As the U.S. government heightens its focus on national security, international travelers—especially visa holders and lawful permanent residents—are experiencing increased scrutiny at ports of entry.
U.S. Customs and Border Protection has broad legal authority to inspect and search electronic devices — including phones, laptops, tablets, USB drives, and external hard drives – at the border. These searches do not require a warrant, probable cause, or even individualized suspicion, and can be conducted as part of routine screening at any U.S. port of entry. CBP’s authority extends to both incoming and outgoing travelers at any U.S. port of entry.
Here’s a summary of what to expect at the border, your rights and responsibilities, and how to prepare.
Recent Executive Order: Heightened national security screening
On January 20, the White House issued Executive Order 14161: Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats. This Executive Order directs federal agencies, including CBP and U.S. Citizenship and Immigration Services, to implement more rigorous screening procedures for individuals seeking entry into the United States.
Key implications for travelers include the following:

• Expanded data collection. The E.O. authorizes enhanced vetting measures and broader analysis of personal data, including social media activity and electronic records.
• More detailed questioning. Travelers may face additional scrutiny related to travel purpose, background, or affiliations.
• Longer processing times. Enhanced screening could result in delays at ports of entry.

Travelers should assume that both device content and online presence may be reviewed during inspection. Accuracy, consistency, and preparedness are essential.
CBP device searches
CBP categorizes searches into two types:
No. 1: Basic search

• Officers may ask you to unlock your device and may manually examine its contents.
• Officers may browse through your photos, documents, contacts, call logs, emails, messages, downloaded apps, and browsing history.
• Officers cannot access cloud content unless it's already downloaded onto the device or auto-synced.
• You may be asked to put the device in airplane mode to prevent cloud-based data retrieval.

No. 2: Advanced search

• If flagged for further scrutiny, CBP may connect your device to a specialized forensic tool to copy, review, and analyze data.
• This could include hidden files or deleted content.
• CBP may retain the device temporarily (typically for no more than five days, though extensions are possible) for off-site analysis.

Social media scrutiny
In addition to CBP’s authority to search devices, U.S. immigration agencies are expanding efforts to review the digital footprints of applicants and travelers. A recent notice proposes that the USCIS begin collecting social media identifiers from individuals applying for immigration benefits—including green cards, naturalization, asylum, and refugee status. This proposed rule reflects a growing trend toward incorporating social media review into vetting and background checks.
Travelers and visa applicants should consider doing the following:

• Review your profiles. Ensure your personal, employment, and location details match your immigration records.
• Adjust your privacy settings. Limit public access to sensitive content, while maintaining a professional presence.
• Be thoughtful about online posts and interactions. Avoid creating content that could be interpreted as inconsistent with your immigration status or entry purpose.
• Delete inactive or outdated accounts. Especially those that may contain conflicting personal details or old user names.

If you refuse to provide access

• U.S. citizens cannot be denied entry for refusing to unlock a device. However, non-citizens—including visa holders and lawful permanent residents—can be refused admission or face delays.
• It is important to note, in some cases, that CBP may seize the device, escalate questioning, or refer the case to other agencies.

Know the limits of your legal recourse
CBP’s border search policies—including those on electronic devices—are governed by internal directives and longstanding federal law. These policies are designed to guide CBP operations but do not create or confer any personal rights, privileges, or legal remedies for travelers. In other words, travelers generally cannot sue CBP for following these policies unless a separate legal violation can be shown​.
Traveling with electronics
To protect your privacy and reduce the risk of delays or data exposure, you should do the following:
Before you travel:

• Back up your device, and travel with minimal data.
• Log out of social media and email apps; disable biometric access (for example, Face ID, fingerprint).
• Consider using guest profiles or temporary “travel devices.”
• Turn off cloud syncing, or remove apps that store sensitive information (for example, Slack, Dropbox, Signal).
• Encrypt your device, and use strong alphanumeric passwords.
• Consider storing critical work files or privileged content in secure cloud storage (and sign out of those services).

During travel:

• Cooperate respectfully if asked to unlock a device, but avoid volunteering access to apps or platforms.
• If detained or questioned extensively, ask to speak with legal counsel or your company’s HR contact.

After re-entry:

• Monitor for signs of data access or tampering if your device was taken or searched.
• Consider changing passwords and enabling multi-factor authentication on sensitive accounts.
• Notify your legal or compliance team if any privileged, confidential, or regulated data may have been accessed.

Additional tips

• Be prepared to explain your travel purpose, employer, and visa status clearly and concisely.
• Ensure device data does not conflict with your stated purpose of entry.
• Avoid saving politically sensitive material or participating in online discussions that could be misinterpreted.

Filing a complaint
If you believe your device was mishandled or your rights were violated during a CBP search, you can file a redress request through the Department of Homeland Security Traveler Redress Inquiry Program, known as “TRIP” for short. TRIP is a formal avenue for travelers to inquire about or resolve issues related to CBP inspections, delays, or treatment at the border. Complaint or redress requests can be submitted here.
Unfortunately for international travelers—particularly visa holders and lawful permanent residents—electronic device searches are no longer rare exceptions but a routine part of CBP’s screening authority. Travelers should assume that anything accessible on a personal device could be subject to review.

Travel to the United States has gotten trickier in recent months. Below is a summary of tips recommended by the Alliance of Business Immigration Lawyers for international travelers to the United States:

• Make sure all of your documents are in order and have not expired, and that you do not have a renewal application pending. Consult with an immigration attorney before traveling for advice in specific situations.
• Consider not entering the United States now if your country is on a proposed “red” list of travel ban countries, which includes Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen.
• Remember that U.S. Customs and Border Patrol officers have wide leeway at ports of entry to decide who enters and who does not, regardless of visa status, and to conduct electronic searches. They can require travelers to unlock cell phones, reveal laptop passwords, or give officers their digital cameras, for example. U.S. citizens and green card holders can refuse to answer questions (other than those establishing identity and status) and still enter the country (although this could lead to delays or seizure of devices), but those with visas do not have the same rights. The American Civil Liberties Union of Northern California advises you not to give up your green card voluntarily. Some advise turning off phones and wiping data from all devices before passing through a port of entry.
• If your device is confiscated, request the name, badge number, and agency of the officer, and ask for a receipt or call the agency to request one.
• Keep your immigration attorney’s contact information handy, along with contact information for a local friend. If it appears that you might be going into a secondary inspection, you can text your friend and ask them to get in touch with your immigration attorney.
• Keep in mind that in the past, rejected travelers were often put on the next plane out, but more recently, some have been detained for days, weeks, or more.
• Check your home country’s travel advisories and warnings before traveling. Consider deferring travel to or from the United States if not necessary.

If you are referred to secondary inspection, request an interpreter if needed and available. There ordinarily will be a transcript (official record) of the questions and answers.

