Mr. S was a famous physicist in his home country, and his EB-11 petition for extraordinary ability was approved. However, because of the nature of his work, his application for adjustment of status was deemed sensitive by the US government and no action was taken on it for four years. After we filed a lawsuit for a writ of mandamus in a federal district court, the US Attorney’s office, which was responsible for defending the lawsuit, contacted USCIS. Within two weeks, USCIS approved the application for adjustment of status.
While this site is primarily about the visa decisions made by consular officers, it is important to remember that receiving a visa only allows an individual the right to apply for entry at a US airport or border crossing. It is the Customs and Border Protection (CBP) officer who makes the final decision on entry. This final decision can sometimes have tragic consequences when the officer makes a determination to enter an expedited removal order (Sections 235(b)(1)/ 212(a)(9)(A) of the Immigration and Nationality Act).
What is Expedited Removal?
Expedited removal is a "pile-on" provision of the INA — in addition to finding a person inadmissible under one section of the INA, the CBP officer "piles on" this additional punishment under a different provision of the INA. By entering an expedited removal order, the CBP officer is, in essence, deporting an individual who is applying for entry because he 1) is not in possession of the proper type of visa and/or 2) committed a material misrepresentation or fraud. The first type of decision leads to an expedited removal bar to entry for five years and cancellation of the current visa under Section 212(a)(7) of the INA. The second type of decision leads to a five-year bar for expedited removal and a bar to entry for life under Section 212(a)(6)(C)(i). Most importantly, these decisions are not subject to review in a court, nor is the applicant able to have an attorney present at the port of entry when this decision is made. (The expedited removal bar is for ten years if the person attempts to enter illegally after a five-year expedited removal order was entered. Besides CBP, Immigration and Customs Enforcement Officers can also enter these orders for those who are apprehended in the United States without inspection.)
What triggers CBP scrutiny at the time of entry?
CBP scrutiny is triggered by what it perceives as suspicious behavior by the applicant for entry. For example, an individual who spends prolonged time in the US on a B visa or makes frequent entries with little time spent outside the US ("visa carousel") can be subjected to additional interrogation the next time they seek to enter the US. After being invited to a separate room for secondary inspection, the CBP officer will ask many questions, such as "Are you working in the US? Are you looking for a job? How are you supporting yourself in the US? How do you spend your free time in the US? Are you going to school? Where do you work in your home country?" These interrogations can be humiliating — they usually include the opening of suitcases; checking of cell phones and computers; and contacting friends in the US to confirm the applicant’s story.
What are the possible outcomes?
The CBP officer has several options, including: 1) allow the applicant to enter the US; 2) allow the applicant to withdraw his/her application for entry (Form I-275A); or 3) enter an expedited removal order. While of course Option 1 is preferable for the applicant, Option 2 is better than Option 3. When the applicant makes an inadvertent or honest mistake about permissible activities on a visa, the CBP officer should allow the applicant to withdraw his application and immediately return to his home country. In such a case, the visa is cancelled because it is not the proper type of visa, but the individual can apply for and receive the correct type of visa in his home country if a) he/she meets the criteria for issuance and b) as long as the CBP officer did not make a finding of material misrepresentation or fraud. By falling into category 3, the applicant will be subject to the expedited removal bar for five years.
What can be done to challenge an expedited removal order?
While formal appeals or motions to reconsider are not provided for in the law, the applicant or his attorney can file a formal complaint or request with the local Field Director of CBP that the order be withdrawn. For example, if the applicant honestly believed that he was able to volunteer for an organization and receive some minimal compensation on his B visa, he should have had the ability to withdraw his application and not be subject to the bar. If an erroneous finding of material misrepresentation was made, it should be challenged. The applicant can also submit a request for redress to the Department of Homeland Security through its Travel Redress Inquiry Program (TRIP). Most importantly, this should be done as soon as possible after the entry of the order.
Facilitating these challenges are the "protocols" or I-867-A Record of Sworn Statement in Proceeding under Section 235(b)(1) of the Immigration and Nationality Act. This is a transcription of the interview -or more accurately, the CBP officer’s transcription of the officer’s questions and the answers of the individual. Of course, it is extremely important that before signing, the individual should understand, verify, and request changes to the protocol to ensure its accuracy. If the plain text of the Record does not support the factual or legal basis of an expedited removal and/or material misrepresentation decision, then that decision should be challenged.
This Record is supposed to be given to the applicant after it is signed. Although the Record should, it does not always indicate the legal basis for the decision; for example, the individual may only find out that he has been permanently barred by the CBP officer after his next visa application at a US consulate abroad. In such cases, Freedom of Information Act requests should be made to obtain a copy of the entire file from the government.
What other remedies are there?
If the expedited removal order was entered as a result of a finding the applicant did not have the proper visa, he can apply for permission to enter the US before the five years is up. If the applicant is applying for an immigrant visa, then he applies on Form I-212 (Application for Permission to Reapply for Admission to the United States after Deportation or Removal). If he is applying for a nonimmigrant visa, no Form I-212 is required. However, he becomes subject to the same review process as for a nonimmigration waiver. Similarly, if the expedited removal order was entered based on a finding of material misrepresentation or fraud, then the process depends on the type of visa applied for: if a nonimmigrant visa, then the nonimmigrant waiver process is undertaken; if an immigrant visa, then Form I-212 and I-601 are submitted as a part of immigrant waiver process.
What should be done?
As one can see the consequences for the entry of an expedited removal order are serious. If you believe that the order was wrong and the result of an honest misunderstanding, and/or if you believe you were mistreated by the CBP officer, then you should take action. If you would like to challenge the actions of the officer, obtain a copy of your file, or need assistance in obtaining a new visa after the entry of the order, please feel free to contact us to discuss your situation.