By Attorney Devin M. Connolly
Many people have been saddened over the last few weeks when they saw the way that immigrants were treated upon their arrival in the United States. Children have been separated from their parents, people have struggled to present their cases for asylum with limited time and resources, and there been have general feelings of fear and chaos surrounding issues at the border.
There have been protests throughout the U.S. over the Trump administration’s “zero tolerance” policy, but there are still so many things we do not know, such as what is actually happening to children after their parents are deported. It is important to try and become familiar with the process in general when a foreign national is trying to enter the United States.
Foreign nationals will be inspected upon their arrival at a legal place of entry, officially referred to as a port-of-entry. It is during this inspection that an officer from U.S. Customs and Border Protection (CBP) will make the decision whether to admit the foreign national to the United States. Many people are shocked to learn that travelers with valid visas are sometimes denied entry to the United States after long journeys. It is important to remember that a visa is not a guarantee of admission to the United States. Rather, every traveler seeking entry is subject to inspection at the port-of-entry. It is CBP’s function to determine whether the traveler’s purpose in coming to the United States is compatible with their visa or whether the person is inadmissible for some reason, such as a criminal history or for having an intent incompatible with their visa.
Non-immigrants who are denied admission to the United States, as well as those who are caught trying to the enter the United States without authorization, do have the option of requesting asylum. A person makes a request for asylum when they are afraid that they will be harmed if they are forced to return to their native country. Applicants with this subjective fear of returning to their home country should clearly express 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 port-of-entry, or at the time they are apprehended if they have attempted to enter the United States at a location other than an official port-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 and those who do not have a visa at all. The returning permanent resident always retains the right to request to see an immigration judge. This request to see an immigration judge will result in the returning resident being allowed to enter the United States so that a judge will be able to decide their case. It is important for the returning resident to remember it is their right to see a judge and to assert this right when necessary. It is generally not advisable for a foreign national to agree to return to their native country with the belief that they will be able to lawfully return in the near future. Unfortunately, returning to the United States after deportation, or perhaps even after a person requests to withdraw their application for admission and leave “voluntarily,” may not ever be possible.
It is true that immigrants attempting to enter the United States do generally have less rights and protections than people who are already living in the United States. However, that does not necessarily mean that deportation is automatic because certain rights and options do still exist, even for those people who have attempted to enter the United States without authorization. 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.
