By Jonathan D. Montag
I. INTRODUCTION
Among the changes in law and procedure wrought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009, enacted on September 30, 1996, after passage by Congress and the signature of former President Clinton, is the creation of a process of removal from the United States without the right to a hearing for aliens deemed inadmissible for lack of proper documentation or for making material misrepresentations.
While a statute of few words, the statute, found at INA § 235(b)(1)(A)(i)*1 , gives extraordinary authority to immigration inspectors to order the removal of aliens. This authority is unreviewable through any independent administrative process*2 , unlike the removal orders of Immigration Judges, who, prior to 1996 had sole authority to order deportation and exclusion and whose decisions are reviewable by the Board of Immigration Appeals. The expedited removal orders are also not subject to judicial review, again unlike the removal orders of Immigration Judges, which are reviewable through petitions for review or petitions for writ of habeas corpus or both. With the passage of this provision, the immigration laws were converted to a system where officers of the INS apprehended and gathered evidence of removability for immigration judges to review, to a system where the lions share of ordering of removal is conducted by the INS. When measured by numbers of persons ordered removed, the Executive Office for Immigration Review, the agency which comprises the immigration judges and Board of Immigration Appeals, has been marginalized by the INS in the area of removing aliens. In the year 2000, immigration judges made 54,036 decisions in cases. Of those decisions, 11,539 were appealed *3. Thus, there were 42,497 final orders rendered by Immigration Judges. As we can assume many persons prevailed in their cases and were not ordered removed, particularly since many would have been eligible for voluntary departure,*4 far fewer than 42,497 people were ordered removed in final orders by immigration judges in Fiscal Year 2000. In contract, The INS reported that it issued 89,589 expedited removal orders in Fiscal 1999. It is clear that the INS rules the roost within the Department of Justice when it comes to ordering removals.
II. THE PROCESS OF EXPEDITED REMOVAL
The expedited removal process is laid out at 8 C.F.R. § 235.3(b). It describes who must be removed under this process and identifies exceptions to expedited removal.
A. Grounds of Inadmissibility.
As indicated in the statute it applies to arriving aliens who are inadmissible pursuant to INA §§ 212(a)(6)(C) or 212(a)(7) and only those sections. Should the INS decide to charge any other grounds of inadmissibility, the alien must be put in normal removal proceedings. 8 C.F.R. § 235.3(b)(3).
The first section, INA § 212(a)(6)(C) *5, is entitled “Misrepresentation” and refers to an alien who commits fraud or who willfully misrepresents a material fact when procuring or trying to procure a visa, other documentation, or admission into the United States or other benefit provided under immigration law. It also refers to making a false claim to United States citizenship. The second section, INA § 212(a)(7) *6, refers to lacking proper documents. Obviously, the two sections are interconnected. In the usual situation, a person with a valid document to enter the United States does not have to misrepresent himself or herself to enter and a person without valid documents will have to concoct some story – the easiest being that he is a United States citizen – to enter the United States. Assuming the ideal situation where an alien has a visa, understands his or her status, and has brought the visa with him or her, or the alien does not have a visa and is fully aware of the consequences of applying for admission without a proper visa, the law would be extremely harsh *7, but can be easily and justly applied. Those that belong in the United States get in and those that do not are sent away under an order of removal for coming without permission.
Unfortunately, the ideal situation is not the only situation that occurs at a Port of Entry. The following situations, the scenarios of which have been dealt with by this writer (though some of the facts have been changed), have occurred at Ports of Entry and demonstrate how easily what superficially is a straightforward law becomes extremely unfair, excessively harsh, and unfairly administered because of the subjective component in the law.
Example 1. The alien, a young man, is a long term resident of the United States and the spouse of a United States citizen. He resides in New York. He applied for adjustment of status with the district director more than two years ago. Because of the long delays in processing adjustments, the application remains pending. He has proper employment authorization and permission to reside in the United States while his adjustment is pending. Armed with all this documentation, he has given little thought to his immigration status for the past two years. He is also eligible to travel with advanced parole, for which he applied for to travel to visit his parents overseas. He travels to California to visit friends. They decide to take a trip to Tijuana, a place, where, unlike California, a young man can smoke and drink unencumbered. His friends, United States citizens, who travel to Tijuana often, assure him that traveling to Tijuana is not really going abroad – that it is a routine trip that thousands of people do every day. They go, he drinks a lot, they return. His friends say “U.S.” and are waived in. He does the same and is stopped. He does not have a proper document to enter the United States, not having brought his advance parole document with him. He is ordered removed for lacking proper documents and making a false claim to United States citizenship.
