AGENDA FOR AILA NY/CBP LIAISON MEETING – April 14, 2015

Introduction:

On behalf of our committee and members at large we would again like to thank CBP for the important work that you do, processing millions of visitors through ports of arrival and applying the complex alphabet soup of the immigration laws in split second decision-making. We want to recognize you for your dedicated service and overall good work, and reiterate how valuable we believe the strong working relationship between CBP and the NY Chapter of AILA is for the benefit of the agency, stakeholders and public at large.

  1. Please provide an updated organizational chart and contact information for JFK, EWR and the Field Office.

A chart has been provided.

  1. If not included in #1, please provide a current, valid public inquiry phone number for Deferred Inspection at JFK.

JFK Deferred Inspection at (JetBlue) Terminal 5– (718) 553-3683/4

  1. Have there been any recent staffing, policy, or procedural changes of significance?

JFK & Newark Airports as part of the 5 designated airports continuesto perform Ebola screening to passengers arriving from Ebola affected countries. Terminal Five (JetBlue) is the new Deferred Inspection location for JFK. The telephone number has been provided in the response to question 2.

  1. We have received a report from our membership regarding long lines of people waiting for inspection at JFK. Has there indeed been an increase in the inspection wait time recently? Has there been a reduction in the number of officers assigned to conduct inspections?

Since theinstallation of Global Entry and Automated Passport Control (APC) kiosks, JFK has significantly reduce their wait times by as much as 50%. APC kiosks are presently available at JFK in Terminals One, Four, Five, and Newark’s Terminal C (United Airlines).

  1. If an individual has been granted advanced parole based on a pending I-485 Application but misplaces the physical Form I-512L, or the I-766 combo card, while outside the country, would CBP be able and willing to parole the person into the US using a photocopy of the Form I-512L or combo card or the receipt number? If not, what documents would CBP require the individual to present in order to prove they have a pending I-485 Application and have been granted advance parole?

CBP will consider each individual situation on a case-by-case basis. However since this is a documentary deficiency, prior to travel it’s recommended the individual go to the American Embassy/Consulate to verify their status and determine the appropriate documentation neededfor travel. (Transportation Letter)

  1. A member reports that a client who has an erroneous record of departure in the CBP database recently went out to JFK Deferred Inspection to get the record corrected, but that they would not correct it, saying that departure records in the system from flights that were booked by the alien but never boarded cannot be removed from the system. Is this correct? If so, why can’t a demonstrably false departure record be removed from the system, when it may negatively impact future benefits determinations? USCIS looks to those records and will occasionally deny change of status requests in petitions or applications, based on the “Last Action Rule,” in reliance on this sometimes-erroneous information in the CBP database. We would request that this issue please be escalated to HQ if necessary.

This issue has been brought to the attention of HQ. Please contact the Deferred Inspection office to correct any erroneous admission or departure records when applicable. Once again, if CBP can correct an erroneous record we will make every attempt to do so.

  1. Does CBP deferred inspection at JFK or Newark advise H-1B and similar petition-beneficiary nonimmigrants (O-1, L-1, etc.) to file an I-539 if their I-94 is expiring before their petition because their passport had limited validity at the time of entry? We have received a report that this occurred at JFK, and that a CBP supervisor there indicated that these were the instructions CBP had received from USCIS. To extend the stay of a petition-based nonimmigrant such as an H-1B, however, the USCIS instructions made available to the public indicate that the petitioner must file a new Form I-129, rather than the beneficiary filing Form I-539. Please clarify.

If the petition date isnearthe expiration, the employer will file the I-129 on behalf of the petitioner to renew their H-1B status. If the visa petition date is still valid but the I-94 admission date was limited due to the passport validity, the alien would need to exit and re-enter the country to have the full duration of the petition recorded on the I-94.

  1. Does CBP enter determinations of unlawful presence into the system based on some sort of automatic “sweep” of surrendered I-94s, without human intervention? If so, can the system be adjusted to account for the rule observed by USCIS and DOS that an alien admitted for duration of status, D/S, does not automatically accrue unlawful presence unless and until a finding that the alien has violated status is made by an immigration judge or in the course of adjudication of a benefit request?

A member reports that a client who had last been admitted on an F-1 visa, who was admitted D/S, and who later left the United States to apply for an immigrant visa following sponsorship by his employer, was told by consular officers that he was not eligible for an immigrant visa because his name had been entered into the system as having been unlawfully present and subject to a 10-year bar. When the member spoke with a supervisor at JFK to follow up, she reports being told that the computer system does an automatic “sweep” of surrendered I-94 cards and that the determination of unlawful presence had not been made by any person.