Today, Secretary of Homeland Security announced that the Department of Homeland Security (DHS) is launching the CBP Home app with a self-deportation reporting feature for foreigners illegally in the country. DHS advises that people should use the CBP Home mobile phone application to submit their intent to depart as indicated below.

​The CBP One app was updated into CBP Home app.

​From the official DHS' announcement:

Self-deportation is the safest option for illegal aliens, while preserving law enforcement resources. Not only is it safer, but it also saves U.S. taxpayer dollars and valuable Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) resources to focus on dangerous criminal aliens.
This self-deportation functionality is part of a larger $200 million domestic and international ad campaign encouraging illegal aliens to “Stay Out and Leave Now.”
All CBP One applications will automatically update to the CBP Home app. The new app is also available free across mobile application stores.
A Statement from Secretary Kristi Noem:
“The Biden Administration exploited the CBP One app to allow more than 1 million aliens to illegally enter the United States. With the launching of the CBP Home app, we are restoring integrity to our immigration system.
“The CBP Home app gives aliens the option to leave now and self-deport, so they may still have the opportunity to return legally in the future and live the American dream. If they don’t, we will find them, we will deport them, and they will never return.”

In late September 2023, Israel was designated as a Visa Waiver Program (VWP) country.

By November 30, 2023, the Electronic System for Travel Authorization (ESTA) will be updated to allow citizens and nationals of Israel to apply to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa, a step which further strengthens the security, economic and people-to-people ties between the United States and Israel.

Following updates in Israel’s travel policies, all U.S. citizens may request entry to Israel for up to 90 days for business, tourism, or transit without obtaining a visa.

Read more here:

ESTA is here: https://www.cbp.gov/travel/international-visitors/esta

Apply for ESTA. https://esta.cbp.dhs.gov/​

U.S. Customs and Border Protection (“CBP”)or CBP announced the elimination of admission or entry stamps in the passports of foreign nationals arriving in the U.S. This measure is already in effect for some airports, in other airports CBP is still issuing entry stamps. 

A passport entry stamp is an inked impression CBP makes in the foreign national’s passport at the port of entry upon the foreign national’s admission to the U.S. The stamp contains the location of entry point, the date of entry, the class of entry (B-2, H-1B, F-1, etc.), and the duration the foreign national is permitted to stay. In that regard, the passport entry stamp was a useful reference reflecting the tracking of a foreign national’s travel history and immigration status. The same information contained on the passport entry stamp is also reflected on a foreign national’s official admission record, the Form I-94. However, there are often discrepancies between the stamp in the passport and the Form I-94. The Form I-94 is not issued to the foreign national upon entrance, but is instead maintained and available online: https://i94.cbp.dhs.gov/I94/#/home

CBP is eliminating the passport entry stamp to streamline the entry process. Foreign nationals will now only have the Form I-94 to reference as proof of their lawful immigration status. 

It is advisable to access and review the Form I-94 soon after entry to the United States, so that needed corrections can be actioned in a timely manner.

Starting in May 2019, US Customs and Border Protection (CBP) will start issuing I-94 Admission Record with letters in addition to numbers. The new format will include nine numbers, followed by one letter and one number.

Current I-94 Admission Record also have eleven characters, but only numbers. Examples of new I-94 numbers include: 111111111A1; 000000001B2; 123456789C3.

​I-94s in the current number-only format will remain valid through the listed “Admit Until Date”.

As a reminder, an I-94 record not only documents a foreign national’s current nonimmigrant status, but also governs the amount of time the individual is allowed to remain in the United States in that status. As such, it is extremely important to review and print I-94 record from the CBP website after each admission into the United States. Errors on I-94 records can be corrected if caught early. 

After almost three months of using facial recognition biometrics to help verify international travelers at U.S. points of entry, Customs and Border Protection officials say they have used the technology to prevent 26 alleged imposters from entering the country.

Border Protection officials began rolling out facial biometric projects at airports and land crossings this summer. As travelers enter the U.S., they are ushered directly to a CBP official, who checks their documentation while overhead cameras match their faces to a gallery of images. For U.S. citizens, the picture is matched to the passport photo on file. If the photos don’t match, the travel is pulled aside for further investigation.

Washington Dulles International Airport recorded the first detention due to facial recognition technology just three days after the new system was turned on, stopping a Congolese national attempting to enter the country on a false French passport. Since that time, Dulles’ program has stopped two more alleged imposters.

The facial recognition entry program is currently running at 15 international airports, though no others have reported detentions or arrests due to the systems, according to CBP figures.

Facial biometric programs in place at land border crossings have proven more useful, according to the numbers. As of Nov. 20, 2018, CBP officers have apprehended 23 people trying to enter the country illegally at the southwest border in Arizona: 18 at the crossing in Nogales and five at San Luis.

With land and air pilots running, CBP recently began testing the technology at sea, as well. Facial recognition pilots have started for travelers debarking in the U.S. from Royal Caribbean, Norwegian and Celebrity cruise lines. These pilots have yet to flag any potential imposters traveling aboard.

Several airlines and eight international airports are also using facial recognition for boarding planes, including Air France/KLM, Scandinavian Airlines and some United flights out of Dulles.

Read here.

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.
​
A Notice to Appear (NTA) is a document given to a foreign national that instructs them to appear before an immigration judge on a certain date.

The issuance of an NTA commences removal proceedings against the foreign national. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

USCIS, along with ICE and CBP, has legal authority under current immigration laws to issue NTAs. New USCIS Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.

​The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
• DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Under separate policy guidance issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

New memo 1 ,general NTAs, and memo 2, DACA NTAs (both issued on June 28, 2018).

Under new June 28 2018 USCIS policy memo, USCIS will issue a Notice to Appear or NTA on its own initiative without referral to ICE, and place individuals in removal or deportation proceedings in immigration court upon denial of an application, if a person is deemed removable on the date of denial.

It will affect many people on H-1B work visa, their spouses, foreign students on F-1 student visa. This new policy will further backlog our immigration courts, and can result in more people becoming inadmissible and requiring waivers if applying for a visa at the U.S. embassy or consulate.

Briefly in Russian:

В соответствии с новыми правилами, опубликованными USCIS 28 июня 2018, Иммиграционная служба США будет передавать дела в иммиграционный суд и выдавать повестки в суд сами, без участия иммиграционной полиции ICE. Такие повестки в суд на депортацию будут выдаваться после отказа в заявлении поданном в USCIS, если заявитель потерял легальный статус на момент получения отказа. Ожидается, что суды станут еще более перегружены, и многие иностранные студенты F-1 student visa, и люди на рабочих визах H-1B получат повестки на депортацию, что ранее было крайне редко. 

