CBP’s Use of Discretion at Ports of Entry

The U.S. Customs and Border Protection (CBP) recently released two documents addressing the discretionary authority of CBP officers to overlook certain technical or minor background issues that would otherwise make a foreign national inadmissible to the United States. The two documents give insight into those situations in which the CBP has flexibility to help a non-citizen who is arriving at a U.S. port of entry (POE) who may otherwise be prevented from entering.

Documents Released Under FOIA

These documents, a CBP memorandum dated July 20, 2004, and a CBP directive dated September 3, 2008, were released in response to a Freedom of Information Act (FOIA) request filed by the American Immigration Council (AIC), a nonprofit agency focused on helping immigrants to the United States. The 2004 memo provides guidance to CBP managers on the use of discretion to permit people to enter the United States who would otherwise be refused, including a review of factors that should be considered and a list of the forms of discretion available. In the 2008 directive, CBP managers are given direction on when they should, or should not, exercise favorable discretion to allow an individual to enter the U.S., rather than refusing entry based on minor or technical violations.

CBP Guidance Differentiates Threats from Minor Violations

In the July 2004 memo, the then-CBP Assistant Commissioner states that discretion does not exist to admit any foreign national who poses a threat of harm to the United States, or who may present a risk to commit a violent or criminal act within the country. The guidance emphasizes, however, that discretion can be used to admit a foreign national who is inadmissible if the individual can demonstrate bona fide reasons for travel and whose prior misconduct involved minor or inadvertent violations. One example of why a person may be deemed inadmissible is discussed in the MurthyDotCom NewsBrief, CBP Reverses Inadmissibility Finding: Another Murthy Success Story (14.Feb.2012).

Common Types of Relief CBP may Grant

In many circumstances, if a foreign national who is inadmissible requests entry to the United States, CBP officers at the port of entry may place the individual in expedited removal, a process that can be used essentially to deport the person from the U.S. within a matter of hours. Following expedited removal, the individual is automatically subject to either a 5-year or lifetime bar from the United States, depending upon the reason for the inadmissibility. At the discretion of the CBP, however, such an applicant may withdraw a request to enter the United States and voluntarily return to his/her country of origin. This allows the applicant to avoid the stiff penalties associated with expedited removal.

The CBP also has discretion to grant parole, allowing an individual to enter the United States for a specific period and/or purpose. Parole is sometimes granted in connection with what is known as deferred inspection. This allows the individual to physically enter the U.S. in order to gather documents or otherwise correct the situation, return to the CBP at an appointed dated, and then, potentially, be properly admitted.

In addition, the CBP is empowered to waive certain document requirements, such as having a valid passport or visa. CBP officers can also adjust the period of admission allowed, as reflected on the I-94 documentation, as part of their discretionary authority.

Factors for CBP to Consider in Exercising Discretion

The 2004 memo and 2008 directive provide a long list of factors that CBP managers should consider when determining whether to provide a discretionary benefit to a foreign national who is inadmissible, such as the nature of the individual’s inadmissibility, health issues, and prior periods of unlawful presence. Other factors to consider include the number of previous grants of parole or waivers, the level of cooperation offered by the applicant during the CBP inspection process, and other humanitarian or public interest considerations related to the person’s entry into the United States. The memo emphasizes that CBP managers need to weigh these factors as part of a consideration of the totality of the individual’s circumstances.

Conclusion

These two documents obtained under the FOIA show the commitment of the CBP to both defend the U.S. border and to also remain aware that some situations, including those involving family, medical, or emergency issues, may warrant the exercise of discretion. This discretionary authority provides CBP officers with the means to be flexible in certain situations, but foreign nationals must understand that the discretion to waive a requirement also means a CBP officer has the discretion to refuse to grant such a waiver. Those who believe they are likely to encounter problems entering the United States are strongly encouraged to first consult with a qualified attorney in order to determine what options may be available and how best to proceed. Attorneys at the Murthy Law Firm have experience in these matters.

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