The alien in this scenario would have several defenses to removal were he able to present them to an officer or court. First, was his utterance of “U.S.” a false representation of United States citizenship? Suppose he said “U.S.” because his friends did and he thought that was what you did to get back in. Suppose he thought that because of his unique “adjustment pending” status, stating “U.S.” was a way indicating that he “belonged in the U.S.” Suppose he was so drunk that he did not mean anything. Suppose he explained one minute after he said, ”U.S.” that he was very sorry and volunteered the specifics of his immigration status. Had the alien the opportunity to present his case, he could argue that he did not make a knowing false claim to United States citizenship either because when he said “U.S.” he did not mean he was a United States citizen or because he did not have the ability to mean much of anything in his drunken state.
Example 2. The alien, a young woman named Lee travels from South Korea to Detroit to visit relatives in the United States. She has been in the United States recently. During her inspection, she discusses that she is coming to visit family and that the family owns a dry cleaning business. The inspector suspects she is coming to the United States to resume work at her family’s cleaning business. She assures the officer she has no such intention. The officer gets the phone number of the business and calls and asks if a woman named Lee works at the business. He gets an affirmative response and orders the woman removed. Had the woman had the opportunity, she could have provided evidence that many women named Lee work at the dry cleaning shop but none was her.
Example 3. An alien arrives in Detroit with a B-1 visa. He intends to open a coffee house and obtain an L-1 visa. The officer inquires as to his intentions. He discusses the L-1 and also explains that he is aware that an L-1 is able to adjust status to that of a lawful permanent resident as an EB-1. INA § 203(b)(1)(C). The officer decides the alien cannot overcome the presumption that he intends to immigrate pursuant to the immigrant presumption found at INA § 214(b), and thus he obtained his B-1 visa by fraud. He is ordered removed. The alien is given no opportunity to demonstrate that he has no immigrant intent.
In all three scenarios, there are important facts that need interpretation. Sound minds can disagree on the facts. The expedited removal process provides no avenue for review of these facts as there is no review. Further, during inspection there is no right to an attorney. See, 8 C.F.R. § 292.5(b). Further, complex issues of law are raised in these scenarios that never receive review. In the first example, is there an element of willfulness to the false claim statute? Can there be a timely recantation? In the third example, what is an immigrant intent for a potential L-1? Further, all the scenarios raise important evidentially issues that will never heard. The unreasoned determination of the inspector is the final word.
B. Arriving Alien
The regulation indicates that expedited removal applies to arriving aliens, other than, as noted, Cubans arriving by airplane, as defined at 8 C.F.R. § 1.1(q). This regulation states:
The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.
The expedited removal regulations exempt permanent residents from expedited removal even if they are arriving aliens*8. 8 C.F.R. § 235.3(b)(5)(ii). Further, those who are asylees and refugees are not subject to expedited removal. 8 C.F.R. § 235.3(b)(5)(i). Special procedures exist for those claiming to be asylees, refugees, permanent residents and United States citizens to assert these claims. Aliens who insist they are citizens, permanent residents, asylees, or refugees are sent to the Immigration Court for a “claimed status review” hearing. The Immigration Judge makes a final, non-appealable determination. If the Immigration Judge determines the alien does not have the status he claims, the order is affirmed and the INS may remove the alien. If the Immigration Judge finds that the alien is the status he claims, the expedited removal order is vacated. The INS may initiate removal proceedings, unless the Immigration Judge determined that the alien is a United States citizen. 8 C.F.R. § 235.3(b)(5)(iv).
A particularly harsh aspect of the scheme is that the only categories of alien insulated from expedited removal are citizens, permanent residents, asylees, and refugees. A large and seriously adversely affected group, not insulated, are those with pending adjustment of status applications. This group, often spouses of citizens or children who have resided in the United States for may years, and others with extremely well-developed ties to the United States can and are ordered removed at the whim of the inspector. Even aliens with potential claims of relief such as Cancellation of Removal for Certain Nonpermanent residents, INA § 240A(b), and Registry, INA § 249, lose the opportunity to seek this relief, as well as losing the opportunity to adjust status.