#USCIS #ICE #NTA #NoticetoAppear #immigration #immigrant #immigrationcourt #deportation #removal

(On August 9, 2018, USCIS published a final revised guidance which supersedes May 10th 2018 memorandum. Please refer to a new USCIS memorandum/guidance we published here).

On May 10, 2018, USCIS posted a policy memorandum changing how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.  

This policy aligns with Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired; or
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:      

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the 3-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.
​
USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.

Know Your Rights:

International travelers to USA continue to experience heightened scrutiny at U.S. Ports of Entry (airports). Travelers often carry an electronic device such as a cell phone or a laptop.

The current administration’s focus on border security has increased concerns about how to protect personal and corporate data contained on electronic devices from searches at the border, airport.

On January 4, 2018, CBP issued a new directive titled “Border Search of Electronic Devices.” The directive provides “guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices.”

CBP has long engaged in the search of electronic devices at the airport and the border. This new guidance addresses “the rights of individuals against unreasonable search and seizure and ensure privacy protections” while setting forth specific procedures CBP must follow in carrying out their duties.

One major topic is the type of information CBP officers may access on electronic devices. Specifically, CBP may only access information that is stored directly on the device at the time it is presented for inspection. CBP officers may not access information that is stored remotely (in the cloud). In order to ensure that this procedure is properly carried out, CBP has instructed officers to disable a device’s wireless features that would allow access of remote information.

The directive further addresses how officers should review and handle sensitive material, such as documentation protected by attorney-client privilege, medical records, and work-related information carried by journalists. The guidance does not indicate that this information is off-limits, but instead puts in place limitations on which government agencies may review and share the information in order to ensure proper security protections are in place. A CBP officer may request passwords to access any password-protected or encrypted information contained directly on an electronic device.

CBP officers have the discretion to search electronic devices when a traveler makes an application for entry into the United States. If an individual refuses to allow the search of a device, the device can be confiscated. CBP also may refuse to admit a nonimmigrant visa holder who does not comply with search requests.

The January 4th 2018 directive does not change CBP existing border search practices and policies, but provides some clarification. Electronic devices may continue to be seized if a traveler refuses to present them for inspection, but the guidance provides some specifics as to maintenance of both devices and information obtained from devices, of which detention should be limited to a “reasonable period of time.” CBP states that a device that is seized should generally not be held for more than five days to determine whether there is reasonable cause for continued search and seizure.

​DHS and CBP new directive and guidance can be found here.

The Freedom of Information Act (“FOIA”) gives every person access to certain information from the federal government. A person can file a request under this act, called “a FOIA request,” to any federal agency to request documents about themselves or others. 

There are four main components within DHS that hold immigration records:

(1) U.S. Citizenship and Immigration Services (“USCIS”);
(2) U.S. Immigration and Customs Enforcement (“ICE”);
(3) U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT); and
(4) U.S. Customs and Border Protection (“CBP”).

If you are making your request by mail, you should include the notation “Freedom of Information Act Request” on the front of your envelope. This will help ensure that the responsible individual receives the request without delay.

​USCIS is the most common place to submit an immigration-related FOIA request because USCIS keeps records of prior petitions and decisions and often has the Subject’s A-file. Do not submit your FOIA request to your local USCIS office, Service Center, or Lockbox. USCIS processes all FOIA requests at the National Records Center. The request can be submitted by letter request; Form G- 639 by email, mail, or fax; or by using the electronic DHS submission form.

DHS (USCIS) created an online fillable FOIA request form. This FOIA request form has a drop-down menu where the Requestor can select the component within DHS where the FOIA request should be sent. Through this online form, a Requestor can file a FOIA with USCIS, ICE, and OBIM, among others. The online form also allows the Requester to seek FOIA fee waivers and expedited service, if eligible. The online form remains unavailable for CPB FOIA requests, which must be submitted using CBP’s online form. 

The CBP form permits Requestors to upload supporting files. If you are filing a FOIA request on behalf of someone else (not your minor child), you will need to attach either a signed Form G-28 (if you are representing the Subject) or a written notarized consent that will allow a third party to access the Subject’s records. 

Form G-639 is NOT required. USCIS Form G-639 was created by DHS to make filing and processing FOIA requests easier, but it is an optional form. A FOIA request need only be in writing, state that the request is being made under FOIA, reasonably describe the records sought, and provide contact information for the Requestor. In some cases, you may not want to use Form G-639 and may choose to submit a letter request instead. 

ILRC published a helpful FOIA guidance in November 2017 here.

Where FOIA requests can be filed: direct filing addresses for different federal agencies.

USCIS created a new Form G-639 with an issue date of April 17, 2017. Make sure you are using the correct form because previous versions are no longer accepted. The form is frequently updated, so always check for the latest version of the form at http://www.uscis.gov/g-639. 

Most FOIA requests filed in individual immigration cases are free. Although federal agencies can recover certain costs, the first two hours of search time are free, and the first 100 pages copied are free. Additionally, agencies currently do not charge at all if the total amount is $14.00 or less. By submitting a FOIA request, the Requestor is agreeing to pay all applicable fees up to $25.00, should the costs go over what is provided for free. The Requestor will be notified if she owes any money up to $25.00, and is ordinarily expected to pay that amount before the agency sends the requested documents. If the Requestor does not wish to agree to $25.00 upfront, the Requestor can specify a greater or lesser amount when making the FOIA request and/or by submitting a fee waiver request. Most of the online submission forms take this into consideration and require the Requestor to state the maximum amount that she will pay. 

On June 26, 2017, the U.S. Supreme Court partially reinstated Trump’s travel ban 2nd executive order 13780, Protecting the Nation From Foreign Terrorist Entry Into the United States, and agreed to hear the arguments in the fall 2017.

In the meantime, the 90-day ban #TravelBan #MuslimBan and 120-day ban on refugee admission will become effective in 72 hours, on June 29, 2017, and will apply to people entering the U.S. from six predominantly Muslim countries. The partially reinstated executive order will ban the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen to the United States for 90 days, and suspends the admission of all refugees for 120 days. 

The ban will not apply to people who have a "credible claim of a bona fide relationship with a person or entity in the United States." That includes people visiting a close family member, students who have been admitted to a university or workers who have accepted an employment offer.

What this means is that individuals from the six countries will be permitted to enter the United States if they have a “close familial relationship” with someone already here or if they have a “formal, documented” relationship with an American entity formed “in the ordinary course” of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

Who is likely (probably) to be allowed to enter the United States:

• Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban.
• Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who “wish to enter the United States to live with or visit a family member” have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
• Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
• Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
• Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies. The Court ruled that such individuals may not be excluded even if the 50,000 cap on refugees has been reached or exceeded.

Who may have trouble entering the United States:

• Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear. The court's decision could result in numerous lawsuits, disputing the decision that they lack "connection" required.
• Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering.

