Articles Posted in US Customs and Border Protection (CBP)

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In the world of immigration and citizenship law, our clients deal with many government agencies. My readers know that I like to cite directly to government sources; so, let’s take a look at the contingency plans of various federal agencies in case Congress puts us all over the fiscal cliff into a government shutdown next week. Keep in mind that things are changing by the hour. If ever there is a time for it, should there be a shutdown, patience will certainly be a virtue while our crazy Congress gets its act together. As of this writing today, none of the agencies have posted plain language-speak on their home pages to let the public know what they plan to do. The agency documents cited below have a lot of budget management-speak, and have been sent to the White House. This is my attempt to decipher and summarize them as they could affect our clients. Stay tuned to the news.

US Department of Homeland Security

Based on a September 27, 2013 US Department of Homeland Security contingency plan, here are some ways your immigration or citizenship case may be impacted:

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I mentioned in my earlier blog post, I-94 Automation Begins: What you need to know, that US Customs and Border Patrol started implementation of its new automated I-94 system. I-94s are a key document used to verify lawful status in the US. It is used to apply for drivers licenses in many states as well as to apply for Social Security numbers, government benefits and immigration extensions and change of stay, as well as adjustment of status for permanent residence.

In that post I advised that nonimmigrants that enter the US through this process should make sure they download a copy of their I-94s before leaving the US to have a copy for their own records or in case of hiring an attorney because the data will not be accessible after departure. I also predicted various government agencies may not recognize the new I-94s. CBP has now published a document with examples of the types of I-94s that are out there, which will hopefully be more useful to relevant agencies and nonimmigrants seeking the benefits noted above. Having a copy of this new CBP document on hand while applying at a local, state or federal agency should help as well.

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Below are highlights from today’s opening Senate Judiciary Committee hearing on S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” Overall, the Committee considered 32 amendments to Title I concerning border security. The Committee adopted 21 amendments, of which 20 were adopted by a bipartisan vote. The debate and voting can be viewed on C-Span. The Committee will meet again at 10 o’clock next Tuesday.

After first approving by 14-4 the Sponsors’ amended version of the entire bill, the Committee voted on a package of amendments:

Leahy 1 (prohibits border crossing fees at land ports of entry)

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Customs and Border Patrol (CBP) began automating the I-94 arrival documentation process. Until now, individuals received white I94 or green I-94W arrival cards (green for visa waiver tourists), upon admission to the US, often clipped inside the passport. These have been essential for nonimmigrants to track their arrivals and departures. One of the things Congress expects CBP to do is track departures, which have not been tracked as well as arrivals. I94s have been critical to immigration lawyers and their clients to establish proof of lawful entry, deadlines for departure or for filing extensions of stay or change of status, and many other important issues that bear on legal status, change or maintenance of status. In addition, I-94s are one of the eligible documents that can be presented to employers as proof of work authorization for I-9 purposes. Thus, I-94s have been critical documents for many, many years. But now, under the new I-94 automation process, CBP will no longer provide paper I94s upon arrival in the US by sea or air! This means travelers need to be extra diligent about obtaining online verification of their status as soon as they arrive in the US, and no later than before their departure, since the data is cleared once a person departs.

CBP will continue to create the I-94, but will not give it to the traveler. Instead, the traveler has to remember to go online to download the I94 at www.cbp.gov/i94.
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This is particularly important if seeking a Social Security card, a driver’s license, public benefits or employment. Travelers will receive a stamp in their passport to show the date of admission, class of admission, and expiration or “admitted-until” date.

When departing the US, people with paper I94s are required to turn them in to CBP or their commercial carrier (e.g., airline, ship, etc.). For those with electronic I94s, departures will be recorded by the carrier’s manifest.

For those individuals entitled to automatic revalidation, CBP will handle that electronically or with the paper I94s. Refugees, asylee follow-to-joins, and parolees will continue to receive paper I-94s. Paper I94s can be issued upon request as well. Automated I94s will be implemented at five pilot ports starting April 30, and thereafter at the remaining ports of entry over the next month. Seatac airport is scheduled for implementation by May 14, 2013. For more information, see CBP’s FAQs.

