By Stanley Mailman and Stephen Yale-Loehr**

Since the terrorist attacks of September 11 on the World Trade Center and the Pentagon, traveling has become more problematic, especially for noncitizens. According to news reports, some "Arab-looking" passengers have been asked to leave flights because they made other passengers nervous. Some noncitizens have been asked for more documentation than normal at airports. Even inquiring about the emergency exit doors of airplanes has landed people in trouble.

Noncitizens should know their rights and how to assert them. See, e.g., the ACLU advisory at http://www.aclu.org/library/know_your_rights.pdf. They also need to know the immigration rules and policies that directly affect them, particularly when they travel, and the risks of visa denial or other disappointment, and even detention, if either they or the authorities are off base. This article explores the law and lore of travel for noncitizens and the paperwork requirements that apply in these uncertain times, both domestically and internationally.

A little-known provision of the Immigration and Nationality Act (INA) requires every noncitizen over the age of 18 at all times to "carry with him and have in his possession any certificate of alien registration or alien registration receipt card issued to him." INA § 264(e), 8 U.S.C. § 1304(e). Someone who runs afoul of this requirement courts conviction of a misdemeanor with a fine of up to $100 and/or jail for up to 30 days. The immigration regulations at 8 C.F.R. § 264.1 set out what registration forms are required, ranging from a green card to a work permit, according to the noncitizen’s status. Although the Immigration and Naturalization Service (INS) hasn’t been vigorous in enforcing this provision, it may start to do so in the wake of the recent terrorist attacks. Noncitizens should try to carry evidence of their immigration status with them at all times, especially when traveling. See generally Cyrus Mehta & Parastou Hassouri, Noncitizens Must Have Documents Verifying Their Status at All Times, available athttp://www.ilw.com/lawyers/colum_article/articles/2001,1023-Mehta.shtm (last visited Dec. 12, 2001).

Another obscure provision requires all noncitizens to notify the INS within 10 days after they move. INA § 265(a), 8 U.S.C. § 1305(a). The form to use in reporting an address change is AR-11, which can be downloaded from the INS web site at http://www.ins.gov. Someone who fails to file this form is deportable unless "such failure was reasonably excusable or was not willful." INA § 237(a)(3)(A), 8 U.S.C. § 1227(a)(3)(A). As with INA § 264, the INS may enforce this change-of-address requirement more vigorously than it has in the recent past.

The new antiterrorism law (the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, 115 Stat. 272) requires government agencies to share more information about noncitizens. For example, section 403 of the USA PATRIOT Act gives the INS and the State Department access to the FBI’s National Crime Information Center (NCIC) computer database to see whether a visa applicant or applicant for admission has a criminal record.

Agencies are sharing information in other ways. For example, INS Commissioner James Ziglar recently announced that the INS will add to the NCIC database the names of more than 300,000 noncitizens who have been ordered deported but who never left the United States. Those persons will now more likely be held for INS if they turn up in routine traffic stops, or other identity checks conducted at bus or railway stations or on domestic and international flights.

Similarly, the State Department recently announced that it is now conducting more intensive background checks for certain visa applicants. Males between the ages of 16 and 45 who are nationals of certain countries (Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen) must now wait for at least 20 days for a visa while the State Department checks the FBI database to see if they have a criminal record.

In these security-conscious times, information-sharing is appropriate. No one wants a criminal or terrorist to enter or remain in the country. But INS records in the past have been notoriously inaccurate. And information that enters the databases from overseas sources is sometimes imprecise. An innocent traveler may have the same name as a criminal or terrorist. Given the high stakes, both for the national interest and the individual, consular officers and INS inspectors will be called on to exercise extreme care in allowing or denying a visa or entry to the United States.

Some of those ordered deported may merit more sympathy than their status might suggest. For example, many removal orders issued by immigration judges are directed against noncitizens who failed to show up in immigration court. But sometimes the reason for the failure is simply that they moved and never received the notice to appear (whether or not they advised INS of their change of address). In that case they would not even know they were ordered deported. On discovery, they may eventually succeed in contesting the in absentia removal order and obtain some form of discretionary relief, like asylum. But meanwhile they can languish in jail, paying the incidental price of information-sharing and improved technology that we have brought to bear against America’s enemies.

