By Ben Loveman & Nancy E. Miller
On April 17, 2018 a Young Filipino human rights activist seeking entry to the United States was turned away by CBP after a lengthy detention upon arrival at San Francisco International Airport. Because CBP refuses to comment on this type of case, the exact cause for refusal of his entry is unknown but some details have emerged. Mr. Jerome Aba boarded a flight scheduled to arrive at SFO and planned to transit to Washington D.C. to participate in a conference on world peace. Organizers waiting for his arrival say Aba never emerged and that CBP eventually called them to say they were detaining Aba, denying his entry and would be deporting him. Organizers threw together a hasty protest and sought to get an attorney inside with Aba. CBP refused saying that an attorney would do no good and news outlets report that Aba agreed to withdraw his application for admission. Aba’s colleagues speculate admission was refused because of Aba’s opposition to President Rodrigo Duterte’s human rights record and because President Trump is a supporter of Duterte.
The actual basis for the refusal may never be clear as CBP is not required to release such information to the public and often does not make the basis for refusal clear even to the traveler. But the incident highlights the importance of knowing your rights as an international traveler upon arrival.
Many people are shocked that travelers with valid visas are turned away after long flights to the U.S. However, a valid visa is not a guarantee of admission. Every traveler seeking entry is subject to inspection at the point-of-entry. It is CBP’s function to determine whether the traveler’s purpose in coming to the U.S. is compatible with their visa or whether the person is inadmissible for reasons such as having an intent incompatible with their visa. Even permanent residents are subject to scrutiny and are refused admission if they have committed criminal acts or are suspected of having abandoned their status.
The first thing to note is that CBP steadfastly maintains that travelers are not permitted attorney access during the inspection process. It is essential that travelers familiarize themselves with their rights prior to travel. Secondly, travelers with non-immigrant visas have extremely limited rights before CBP. Therefore, if CBP is determined to refuse entry, the agency can usually drum up a facially valid reason. In many cases CBP will make the withdrawal appear voluntary by threatening deportation or otherwise pressuring the traveler into signing a “voluntary” withdrawal.
A traveler faced with threat of deportation has a difficult choice to make. If CBP issues an expedited removal order, the person’s visa will be cancelled and they will be inadmissible for five years. If the person withdraws their application for admission, CBP may not revoke their visa (but they often do). A withdrawn application for admission will not result in a five-year bar but if the applicant’s visa is revoked it will likely be difficult to obtain new one. Further, CBP often convinces people to sign statements regarding why they are withdrawing their application which result in applicability of other grounds of inadmissibility.
Non-immigrants facing refusal of admission have one additional option. Applicants with a legitimate fear of return to their home country may assert their fear and should then be paroled into the U.S for an interview to determine whether they have a viable claim. The applicant should notify CBP of their fear of return at the point-of-entry. The result will likely be a period of civil immigration detention before an interview by an asylum officer. While in custody the person will be able to contact family and representatives. Of course, the prospect of detention is not anyone’s idea of fun. It is essential that only those with credible and actual fear of return to their home country raise such a claim. Frivolous or non-meritorious claims will result in detention followed by deportation and will not benefit in any way.
The rights of returning lawful permanent residents are far more robust than those of nonimmigrants. While permanent residents can be refused admission in lawful permanent status, the returning always retains the right to request to see an immigration judge and to be temporarily admitted to allow them to see a judge who will then decide their case. Often, CBP will pressure permanent residents or urge them to forgo this right. It is essential that returning residents make themselves aware of their rights and that they assert them where applicable.
If you or a loved one is concerned you might be refused admission (or have been refused admission), it is recommended that you speak with a reputable and experienced immigration attorney to determine the best options for your case.
