Criminal Defense of Immigrants

An “arriving alien”[183] standing at a point of entry who has been deemed inadmissible to the United States may be allowed (or required) officially to withdraw his or her application for admission to the United States[184] or may be informally told to turn back and return home.

If a noncitizen withdraws his or her application for admission, his or her visa may be cancelled.[185]  The DHS is supposed to notify the consulate of the withdrawal.[186]  A specific form, I-275, is used for this purpose.  A withdrawal of an application for admission also ends any periods of continuous presence in the United States, [187] such as that required for non-LPR cancellation of removal.[188]  This is because the noncitizen being asked to withdraw the application of admission is deemed to be under official threat of the initiation of removal proceedings.  A withdrawal is not an order of removal, however, and the noncitizen is free to try to gain admission to the United States again.  A withdrawal of an application for admission is also not the same as voluntary departure.[189]

In some cases, a noncitizen will simply be allowed to turn around and return home, without any official proceedings or records.  In this situation, the BIA and circuit courts have found that the noncitizen was not under any official threat of removal, and therefore could continue to accrue “continuous physical presence” in the United States (assuming they otherwise returned to the United States and did not otherwise make a break in continuous presence).  This informal process may be found to have occurred even if the noncitizen was detained and fingerprinted.  The key distinction is that the noncitizen must not have been informed of the threat of immigration proceedings.[190]

[183] See § 15.3, infra.

[184] INA § 235(a)(4), 8 U.S.C. § 1225(a)(4); 8 C.F.R. § § 235.4, 1235.4.  A noncitizen already in immigration proceedings may also be allowed to withdraw an application for admission.  Matter of Gutierrez, 19 I. & N. Dec. 562 (BIA 1988).

[185] 22 C.F.R. § 41.122(h)(3).

[186] Inspector’s Field Manual, Memo at § 17.2, Virtue, Exec. Assoc. Comm., INS (Dec. 22, 1997), posted on AILA InfoNet at Doc. No. 98122291.  This memo also lists the criteria used in determining whether to permit a withdrawal.

[187] Matter of Avilez, 23 I. & N. Dec. 799 (BIA 2005).  See also Matter of Romalez, 23 I. & N. Dec. 423 (BIA 2002).

[188] See § 24.5, infra.

[189] See § 24.27, infra.

[190] Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003).  Compare Mendez-Reyes v. Atty. Gen., 428 F.3d 187 (3d Cir. 2006); Mieles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003); Flores Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Vasquez-Lopez, 343 F.3d 961 (9th Cir. 2003), finding voluntary departure or withdrawal of application for admission, with Matter of Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005); Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004); Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005); Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005); Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005); Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006), finding the noncitizen was simply turned back at the border.