Most visitors to the US enter without any problems. However, some encounter more scrutiny and are denied admission due to violation of immigration laws. In this article, we’ll examine different situations where aliens are denied admission and the implications of these incidents on their future immigration applications. Expedited removal, withdrawal of application for admission, voluntary return or a turn-around are some possibilities that aliens could face when they are caught violating immigration laws at the border or ports of entry.
Under INA 235(b)(1), an immigration officer may order the removal of an alien arriving in the US who is found inadmissible for misrepresentation or lack of valid entry documents. This process is known as expedited removal, which is administered by an immigration officer, not by an Immigration Judge (IJ). There is no full hearing or appeal in expedited removal proceedings.
For example, X arrived at the Los Angeles International Airport with a B-2 visa. It was his third visit in the last 5 years. During inspection, a Customs and Border Patrol (CBP) officer found a US bank checkbook and documents that raised suspicion that X has been working in the US in violation of his B-2 visa. X was sent to secondary inspection where a CBP officer took his sworn statement and interviewed him pursuant to expedited removal proceedings under INA 235(b)(1). X soon admitted that he has been doing paid work occasionally. The CBP officer found him inadmissible, cancelled his visa, and issued an order of expedited removal. X was sent home on the next available flight.
As a consequence of this expedited removal, X cannot seek admission into the US within 5 years from the date of his removal. If he wishes to be admitted as an immigrant within this 5-year period, he would need to file a Form I-212 application for consent to reapply for admission. If he disregards this prohibition and re-enters without inspection, X would be inadmissible under INA 212(a)(9)(C)(i)(II) and would be barred from seeking admission until he spends 10 years outside the US. If X re-enters without inspection, he also runs the risk of removal at any time without recourse to any relief because INA 241(a)(5) authorizes the reinstatement of a prior removal order if an alien re-enters after his removal.
There’s another possibility that could happen to X at the airport. Under INA 235(a)(4), an alien who is applying for admission at a port of entry may be allowed to withdraw his application for admission and depart the US immediately. In X’s case, instead of expedited removal, the CBP officer may allow him to withdraw his application for admission as a B-2 visitor. This voluntary withdrawal would be in lieu of a formal determination of inadmissibility. If X withdraws his application for admission, he would have to depart immediately but without a removal order. Thus, even though he would have to apply for a new visa to return to the US, he would not be barred from applying for admission for any amount of time.
While withdrawal of application for admission may not affect an alien’s admissibility, it would however interrupt his continuous physical presence for purposes of cancellation of removal under INA 240A(b)(1)(A). Under this provision an alien may obtain lawful permanent residence if he could show, among other requirements, that he has been physically present in the US for a continuous period of not less than 10 years. Under INA 240A(d)(2), an alien’s continuous physical presence is not disrupted even if he departs the US for an aggregate period of 180 days. If this alien tries to return after his brief departure and fails but is able to re-enter later, this failed attempt to re-enter could interrupt his continuous physical presence.
In Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005), the Board of Immigration Appeals (BIA) held that, an alien’s failed attempt to re-enter would interrupt his continuous physical presence if he had withdrawn his application for admission during this failed attempt to re-enter.
Under 8 CFR 240.25, immigration officers may allow aliens apprehended at the border to depart voluntarily in lieu of removal proceedings. In Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002), the BIA held that an alien’s voluntary return under threat of removal interrupts his continuous physical presence.
Lastly, an alien who violates immigration laws may be stopped at the border, turned around and sent back to his home country without any more formality. If this alien later re-enters, he would continue to accrue physical presence because, as held in Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005), the fingerprinting and photographing that often accompanies a border “turn-around” are not sufficient formalities that would disrupt continuous physical presence. Turn-arounds are uncommon and would even be rare these days since expedited removal and withdrawal of application for admission are the standard response to immigration violations.
Thus, an alien must understand the nature of any previous encounter at the border because it might affect his eligibility for immigration benefits.
