There are currently 327 ports of entry into the United States.  These are the points where noncitizens may officially be inspected and admitted to the United States.  Just because a noncitizen presents him- or herself for inspection, however, does not guarantee lawful admission to the United States.  What constitutes an “admission” to the United States is discussed in § 17.5- 17.8, infra.  Sections 15.14-15.16, infra, discuss some of the more common alternatives to admission upon inspection, including parole, deferred inspection, and withdrawal of an application for admission.  There is also a form of expedited removal (without a hearing before an immigration judge) for certain arriving aliens.[160]

 

                With the development of technology, especially following September 11, 2001, more and more persons who were previously able to travel without incident are being identified as possibly inadmissible at the ports of entry.  Congress has specifically required the immigration authorities to develop a computer system to keep track of all noncitizens convicted of an aggravated felony, noting whether they have been removed, which would be available at the ports of entry and to the various consulates and embassies throughout the world.[161]

 

                Noncitizens seeking admission to the United States initially go through a primary inspection, which may be very cursory.  The primary inspector may, based on various factors, then refer the noncitizen to a secondary inspection that may involve a more thorough examination of documents and an interview at the port of entry, possibly with the assistance of an interpreter.[162]  The officer may also require the noncitizen to make a statement or answer questions under oath.[163] 

 

A noncitizen does not have a right to have an attorney present at primary or secondary inspection.[164]  However, this does not prevent a noncitizen from obtaining copies of court documents and/or a memo from an attorney that may be presented to the DHS to explain why the noncitizen is admissible despite some prior criminal history.

 

                The immigration statute seems to allow immigration officers only to make arrests for felonies, or for “cognizable” federal felonies.[165]  The CBP has the option of running a “wants and warrants” check on anyone appearing at a POE and that if they get a hit for an outstanding state warrant, they will hold the individual for the jurisdiction that issued the warrant.  They may try to justify it by asserting that anyone with outstanding warrant may be inadmissible and therefore subject to “interrogation and detention not amounting to arrest,”[166] then while “investigating” they contact the issuing jurisdiction to get authority to transfer the person to state custody on the warrant.

 

[160] See § 15.22, infra.

[161] INA § 236(d)(2), 8 U.S.C. § 1226(d)(2).

[162] Inspector’s Field Manual § 17.18.

[163] INA § 235(a)(5), 8 U.S.C. § 1225(a)(5).

[164] 8 C.F.R. § 292.5(b).

[165] INA § 287(a).

[166] 8 C.F.R. § 287.8(b).

OVERVIEW " CONTACT WITH IMMIGRATION AUTHORITIES " RIGHT TO COUNSEL
Gonzaga-Ortega v. Holder, __ F.3d __ (9th Cir. Jun. 7, 2013) (border officers were permitted to treat noncitizen as applicant for admission based on conclusion that noncitizen had engaged in illegal activity, without waiting for a final administrative determination; statement was not coerced).

Second Circuit

OVERVIEW - CONTACT WITH DHS - SEARCH & SEIZURE
Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. Aug. 26, 2008) ("We conclude that petitioners' contact with immigration officials at the airport was not a seizure within the meaning of the Fourth Amendment because no force, threat of force, or other assertion of authority was used by the officials. Because petitioners were not seized, the statements obtained from petitioners by the immigration officials were properly admitted.").

Fourth Circuit

REMOVAL PROCEEDINGS " VISA WAIVER PROGRAM
Nardea v. Sessions, 876 F.3d 675 (4th Cir. Nov. 29, 2017) (although DHS failed to produce evidence that noncitizen signed the I-94W form agreeing to waive rights under the Visa Waiver Program, the documents produced were sufficient to establish that noncitizen had waived his right to a fair hearing when threatened with deportation).

REMOVAL PROCEEDINGS " VISA WAIVER PROGRAM
Nardea v. Sessions, 876 F.3d 675 (4th Cir. Nov. 29, 2017) (although DHS failed to produce evidence that noncitizen signed the I-94W form agreeing to waive rights under the Visa Waiver Program, the documents produced were sufficient to establish that noncitizen had waived his right to a fair hearing when threatened with deportation).

