Withdrawing the Application for Admission
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From the June 23, 1997 issue of the The New York Law Journal
Once criticized for the practice of encouraging foreign visitors to withdraw their application for admission when they seem to be ineligible for entry and to forgo a hearing, the Immigration and Naturalization Service (INS) now has an ever greater responsibility to dispense the privilege of withdrawal fairly.
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),(1) signed on Sept. 30, an INS inspector must enter an order of removal without hearing or other review, on finding an arriving alien inadmissible under either of two provisions. One of these, sec. 212(a)(6)(C) of the Immigration and Nationality Act (INA), 8 USC sec. 1182(a)(6)(C), aims at those who seek or have sought admission by fraud or material misrepresentation. The other, INA sec. 212(a)(7), chiefly targets immigrants who are not properly documented for lawful residence, and nonimmigrants who lack a valid passport and visa. The removal order carries with it a bar to reentry for at least five years, unless the Attorney General agrees to an earlier admission. Depending on the ground of inadmissibility, the finding can result in a permanent bar.
Facing such serious sanctions, an alien whose admissibility is challenged on fraud or documentary grounds should be entitled to a hearing. But the law provides none, except in the case of Cubans. Those who make a preliminary showing that they have a "credible fear of persecution" are given a hearing, but only to establish their eligibility for asylum. And there is administrative review as to whether the alien was already granted lawful residence status, admitted as a refugee, or given asylum.
First and Last Resort
For many if not most aliens seeking admission, therefore, the INS inspection team may now be the court of first and last resort, with a corresponding burden of responsibility. An alternative to removal, accepting the alien's withdrawal of the application for admission, often favored by inspectors in the past as a means of sparing the government the expense and delay of a formal exclusion hearing, may now be even more important in sparing the alien serious and long-term hardship.
Immigration inspectors have always exercised vast powers over those who seek admission to the United States, well beyond what the statutory scheme suggests. Some 22 million people from other countries were admitted to the United States temporarily in 1994 as nonimmigrants, more than 90 percent of them as visitors. In addition, almost a million were admitted as immigrants. Yet almost a million others in the same year withdrew their applications for admission.
What is an application for admission? Why do so many people withdraw it after making the trip to the United States? And what are the consequences of a withdrawal? In fact, there is no formal application for admission. Except for most persons already admitted as lawful permanent residents, every arriving alien is simply considered an applicant for admission to the United States and subject to inspection. This rule is now codified in the INA at secs. 101(a)(13), 235(a), 8 USC secs. 1101(a)(13), 1225(a), as amended by IIRIRA secs. 301(a), 302(a). The debarking visitor or other nonimmigrant simply presents herself for interview by an INS inspector, who asks the purpose of the trip.
Having a valid passport and nonimmigrant visa valid on its face is no guarantee of entry. Except for H-1s (professional workers) and Ls (intracompany transferees), every alien is presumed to be an immigrant until she establishes that she is entitled to a nonimmigrant status. Although visaed, say, as a B-1 visitor, the alien seeking admission might be found inadmissible as an immigrant under INA ¤212(a)(7)(A), 8 USC sec. 1182(a)(7)(A), if the INS inspector decides she has insufficient funds, lacks
other plausible means for a visit, or is without credible ties abroad.
However, before IIRIRA changed the law, an alien in possession of a visa could not be excluded and sent away without a hearing before an immigration judge, an opportunity for appeal to the Board of Immigration Appeals and the right to judicial review by habeas corpus.
Alternate Mechanism
The need to provide Due Process, plus the uncertainty of making the charge stick, undoubtedly account for the relatively small number of aliens formally charged with inadmissibility. In 1994, immigration judges decided only 17,419 exclusion cases, resulting in 5,504 exclusions (2) Another reason so few ended up in hearings is that the INS worked out an alternate
mechanism, allowing an alien whose admissibility is questioned, to withdraw the application for admission, effectively abandon the visit, and immediately return home.
That is what 961,444 aliens did in 1994, a typical year (3) (These figures relate to those who presented themselves for inspection at international airports and other designated entry sites; they do not include the million or so Mexicans who were apprehended on crossing the border and returned under a process called "voluntary departure with safeguards."
In any event, an alien who agrees to go back, finds her visa canceled by the INS inspector, pursuant to a State Department regulation, 22 CFR ¤41.122(h), and INS Operations Instruction (OI) 212.9. And it may be hard for her to persuade a consul to issue a new visa, particularly if the INS inspector recorded that the basis for challenge was attempted entry by fraud or misrepresentation, which would be a permanent bar under INA ¤212(a)(6)(C), 8 CFR ¤1182(a)(6)(C).
Given the drawbacks, why were so many travelers to the United States willing to give up an undoubtedly long-planned trip, forfeit a costly fare, abandon hotel reservations and return on the next flight? Why not contest the charge? One reason may be guilt, shock, the daunting prospect of a formal hearing and the possibility of a one-year (now, five-year) bar to re-entry or simply deference to administrative authority.
Sam Bernsen, former INS general counsel, argued in a 1994 article that the administrative device of withdrawal had no basis in the statute and that the alien's consent was often coerced or gained without a real understanding of its meaning and consequences(4). He charged that inspectors inaccurately suggested that the alien would be detained pending completion of the exclusion hearing.
If withdrawal was an administrative invention designed primarily for the government's benefit, it is no longer. First of all, it has been codified by IIRIRA, which amended INA sec. 235(a)(4), 8 USC sec. 1225(a)(4), to read: "An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for
admission and depart immediately from the United States."