Sounds like a simple, expedient process, right? Think again. CBP officers routinely make mistakes on I-94s, getting the class of admission or the dates of valid admission wrong.
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In an earlier blog post, Hate Lines? CBP Announces Expansion of Global Entry Pilot Program, one of several trusted traveler programs, Global Entry, is discussed that enable frequent travelers to expedite entry into the U.S. But there are others, including NEXUS and SENTRI. NEXUS is a U.S.-Canada program for frequent trusted travelers between the U.S. and Canada. SENTRI is a another U.S.-Mexico program for other frequent trusted travelers. U.S. Customs and Border Protection (CBP) announced that starting December 29, 2010, NEXUS and SENTRI card holders can use the Global Entry kiosks set up at selected airports mentioned in the earlier post. NEXUS and SENTRI card holders will be able to use the Global Entry kiosks for the remaining time available on their existing cards, and once NEXUS or SENTRI status is renewed, the kiosks can be used for the extended period of time. However, before using the Global Entry kiosks, NEXUS and SENTRI holders need to log online to their accounts on the CBP Global Online Enrollment System (GOES), make the request for Global Entry access and then wait for confirmation from CBP that they are permitted to use Global Entry kiosks. Once approved, NEXUS and SENTRI holders will have to meet the same declaration requirements as regular Global Entry users, mentioned in the earlier post, concerning bringing in commercial goods, agricultural products, currency and other related declarations. See the CBP website for more information on NEXUS, SENTRI, GOES and Global Entry. The new process is detailed in a Federal Register notice and allows users or potential users to send in comments to CBP. All of the programs have elaborate security checks, filing fees and zero to little tolerance for any mistakes. In addition, participating countries also run security checks. Applicants must be willing to provide fingerprints and photos.

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Starting December 29, 2010, U.S. Customs and Border Protection (CBP) expanded its international trusted traveler pilot program, known as Global Entry, to qualified Mexican nationals. Global Entry allows for the expedited clearance of pre- approved, low-risk travelers into the United States. The program is operational at several major U.S. airports. The program is not for the faint of heart, however, as it involves more elaborate security checks and biometrics features (fingerprints and photos) and zero tolerance for false statements or mistakes in declarations or carrying unauthorized goods. Until now, eligibility has been limited to U.S. citizens, U.S. nationals, U.S. lawful permanent residents (LPRs), and certain eligible citizens of the Netherlands. Now, qualified nationals of Mexico who otherwise satisfy the requirements for participation can participate in the Global Entry pilot. Citizens from the Netherlands who participate in Privium, an expedited travel program in the Netherlands, can participate in Global Entry Pilot. Interested persons can submit applications online directly to CBP in order to participate in the program.

In the meantime, there is a comment period as part of the notice and publication process in the Federal Register. Comments should be sent using this label, ”USCBP-2006-0037,” by mail to: Border Security Regulations Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection, Mint Annex, 799 9th Street, NW., Washington, DC 20229, or comments can be posted online at http://www.regulations.gov (be sure to refer to the same label number above).

Airports with Global Entry kiosks include John F. Kennedy International Airport, Jamaica, New York, Terminal 4 (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), Los Angeles International Airport, Los Angeles, California (LAX); Hartsfield-Jackson Atlanta International Airport, Atlanta, Georgia (ATL); Chicago O’Hare International Airport, Chicago, Illinois (ORD); and Miami International Airport, Miami, Florida (MIA). Newark Liberty International Airport, Newark, New Jersey (EWR); San Francisco International Airport, San Francisco, California (SFO); Orlando International Airport, Orlando, Florida (MCO); Detroit Metropolitan Wayne County Airport, Romulus, Michigan (DTW); Dallas Fort Worth International Airport, Dallas, Texas (DFW); Honolulu International Airport, Honolulu, Hawaii (HNL); Boston-Logan International Airport, Boston, Massachusetts (BOS); Las Vegas-McCarran International Airport, Las Vegas, Nevada (LAS); Sanford-Orlando International Airport, Sanford, Florida (SSB); Seattle-Tacoma International Airport-SEATAC, Seattle, Washington (STT); Philadelphia International Airport, Philadelphia, Pennsylvania (PHL); San Juan-Luis Munos Marin International Airport, San Juan, Puerto Rico (SAJ) and Ft. Lauderdale Hollywood International Airport, Fort Lauderdale, Florida (FLL).