Some noncitizens may have trouble entering the United States because of a new INS policy memo instructing all ports of entry to suspend the practice of paroling travelers into the country for deferred inspection or granting a waiver of documentary requirements except when authorized by high ranking INS district officials. Memorandum from Michael Cronin, Acting INS Executive Associate Commissioner, Office of Programs, Deferred Inspection, Parole and Waiver of Documentary Requirements, File No. HQINS 70/10.10 (Nov. 14, 2001) (November 14 INS memo), available at http://www.ilw.com/lawyers/immigdaily/ins_news/2001,1210-Memo.pdf (last visited Dec. 12, 2001). In the past, an INS inspector who was satisfied that a noncitizen was otherwise admissible might waive the passport/visa requirement on the basis of an "unforeseen emergency." INA § 212(d)(4)(A), 8 U.S.C. § 1182(d)(4)(A). Or the inspector could parole the noncitizen into the United States for a deferred inspection several weeks later, at which time further explanation and even paperwork can be offered. INA § 212(d)(5), 8 U.S.C. § 1182(d)(5).

Under the new policy guidance, INS inspectors no longer have that discretion. Only district directors, deputy district directors, and assistant district directors for inspections or examinations can make that call. Moreover, they can only permit the waiver or parole after they have checked all applicable databases. And even then their discretion is limited to cases where there are only technical paperwork deficiencies or the person’s entry to the United States is needed for "compelling humanitarian circumstances" or for law enforcement or national security reasons. November 14 INS memo, supra.

The purpose of the memo is undoubtedly to catch the kind of bad actors that gave us September 11, or at least to prevent their inadvertent admission. However, the finer screening is likely to land many innocent fish. The high brass who are now reserved the authority to make waiver and parole decisions may be unavailable at night or on the weekends to exercise it. In other words, more noncitizens than before who only have a technical problem with their paperwork may be denied entry to the United States or face other hardship. Some of these people will be permitted to withdraw their applications for entry and go home on the next flight. Some may be detained until an assistant director decides whether to issue a waiver or to parole them. Still others will be taken into custody for expedited removal from the United States. Once removed they are barred from readmission for five years.

Foreign students particularly may fall victim to the November 14 INS memo. Anyone who changes from one nonimmigrant (temporary) status to another in the United States must still obtain a visa at a U.S. consulate if she wants to return here in that classification. (For an exception in the case of nonimmigrants returning from a stay of no more than 30 days in Canada or Mexico, see 8 C.F.R. § 214.1(b); 22 C.F.R. § 41.112(d).) Inspectors sometimes waive the visa requirement the first time a nonimmigrant, say a temporary professional worker in H-1B status, forgets to secure the visa, by a liberal interpretation of "unforeseen emergency." And many F-1 students have benefited from this waiver, as they have from the parole provision when their school certificate of eligibility (I-20 form) wasn’t in order. The exercise of that kind of discretion is much less likely under the new memo.

Even permanent residents returning to the United States may encounter problems. The immigration statute normally does not consider returning permanent residents to be seeking admission if they have been outside the United States continuously for less than six months. INA § 101(a)(13), 8 U.S.C. § 1101(a)(13). Longer trips, however, may cause an INS inspector to wonder if the person has abandoned her residence in the United States. Given the heightened scrutiny paid to all noncitizens these days, the potential abandonment issue may arise more often than it has in the past. To avoid that problem, permanent residents who expect to be abroad more than six months can file for a reentry permit, evidencing their intention to retain their residence.

It may be a long time, if ever, before we return to the curbside check-ins and the other easy ways that preceded September 11. We are still urged to heightened alert from time to time, and our edginess both reflects and rationalizes a degree of government intrusion that is, at the least, inconvenient to many of us. Noncitizens who are targets of the detention and deportation provisions of the USA PATRIOT Act, see this column of October 22, 2001, have good cause for worry and may need serious representation. To most noncitizens within our midst, those provisions are unlikely to be felt as a threat, but they clearly cause disquiet. In practical terms, the possibility of interrogation or intensive inspection, the resulting delays, and the risk of running afoul of technical provisions or overzealous officials are also realistic causes for concern. Noncitizens who travel should take pains to carry documentation that clearly establishes their right to be in the United States and maintain a good measure of time and patience.

* This article originally appeared in the December 24, 2001 issue of the New York Law Journal. Copyright © 2001 the New York Law Publishing Company. The authors thank the Journal for permission to reprint the article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller (http://www.twmlaw.com/) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@twmlaw.com.