CBP automated systems will identify an individual’s U.S. arrival and departure records. These records will be review by CBP’s Passenger Analytical Unit (PAU) to research and identify any unlawful presence violations. F-1 student visa holders are admitted for duration of status, and are monitored by the SEVIS system and their International Student Advisors. All student violators will be identified and recorded in the SEVIS system, which belongs to HSI/ICE.

  1. Who should an attorney contact in order to find out if a person has been detained, what charges of removability (if any) the person is facing, and whether the person is being subjected to expedited removal? We were told at the November 2014 meeting that for discussions regarding NTA issuance, we should contact the duty attorney at 646-733-3200. Should we also contact the duty attorney for expedited removal and detention issues, or is there different contact information for those issues?

Please contact the dutysupervisor at the following respective numbers:

JFK: (718) 553-1648

EWR (973) 565-8000

  1. Under what circumstances will CBP allow an applicant for admission who is facing expedited removal to withdraw the application for admission instead, and avoid the five-year bar to readmission? If an applicant for admission is only charged as inadmissible under INA §212(a)(7)(A)(i), with no allegation of fraud, and there are no other significant adverse discretionary factors, should withdrawal of the application for admission generally be allowed as a matter of discretion?

CBP assesses the admissibility of individuals on a case-by-case basis in consideration of the totality of the circumstances. Every individual who is found inadmissible and placed into expedited removal proceedings will be considered for discretionary action.

  1. In our November 2014 meeting, we were advised that the amount of time from a deferred inspection to service of an NTA may vary depending on factors such as the time it takes to get criminal dispositions. Once the NTA has been served, how much additional delay should be expected before it is filed with the Immigration Court? Who should an attorney contact if a client has been served with an NTA but the NTA has not been filed with the Immigration Court for what appears to be an unusually long time?

Once CBP serves an NTA at the port of entry, please contact the duty attorney at the Office of Chief Counselfor further information at646-733-3200.

  1. Does CBP have a policy concerning LPR's who were placed in removal proceedings and had their removal proceedings administratively closed? If they travel with administratively closed removal proceedings, will they be flagged or detained? Does the answer change depending upon whether they were charged in the administratively closed removal proceedings as arriving aliens or as admitted-but-removable aliens? What documentation should they be prepared to present to facilitate re-entry?

CBP’s policy is that the alien must be admissible at time of application for admission. CBP is not allowed to admit an inadmissible alien.The fact that the removal proceedings were administratively closed does not ensureadmissibility.If an individual travels and CBP determines inadmissibility grounds still exist, an adverse action case will be considered. An alien should carry any documentation that will help prove admissibility such as Immigration court documents, waivers and a valid travel document.

  1. How does CBP approach cases involving LPRs with pending criminal cases that could potentially lead to a charge of inadmissibility under a reason-to-believe ground such as INA §212(a)(2)(C) or §212(a)(2)(I)? What factors are involved in the decision whether to admit, parole, or detain such an individual?

CBP will assess each individual’scase and determine their admissibility based on the totality of the situation, however, CBP is not allowed to admit an inadmissible alien.

  1. In the circumstances addresses in #13, if an individual were paroled for criminal prosecution, it is our understanding that upon posting bond in their criminal case they would often subsequently be picked up on a detainer, returned to the airport, and, if no other adverse criminal or immigration factors were found to be present, likely paroled for deferred inspection. If an LPR of the sort addressed in #13 posts bail following a parole for criminal prosecution, and is released from criminal custody because the detainer is not honored under current NY law, may the LPR make an appointment with CBP to return to the airport and be paroled for deferred inspection?

The alien can certainly contact Deferred Inspections and make an appointment to address their application for admission. Upon arrival at deferred inspections to help facilitate the process the alien should bring a copy of his conditions of bond and release, and the next scheduled court date.

  1. A member reports that some of his clients have been taken into secondary inspection at JFK for a deeper review of their background despite having no known criminal or immigration issue, and have then after a long period of time in secondary inspection been admitted with an apology and told to clear their record through TRIP. In at least two cases, however, the clients continue to be referred to Secondary despite having filed with TRIP. Are there other suggested ways to resolve this besides filing with TRIP?

The DHS TRIP system allows for CBP to review the inspection and take corrected action as appropriate. Furthermore, at any time an individual can request to speak with the duty supervisor or Passenger Service Manager (PSM) to address their concerns.

  1. A former U.S. citizen who renounced citizenship to avoid income tax liability on or after September 30, 1996, is inadmissible under INA §212(a)(10)(E). The State Department indicates in the Foreign Affairs Manual (FAM), specifically 9 FAM 40.105 N2, that an applicant for admission should be assumed eligible and not barred by this provision unless there is a hit in the electronic lookout system. Does CBP follow this same policy? If not,how does CBP make a determination regarding inadmissibility under §212(a)(10)(E)? Would CBP issue a Notice to Appear if the issue arose, since §212(a)(10)(E) is not a basis for expedited removal?

