must create a record of the facts of the case and statements made by you. The CBP officer will take your sworn statement, in a question and answer format, using Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

The CBP officer shall read (or have read) to you all information contained on Form I-867A, including a warning that expedited removal carries a 5-year bar to reentry.

You will be asked questions regarding your identity (name, aliases and other biographical data), alienage (citizenship, nationality, and residence), and inadmissibility (reasons for coming to the U.S., information on facts of the case and information on suspected grounds of inadmissibility). The officer will also ask if you have any fears about returning to your home country.

Your responses to questions will be recorded on the Form I-867B and Form I-831, Continuation Page. You shall have the opportunity to read (or have read to you) the sworn statement. You may ask for corrections to be made. The CBP officer will then instruct you to sign and initial each page of the statement and each correction.  By signing the Form I-867B and Form I-831, 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.

The CBP officer must advise you of the charges against you on Form I-860, Notice and Order of Expedited Removal, and you shall be given an opportunity to respond to the charges in your sworn statement.

After obtaining supervisory concurrence, the CBP officer shall serve you with Form I-860 and you sign the reverse of the form acknowledging receipt. The CBP officer must use an interpreter, if necessary, to communicate with you.

What Are the Main Concerns with Expedited Removal? 

There are several concerns with the expedited removal order process, including:

1. You Have No Right to Representation by Counsel

At the port of entry, you have no right to counsel. 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 may not ask the CBP to allow you to have representation during the inspection or expedited removal process. The CBP may allow you to speak with a family member or friend by telephone call, but this is completely within their discretion.

During the interrogation and the taking of your sworn statement, you are alone with the CBP officer. The Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, serves as official documentation of the questions and answers during  the process. It is critical that you read (or have read to you) the sworn statement and that you fully understand the contents before you sign it.

2. You Will Normally Be Detained Until You Are Removed From the U.S. 

An expedited removal order subjects you to detention and to be held in custody by CBP until you are able to leave the U.S.  In the meantime, you are not eligible to be released on bond unless you have a medical emergency or you are needed for law enforcement purposes.

If you are unable to depart in the near future, you will be handed over to the Detention & Removal Operations (DRO) unit of Immigration & Customs Enforcement (ICE). You will be held at a detention facility and returned to the airport for the next available flight.

Otherwise, you will have to wait at the airport in the Secondary Inspection office until your next available flight, which could be 24 to 36 hours later. CBP will fine any airline that is unwilling to transport you back to your country or departing city.

3. You Have No Right to Further Review, Except in Limited Circumstances

Once an expedited removal order is issued, there is no further hearing before an Immigration Court or review before a higher agency or appellate court. There are two main exceptions.

Seek Asylum. If you state an intention to apply for asylum under section 208 or a fear of persecution in your country, you will be referred for a “credible fear interview” before an asylum officer.

If you establish a credible fear of persecution, you will be allowed to apply for asylum before an Immigration Judge, either while in ICE custody or after you are released on a bond. If you are unable to establish a credible fear, you may request a review of this decision in a hearing before an Immigration Judge, while in ICE custody.

Generally, there is no review of the Immigration Judge’s determination that you do not have a credible fear of persecution or torture. You will be removed from the U.S. if you are denied asylum (or withholding of removal).

Claim Lawful Status. When you claim lawful status in the U.S. such as U.S. citizenship, lawful permanent residence or refugee or asylee status, the CBP will review its records to verify your claim.

If the CBP finds such proof, it may then admit you to the U.S. or place you in regular removal proceedings before an Immigration Judge. If the CBP finds no such proof, it will allow you to make a statement under oath regarding your claim of lawful status, issue an expedited removal order, and give you the opportunity to have your case reviewed by an Immigration Judge. You will be removed from the U.S. with no opportunity for further review if the Immigration Judge affirms the expedited removal order.

4. You Will Be Subject to a Minimum Five-Year Bar to Re-entry, as Well as a Lifetime Bar in Certain Circumstances

An expedited removal order automatically carries a 5-year to reentry under INA 212(a)(9)(A)(i). You may not receive 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.

Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It

Because an expedited removal order carries serious consequences, you should do your best to avoid it. At a minimum, you need to develop a strong factual record to later challenge it through a motion to the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, an I-601 immigrant waiver under section 212(i), or a nonimmigrant waiver under section 212(d)(3).

