How WhatsApp Messages Can Lead to Cancelled Visas, Expedited Removal, and Permanent Bans
Just because you have arrived at an airport in the United States does not mean that you are protected by the US Constitution and the right to be free from unreasonable searches. This is the unfortunate lesson learned by hundreds of travelers each day to the US. Worse, the messages on one’s own phone can lead to a cancelled visa, a return trip home, and a permanent ban on entry.
As international travel has reemerged after the pandemic, so have the problems experienced by international visitors to the US. Just over the past few months we have conducted numerous consultations with individuals subject to intrusive CBP searches at the airports, including luggage checks and the contents of telephones. These searches have led to accusations of unlawful employment (most common), prostitution, drug use, intent to remain in the US beyond the length of permitted stay, intent to marry, and intent to change to student status. Each of these searches led to a long, unexpected flight home.
In one case, flirtatious photographs and messages via WhatsApp led to CBP questions of “Who is paying for your trip?” and accusations of prostitution. In another, video of marijuana usage triggered a search and a finding of inadmissibility relating to a controlled substance. Carrying an original diploma led to allegations of an intent to work illegally in the US. In an unusual case, an individual had voluntarily given a DNA sample to a local police department while in the US as part of an investigation into theft at a convenience store. The next time he tried to enter the US, CBP accessed information related to the DNA sample, identified him, and accused him of previously working illegally in the US. Each of these situations ended with humiliating interrogations, coerced confessions, and protracted – sometimes, overnight – stays at the airport waiting for the next flight home.
A cancelled visa may be the least of the problems. Even if CBP allows one to withdraw the application for admission and enters a Section 212(a)(7)(A)(i)(I) determination instead of entering an expedited removal order, the moment of reckoning can come the next time one applies for a visa. At that point, the consul may dig deeper into the circumstances surrounding the airport incident: how did the person obtain the visa? What did she do wrong in the US? Did she work illegally within 90 days of arrival? In addition to making a 214(b) decision denying the visa, the consul may pile on a finding of misrepresentation under Section 212(a)(6)(C)(i). Such a finding is a permanent bar, for which a waiver is required unless the finding is challenged and overturned.
Often times, these situations are avoidable. Or the CBP or consular decision can be reconsidered and reversed, or a waiver may be appropriate. At the least, a plan going forward can be devised. Every case is unique. If you would like to discuss your situation, please feel free to contact us.