Challenges to this aspect of the law, like all others, have proved fruitless. One challenge was to challenge that an alien adjusting status was an arriving alien. The argument was that his status was something beyond non-immigrant and close to permanent resident. After all, the status of a person with an adjustment pending in most ways resembles an immigrant’s more than a non-immigrant’s. Some of the factors that favor this status as being beyond that of an arriving alien are:
1. The ability to work wherever the alien wishes. 8 C.F.R. § 274a12(c)(9). While this is true for immigrants, it is not true for non-immigrants who may either not work or must work only for the employer or business through which they received the visa.
2. Despite having no “visa,” the alien does not accrue unlawful status. INS Memorandum on Grounds of Inadmissibility, June 17, 1997.
3. The alien not only may have, but must have an immigrant intent, contrary to all non-immigrant visas except H, L, and V visa holders. INA § 214(b). Further, all non-immigrants except diplomats (INA § 101(a)(15)(A)) and fiancees (INA § 101(a)(15)(K)) require that the alien maintain a foreign residence or the that the stay in the United States be temporary, or both. INA § 101(a)(15); 9 FAM § 41.11 N1.3 for 22 C.F.R. 41.
4. By filing an adjustment of status application, an alien is afforded the right to a hearing regarding the application, provide for at 8 C.F.R. § 245.6, and a right to appeal to the Immigration Court in removal proceedings, to the BIA, 8 C.F.R. § 3.1(b)(2) and 242.21(a), and the right to judicial review. INA § 242. These rights are most certainly more like the due process rights of a lawful permanent resident than the rights of a person without a visa*9.
Case law also has also arguably recognized that the “adjustment pending” status should allow an alien to gain rights greater than a first-timer applying for admission. The basis for these arguments is the Fleuti Doctrine, the result of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held that a permanent resident is not making an “entry,” when he makes a brief, casual, and innocent departure from the United States. The Court decided this to avoid capriciousness, Id. At 460, irrationality, Id., at 460, and uncivilized application of the law. Id., at 462. When Fleuti was decided, permanent residence was the only status where an alien could be permanently and continuously resident in the United States. The entire tenor of Rosenberg v. Fleuti was that deporting a person with substantial ties to the United States merely because of a brief, casual, and innocent departure from the United States would be unduly harsh punishment. That “an alien continuously residing and physically present” in the United States has certain basic rights, including due process rights to a hearing on the charges underlying any attempt to exclude him are rights of Constitutional proportion. Hai Chew v. Colding, 344 U.S. 590 (1953); Fleuti, at 460.
There is one significant characteristic of the status of an alien whose adjustment is pending that distinguishes the status from that of a permanent resident. An alien with a pending adjustment cannot travel without applying for and receiving advance parole. Traveling without permission automatically terminates the adjustment application and the unique status. 8 C.F.R. § 245.2(a)(4)(ii). Additionally, a person whose adjust is pending must apply for work authorization to retain the right to work while a permanent resident’s right to work needs not be renewed. Further, a permanent resident can petition for relatives and apply for citizenship while one whose adjustment is pending cannot and a permanent resident can join the armed forces while one whose adjustment is pending cannot. The issue is whether these factors distinguish being a permanent resident from one whose adjustment is pending to a degree that the rights of the alien pending adjustment move this alien to the category of a long-term resident with Fleuti protections to that of a first-time arriving alien with no rights at all. So far no court has taken an alien with an adjustment pending out of the category of arriving alien with no rights and subject to expedited removal and placed him into the category of a returning alien with rights based on his long residence and substantial ties. If the courts cannot repair this uncivilized application of the law, the political branches must.
III. ASYLUM AND FEAR OF PERSECUTION
The expedited removal statute provides that an immigration officer shall order an alien who is inadmissible under INA §§ 212(a)(6)(C) or 212(a)(7) removed “unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.” INA § 235(b)(1)(A)(i). The regulations, at 8 C.F.R. § 235.3(b)(4), state:
If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution, a fear of torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer in accordance with § 208.30 of this chapter to determine if the alien has a credible fear of persecution or torture. The examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility.
