CBP Can Place Foreign Nationals in Removal Proceedings for Failing to Obtain Non-Immigrant Waivers Prior to Applying for Admission at POE

Our firm often encounters individual in a similar predicament - They have recently been placed into removal proceedings in Immigration Court because they continuously appeared at a Port of Entry (POE) seeking admission into the U.S., despite the fact that they were previously advised by U.S. Customs & Border Protection (CBP) that they were inadmissible to the U.S. under INA § 212, whether it be for previous immigration violations, previous criminal convictions, or some other ground of inadmissibility.

This situation also has one other common denominator: these individuals tend to be Canadian citizens, given that Canadian citizens are visa exempt.

So why are these individuals in removal proceedings? In fact, they usually don’t even live in the U.S., but are simply trying to enter for a temporary visit. Well, what happens is that when CBP encounters these individuals at the POE, who after being repeatedly advised that they need a nonimmigrant waiver (Form I-192) to enter the U.S. continue to attempt to enter the U.S. without acquiring the waiver, CBP choses to exercise its authority and places them in removal proceedings in front of an Immigration Judge. CBP will issue a Notice to Appear (NTA), which is the charging document for immigration matters. The individual is then either provided with a date/time to appear in front of the Immigration Judge or receives a notice in the mail at a future date. For those individuals that end up in removal proceedings after appearing at a POE near Buffalo, New York, they end up in removal proceedings in front of the Immigration Judge in Buffalo, New York, who has a backlogged docket of over a year.

Now, this is the situation these individuals have placed them in – they were already inadmissible to the U.S. under INA § 212 (whether it was for previous immigration violations, criminal convictions, etc.), and now they may become subject to yet another ground of inadmissibility if they are ordered removed from the United States (which they may be if they are unable to overcome the charge of inadmissibility being lodged against them). If the individual is ordered removed from the U.S., they are going to be barred from re-entering the U.S. for a period of ten (10) years. If they want to enter the U.S. prior to the expiration of their ten-year bar, they need to apply for yet another waiver – Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. This is in addition to the Form I-192, Application for Advance Permission to Enter as Nonimmigrant, that they already require.

However, one option that may be available for these individuals in order to avoid a formal removal order is to request that they be allowed to withdraw their application for admission. Put simply, it is the individual saying to the Court “I’m sorry I applied to enter the U.S. I would like to take my application back and go home now.” This is a highly discretionary request, and not a right or a benefit, so the Immigration Judge does have the discretion to deny the request. Nonetheless, in some cases, it may be worth pursuing this strategy in order to avoid a removal order that will incur either a ten (10) year bar to the US or require applying for yet another waiver.

For those individuals who have been previously advised by CBP that they require a nonimmigrant waiver to enter the U.S., before re-appearing at the POE to enter, it is highly advisable that these individuals apply for their waivers to avoid being placed in removal proceedings. Should an emergency arise during the pendency of the waiver application, there may be the opportunity to apply for parole while the waiver application is pending.

If you are one of these individuals who has already been placed into removal proceedings based on a scenario described above, please schedule a consultation with our office to determine whether withdrawing your application for admission may be a advisable and feasible strategy.

Q: How will an expedited removal order charging inadmissibility under INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I) affect my ability to reenter the United States?

Q: Dear SRW Border Lawyers,

Last month Customs and Border Protection ("CBP") issued an expedited removal order against me at the Peace Bridge port-of-entry. I was charged as inadmissible under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).

I work for a U.S. based test prep company in Canada, but on more than one occasion I have entered the United States for additional training. I was compensated for my participation in these training sessions. Last month, I tried to enter the U.S. to attend a training session and teach a test prep course, but I was not allowed to enter and told by CBP that I needed employment documents because I was being compensated for my time. Against my better judgment, I attempted to enter the U.S. at another port-of-entry, the Peace Bridge, the following day.

During questioning at the Peace Bridge, I told the inspecting officer that I was entering the U.S. to go shopping. I was eventually pulled over and placed in a room where I was questioned further.  CBP officers searched my phone and found emails discussing the course that I was going to teach and how much I was going to be paid. The officer’s told me about the emails they found and then issued an expedited removal order against me.

How will this expedited removal order affect my ability to travel to the United States?

A: Based on your question, it appears that you were expedited removed under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).  Under the Immigration and Nationality Act (“INA”), a foreign national is inadmissible under INA § 212(a)(6)(C)(i) if he or she seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the U.S. or other benefit provided under the INA by fraud or willful misrepresention of a material fact. Furthermore, a foreign national is inadmissible under INA § 212(a)(7)(i)(I) if he or she applies for admission without a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the INA, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required.

Individuals who are removed from the U.S. by the expedited removal process are barred from reentering the United States for a five-year period. Pursuant to INA § 235(b)(1)(A)(i), individuals removed are not entitled to a hearing before an Immigration Judge (unless the individual seeks asylum under INA § 208). If, however, an individual stopped by an immigration officer is allowed to withdraw his or her application for admission (INA § 235(a)(4)), an expedited removal order will not be lodged and there will be no five-year bar. Only individuals order removed under INA § 235(b) are subject to the five-year bar. 

A charge of fraud or willful misrepresentation under INA § 212(a)(6)(C)(i) creates a lifetime bar for entering the United States. What this means is that an individual charged under this provision will be permanently barred from the U.S., unless they are granted a waiver. Therefore, even after the expiration of the 5-year bar, an individual charged with fraud or willful misrepresentation will still be barred unless they are granted a waiver.

I would encourage you to call our office to discuss all of your options. In cases where it was appropriate, we have had a strong record of attacking fraud charges and having them removed because they were improperly issued. For cases where removing the charge is not an option, however, we have been very successful in acquiring INA § 212(d)(3)(A)(i) and Form I-192 waivers. If you wish to enter prior to the expiration of the 5-year bar, we can also discuss a Form I-212, Application for Admission after Removal.

In the meantime, to learn more about the expedited removal process, INA § 212(d)(3)(A)(i) and Form I-192 waivers, and the Form I-212, Application for Admission After Removal, please visit our website. 

WHAT DISCRETIONARY RELIEF CAN I REQUEST WHEN I AM DENIED ENTRY AT THE BORDER?

If you are ever denied entry at the border, you may ask for permission to withdraw your application for admission.

I cant tell you how many times an individual applies for admission to the U.S., but is subsequently deemed inadmissible due to a long forgotten criminal violaiton. In such cases, it is permissable to ask for permission to to withdraw your application.

Withdrawing your application for admission will avoid being placed into removal proceedings; having an expedited removal order issued against you; or, if you are seeking admission under TN status, a denial of your TN and then being issued an expedited removal order. 

As a discretionary form of relief, you should be aware that there is no right to withdrawing your application for admission. Border officials will make their decision on whether or not to grant permission to withdraw on a case by case basis. Nonetheless, no matter what the circumstances of your case may be, it can never hurt to ask for permission to withdraw your application for admission.

Have you recently had a similar issue at the border? If so, please give us a call at our office to discuss how we can help you with your border issue.

By WILLIAM Z. REICH, ESQ.