The real problems will emerge when the government (CBP, TSA, DHS, Dept of State) will start implementing the executive order, and deciding who has sufficient ties or who doesn't, and who should be admitted or who should be banned/visa revoked/placed on a return flight. 

Three justices published a separate opinion, where Justice Thomas noted: "I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11– 12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. "

​#TravelBan #MuslimBan #ExecutiveOrder

​Read the decision here.

UPDATE June 29, 2017:

The Executive Orders Travel Ban 90-day suspension of entry will be implemented
worldwide at 8:00 p.m. Eastern Daylight Time (EDT) on June 29, 2017. 
 
The U.S. Department of State had clarified in the cable who is considered to have a "credible claim of a bona fide relationship with a person or entity in the United States."

According to the State Department, this “bona fide relationship” rule encompasses parents, parents-in-law, spouses, children, adult children, sons- and daughters-in law, and siblings (whole or half). This includes also step-parents and step-children.

According to the US DoS 06-29-2017 cable, there is no sufficient "bona fide relationship" and a visa will not be issued to the foreign nationals who are "grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members.”
The Supreme Court clarified that “a foreign national who wishes to enter the United States to live with or visit … [his] mother-in-law … clearly has such a relationship.” (Emphasis added.) Under the Trump administration’s guidelines, a foreign national must be exempted from the ban if she wishes to visit her half-sister or mother-in-law, but is banned if she wants to see a grandmother or aunt who raised her.

The text of the cable, dated June 28, 2017 at 7:57:39 PM EDT, Subject: (SBU) IMPLEMENTING EXECUTIVE ORDER 13780 FOLLOWING SUPREME COURT RULING -- GUIDANCE TO VISA-ADJUDICATING POSTS From:   SECSTATE WASHDC Action: ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE is here.


UPDATE 09:00 PM CST June 29, 2017:

The U.S. Department of state had updated its morning cable and included fiancees into the list of "close family" required to establish "bona fide relationship" for a visa to USA from one of six affected countries.

"Close family” is defined as a parent (including parent-in-law), spouse, fiancee, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.  This includes step relationships. 

Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, and any other “extended” family members."

The US DoS also clarified the "fate" of Canadian permanent residents who hold passports from one of the six affected countries.

Good news for the Canadian residents:
"Are there special rules for permanent residents of Canada?
Permanent residents of Canada who hold passports of a restricted country can apply for an immigrant or nonimmigrant visa to the United States if the individual presents that passport, and proof of permanent resident status, to a consular officer.  These applications must be made at a U.S. consular section in Canada.  A consular officer will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver." See here. ​

The American Immigration Lawyers Association’s Customs and Border Patrol Office of Field Operations Liaison Committee released new guidance (ed. 03-22-2017) on the due process rights of lawful permanent residents (LPRs, or Green Card holders) at U.S. ports of entry.  It is important that LPRs understand their rights when attempting to enter the country, especially in this new age of increased immigration enforcement. Nonimmigrants applying for admission to the United States may have even less rights at the border.

Rights of LPRs at Ports of Entry

Upon return to the United States from travel abroad, Lawful Permanent Residents (LPRs) have certain due process rights, including the right to a hearing before an immigration judge before they can be stripped of their permanent resident status. In addition, given the increasing reports of CBP inspection of traveler’s electronic devices and/or social media accounts, it is important for members to advise LPR clients of the risks of refusing such a request.

Due Process Rights of LPRs (lawful permanent residents)

LPRs enjoy greater due process rights than nonimmigrants when returning to the United States after travel abroad. Like all international travelers, upon return, LPRs are subject to inspection by CBP. CBP may question and screen LPRs to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.”

Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless he or she:

• Has abandoned or relinquished LPR status;
• Has been absent from the United States for a continuous period in excess of 180 days;
• Has engaged in illegal activity after having departed the United States;
• Has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
• Has committed an offense under INA §212(a)(2) [criminal and related grounds of inadmissibility], unless since such offense the alien has been granted relief under INA §212(h) [waiver of inadmissibility] or §240A(a) [cancellation of removal for permanent residents]; or
• Is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. As AILA recently advised, an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final.

Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, by a preponderance of the evidence, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) before an immigration judge. Even LPRs who have signed a Form I-407 retain the right to request a hearing before an immigration judge to determine whether LPR status was abandoned. See Matter of Wood, No. A24-653-925 (BIA 1992). Should CBP confiscate the LPR’s permanent resident card, the LPR has the right to alternative evidence of LPR status, such as an I-94 card and/or passport stamp.

CBP Search of Electronic Devices and Social Media Accounts

In 2009, CBP released to the public its current policy on searches of electronic devices. This policy states that all electronic devices, including those belonging to U.S. citizens, can be searched at a port of entry “without individualized suspicion.” There appear to be only very narrow limitations to the scope of CBP’s search authority. For example, section 5.2.1 indicates that privileged material, such as attorney/client communications, while not necessarily exempt from a search, may be subject to special handling procedures which require approval from CBP Associate/Assistant Chief Counsel.
CBP’s right to conduct suspicion-less searches of persons and conveyances has long been upheld by the Supreme Court as a “border search exception” to the 4th Amendment. While the 4th Amendment to the Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court held in Carroll v. United States, 267 U.S. 132 (1925), that it is “reasonable” to conduct border searches without a warrant due to national security interests.

CBP’s policy of conducting suspicion-less searches of electronic devices has not yet been meaningfully challenged. Following the publication of the 2009 guidance, the Supreme Court held, in Riley v California, 134 S. Ct. 2473 (2014), that the police may not search and seize the digital contents of a person’s cell phone or electronic device, incident to an arrest, without first obtaining a search warrant.  In arriving at this conclusion, the Court noted that cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. The ability of modern cell phones to contain the digital sum total of one’s “papers and effects,” the Court held, makes police searches of these devices unreasonable without a warrant. This ruling, however, only applies to arrests occurring in the interior of the United States and does not address arrests or searches at the border. Though this issue could be considered by a federal court, given the dire consequences to a foreign national who refuses to submit to such a search (including expedited removal), it is more likely that this issue will be pursued by a U.S. citizen who does not consent and is willing to litigate the matter.

A subsidiary issue to warrantless searches of cell phones and electronic devices is whether CBP may access an individual’s social media accounts. In 2016 CBP began collecting social media identifiers from Visa Waiver travelers through changes to the ESTA application. While the ESTA form makes this question optional, and only asks for social media “identifiers,” (as opposed to “passwords”) so that CBP can presumably view the traveler’s public information, AILA has received several reports of CBP officers requesting log in information so that they can view private social media accounts and messages. While the CBP electronic device search policy has not been updated to address this specific situation, it appears that CBP may view this information as falling within the “border search exception” to the 4th Amendment. For more information, see CBP Inspection of Electronic Devices Tear Sheet.

