Criminal Defense of Immigrants

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).