The regulation expands the bases for a finding of credible fear from persecution, encompassing asylum and withholding of removal, to protecting an alien from removal to a country where he will be tortured, in conformity with the United Nations Convention Against Torture, to which the United States is a signatory. Thus, before an alien can ask for asylum, withholding, or protection under the torture convention in the United States from an immigration judge, he or she must clear the initial hurdle of a credible fear interview. The interview is conducted by an asylum officer. An attorney (or other person or persons of the alien’s choosing) may be present. 8 C.F.R. § 208.30(d)(4). Should the alien pass the interview, the case is then referred to the Immigration Judge to consider the asylum, withholding, and Convention Against Torture issues. The statute states, “[i]f the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution [], the alien shall be detained for further consideration of the application for asylum.” INA § 235(b)(1)(B)(ii). This section appears to mandate the detention of the alien while he applies for asylum. However, INA § 235(b)(1)(B)(iii)(IV) states, “any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution....” This section gives a strong implication that once credible fear is found, release is possible. The reality is that release is favored at this point*10.
Further, the clause seems to indicate that the alien is limited to pursuing an asylum application, yet in reality the alien can pursue asylum, withholding, and CAT claims. Though the hearing is a INA § 240 hearing, see, inter alia, 8 C.F.R. § 208.30(f) (If an alien ... is found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue a Form I-862, Notice to Appear, for full consideration of the asylum and withholding of removal claim in proceedings under section 240 of the Act), the alien cannot seek the relief of adjustment of status because this relief is barred in removal proceedings (as well in expedited removal proceedings) to arriving aliens. 8 C.F.R. § 245.1(c). The statute and regulations do not appear to bar Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b), or Special Rule Cancellation for Battered Spouse or Child, INA § 240A(b)(2).
Should one who fears persecution or torture fail the credible fear interview, he or she can renew the claim before an immigration judge in a credible fear hearing. This hearing may be held telephonically and, unlike other hearings, the alien need not consent to a telephonic hearing. 8 C.F.R. § 3.25(c). The immigration judge’s determination is not appealable. If the immigration judge decides there is credible fear, the alien is placed in removal proceedings. If the immigration judge finds credible fear, the alien is removed.
The discretionary decision-making in this process is great and, as with the rest of the process, there is no independent review. There is anecdotal evidence of people who have well-founded fears of persecution being removed. In one study, there was concern that secondary inspectors were disproportionately screening out women and persons of low socioeconomic status and that being represented by legal counsel was a significant factor in the credible fear process*11. Because of two important aspects of the process, that it is expedited and that it results in removal, hard data of the abuses in the system are hard to identify. However, even a casual observer of what goes on at ports of entry should be concerned that there is no independent review of a secondary inspector’s decision not to refer a person to an asylum interview.
IV. DISCRETIONARY ALTERNATIVES TO EXPEDITED REMOVAL
The Immigration and Nationality Act provides for the withdrawal of an application for admission at the Port of Entry. The statute states, “ An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.” INA § 235(a)(4). For aliens who have no fears of persecution or torture and have no claims to citizenship, permanent residence, or refugee or asylee status, this result is most often preferable to expedited removal. At a minimum the alien does not face the five year bar those removed under this program face. INA § 212(a)(9)(A)(i). Should the inspector believe there is fraud, removal could also pose a lifetime ban to entering the United States. A false claim to United States citizenship would also pose a lifetime ban. However, the simple fact of withdrawing the application will not necessarily ward off these consequences because any visa the alien has will be canceled and the reasons for denying admission annotated in the passport. Further, reports are made of the interview that may return to haunt at a consular interview. In addition, the INS has discretion to parole*12 an alien into the United States and, at least at border stations, to simply return the alien to Canada or Mexico.