If a U.S. citizen refuses to consent to a search, CBP may do one of several things, including any of the following or a combination of the following:

• Detain the person until he or she consents.
• Have the person arrested for obstruction of justice.
• Let the person go and seize the device in question.

The CBP policy on search of electronic devices provides that CBP officers (with supervisory approval) make take physical possession of an electronic device either (a) when, upon a search of such a device, with or without suspicion of wrongdoing, a CBP officers discovers probable cause to seize it; or (b) when officers have “technical difficulties” in searching the device, such that technical assistance is required to continue the border search. In the latter case, inability to unlock the device due to non-consent could be deemed a “technical difficulty” justifying detention of the device. The policy provides that devices shall generally be returned within five days, but devices may be kept for up to 15 days and extensions beyond 15 days can be approved in 7-day increments thereafter. While CBP policy is to carefully record information about these detentions in its records, the policy sets no maximum period after which a device is required to be returned to its owner.

If an LPR or nonimmigrant refuses to consent to a search, CBP could follow any of the courses of action outlined in the previous paragraph with regard to U.S. Citizens and may, in addition, refuse a nonimmigrant admission to the United States and/or utilize the agency’s expedited removal authority. See generally, INA §235 and 8 CFR Part 235.

Right to Counsel (right to an attorney)

CBP has long held that there is no “right to counsel” during the inspection and admission process, although attorneys are sometimes permitted, at the agency’s discretion, to accompany clients who are detained in secondary inspection and/or are ordered to appear at a deferred inspection office. This interpretation is supported by 8 CFR §292.5(b) which applies generally to all immigration proceedings and states:

(b) Right to representation. Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody. 

In addition, the CBP Inspector’s Field Manual, at chapter 2.9, states:

Dealing with Attorneys and Other Representatives. No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney – unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action. he Inspector’s Field Manual (“IFM”) is no longer relied upon as an official source of agency guidance and has been at least partially replaced by the CBP Officer’s Reference Tool (ORT). The ORT is the subject of FOIA litigation and has not yet been released. Nevertheless, the IFM guidance appears to comport with current agency practice.  (Emphasis added).

Should CBP choose to issue an NTA and initiate removal proceedings, INA §101(a)(27) states that there must be at least ten days between service of the NTA and the first removal hearing. However, the issuance of an NTA does not impose upon CBP an obligation to allow the individual to speak with an attorney while being held in a CBP facility, “unless the applicant has become the focus of a criminal investigation and has been taken into custody.” In addition, should CBP detain and hold the person until Immigration and Customs Enforcement (ICE) takes him or her into custody pending a bond hearing, the right to counsel would then attach, as the individual would no longer be an applicant for admission.

​You can view updated Know Your Rights Guidance here.

​If you need legal advice, want to schedule a consultation or want to hire an attorney, please email us and we will get back to you to schedule the best time to talk on the phone or video chat.
​

​
​On February 20 and 21, 2017, DHS USCIS had published several Memorandums, Fact Sheets and Q&As at their official website, explaining changed border and interior immigration policies and priorities, following the executive branch's January 2017 executive orders. 

Two USCIS Memorandums, both dated February 20, 2017, and signed by the DHS Secretary John Kelly, authorize CBP, ICE and USCIS to significantly increase interior and border enforcement efforts:

Border protection and enforcement, building the wall and hiring at least 10,000 more ICE agents; expedited removal will apply to a broader class of undocumented immigrants; changes to asylum application process and credible fear interview, intended to make it more difficult to get a grant of asylum; criminal sanctions for parents of unaccompanied children; anyone present in USA without a proper visa or status will be subject to deportation; changing old DHS removal priorities from criminal aliens to all undocumented aliens; DACA grantees are safe from deportation at present time.

• Implementing the President's Border Security and Immigration Enforcement Improvements Policies
• Enforcement of the Immigration Laws to Serve the National Interest
• Fact Sheet: Executive Order: Border Security and Immigration Enforcement Improvements
• Fact Sheet: Enhancing Public Safety in the Interior of the United States
• Q&A: DHS Implementation of the Executive Order on Border Security and Immigration Enforcement
• Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States

Actions (Fact Sheet, 02/21/2017, Executive Order: Border Security and Immigration Enforcement Improvements ):

• Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense. 
• Establishing policies regarding the apprehension and detention of aliens. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) will release aliens from custody only under limited circumstances, such as when removing them from the country, when an alien obtains an order granting relief by statute, when it is determined that the alien is a U.S. citizen, legal permanent resident, refugee, or asylee, or that the alien holds another protected status, when an arriving alien has been found to have a credible fear of persecution or torture and the alien satisfactorily establishes his identity and that he is not a security or flight risk, or when otherwise required to do so by statute or order by a competent judicial or administrative authority.
• Hiring more CBP agents and officers. CBP will immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air & Marine agents and officers, while ensuring consistency in training and standards.
• Identifying and quantifying sources of aid to Mexico. The President has directed the heads of all executive departments to identify and quantify all sources of direct and indirect federal aid or assistance to the government of Mexico. DHS will identify all sources of aid for each of the last five fiscal years.
• Expansion of the 287(g) program in the border region. Section 287(g) of the INA authorizes written agreements with a state or political subdivision to authorize qualified officers or employees to perform the functions of an immigration officer. Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions.
• Commissioning a comprehensive study of border security. DHS will conduct a comprehensive study of the security of the southern border (air, land, and maritime) to identify vulnerabilities and provide recommendations to enhance border security. This will include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control of the border.
• Constructing and funding a border wall. DHS will immediately identify and allocate all sources of available funding for the planning, design, construction, and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project.
• Expanding expedited removal. The DHS Secretary has the authority to apply expedited removal provisions to aliens who have not been admitted or paroled into the United States, who are inadmissible, and who have not been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility, so that such aliens are immediately removed unless the alien is an unaccompanied minor, intends to apply for asylum or has a fear of persecution or torture in their home country, or claims to have lawful immigration status. To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. The Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act that expands the category of aliens subject to expedited removal to the extent the DHS Secretary determines is appropriate, and CBP and ICE are directed to conform the use of expedited removal procedures to the designations made in this notice upon its publication.
• Returning aliens to contiguous countries. When aliens apprehended do not pose a risk of a subsequent illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings, saves DHS detention and adjudication resources for other priority aliens.  CBP and ICE personnel shall, to the extent lawful, appropriate and reasonably practicable, return such aliens to such territories pending their hearings.
• Enhancing Asylum Referrals and Credible Fear Determinations. U.S. Citizenship and Immigration Services (USCIS) officers will conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. USCIS will also increase the operational capacity of the Fraud Detection and National Security Directorate.
• Allocating resources and personnel to the southern border for detention of aliens and adjudication of claims. CBP and ICE will allocate available resources to expand detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable. CBP will focus on short-term detention of 72 hours or less; ICE will focus on all other detention capabilities.
• Properly using parole authority. Parole into the United States will be used sparingly and only in cases where, after careful consideration of the circumstances, parole is needed because of demonstrated urgent humanitarian reasons or significant public benefit. Notwithstanding other more general implementation guidance, and pending further review by the Secretary and further guidance from the Director of ICE, the ICE policy directive with respect to parole for certain arriving aliens found to have a credible fear of persecution or torture shall remain in full force and effect.
• Processing and treatment of unaccompanied alien minors encountered at the border. CBP, ICE, and USCIS will establish standardized review procedures to confirm that alien children who are initially determined to be unaccompanied alien children continue to fall within the statutory definition when being considered for the legal protections afforded to such children as they go through the removal process.
• Putting into place accountability measures to protect alien children from exploitation and prevent abuses of immigration laws. The smuggling or trafficking of alien children into the United States puts those children at grave risk of violence and sexual exploitation.  CBP and ICE will ensure the proper enforcement of our immigration laws against those who facilitate such smuggling or trafficking.
• Prioritizing criminal prosecutions for immigration offenses committed at the border. To counter the ongoing threat to the security of the southern border, the directors of the Joint Task Forces-West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs), are directed to plan and implement enhanced counter-network operations directed at disrupting transnational criminal organizations, focused on those involved in human smuggling.
• Public Reporting of Border Apprehensions Data. In order to promote transparency, CBP and ICE will develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for violating the immigration law.

