THE power to give, take away, and deport. The United States does not welcome you with open arms. It allows non-citizens entry into the United States, under certain conditions. When these conditions are broken, you can expect nothing but the full force of the United States government through the Department of Homeland Security to bear down on you. Until you are a full-fledged US citizen, you may be deportable.
It all starts with the Notice to Appear (NTA). The NTA is the charging document issued by an authorized agent of the US Department of Homeland Security (DHS), to noncitizens who the government believes are inadmissible or removable. The NTA is issued to place a noncitizen in a full removal proceeding before an immigration judge, who will determine whether the noncitizen is to be removed or allowed to remain in the United States.
Who Can Issue an NTA? Various officials within DHS are empowered to issue NTAs in different circumstances. The US Immigration and Customs Enforcement (ICE), which is an arm of DHS that conducts investigations and enforcement and removal operations, may issue NTAs.
The US Citizenship and Immigration Services (USCIS) may also issue an NTA when it finds a noncitizen has not complied with regulations governing admission or maintaining lawful status after admission.
The US Customs and Border Protection (CBP) may also issue NTAs. CBP operates primarily at designated ports of entry and manages customs, immigration, security, and agricultural inspection duties. CBP makes thousands of determinations daily, concerning the admissibility of arriving noncitizens.
Below is a discussion on examples of what might trigger the USCIS, ICE or CBP to issue an NTA putting you in removal proceedings.
Inadmissible: When you are not allowed to enter. Nikolai is a Lawful Permanent Resident (LPR) who was admitted to the US in 1970. In 2000, he was convicted for 2 DUI convictions and petty theft. Recently, he took a vacation outside of the US for a few weeks. Upon his return, CBP took him aside and issued him an NTA for being an “inadmissible alien.”
Deportable: When you are getting thrown out of the country. Jennifer (also an LPR) was convicted of 2 counts of possession of marijuana, 2 counts of being under the influence of marijuana. She is currently out on bail for her 4th case in a span of 12 months, for resisting arrest, public indecency, and being under the influence of a controlled substance. She has just recently been issued an NTA alleging that she is “deportable.”
The Filing of an Application May be Trigger an NTA. In a third scenario, Marco has been living under the radar for 20 years and finally decided on filing for citizenship, without first consulting with an experienced immigration attorney. At the interview, he is shown a record of conviction for DUI that he had forgotten. Worse, there were several misdemeanor theft convictions from 10 years ago that he had also forgotten. Marco is scheduled for a second interview, and he is panicking as to what might happen.
In either of these scenarios, Nikolai, Jennifer, and Marco run the risk of being removed (deported) from the US because of their convictions, notwithstanding their LPR status, and their long-term residence in the United States.
A Criminal Conviction’s Negative Impact on Immigration Status. The Record of Conviction (ROC) details an individual’s criminal history – his/her arrest, what s/he plead to, and the final judgment/sentence. The relief(s) available to an individual facing removal/deportation proceedings will depend largely on the record of conviction.
Not every criminal conviction will result in deportation and not every deportation proceeding will lead to an order of deportation. Nevertheless, certain commission of crimes will render a non-citizen inadmissible or deportable, and will run the risk of being placed in deportation proceedings. An individual should act quickly and consult both with a criminal attorney and with an experienced criminal immigration attorney who handles deportation defense, to mitigate the negative consequences of a criminal conviction to his/her immigration status.
It is important to be informed and know your options. An experienced immigration firm or attorney will be able to help you understand the options available to you under the evolving immigration laws.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
In April of 2016 a young girl was preparing to make a 10,000 mile journey across the globe to finally be united after a long wait to marry her fiancé in the U.S.
She just received her fiancé k1 visa after a 12 month wait. They communicated with each other for a year and a half every single day over Skype. With her newly born excitement she quit her job, gave away some of her possessions and departed for the airport. There was not much to go back to as a new life would begin with the man she fell in love with in the U.S.
Little did she know she would never arrive to her final destination as she would be turned away by the U.S. government Gestapo border squad called the CBP.
Background of the CBP: Customs and Border Protection is the trial, Judge and jury of the U.S. Government policing our vulnerable border entry points.
With more than 60,000 employees, CBP is one of the world’s largest law enforcement organizations and is charged with keeping terrorists and their weapons from entering the U.S. borders, while also validating travelers from committing travel fraud. The agency was granted its full power in 1996, when the U.S. Congress with President Clinton gave them the authority to remove any traveler or migrant they see fit from the United States and without the need for a hearing before an immigration judge.
In addition to the removal they can also make an arrest.
A criminal fraud statute provides for sanctions to those presenting false information to customs officers, with violators facing a maximum of 2 years imprisonment, or a $5,000 fine, or both, for each violation involving an importation or attempted importation.
With millions passing through our borders it is their job to make sure terrorists, smugglers, & criminals don’t make it into our country.
Our encounter with the CBP is an unfortunate event and not unique as countless others have experienced similar problems that have been reported and many more that have gone unreported by travelers.