Like all the discretionary decisions in the process, this one is also not subject to review and is subject to abuse. In the case of an alien described in Example 1, the gentleman with an adjustment application pending who arrived at the Port of Entry without an Advance Parole document, four possible scenarios exist. First, the alien could simply be turned away at the port. This outcome is unique to land ports and is a frequently used method of dissuading improper applications for admission. While little data is available about it, this type of use of discretion is often an extremely humane method of dealing with aliens who improvidently or inadvertently turn up at a port of entry by foot or car. Should the man simply been told to leave the port, he could send for his advance parole document and re-apply for admission with it. The second outcome would be to parole the alien into the United States to give him the opportunity to present an advance parole document, if he has one, or, if not, to simply re-file his I-485,as the original was abandoned when he departed without authorization. 8 C.F.R. § 245.2(a)(4)(ii). The issue of the false claim to United States citizenship would most likely be visited at an adjustment interview. The third option is to allow him to withdraw his application for admission. He could commence consular processing and at the Consulate face any potential false-claim issues. The forth and most prejudicial outcome would be expedited removal. The alien would face the five year ban and likely have a clear statement of his false claim to United States citizenship in a report that will follow him to the Consulate.
V. JUDICIAL REVIEW
The crafters of the expedited removal process carefully crafted the process to insulate it from administrative and judicial review. While courts have found that in other parts of the IIRAIRA , Congress was not explicit in its attempts to bar judicial review, particularly habeas corpus, so far no court has found any similar shortcomings in the expedited removal legislation. Judicial review is addressed at INA § 242(e). The statute bars a court from entering declaratory, injunctive, or other equitable relief and the certification of a class. The only review remaining is through a petition for writ of habeas corpus to challenge determinations of alienage [whether or not an individual is a citizen or national], was removed under expedited removal proceedings, and whether the person is a lawful permanent resident, refugee, or asylee. INA § 242(e)(2). Should a federal district court find that the alien was not ordered removed or is a permanent resident, refugee, or asylee, the court can order no remedy or relief other than to require that the petitioner be provided a normal removal hearing. INA § 242(e)(4)(B).
Congress also provided a small window to challenge to the validity of the expedited removal system. At INA § 242(e)(3), the statute provides that constitutional challenges to the statute and challenges to the legality of the Attorney General’s regulations, policies, and procedures implementing the statute. Suit must be filed the U.S. District Court for the District of Columbia within 60 days of the date that the regulations, policies, or procedures are first implemented. INA §§ 242(e)(3)(A) and (B).
Challenges were filed in the United States District Court for the District of Columbia. They were all dismissed with prejudice on August 20, 1998. See American Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38 (D.D.C. 1998) , consolidated with Liberians United for Peace and Democracy v. Reno, and Wood v. Reno. Wood v. Reno presented the claims of individuals subjected to expedited removal, including nonimmigrants, returning permanent residents, and U.S. citizens The AILA and Liberians United suits were on behalf of asylum seekers and potential asylum seekers. The suits alleged that the Interim Regulations implementing IIRAIRA violate the intent of IIRAIRA; that the INS failed to follow the Interim Regulations; and that IIRAIRA and the Interim Regulations violated due process, equal protection, International Law, and the First Amendment. An appeal is pending in the D.C. Circuit.
VI. THE FUTURE OF EXPEDITED REMOVAL
The statute provides for the expansion of expedited removal provisions to an alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” INA § 235(b)(1)(iii)(II). Thus, aliens who entered the United States without inspection and have been in the country for less than two years will be subject to expedited removal without a hearing. They would lose any right to adjust status or seek protection under the battered spouse provisions of the law. The Attorney General was given the authority to decide when to implement this provision, INA § 235(b)(1)(A)(iii)(I), and as of yet has not begun implementation. The injustice of such a process to innocent visa overstays, married aliens who have not yet filed adjustment applications, and people who cannot prove two years of residence can only be imagined. Further, inasmuch as aliens in the United States have been found to have constitutional rights aliens at the border do not, the constitutional problems with this expansion are marked. See, Zadvydas v. Davis, 121 S. Ct. 2491 (2001); Plyler v. Doe, 457 U.S. 202 (1982); Mathews v. Diaz, 426 U.S. 67 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ("Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.")
While the statute has this provision lying in wait to enlarge the scope of expedited removal, there are also countervailing forces that may work to limit its scope. Stories of abuse abound. Congressman and Senators hear of them and may eventually react to them. The unchecked discretion given to INS inspectors runs contrary to the usual scheme of things and eventually Congress may take away or limit the process or at least end its non-reviewability. Further, one would expect that immigration judges and the BIA would like to see a program that creates an expedited and economical means of deporting large numbers of aliens discredited and abolished because of the high risk of error and its arbitrariness rather than expanded, potentially rendering immigration judges obsolete.