Actions (Fact Sheet, 02/21/2017: Enhancing Public Safety in the Interior of the United States)

• Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense. 
• The Department’s Enforcement Priorities. Congress has defined the Department’s role and responsibilities regarding the enforcement of the immigration laws of the United States. Effective immediately, and consistent with Article II, Section 3 of the U.S. Constitution and Section 3331 of Title 5, U.S. Code, Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens. 
• Strengthening Programs to Facilitate the Efficient and Faithful Execution of the Immigration Laws of the United States. Facilitating the efficient and faithful execution of the immigration laws of the United States—and prioritizing the Department’s resources—requires the use of all available systems and enforcement tools by Department personnel.
• Exercise of Prosecutorial Discretion. Unless otherwise directed, Department personnel may initiate enforcement actions against removable aliens encountered during the performance of their official duties. Department personnel should act consistently with the President’s enforcement priorities as identified in his executive order and any further guidance issued by the director of ICE, the commissioner of CBP, and the director of USCIS prioritizing the removal of particularly dangerous aliens, such as convicted felons, gang members, and drug traffickers.
• Establishing the Victims of Immigration Crime Engagement (VOICE) Office. The Victims of Immigration Crime Engagement (VOICE) Office within the Office of the Director of U.S. Immigration and Customs Enforcement (ICE) will create a programmatic liaison between ICE and the known victims of crimes committed by removable aliens. The liaison will facilitate engagement with the victims and their families to ensure, to the extent permitted by law, that they are provided with information about the offender, including the offender’s immigration status and custody status, and that their questions and concerns regarding immigration enforcement efforts are addressed.
• Hiring Additional ICE Officers and Agents. To effectively enforce the immigration laws in the interior of the United States in accordance with the president’s directives, additional ICE agents and officers are necessary. The director of ICE shall—while ensuring consistency in training and standards—take all appropriate action to expeditiously hire 10,000 agents and officers, as well as additional mission support and legal staff necessary to support their activities.
• Establishment of Programs to Collect Authorized Civil Fines and Penalties. As soon as practicable, the director of ICE, the commissioner of U.S. Customs and Border Protection (CBP), and the director of U.S. Citizenship and Immigration Services (USCIS) shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties for which the Department is authorized under the law to assess and collect from removable aliens and from those who facilitate their unlawful presence in the United States.
• Aligning the Department’s Privacy Policies with the Law. The Department will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents. 
• Collecting and Reporting Data on Alien Apprehensions and Releases. The collection of data regarding aliens apprehended by ICE and the disposition of their cases will assist in the development of agency performance metrics and provide transparency in the immigration enforcement mission.
• No Private Right of Action. This document provides only internal DHS policy guidance, which may be modified, rescinded, or superseded at any time without notice.

QUESTIONS & ANSWERS.

Q20: How does the expansion of expedited removal account for those who may be eligible for immigration benefits?
A20: The Secretary’s intentions regarding expedited removal are under development and will be set forth and effective upon publication of a notice in the Federal Register.
Q21: How soon will DHS make changes to more closely align its use of the expedited removal authority with Congressional intent?
A21: DHS is working to issue appropriate parameters in which expedited removal in these kinds of cases will be used.

Q22: Is it true that DHS is going to make the threshold for meeting credible fear in asylum cases more difficult to meet?
A22: The goal of DHS is to ensure the asylum process is not abused. Generally speaking, to establish a credible fear of persecution, an alien must demonstrate that there is a “significant possibility” that the alien could establish eligibility for asylum, taking into account the credibility of the statements made by the alien in support of the claim and such other facts as are known to the officer.
Asylum officers are being directed to conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. In determining whether the alien has demonstrated a significant possibility that the alien could establish eligibility for asylum or torture protection, the asylum officer shall consider the statements of the alien and determine the credibility of the alien’s statements made in support of his or her claim and shall consider other facts known to the officer, consistent with the statute.

Q23: How will the enhancements to asylum referrals and credible fear determinations under INA section 235(b)(1) affect the work of USCIS?
A23: The Secretary’s memorandum outlines several points:

• The director of USCIS shall ensure that asylum officers conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination.
• The director shall also increase the operational capacity of Fraud Detection and National Security (FDNS) and continue to strengthen its integration to support the Field Operations Directorate (FOD), Refugee Asylum and International Operations (RAIO), and Service Center Operations (SCOPS), consulting with Operational Policy and Strategy (OP&S) as appropriate.
• The USCIS director, CBP commissioner, and ICE director shall review their agencies’ fraud detection, deterrence, and prevention measures and report to the Secretary within 90 days regarding fraud vulnerabilities in the asylum and benefits adjudication processes, and propose measures to enhance fraud detection, deterrence, and prevention.
• The asylum officer, as part of making a credible fear finding, shall determine the credibility of statements made by the individual in support of his or her claim. This determination should include, but is not limited to, consideration of the statistical likelihood that the claim would be granted by the Department of Justice’s Executive Office for Immigration Review (EOIR).
• The asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence and determined, based on credible evidence, that the alien has a significant possibility of establishing eligibility for asylum, or for withholding or deferral of removal under the Convention Against Torture, based on established legal authority.