How the Program Works

Application is made online and security checks are done. Once approved, Global Entry participants become eligible for expedited entry into the United States at any of the designated airport locations by using automated kiosks located in the Federal Inspection Services (FIS) area of each airport. The Global Entry pilot uses fingerprint biometrics technology to verify a participant’s identity and confirm his or her status as a participant.
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584383_united_states_passport.jpgImmigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: “I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now.” Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with “undocumented Americans.”

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers’ licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful “Know Before You Go” brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State’s Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State’s website.
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An NPR story yesterday, Prison Economies Help Drive Ariz. Immigration Law, highlights the role of the private prison business in the development of Arizona’s anti-immigrant bill, SB 1070, portions of which are currently being litigated in the federal court. Oral argument in the case is scheduled for Monday, November 1, 2010 as described in an earlier post, “Arizona Immigration Cases Set for Oral Argument.”

Immigration practitioners have known for years about the rapid growth of the private prison business around the country. Two of the leading companies are The Geo Group Inc. and Corrections Corporation of America. Cornell Corporation recently merged with Geo Goup, and there are others. Here in Washington, for example, the Tacoma based Northwest Detention Center (NWDC) serves as the primary facility housing immigrants picked up for deportation throughout the northwest states. Persons with questionable status arriving at land, sea and airports are also brought to the NWDC. The Immigration and Nationality Act specifies the types of immigrants subject to mandatory detention without possibility of bond or release, including certain types of criminals, terrorism suspects and some applicants for asylum. Individuals not subject to mandatory detention who are entitled to relief from an Immigration Judge and are deemed not a flight risk are eventually released with or without supervision and posting of a bond. Individuals can spend days, weeks, months or years in detention, especially when cases are on appeal, travel documents cannot be obtained, or there is no country willing to accept the individual. Did your time and paid your fine? Not so if you get transferred from criminal jail or prison to immigration detention which could be in a county, state or federal facility or a privately run facility. A person with immigration issues, including some U.S. citizens, can be incarcerated long after completing a criminal sentence.

NWDC was recently expanded to house 1575 inmates in anticipation of increased enforcement activities by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Run by The GEO Group, the NWDC is a stark white, antiseptic looking facility, complete with full service medical center staffed 24/7 by the United States Division of Immigration Health Services (USDIHS). GEO Group provides the security, physical infrastructure, meals and “recreation”, while ICE handles all aspects of the detention and removal process. GEO Group builds or manages several types of correctional and mental health facilities throughout the U.S., U.K., Canada, S. Africa and Australia. Its 2009 Annual Report makes for an interesting read as do its various contracts with ICE that show how the government pays for guaranteed minimum rates per filled bed. A May 2010 ICE report shows an average occupancy rate of 1232 per month.

The NWDC also houses an Immigration Court with several active judges and periodic roving judges to hear bond and removal cases. According to an October 2009 ICE report, “Immigration Detention Overview and Recommendations“, nationwide “ICE operates the largest detention and supervised release program in the country. A total of 378,582 aliens from 221 countries were in custody or supervised by ICE in FY 2008; activities in 2009 remain at a similar level. On September 1, 2009, ICE had 31,075 aliens in detention at more than 300 facilities throughout the United States and territories, with an additional 19,169 aliens in Alternative to Detention programs. As of September 1 [2009], 66 percent were subject to mandatory detention and 51 percent were felons, of which, 11 percent had committed violent crimes. The majority of the population is characterized as low custody, or having a low propensity for violence.” ICE characterizes its facilities as “jails and prisons to confine pre-trial and sentenced felons.” In this report, ICE states “these standards impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population.” ICE and its contractors have in fact been criticized by the ACLU, Human Rights Watch and other organizations for poor quality standards and mistreatment of inmates. In the last year, ICE has been subject to revised detention standards and review. See ICE Detention Policies.