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP Field Office that issued the order. The CBP has authority to reopen, reconsider, and rescind the expedited removal order based on new documentary evidence. Such motions, however, are rarely filed and rarely granted.

Otherwise, to be excused from the 5-year bar, you may file the request for Consent to Reapply or 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 Do You Avoid, Challenge or Overcome It? 

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: Russ Thompson

I-212 Waiver + Diversity Immigrant Visa = A True Success Story

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On October 20, 2015, Dyan Williams Law PLLC celebrated its first-year anniversary and I celebrated the end of my first year as a solo practitioner. It’s been a wonderful journey. Although the prior 10+ years I spent at other law firms were rewarding, my 1 year at Dyan Williams Law proved to be much more. I  enjoy every single day of operating my own law firm, doing phenomenal work, and serving an excellent group of clients.

Our first year came to a close with most of our immigration cases approved and none denied. Others are in the works or are pending with the immigration agencies. One true success story involved USCIS’ expedited approval of a Form I-212 waiver request for a very deserving client.

Our client – an Immigrant Visa applicant – was unable to obtain his 2015 Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the diversity visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver.  He was unaware that he needed the waiver until the U.S. Consulate informed him.

Two years ago, he presented his visitor’s visa at an international airport to gain entry into the U.S. Instead of admitting him, the U.S. Customs & Border Protection placed him in secondary inspection and questioned him about his prior visits. After he admitted to previously working in the U.S. without proper authorization, he was summarily removed from the U.S. and sent back immediately to his home country.  His visitor visa was revoked and he was barred from re-entering the U.S. for five years, up until 2018.

The cut-off date to receive the 2015 Diversity Visa was September 30, the end of the DV Lottery fiscal year. Because he had only four months to obtain the visa when he contacted me in May about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.

I first had to review the Notice of Expedited Removal Order to determine why exactly he needed the waiver. Fortunately, he was not charged with fraud or willful misrepresentation to gain entry into the U.S. Had this been the case, he would have needed a separate I-601 waiver, for which he was not eligible.

In particular, for I-601 purposes, he did not have a qualifying relative (U.S. citizen spouse or parent who would suffer extreme hardship if he were not admitted to the U.S.) Although his wife received her Diversity Visa, she first had to land in the U.S. and be admitted to the country to become a permanent resident. And he had to accompany her to the United States on his Diversity Visa at the same time to become a permanent resident.

I next had to learn about all the relevant details, including the unusual hardships he and his family would suffer if he were not admitted to the U.S., his work experience and professional qualifications, and the harsh conditions in his home country. I further counseled him on the documentary evidence he should provide to support his waiver request. I also researched and gathered additional reports and articles on the terrible conditions in his home country.

It took him about one month to collect and provide all the required information and documents needed for the I-212 waiver. On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, (mistakenly) transferred the application to the Nebraska Service Center (NSC), where the I-212 sat for about two months for “administrative processing.” This unnecessary transfer added to the processing time. On August 20, NSC sent the case back to the Boston Field Office for a decision.

To support the I-212 waiver application, I presented a thorough legal brief describing how the positive factors outweighed the negative factors, and why my client deserved the waiver as a matter of discretion, under the law. I also provided compelling reasons for expedited processing (i.e. adjudication of the I-212 waiver application within 3 months). I argued that an emergency situation, humanitarian reasons, and subsequently, USCIS error and/or compelling interest of USCIS, existed to satisfy the criteria for an expedited decision.

After I submitted multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, the USCIS adjudications officer in Boston made a personal telephone call to me on September 23. He informed me that I had presented a compelling case and he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa). He faxed the approval notice to the U.S. Consulate and emailed me a copy.

I then advised my client to immediately contact the U.S. Consulate for a diversity visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.

The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).

This client and I communicated only by email. He decided to hire me after his friend in the U.S. completed a Skype consultation with me and became convinced that I was the best attorney for his case. Despite our never meeting in person, we formed a trust-based relationship and collaborative partnership that contributed to a successful and timely outcome.

So far, the expedited approval of the I-212 waiver application in this Diversity Visa case is one of my most memorable, true success stories, since I established Dyan Williams Law PLLC.  I look forward to doing more great work and helping more clients study, work and live lawfully in the United States, reunite with their American families, and become U.S. citizens.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@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: Juan Antonio Capó Alonso