Criminal Defense of Immigrants

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).