The NPR story highlights the relationships between Corrections Corporation of America, lobbyists and Arizona legislators, among others. By following the money, one can understand at least one reason why Congress has yet to pass immigration reform legislation that goes beyond throwing more money at border enforcement. A “secure border” is a moving target, especially for politicians who want to see a “secure border’, however defined, as a trigger before passing other immigration reforms. There is probably no way to measure or ever have a “secure border” for a variety of factors. In an earlier post, Gone Fishin’ Got Deported, record-setting numbers of people deported by the Obama Administration was mentioned. More enforcement activity means more arrests and more bed space needed. There are big dollars to be made from enforcement-only policies by defense contractors who provide the various equipment, drones, sensors and technologies to monitor the border; by the software vendors to collect and massage all the data; and by prison builders, just to name a few impacted industries. (One would think private lawyers stand to gain, too, except for one important fact: the majority of immigrant detainees cannot afford a lawyer. Since the Immigration Courts are civil in nature, there is no constitutional right to government appointed counsel for indigent immigrants, as is the case for accused defendants in Criminal Court. In civil Immigration Court, there is only a right to counsel. That means counsel one can afford or no counsel at all. According to the Immigration Court (Executive Office of Immigration Review) FY2009 Statistical Year Book, 114,087(40%) of 290,233 immigrants in court had counsel while 176,146 (60%) lacked representation.)
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On September 7, 2010, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association (NPPA), and Pascal Abidor, a dual French-American citizen, sued the U.S. Department of Homeland Security (DHS) challenging as unconstitutional DHS policy that allows border agents to search electronic media without suspicion or warrants. The case is Abidor, et al v. Napolitano, No. 1:2010cv0405, filed in the United States District Court for the Eastern District of New York. The Plaintiffs seek declaratory and injunctive relief.

Through the Freedom of Information Act (FOIA), the ACLU was able to obtain records from 2008 to 2010 showing over 6700 travelers had their electronic devices such as laptops, digital and video cameras, external drives, and PDAs searched by border officials. At least half were U.S. citizens. A summary of the disclosed DHS data can be found on the ACLU’s webpage. The majority of electronics searches conducted involved white U.S. Citizen males followed by Canadians, Mexicans, and the British. A substantial number of searches were not identified as to sex, race or nationality.

The ACLU’s complaint itself is an interesting read because it discusses the plight of two trade organizations and three individuals engaged in education/research, photojournalism, and international criminal defense work, and their need to preserve client and source confidences required by their professions. Access to laptops and other electronic gadgets is essential to their work, as it is in many professions. The complaint discusses the precautions they now have to take, which complicate their work and personal lives. The expectation and experience to date is that once in the government’s database system, they will continue to be harassed during future travel.

In the complaint, Mr. Abidor’s laptop and external drive were searched after he was taken off a train and handcuffed. He spent hours in a cell. Charges were never brought against him. He was never arrested. No warrant issued for his arrest or search of his electronic gear. He is an Islamic studies student in Canada who needed to travel internationally and frequently to work on his dissertation. His laptop and external gear were seized and not returned to him for weeks after he was admitted into the U.S. Mr. Abidor’s laptop and drive contained the only copies of his dissertation and supporting materials. Meanwhile, photojournalists have their gear frequently searched after covering wars, demonstrations, calamities, political interviews and events. Reporters and photojournalists are bound by their duty to protect the confidentiality of their sources. Likewise, criminal defense attorneys often travel abroad to interview witnesses, obtain evidence and participate in depositions or trials. Client confidentiality is essential, and there are penalties for certain types of international communications if made across the Internet. In addition, they need their gear all the time to do their work.

DHS takes the position that electronic devices are containers like suitcases at the border that can be searched without a warrant, with or without suspicion. They are like extensions of people. Current DHS policy and directives from August 2009 allow, among other things, for data searches away from the owner’s presence under the extended border exception to the warrant requirements under the Fourth Amendment to the Constitution. In addition, DHS policy allows for disclosure of this data to other government agencies. Earlier, Customs and Border Protection (CBP), a division of DHS, issued a press release about how rare laptop searches are. Specific forms to complete and CBP advisories are part of the ACLU’s FOIA response.
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