I was "flagged" and denied entry into the United States as a visitor in B-2 status. What can I do to correct any negative information in my file maintained by Customs and Border Protection?

Question

Dear SRW Border Lawyers,

I am a Canadian citizen and I currently live in Toronto, Ontario, Canada. Last week, I was denied entry into the United States at the U.S. Customs and Border Protection preclearance at Pearson International Airport. My primary purpose for traveling to the United States was to visit/tour and meet with my friend (and employer) who was also traveling on B-2 visitor status.

At the preclearance, I was extensively questioned by CBP when I explained that my flight was purchased by my employer as a bonus for my work with the production company that he owns in Canada. When asked what I do for a living, I stated I was a TV Producer, and I was then promptly sent to secondary.

After about an hour, I was told I was inadmissible to enter the United States. I was photographed, fingerprinted, and given a document to read and sign. I found the document inaccurate and did not sign it. No other clear information was given to me as to the reason I could not travel other than CBP believed I was being dishonest about my reason for visiting, and they believed I was seeking entry to work. I was informed, however, that I was not banned and that I could attempt to re-enter at a later date.

I went to the Air Canada desk to explain my situation, and was told I was rescheduled on a later flight. I was also informed that as long as I was told I was not banned that I could attempt to reenter the customs area and plead my case to another CBP official. I then checked back in and told a different CBP officer my situation. He said he believed me and would like to send me through, but I had been “flagged” and was required to enter secondary.

During my second visit to secondary, CBP officials said that in order to gain entry I had to bring documents that proved I was going to Los Angeles only to visit and a letter from my friend explaining why he paid for my air travel. After being unable to contact my employer, I cancelled my trip and left the airport.

I have no idea why I was found inadmissible. I am concerned that this ordeal will affect future travel to the United States. What can I do to correct any negative information in my file?

Answer

Thank you for your question. Based on what you briefly described, it appears as if you were simply turned away because CBP did not feel that you qualified for B-2 (visitor for pleasure) status, either because they felt that you did not establish that you had strong ties to Canada and/or they felt that you were seeking to enter the U.S. to work (which is not a permissible B-2 activity).

In general, CBP will issue documents or take a sworn statement from you if something more serious than a denial resulted from your encounter. Since no documents were issued and you were told by CBP officials to return when you could provide additional information, there is a good chance that no harmful action was taken. When the government fails to issue explanatory documents or provide adequate reasoning for a denial, it is understandable how you may be hesitant to reapply for admission into the United States. You cannot help but think that your next attempt will undoubtedly result in a permanent bar. Furthermore, it is not helpful when CBP begins to throw around terms like “flagged,” which only heighten your anxiety.

In situations such as yours, when you have little information about why you were denied, one service that we provide for our clients is to submit a FOIA request to see what, if anything, is in their file. FOIA requests can be made to the Department of State, Customs and Border Protection, or United States Citizenship and Immigration Services. Unfortunately, FOIA requests take around 6-8 months to process, so expect a wait once you submit your request. Once we received a client’s complete file, we completely review the file and develop a strategy moving forward that meets the client’s short and long-term goals.

Aside from making a FOIA request, there is little else that can be done other than going back to the border with “stronger ties” and applying for admission. Additionally, due to our proximity to the border, we also offer a service we refer to as “Controlled Admission.” A Controlled Admission allows us to accompany our clients to the border and guide them through the inspection process. We understand that applying for admission can be daunting, but with a Controlled Admission, we are able to personally advocate on behalf of our client at the border should any issues arise.

At this time, the best solution I can offer is to have you schedule a consultation with our office so we can thoroughly discuss what documents/information you presented at the border, about your conversations with CBP and determine a strategy for moving forward. We look forward to speaking with you.

Obtaining A Copy of Your CBP File by filing a Freedom of Information Act (FOIA) Request

Question: Dear SRW Border Lawyers,  I am a 40-year-old citizen of Great Britain. Recently, I was denied an F-1 visa pursuant to section 214(b) of the Immigration and Nationality Act (INA). I was under the impression that I had a strong case, but obviously the consulate did not feel the same. During my visa interview, the officer asked me about my previous travels to the U.S. under the Visa Waiver Program (VWP).  The officer’s line of questioning led me to believe that something may have been noted on my record about a previous entry several months ago in February.

In February, I traveled to the U.S. and applied for admission at the Los Angles airport. I was questioned and subsequently sent to secondary inspection where Customs and Border Protection (CBP) proceeded to search my belongings.  When CBP searched my wallet, they found my business card and began to question me about working in the U.S. I flatly denied that I was entering the U.S. to work. I was eventually allowed to enter the U.S., but I fear that CBP may have made a note about this incident in my record, which will make it more difficult to enter the U.S.  How can we contact CBP to see what is in my record?

Answer: Thank you for your question.  Under INA §214(b), “Every alien (with limited exceptions) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under INA §101(a)(15).”  There are some exceptions to this presumption, but none that apply in your case from what you have stated.

Put another way, under INA §214(b), a foreign national has the burden to prove to the satisfaction of the consular officer that he or she qualifies for the visa they are seeking.  Consular officers apply a two-prong analysis when determining whether a foreign national is eligible for a particular visa. Pursuant to 9 FAM 40.7 N2, a foreign national must: (1) provide sufficient evidence of “ties” to his or her own country to overcome the presumption of immigrant intent, and (2) satisfactorily prove that he or she is entitled to the nonimmigrant status being applied for (e.g. F-1 as in your case).

At this point it, it is likely premature to conclude that your F-1 visa denial was due to a previous incident with CBP. Your denial may have been the result of simply failing to satisfy both prongs of the 214(b) analysis listed above. It is possible, however, that CBP placed an entry in your record that contributed to your denial. Simply put, we do not know. The best course of action is to suspend any travel to the U.S. until we can determine what, if anything, is on your record.

In order to obtain a copy of your file from U.S. Customs & Border Protection (CBP), we can assist you in filing a Freedom of Information Act (FOIA) Request with CBP to request a complete copy of your record. Once we have a copy of your record, we will then be able to determine what steps need to be taken in order to restore your ability to travel to the U.S., whether it be reapplying for a F-1 visa through the U.S. Consulate, following up with CBP to update your records, etc.    

Should you wish to speak to us in further detail regarding your U.S. immigration concerns, please call our office and set up a consultation.  We look forward to hearing from you and being able to assist you with your U.S. immigration matters. 

Best,

The SRW Border Team