VII. CONCLUSION
The expedited removal process places extraordinary amounts of discretion in the hands of people who must make complex factual and legal judgments, yet are neither trained fact finders or jurists. The process is secretive and is without any independent review, either from within the Department of Justice or from without. There is no judicial review. The results are a staggering number of removals each year causing untold harm to individuals and families in the United States particularly because of the five year ban to returning. Because of the cloak of secrecy and the nature of the harm – removal from the United States – quantifying the errors made is difficult. The program is a serious human rights problem and advocates for aliens should work to expose its shortcomings and towards its reform.
*1The statute states, “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) [referring to Cubans arriving by airplane] who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.”Back to Top
*2 The expedited removal orders are subject to review by supervisory inspectors pursuant to 8 C.F.R. § 235.3(b)(7). However this type of internal double-checking does not amount to independent review. Back to Top
*3 Testimony of Kevin D. Rooney, Director, Executive Office for Immigration Review, beofre Subcommittee on Immigration and Claims , U.S. House of Representatives, September 28, 2000. Back to Top
*4 See INA § 240B. The statute defines two types of voluntary departure, pre-conclusion and post-conclusion voluntary departure. Pre-hearing voluntary departure is not available to arriving aliens. INA § 240B(a)(4). Back to Top
*5 Misrepresentation
(i)--In General.
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
(ii)--Falsely Claiming Citizenship [on or after September 30, 1996].
(I)-- In general
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any other Federal or State law is inadmissible.
(II)-- Exception
In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.
(iii)--Waiver Authorized
For provision authorizing waiver of clause (i), see subsection (i). Back to Top
*6 Documentation Requirements
(A)--Immigrants
(i)--In General
Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission--
(I)--
who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a), or
(II)--
whose visa has been issued without compliance with the provisions of section 203,
is excludable.
(ii)--Waiver Authorized
For provision authorizing waiver of clause (i), see subsection (k).
(B)--Nonimmigrants
(i)--In General
Any nonimmigrant who--
(I)--
is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or
(II)--
is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission,
is inadmissible.
(ii)--General Waiver Authorized
For provision authorizing waiver of clause (i), see subsection (d)(4).
(iii)--Guam Visa Waiver
For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (l).
(iv)--Visa Waiver Program 14.1.
For authority to waive the requirement of clause (i) under a program, see section 217. Back to Top
*7 The harshness lies principally that an alien removed under the expedited removal program and arriving aliens removed in normal removal proceedings barred from returning to the United States without advance permission from the Attorney General for five years. INA § 212(a)(9)(A)(i). Before 1996, an alien “excluded” from the United States was barred for one year, according to the old INA § 212(a)(6)(C). While a year of exclusion is itself a harsh punishment for a person with family and other ties to the United States, it pales before a five year ban, particularly when the ban could be based on error or the poor exercise of discretion. Back to Top
*8 According to 8 C.F.R. § 1.1(q), an arriving alien is an applicant for admission. At INA § 101(a)(13), as interpreted by the Board of Immigration Appeals in Matter of Collado-Munoz, 21 I .& N. Dec. 1061 (BIA 1998), certain permanent residents are deemed applicants for admission. Back to Top
*9 Noteworthy is that visa waiver admittees, who also lack visas, lack all these forms of appeal and review, but are alerted to these waivers of rights at the outset of being admitted to the United States. INA § 217(b). Back to Top
*10 "Although parole is discretionary in all cases where it is available, it is INS policy to favor release of aliens found to have credible fear of persecution, provided that they do not pose a risk of flight or danger to the community.” Memorandum from Michael Pearson, Office of Field Operations, to Regional Directors, Detention Guidelines Effective October 9, 1998 (Oct. 7, 1998). Back to Top
*11 Expedited Removal: Three Years Later, Center for Human Rights and International Justice, University of California, Hastings College of Law, July 2000). Back to Top
*12 Parole is the Attorney General’s ability, provided for by statute, INA § 212(d)(5), that allows an alien to be physically present in the United States without having been admitted for “urgent humanitarian reasons or significant public benefit....”
The Supreme Court, in INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001), held that habeas corpus still exists to consider legal challenges to a deportation order. Back to Top
