Certain officers of the DHS may, in their discretion, allow a noncitizen seeking admission to the United States (usually at a port of entry) to enter the United States on parole (i.e., without being admitted), but require that the noncitizen later appear at one of 70 “deferred inspection sites”[176] to provide proof that they are admissible, or at least qualify for certain waivers.[177]  The DHS may require the noncitizen to appear at a site either within the jurisdiction of the place where they arrived, the place of the noncitizen’s residence in the United States, or the noncitizen’s ultimate travel destination.[178]

 

                The DHS will generally consider deferring inspection when they believe that the record of the noncitizen warrants further review (e.g., the officer believes the noncitizen may have a conviction that triggers inadmissibility).  The DHS applies a number of criteria in determining whether to allow deferred inspection, including the likelihood the noncitizen will be able to show admissibility, the documents needed and the likelihood of obtaining them, the noncitizen’s personal equities (family ties, age, etc.), and a determination of whether the noncitizen poses a danger to the community or would be unlikely to appear for deferred inspection.[179]

Generally, the DHS will require that the noncitizen appear at the deferred inspection site with court documents and/or other documentation to be used to determine whether the noncitizen is admissible to the United States.  The noncitizen may be allowed to have an attorney present at the deferred inspection interview if a request is made and granted beforehand.  However, the attorney is only allowed to observe and consult with the noncitizen.[180]

 

If the DHS decides, at deferred inspection, that the noncitizen is inadmissible, it may issue a Notice to Appear in immigration court.  The refusal of the DHS to admit a person following deferred inspection is a decision made without prejudice, and therefore does not prevent any other official or immigration judge from coming to a contrary decision.[181]

 

                Failure to appear for deferred inspection will result in the issuance of a Notice to Appear.[182]

[176] Locations of the sites may be found on www.cpb.gov.

[177] 8 C.F.R. § 235.2.

[178] 8 C.F.R. § 235.2(b).

[179] See Memo, Williams, Ex. Assoc. Comm. Field Operations, HQINS 70/10.10 (May 18, 2002); Inspector’s Field Manual § 17.1(a).

[180] Inspector’s Field Manual § 17.1(e).

[181] 8 C.F.R. § 235.2(d).

[182] Inspector’s Field Manual § 17.1(d).

Ninth Circuit

INADMISSIBILITY - RETURNING LPRS - SAN FRANCISCO CBP -DETENTION
In accordance with Camins v. Gonzales, 500 F.3d 872, 885 (9th Cir. 2007), San Francisco CBPs Deferred Inspections Unit has stopped issuing NTAs to LPRs returning from a brief, casual, and innocent trip abroad, where their guilty or no contest plea to an pre-IIRIRA offense would previously have rendered them inadmissible under INA 212(a)(2).

Instead, these cases are referred to ICE when there may be a possible charge under INA 237(a)(2). Unfortunately, ICEs policy on taking people into custody is much stricter than CBPs. Therefore, people are being placed in mandatory detention that otherwise may have been released on their own recognizance.

Thanks to Joren Lyons, Staff Attorney for Immigrant Rights at Asian Law Caucus.

Other

OVERVIEW - CONTACT WITH DHS
Change in CBP Policy on Deferred Inspection of Legal Permanent Residents with Criminal Convictions - October 1, 2009. Cite as "AILA InfoNet Doc. No. 09100122 (posted Oct. 1, 2009)"

"During a teleconference with the AILA/CBP National liaison committee on September 29, 2009, CBP National Headquarters confirmed that, beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be issued a Notice to Appear (NTA) at ports of entry versus a grant of deferred inspection. In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option. CBP explained that it modified its policy based on information reflecting that an appreciable percentage of those granted deferred inspection do not show up for such inspection. More guidance to the field will be forthcoming from CBP, but be aware of the likelihood of an increase in the number of LPRs being detained and/or issued NTAs at ports of entry. CBP confirmed that this policy already had been in place in Georgia and Florida.

The committee raised the following points: We note that LPRs cannot be detained if they are in possession of evidence that proves that their conviction does not render them inadmissible pursuant to INA 212(a)(2). We also note with great concern that the Ninth and Fourth Circuit Courts of Appeals have ruled that returning LPRs with pre-1997 convictions cannot be lawfully charged by CBP as inadmissible pursuant to INA 212(a)(2), and, therefore, detaining them as returning LPRs at Ports of Entry under these circumstances would not be a lawful action by CBP (see Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004), representing the governing law for CBP inspections at POEs in Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, West Virginia, Virginia, Maryland, North Carolina, and South Carolina)."

OVERVIEW"CONTACT WITH ICE"INTERPRETER ISSUES
Use of interpreters at secondary immigration inspection: http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-30133/0-0-0-35080/0-0-0-36316/0-0-0-36468.html