As immigration enforcement ramps up, with more scrutiny and rigor exhibited by the government agencies involved (ICE, USCIS, DOS), one should not forget the role played by Customs and Border Patrol. Because they may have a visa, people tend to forget or underestimate the role played by the airport inspectors. Those arriving at an airport are considered “applicants” for entry, and they are only admitted after the CBP inspector makes a decision on admissibility.
Just like the other agencies, CBP has also heard the call for more vigorous enforcement of our laws, and is now actively engaged in screening out “undesirables” and visa violators. Now that the government is much more interconnected than it was even 3-5 years ago, this means that the CBP inspector has access to information contained in visa applications and petitions.
Another section of our website discusses in more detail the process of expedited removal, but in just the past couple of weeks alone we have been contacted by numerous individuals who have been expeditiously removed and are now subject to the 5 year ban. One concerned a woman who was engaged in unauthorized unemployment in the US. CBP reviewed the text messages on her telephone and came to the conclusion that she was working without permission in the US. Another related to a gentleman who had a facially valid H-1B visa, but planned to work for a different employer than the one listed in his visa. CBP found a job offer letter in his suitcase from the new employer, and made an expedited removal decision and a finding of a willful, material misrepresentation. While an expedited removal decision means a bar for five years, the willful, material misrepresentation finding is a permanent bar. In one extreme case, CBP allowed an applicant for admission to withdraw his application and return home, but upon applying for a visa subsequently, the consular officer found that he had made a misrepresentation to CBP, notwithstanding the fact that CBP did not make such a finding!
As you can see, the consequences of an expedited removal and/or misrepresentation decision can be very serious. These legal consequences are in addition to the practical effect – being stuck in an airport for hours and hours, often in very uncomfortable conditions, and eventually sent back home on a long flight.
Sometimes preventive action – such as an explanatory letter to CBP from the inviting party in the US – can head off any misunderstandings. If a decision was made in error, one should consider a challenge to the decision. In extreme situations of abuse by CBP, a lawsuit for damages may even be appropriate. If the decision was correct and substantiated, then a waiver may be the proper course to take. Perhaps the basis for the decision is not clear because CBP did not give the applicant for admission a copy of the Record of Proceedings protocol from the airport, although it is supposed to.
In any of these situations, one should consider contacting qualified legal counsel. Feel free to contact us to discuss your legal options.