Ninth Circuit

OVERVIEW " CONTACT WITH IMMIGRATION AUTHORITIES " RIGHT TO COUNSEL
Gonzaga-Ortega v. Holder, 694 F.3d 1069 (9th Cir. Sept. 14, 2012) (8 C.F.R. 292.5(b) does not entitle noncitizen to counsel during secondary inspection at a port of entry because officers were permitted to treat noncitizen as an applicant for admission under INA 101(a)(13) based upon their conclusion that the noncitizen had engaged in illegal activity, without waiting for an administrative decision; court rejected noncitizens due process claims that his confession was coerced).

CONTACT WITH IMMIGRATION AUTHORITIES - ARREST REMOVAL PROCEEDINGS - EVIDENCE - STATEMENTS OF RESPONDENT
Rodriguez-Echeverria v. Mukasey, ___ F.3d ___ (9th Cir. Jul. ___, 2008) (noncitizen locked in a room overnight by the DHS had been "arrested" for purposes of 8 C.F.R. 287.3, requiring advisal of right to counsel and that any statements made could be used against the noncitizen; case remanded to BIA to determine whether statements can be suppressed because DHS violated the regulation and/or whether there was a Fifth Amendment due process violation).

Other

CONTACT WITH IMMIGRATION"AUTHORITY OF U.S. CUSTOM AND BORDER PROTECTION AGENTS
Overview of the powers of the CBP to search and arrest. Immigration Policy Center, Feb 23, 2012 http://immigrationpolicy.org/sites/default/files/docs/CBP_Overview_022112.pdf

DOMESTIC AIR TRAVEL - RISK OF IMMIGRATION DETENTION - FUNCTIONAL EQUIVALENT OF BORDER
The Transportation Safety Administration is checking visas at some airports where passengers offer foreign passports as identification. This has been reported at Honolulu International Airport, where they are checking flights among different Hawaiian Islands as well as flights between Hawaii and the mainland. Moreover, even ground transportation within areas considered functional equivalents of the border poses a risk that noncitizens may be identified and placed in immigration detention. Domestic travel in Upstate New York carries a risk, within the area called the "functional equivalent of the border," which allows the Border Patrol to do transportation checks. They are very active in the area all along Route 90, that is Buffalo, Rocheser, Syracuse, and Albany, including train and bus stations and airports. There are also USBP checkpoints on Route 87 from Montreal to NYC. Southern California also poses risks.

AIRPORT TRAVEL
Domestic travel can be a problem even for those who are in status. Individuals, traveling both domestically and internationally, are being prevented from boarding flights, and in some instances, are being detained and placed in proceedings, when they are not in possession of a facially valid visa, I-94, or I-551 card. This appears to be occurring even though one might be in a valid status, i.e. if they have a pending or approved application to change, extend, or adjust status, a pending I-90 application for a replacement I-551, or have filed an I-751 Petition to Remove the Conditions of Residence. The problem is TSA and/or carriers dont know what valid status is. They only know about expiration dates. TSA recently announced that they are only looking to check identity, however, that is not true. When they see a facially expired document they call CBP, ICE or BP. The client could present a drivers license; however, they are also required to have passport and immigration documents in their possession so the carrier or TSA could requested them. If the clients documents, on their face, show them to be out of status they could be detained or delayed at the airport. Even if they do not end up in detention because they are ultimately authorized to be here, they could end up missing a flight. In addition and really as another issue, clients should be told not to travel where there is a possibility that they could be diverted outside of the U.S. (i.e. Caribbean or Hawaii). For example, if there is a storm and the plane is diverted to Vancouver rather than SF. If they dont have an I-131 they may not be able to return to the United States. It is safer for them to stay continental. Thanks to Leslie Holman.

OVERVIEW - CONTACT WITH DHS - FINGERPRINTING
New guidelines on fingerprinting at points of entry are here: "Biometric procedures-the collection of digital fingerprints and photographs-apply to international visitors holding a non-U.S. passport or visa." http://www.dhs.gov/xtrvlsec/programs/editorial_0525.shtm