The nightmare of an “Unwelcomed Traveler”

The possession of a valid visa issued by the consular officer at the United States Embassy is not a guarantee of a smooth passage through the US ports of entry.

Travelers may still be subjected to intensive interrogation at the port of entry. Even lawful permanent residents or green card holders may be detained and placed in removal proceedings. But what will trigger the nightmare of a traveler being sent back to his country of origin? How often does this happen? What makes well intentioned travelers “unwelcomed travelers”?

Detained and deported

In the news this week was the case of a 63-year-old Filipino woman seeking admission to enter the US. Instead of being allowed in, she was allegedly subjected to intensive interrogation, and per her account, “treated like a criminal” by the Customs and Border Protection inspectors.  If the reporting of the incident was accurate, it is easy to empathize with her plight because there appears to be no indication that she had violated any law that could have prevented her from entering the US. After all, a Customs and Border Protection (CBP) inspector should not refer a traveler to a secondary inspection without basis—there has to be a reason for doing so.

Border protection

Upon arrival at a US port of entry, all individuals must undergo a process of “primary inspection.” During this inspection, a CBP officer will make a preliminary assessment of the individual’s admissibility to the US. In the event the primary inspection officer determines there may be issues as to admissibility, that officer will refer the individual to ‘secondary inspection’ for a more thorough evaluation.

“Issues of admissibility” refer to grounds under the law that will provide authority to the CBP officer to deny entry to an arriving alien. Example of inadmissibility grounds are prior immigration violations, criminal history, fraud, misrepresentation or simply lack of valid documents. Those who are determined to be inadmissible may be deported back to their country of origin in a process called “expedited removal.”  This is often referred to as “airport to airport” decisions.

Considering the drastic penalty of an expedited removal, the CBP officer is required to follow protocol.  The person being sent back on an airport to airport basis is required to give a signed statement to the CBP officer.

The traveler must be advised of the charges against him or her. However, before the charges can be served upon the individual, the order must receive supervisory approval. Hence, it is expected that the charges and the adverse decision of an expedited removal has been reviewed and approved by supervising officers before becoming a final order of removal or deportation.  Upon review and the concurrence of the supervisor, a notice of expedited removal will given to the foreign national.

Withdrawal of admission

When a traveler is made aware of a probable decision of an expedited removal, he or she has the option but not the right to withdraw the request for admission. This is an alternative to the issuance of an expedited removal order. The CBP has the discretion to allow the applicant to withdraw the application for admission.

Factors that the CBP may take into consideration when determining whether withdrawal is appropriate include: seriousness of the immigration violation; previous findings of inadmissibility against the alien; intent on the part of the alien to violate the law; ability to easily overcome the ground of inadmissibility; age or poor health of the alien; and other humanitarian or public interest considerations. However, situations involving obvious and deliberate fraud warrant expedited removal.

Seeking redress

It is not unusual that harsh questioning of travelers during secondary inspections are experienced. Most of the time, the CBP inspectors are already in possession of derogatory information against the traveler and are just waiting for the traveler to admit to the information they have. If there is no admission of wrong doing, however, and if the removal order is without basis, the adverse decision may still be overcome.

Once the traveler returns to the Philippines on an expedited removal, the matter may be addressed by communicating with the CBP officers responsible in issuing the decision or their supervisors. The CBP has established a procedure for addressing concerns of travelers regarding inappropriate CBP officer behavior during interrogation. If the CBP supervisor is convinced that the actions were not warranted, the removal order may be rescinded and converted to a voluntary withdrawal of admission. Another way to deal with the adverse decision is to reapply for a new US visa, seek a waiver of the five year bar (occasioned by the fact of prior removal), explain the errors in the removal order, and provide the necessary documents supportive of the traveler’s position.

In any event, problems at the port of entry are greatly minimized if you are clear about your intentions and the purpose of your travel, if you carry all appropriate documents required for admission, and if you are ready with the contact information of your relatives or friends in the US who can verify your travel intentions. Whether one is subjected to intensive interrogation or not, preparation is key and spells the difference between a smooth or stress-filled travel.

(Atty. Lourdes Tancinco may be reached at [email protected] or at 721 1963 or visit her website at www.tancinco.com)