CBP assesses the admissibility of individuals on a case-by-case basis in consideration of the totality of the circumstances. If it was determined that the individual was found inadmissible under §212(a)(10)(E), CBP would likely issue an NTA. Since this charge is not dedicated as one of the six predicate grounds of inadmissibility pursuant to INA 235(b)(1), an expedited removal will not be considered.

  1. Would it be possible for CBP to provide general background regarding the courtesies customarily extended to A-1 diplomats? A member reports, for example, that when an A-1 diplomat arrived in the United States with a telephone number to call but no address for the place he was to stay, a CBP officer called the number to confirm that the diplomat indeed had a place to stay. These courtesies are greatly appreciated, but it would be useful to have some background that could be used to explain them to other adjudicators (in the case mentioned, for example, a USCIS asylum officer apparently did not believe that CBP would grant such a courtesy).

CBP provides a dedicated lanes for all A & G Diplomatic visa holders. Primarily, the airline industry is responsible for assisting all arriving passengers in obtaining the required address information. Occasionally, CBP will extend the courtesy to our diplomatic visa holders in the absence of airline assistance.

  1. How, if at all, does CBP track the entry and exit of A-1 diplomats who are statutorily exempt from fingerprinting requirements? A member reports a USCIS asylum officer having been concerned that he could not find a record in the system matching the fingerprints of an A-1 diplomat.

CBP systems do not capture fingerprints of the A&G diplomatic visaholders, therefore no matching fingerprint records will be found. APIS records transmitted by the airlines are used to track entries and exits.

  1. We have received a report that the Social Security Administration in upstate New York is requesting the old Form I-94, the “white card” that would be “stapled into the passport”. Did CBP provide any guidance to SSA regarding the transition away from paper I-94s?

Yes, all SSA offices were advised by CBP/HQ on the National level regarding the transition to electronic I-94 records. This appears to be an isolated issue with the SSA in upstate New York.

  1. Is it possible for an alien to request an old-fashioned paper I-94, if he or she needs or may it in dealing with another agency as in #19 above? If so, how?

No. Since the implementation of the electronic I-94 system, a hard copy I-94 record can only be obtain from the CBP website.

  1. In the case of an applicant for admission with an immigrant visa, is it possible for CBP to provide any receipt number or other identifying information for the permanent residence case so that the alien can follow up with USCIS regarding I-551 production?

The “A” file number willbe used to identifyinformation for permanent residence cases.

  1. Would CBP consider providing additional training regarding the SU3 immigrant visa category? SU3 is an immigrant visa category for the child of a former U1 nonimmigrant who has adjusted status under INA §245(m). See INA §245(m)(3); 22 C.F.R. §42.11. We have received a report that when an immigrant whose passport had been incorrectly marked as U3 rather than SU3 at a preclearance port attempted to address this issue with a supervisor at JFK CBP, she was told that the category was correct and did not need to be corrected. We recognize that this is not a common immigrant visa category and that officers may therefore be unfamiliar with it.

This appears to be an isolated incident. All CBP officers, especially at the supervisory level, are trained in the admission requirements as referenced above.

The following questions were asked at our November 2014 meeting and we were told that they were pending guidance or being addressed by HQ, so we wanted to follow up to see if guidance from HQ has arrived on any of them:

  1. Members have reported that where a client has made a reservation for a flight out of the United States but has not actually departed, the USCIS National Benefits Center and other USCIS Service Centers have denied applications based on the assumption that the client did indeed depart. We have previously been advised by CBP that these errors result from USCIS officers not looking at the appropriate portion of electronic records. Would it be possible for CBP to provide additional details regarding the error that is presumably being made, so that we could convey those details to USCIS?

This issue is still being addressed by CBP HQ. No further guidance at this time…

  1. What is CBP’s policy regarding the search of personal cell phones and other belongings of LPRs during an inspection? Under what circumstances is this considered appropriate?

Most searches are conducted under our Border Search Authority in compliance with all applicable laws and precedents.

  1. When an NTA has been issued by CBP but not served on EOIR, what is the process to request that the NTA be cancelled, if for example the individual served with the NTA wishes to apply for a provisional waiver? To whom should one direct such a request?

Once CBP serves an NTA at the port of entry, please contact the duty attorney at the Office of Chief Counsel for further information at 646-733-3200. If an approved waiver is obtained by an alien prior to the NTA being served on the Immigration court CBP should be notified immediately.