While traveling to the Philippines in January of 2015 I was lucky to have met the woman I would spend the rest of my life with. Returning home 30 days later, I immediately had her file an application for a tourist visa to come visit me in the U.S. But the process was taking too long and I proposed we marry instead. Within a few weeks I filed for the K1 Fiancé visa.
This changed our status from friends to fiancé locking us into a marriage contract built by love. During the long waiting period I had returned 2 more times each visit for 30 days giving us more time to know each other better & develop a stronger relationship.
As soon as she arrived at LAX airport the CBP brought her in for interrogation. It was unexpected since she already was meticulously examined and interviewed by the U.S. Embassy in Manila.
Later they would hint something in her file made the CBP suspicious about her fiancé entry request.
After the basic kindergarten questions a cold female CBP officer asked her if she could recognize a picture of my 1st ex-wife from 25 years ago. She couldn’t answer the question because I didn’t have any pictures of my ex-wife from 25yrs ago and didn’t discuss many details about that relationship. Later I would find out the picture they showed her was not my ex-wife but an unknown woman who was never identified.
This made the CBP officer more suspicious and told her your fiancé is still married and living with his prior ex-wife. A fabricated lie from the officer because in reality this divorced ex-wife was not living in the USA and moved to Russia some time ago to live with her family.
But since her mailing address was still registered with the DMV as my mailing address made the CBP officer more suspicious. Then the officer asked if she had a contract to come work for me as a domestic helper. When she told her no, the officer called out loud, “you’re lying”! And continued with her suspicions accusations to say you are coming to the U.S to find a job then divorce or leave your fiancé and bring your daughter here.
When the CBP officer heard her state no it’s not true she yelled at her, “you’re a liar”.
The overall aggressive behavior started to make this poor naïve girl worry these officers can hurt her, as in her country when the gov’t officials bring you in they can do as they please and a young girl will have no recourse.
After more screaming and accusations to break her down the CBP officer stated you have committed fraud to enter the U.S. on a fiancé visa as we have found you’re arrival here for the intent of employment. As they prepared her paperwork to return her back to the Philippines they placed her in a locked room and prepared her removal paperwork. She would ask if she could call her fiancé, family, or embassy and was denied any communications. In their custody they held her cell phone where they could of observed all the hundreds of pictures of the 2 of us together, and the everyday Skype chats which could of also confirm our marriage bond. But they refused for some reason to see or report the truth. We also made a video of us together during my 2nd visit to the Philippines but this would never have a chance to help the situation.
When they brought her back into the interrogation room it was basically over for her at this point. Now the CBP officers needed to wrap this case up & get their scorecard brightened up, maybe for their next promotion.
The intimidating CBP officer in a threatening manner would tell her I can pick up the phone and put you in jail for 5yrs for lying & committing fraud. But the law actually states it’s a 2 year sentence and not 5. Perhaps the officer forgot to read her manual.
She held a bunch of papers and said if you just want to go home I need you to sign these papers. Without explanation of what these papers were or allowing her anytime to review these papers the poor girl frightened by the officer & fearing she may never see her family again signed the pages blindly to end the torture.
After she signed she realized a big mistake was made when the officer told her you cannot come back to the U.S. for the next 5yrs.
To make the matter even worst, signed copies of the officer Sworn Statement and expedited removal forms where never placed inside a small yellow envelope she received from the airline upon landing in her home country.
It seemed these papers were deliberately omitted by the officer to further hide her actions and deter any future complaints.
It took over a month for me to finally obtain copies of these documents from the Freedom of Information Act or FOIA which included the questions and answers they wrote on her behalf. She tried to call from Philippines many times to the CBP office at LAX but was never connected to a supervisor to request the copies of the missing papers that we needed to review and understand why they returned her home.
When I received the final copy with her initials and signatures I was shocked by the computer typed answers next to each question.
Immediately after her deportation I was devastated by the news and immediately sought legal counsel as I changed my schedule to leave the U.S. and be with her during this tragic time.
I searched on-line for answers and guidance where I found contact information for the CBP complaint dept in Washington D.C. When I phoned them I was relieved to speak with someone that was sympathetic to my situation.
I was directed to complete certain complaint forms and obtain releases which I did and uploaded all the information to their investigative dept.
There 1st reply to me requested I send them the officers statement which we did not have at the time and were not aware these forms were supposed to be provided. I replied she never received these forms and the CBP complaint dept told me they cannot do any investigation without this form. They also did not believe she was not provided copies of these forms at deportation and suspected her of concealing or lying about the forms. I could not understand how the head dept. of the CBP could not pull up these forms themselves.
It took more than 30 days of persistent attempts to obtain these forms as the CBP refused to release them for unknown reasons.
When I finally sent the CBP complaint dept. the obtained forms I felt relieved that action would finally take place.
But in fact nothing would happen except lost time in waiting. I was told there was nothing they could do. They had sent my information to the CBP California branch but nothing would ever come of it.