Secondly, in most cases, the INS need not now depend on withdrawal to speed the alien's departure. The new INA sec. 235(b), with few exceptions, requires summary removal, that is, without hearing, on a finding, as noted above, that the alien has attempted entry by fraud or material misrepresentation, or lacks the required document. As the documentary charge -- for example, that the alien is not a bona fide nonimmigrant and is therefore an immigrant who lacks the proper document -- is among the most common, many aliens face the serious consequences of removal without a hearing.
Now, the discretionary alternative of withdrawal, no longer as critical to the government's efficient management of the admissions system, should be favored as a means of saving the alien from an unduly heavy penalty.
An interim rule issued by the Justice Department on March 6, seems to give inspectors ample room to use the withdrawal mechanism. Under that rule, withdrawal may be permitted in lieu of removal proceedings under INA sec. 240, or even of expedited removal under INA sec. 235(b)(6). The new regulations emphasize that the alien's withdrawal of the application is not a matter of right; as before the 1996 law, permission to do so is purely within the discretion of the Attorney General (one of the powers delegated to the commissioner and subdelegated to inspectors).
As to the criteria, the regulations are silent except to state that inspectors should not normally give permission to withdraw unless the alien is prepared to leave immediately. However, in its rulemaking commentary, the government takes a liberal stance. Although declining to permit withdrawal automatically to every alien subject to expedited removal, it "share[s] the concern of several commenters [on the proposed regulation] that aliens who may be inadvertently or unintentionally in violation of the immigration laws or regulations should not be subject to the harsh consequences of a formal removal order."
Application of Provision
How the withdrawal provision will actually be applied will depend in large part on the instructions given to INS inspectors and how they are monitored. The INS has spelled out the guidelines and considerations in the new Inspector's Field Manual, not yet published. The provision dealing with the related subject of expedited removal, excerpted from an advance release of that manual, indicates the government's intention to use the withdrawal rule fairly.
It reminds officers "that an order of expedited removal carries with it all the penalties of an order of removal by an immigration judge (including a bar to re-entry of at least five years following removal)," and that their enormous authority over the removal of aliens "will remain subject to serious scrutiny by the public, advocate groups, and Congress." It emphasizes that "[t]he authority to formally order an alien removed from the United States, without hearing or review, carries with it the responsibility to accurately and properly apply the grounds of inadmissibility."
Vested with this enormous power, INS inspectors have to be extremely careful in the first instance before deciding that an alien is inadmissible, especially on the ground of misrepresentation. As the BIA held in Matter of Healy and Goodchild, 17 I. & N. Dec. 22, 29 (BIA 1979): "[G]iven the harsh consequences of a finding of excludability under the first clause of ¤212(a)(19) [now ¤212(a)(6)(C), 8 USC ¤1182(a)(6)(C)], the factual basis of such finding should be subject to close scrutiny.
"This is particularly true where the alleged fraud or misrepresentation involves a disputed issue with respect to an alien's intent." Inspectors and their supervisors, with whom they are to confer, have an added responsibility: on the question of inadmissibility for misrepresentation or lack of proper document, theirs is the last word.
Having decided that an alien is inadmissible on a ground that requires summary removal, the inspector has few options. The manual discourages inspectors from also determining that the alien is inadmissible on another ground, even a criminal or narcotics ground, as that would trigger a hearing before an immigration judge. But the possibility of allowing the alien to withdraw the application for admission remains.
The manual recognizes the good reasons for allowing the alien to withdraw the application, in terms of the heavy impact that an order of removal carries and the responsibility imposed when the decision is the inspector's alone. In terms of managing its resources, the INS has less incentive to permit withdrawal than it did before, at least in the cases now subject to summary removal.
Still, summary removal ordinarily requires more paperwork and responsibility than withdrawal, as the INS recognized in proposing the regulation on withdrawal(8). In those cases where aliens have a real choice, that is between a hearing and withdrawal, we should hope that inspectors will describe the considerations adequately and allow a brief opportunity to obtain independent advice.
Notes
(1) Enacted as Division C of the Department of Defense Appropriations Act, 1997, Pub. L. No. 104-208, ¤302(a), 110 Stat. 3009.
(2) U.S. Immigration and Naturalization Service, Statistical Yearbook of the Immigration and Naturalization Service, 1994, at 159, 162 (1996).
(3) Id. at 159.
(4) See Bernsen, Withdrawal of Applications for Admission, 71 Interpreter Releases 441 (April 4, 1994).
(5) This enactment would seem to overcome the decision in Hernandez v. Casillas, 520 F. Supp. 389, 392 (S.D. Tex. 1981), which enjoins the solicitation of withdrawals by INS personnel in the San Antonio district office, "as there is no express
authorization for an immigration inspector to take such a waiver."
(6) 62 Fed. Reg. 10,312, 10,358 (March 6, 1997) (to be codified at 8 CFR ¤235.4[a]).
(7) 62 Fed. Reg. 10,312, 10,313 (March 6, 1997).
(8) See commentary at 62 Fed. Reg. 444, 445 (Jan. 3, 1997).
Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure (Matthew Bender) Mr. Mailman is a partner at Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller in Ithaca, New York.
Reprinted with permission from the New York Law Journal. Copyright © 1998, The New York Law Publishing Company. All Rights reserved.
For further information on these or any other immigration issues, please contact Miller Mayer.