• Q25: Is it true that in cases of UACs (unaccompanied children) who travel to the U.S. to reunite with a parent, if a parent is identified by ORR as an appropriate guardian, that parent could also be prosecuted for possibly having their child smuggled into the U.S.?

• A25: Correct. The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country. Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico to the United States. Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable. Accordingly, DHS shall ensure the proper enforcement of our immigration laws against those who—directly or indirectly—facilitate the smuggling or trafficking of alien children into the United States. This includes placing parents or guardian who are removable aliens into removal proceedings, or referring such individuals for criminal prosecution, as appropriate.
  and report to the Secretary within 90 days regarding fraud vulnerabilities in the asylum and benefits adjudication processes, and propose measures to enhance fraud detection, deterrence, and prevention.

Q12: Will ICE still be hiring the 10,000 officers called for in the executive orders?
A12: ICE is currently developing a hiring plan.

Q13: What is the 287(g) program and how will it be used by ICE?A13: The 287(g) program allows local law enforcement agencies to participate as an active partner in identifying criminal aliens in their custody, and placing ICE detainers on these individuals. ... To strengthen the 287(g) program, ICE field leadership has begun examining local operational needs and liaising with potential 287(g) partners and will collaborate with CBP in these efforts. Existing 287(g) applications are also undergoing an expedited review process. 

Q14: Are 287(g) officers now going to do ICE’s job?A14: The 287(g) program, one of ICE’s top partnership initiatives, enables state and local law enforcement agencies to enter into a partnership with ICE, under a joint memorandum of agreement. The state or local entity receives delegated authority for immigration enforcement within their jurisdictions.

Q15: When will 287(g) task force agreements be available to local jurisdictions? Will these new task force agreements be modeled after the previously canceled task force model?A15: ICE and CBP will be  is developing a strategy to further expand the 287(g) Program, to include types of 287(g) programs, locations, and recruitment strategies.  ... Existing 287(g) applications are also undergoing an expedited review process. ...

Q16: How will ICE accommodate an immigration judge in each of its facilities? How about asylum officers?A16: ICE is working with the Department of Justice Executive Office for Immigration Review and U.S. Citizenship and Immigration Services to review current procedures and resources in order to identify efficiencies and best practices to improve the system. Most dedicated detention facilities already house immigration courts and have enough space to accommodate asylum officers. ICE is also seeking to increase the use of technology, mainly through the use of video teleconferencing, in locations with insufficient space or staffing.

Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States Release Date: February 21, 2017

Q2: How is ICE conducting interior enforcement operations based on this executive order?A2: Effective immediately, ICE will direct its personnel as well as its state and local partners through the 287(g) program to apply the enforcement priorities stated in Executive Order No. 13768. 
To that end, within 180 days, ICE will carry out a number of actions to implement the enforcement priorities stated in the executive order. Some of those actions include, but are not limited to, conducting targeted enforcement operations and allocating resources to work in jurisdictions with violent crime tied to gang activities.
​
Q3: Does this new memoranda substantively change the authority of immigration enforcement officers throughout DHS to exercise traditional law enforcement discretion?A3: DHS officers and agents maintain discretion to determine which action(s) to take against removable aliens, but they have been provided with additional guidance by the president and secretary. 

Q5: What are ICE’s priorities under this executive order?A5: Under this Executive Order, ICE will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States. 

Q14: When is the Priority Enforcement Program (PEP) being terminated (Previous Administration's policy)?
A14: ICE has terminated the Priority Enforcement Program (PEP) and restored Secure Communities, directing its personnel to take enforcement action consistent with the priorities set forth in the executive orders. 

Q18: What threshold of abuse of a public benefit program will render someone removable?
A18: Those who have knowingly defrauded the government or a public benefit system will be priority enforcement targets.

Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)?
A22: No. (Presently, new immigration enforcement policies do not affect DACA grantees. However, there have been recent arrests of DACA grantees)

When a person is arriving at the U.S. border and applying for admission to the United States, the CBP officers are required to determine the nationality or citizenship of each applicant for admission (including U.S. citizens).

When a a non-U.S. citizen applies for admission to USA, a decision is made by the CBP officer as to whether the applicant is admissible to the U.S.A. or inadmissible and should be removed or not allowed to enter the U.S. 

Even a lawful permanent resident returning to the U.S. after an extended stay abroad, in certain situations can be questioned as a person applying for admission.

All travelers to the U.S.A. should know the following:

1. Border Search Authority. Federal regulations are clear regarding CBP’s authority to conduct a search: “All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable for inspection and search by a Customs officer.” For those traveling to the U.S. in a vehicle, a CPB officer may stop, search, and examine any vehicle or search any trunk wherever found.  However, CBP cannot conduct intrusive searches (such as strip searches) or repeated detentions unless there is a “reasonable suspicion” of an immigration violation or crime.  Additionally, CBP’s policy requires that all searches be “conducted in a manner that is safe, secure, humane, dignified, and professional.”
2. Electronic Devices Search (smartphones, laptops, tablets). CBP’s border search authority also includes the right to examine electronic devices, such as computers, disks, hard drives, cell phones, and other electronic or digital storage devices, without “reasonable suspicion”. CBP officers conduct border searches of electronic devices to determine whether a violation of U.S. law has occurred.  While the U.S. Supreme Court has ruled that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional in violation of the Fourth Amendment right against unreasonable searches and seizures, there appears to be an exception for individuals desiring to enter the U.S.  If your electronic device is seized for further examination, which may include copying of data, you will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property upon completion of the examination.  Unless extenuating circumstances exist, the detention of devices should not exceed 5 days.
3. Discrimination and Coercion. An individual may not be searched on any discriminatory basis (e.g. race, gender, religion, ethnic background).  Nevertheless, a search based on consideration of citizenship or travel itinerary that includes a narcotics source or transit country is not deemed  unlawful. Additionally, CBP cannot threaten a person being questioned; if there is coercion, any statements obtained may be excluded in a subsequent removal proceeding under the Due Process Clause.  You can file a complaint with the Office of Civil Rights and Civil Liberties within the U.S. Department of Homeland Security if you believe there has been improper discrimination, inappropriate questioning, or other civil rights and civil liberties violations.
4. Right to Attorney. Any applicant for admission (including U.S. citizens) is not entitled to representation in primary or secondary inspections, unless he or she has become the focus of a criminal investigation and has been taken into custody. Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process.
5. Right to Remain Silent, But Be Prepared to Answer Questions. Even though you have the right to remain silent, if you don’t answer questions to establish your citizenship, officials may deny entry to the U.S. or detain you for a search and/or questioning. CBP officers can ask people applying for admission to the U.S. almost any question.  If you choose not to answer all or some of the questions, you can be denied admission to the U.S. or delayed by the CBP officer if selected for secondary inspection, search of your electronic devices. Make sure you can answer the following questions:

• What is the purpose of your visit? (what do you plan to do in USA)
• Where will you be staying? (address)
• Who will you be visiting? (name, address, contact phone number)
• How often do you travel to the U.S.? (for example, how many times a year; every 3 months)

When a non-US citizen applies for admission to the U.S., it’s important to be clear that your purpose for the visit to U.S.A. must be consistent with the visa category held. For example, if you are arriving on a tourist or visitor's visa, the purpose of the visit is to engage in tourist activities or visit family or friends, or if you a student, it’s to study, if you are a temporary worker it’s to work, and if you are returning as a permanent resident, the purpose must be to return to the U.S. as a place of your permanent residence.