I was praying my hired attorney would be able to get better results from them. But they also ignored his letters and the letters from a local congresswoman as well. Only after about 4 months a response from the CBP was issued.
It was a stock template letter that had gibberish in it regarding examples of how to provide economic ties to their place of residence. It stated what ties where, “”Ties” are the various aspects of a person’s life that bind him or her to his or her country or residence and are categorized by one’s possessions, employment, and social and family relationships.”
This had absolutely nothing to do with our case and was further proof how the CBP did nothing to investigate the complaint and their arresting officer’s abusive actions.
Now let me highlight some of the CBP officer’s action regarding her sworn statement form.
Q. “Did you sign up for the website so you could find an American husband?”
A. I signed up to find a husband not specifically and American husband.
Q. Why did Mr. ______ list himself as your friend under your U.S contact on the B1/B2 visa application and not as your boyfriend?
A. The application was filed before the Fiance visa petition began. The officer took this as part of her fraud suspicion to assume there was no intimate relationship.
Q. Is it your intention to marry Mr. DEGEN only to bring your daughter so that you both can live in the u.s. legally?
A: Yes. (The CBP officer interpreted this question as part of the sole purpose of her arrival. Strictly coming for the purpose of bringing her daughter to the U.S.)
Q. Were you coming to the u.s to be a domestic employee for Mr. DEGEN and his ex-wife, who is living with him at this time?
A. Yes, ma’am. (I freaked when I saw this, but she swore she never gave the Yes answer and it was the CBP officer who falsely wrote her own answer and not the one given)
Q. How much money did Mr. ____ offer you?
A: I don’t understand. I will work for him and for myself. (She replied “I don’t understand because she already told her “I am not coming to be a domestic employee. And if I don’t have enough money I can always get a job.” )
Q: Were you going to work for free?
A: No, he was going to pay me but I am not sure how much (My fiancé NEVER said No to this question & never said “he was going to pay me”, this statement is UNTRUE! This question was never asked and the answer was fabricated by the officer)
Q: Did he give you details of when he was married and why he divorced his prior wife’s?
A: No ma’am.( The officer did not say prior wife, officer said 1st wife from 25 yrs ago which she did not have the information. I assumed this question would further enforce the CBP’s suspicions of a fraudulent relationship)
Before the interrogation began the CBP officer advise her the session will be recorded. But I was never able to obtain this recording and kept calling the complaint dept. asking them to review the recording with her actual given answers.
I still do not understand the role of the CBP complaint dept. in Washington. If my complaint was dismissed then what is their purpose or role?
Finally to get rid of my nagging they suggested I file a redress complaint with Homeland security.
This is the only real help I received as I quickly learned the Dept. of Homeland Security investigates wrongful entry denial issues.
After filing another complaint and sending them all the forms, notarized statements, and proof we were put on a waiting list for an investigation.
This again is no quick process, after 100 day wait I was told they will start and come to a resolution within the next 30 days.
The CBP is a large enforcement group with many good dedicated officers making sure our country remains protected from the bad people. It’s a shame there are some who do not follow the U.S. laws, procedures, and guidelines as we came into contact with one of their bad apples.
It’s a further shame the bureaucracy and incompetence of the CBP to enforce and follow through complaints is discarded into the unknown.
We have waited so long to be together and now precious time we could use is being lost that we will never recover.
This has caused an emotional & financial strain on my life with unexpected, legal & travel expenses, loss of work, and loss of health. To date my fiancé is unable to be re-employed after quitting her job.
A situation such as this should never have to happen for anyone abiding honestly by the immigration laws.
I would advise everyone to stay away at all costs from CBP officer’s Lorraine Tapia and officer Lau stationed at LAX airport. You should avoid confrontation with them if possible.
Finally after a long 5 month wait I received a response from DHS redress dept. My hopes for a proper investigative resolution were shattered upon the receipt of the letter. This was another boiler plate response with an added paragraph stating the CBP would also send me a letter shortly and the case was closed by DHS without any positive conclusions.
Next day the CBP letter came with a paragraph describing the duties of the CBP and a reason why my fiancé had been deported. But all my complaints were ignored and not identified in either letter.
I realized dealing with the government and bringing the injustice to the surface was just a waste of time. My complaint was ignored and the officers’ cruel behavior was covered up by the officials. Our future we had planned and waited for so long was destroyed. The only option now was to start a new plan from the beginning and try again, meanwhile losing another 1 to 2 years of waiting while being separated.
Other CBP Complaints:
Lopez-Venegas v. Johnson
Deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.”
The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents.
FTCA Administrative Complaints against the United States
On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.
CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand. Agents threatened that they would be kept in the holding cell until they signed these documents. These agents also referred to them in demeaning ways, including calling them “bitches.”
Leonel Ruiz o/b/o E.R. v. U.S.
E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport.
E.R. was returning home to New York from a vacation in Guatemala with her grandfather.
CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.
Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them.