Please read our guidance for lawful permanent residents returning to the USA who are facing  request from the CBP to sign the form I-407 and to abandon permanent residency (aka green card).

#knowyourrights #CBP #DHS #USCIS #GreenCard #admissiontoUSA #I407 #search #seizure #bordersearch #electronicdevicesearch #righttoattorney #detention

Today, a federal judge in Los Angeles has ruled that CBP and DHS must allow immigrants with already issued IMMIGRANT Visas to enter the United States from seven Muslim-majority nations, despite an executive order ban.

This new court order applies ONLY to immigrant visas, where an immigrant travels to USA on an immigrant visa and upon admission to USA becomes a lawful permanent resident (received a green card aka permanent residency in USA).

As was reported earlier, effective January 27th 2017, the U.S. Department of State "provisionally cancelled" ALL previously issued visas, including immigrant visas, to natives of the "list of seven" countries.

This court order makes it clear that the government must allow admission of lawful immigrants on valid immigrant visas to the United States, notwithstanding the fact that as of January 27th every single visa issued to people from seven countries is considered "conditionally cancelled".

It was also reported today that DHS opened internal investigation into multiple reports of the DHS and CBP employees refusing admission to people from seven countries in violation of the court orders. 

In Russian:

Сегодня судья федерального суда в Лос Анджелесе, Калифорния вынес еще одно решение, ограничивающее указ президента от 27 января 2017, о запрете на въезд в США лиц из семи стран (Ирак, Иран, Сирия, Судан, Сомалия, Йемен и Ливия).

Это решение распространяется на всю страну, не только на Калифорнию.

По решению суда, въезд в США разрешен всем тем иммигрантам, кто получил иммиграционные визы в США из семи стран, названных в указе. Так как по въезде в страну, они становятся постоянными жителями и получают вид на жительство в США.

Иммиграционная полиция и пограничники обязаны впускать в США всех тех, у кого есть иммиграционные визы (не смотря на то, что 27 января 2017 Госдеп США опубликовал меморандум о том, что они "условно аннулировали" ВСЕ до одной визы гражданам из семи стран).

Также сегодня было объявлено, что DHS начал внутреннее расследование среди своих сотрудников, которые отказываются выполнять решения судов и по прежнему отказывают лицам из семи стран во въезде в США.

Источник. read more here.

​CBP launched an updated website for accessing I-94 admission records, and travel history to USA records.

To access your CBP records, you have to enter your information exactly as in your passport at: 

​https://i94.cbp.dhs.gov/I94/#/home

USCIS or DHS website where you can find USCIS contact number, webforms and download all applications and forms for free is here.

USCIS Case Status: you can check status of your pending case online here.

Visa Case Status: you can check status of your immigrant visa IV or non-immigrant visa NIV case here.
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USCIS Processing Times: you can see how fast cases are being adjudicated or decided by different USCIS / DHS offices around the United States here.

USCIS Change of Address Form Online: you can submit your change of address form online here.

USCIS Case Inquiry Webforms: you can submit your questions or case inquiry directly to USCIS by using one of the webforms here.

USCIS submit electronically I-90, N-400 or I-131A, or pay a Green Card fee online.

How to find USCIS field offices, ASC Application Support Centers, Asylum officers - use USCIS Officer Locator here.

How to Find a Medical Doctor for a USCIS I-693 Medical Examination - use USCIS Designated Doctor Locator. 

How to verify if a particular USCIS office is open or closed due to bad weather or other circumstances - use USCIS Office Closings Daily Bulletin. 

How to obtain an official record of admission from CBP, Form I-94. You will need to provide your passport number and a country, first and last names, date of birth. The official I-94 will include an admission number (that you need for several immigration applications and forms), date and class of admission, and expiration date, name and a passport information.

Asylum Office Scheduling Bulletin is posted by Asylum Office here.

US Department of State Monthly Visa Bulletin: you can find monthly visa bulletin and check how fast your priority date is progressing here.

You can find out current Visa Fees for various visas to USA here. 

Complete a nonimmigrant visa application online: DS-160.

Complete an immigrant visa application online: DS-260.

You can pay your Green Card fee online here. You can find step-by-step instructions here.

Now, you can electronically submit several applications: USCIS Forms I-90, N-400, I-131A.

Know Your Rights: What to do during the ICE or immigration raid at work, at home, in a public place; what questions you must answer and when you shall remain silent. (In English, Spanish, Russian, Chinese, Vietnamese, Tagalog, Korean and Arabic).

To schedule a consultation with an experienced immigration attorney who speaks English and Russian, please email us to schedule a telephone or Skype appointment with attorney Luba Smal.

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U.S. Customs and Border Protection launched today the redesigned website for Visa Waiver Program (VWP) visitors to apply for an Electronic System for Travel Authorization (ESTA) prior to traveling to the United States. The new website makes the process of applying for an ESTA more user-friendly and will improve and better facilitate the experience for VWP travelers wishing to visit the United States. 

Some of the new and updated features include:

• Access to frequently asked questions at any time during the application process.
• Mobile-friendly design allows VWP visitors to apply and check the status of their ESTA using their smartphones.
• Users will be able to translate the page into a different language at any point in the application by choosing one of the 23 languages in the language selector.
• The Group feature has been moved to the beginning of the application process making it easier for families and groups to submit their applications at once.

VWP visitors who have already applied for an ESTA using the old site will be able to access their ESTA on the new site. Travelers with a valid ESTA will not have to reapply for a new ESTA until their current ESTA expires or they receive a new passport.
CBP reminds VWP visitors that ESTA applications can only be submitted through the official website. ESTA is not affiliated with any third-party sites. CBP recommends ESTA applications be submitted as soon as an applicant begins making travel plans.
The VWP enables nationals of 38 designated countries to travel to the United States for tourism or business purposes for stays of 90 days or less without first obtaining a visa. All nationals or citizens of VWP countries are required to have an approved ESTA prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel, and once approved, will generally be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations will be valid for multiple entries into the United States.

New redesigned VWP ESTA website at: https://esta.cbp.dhs.gov/esta/