It is not an uncommon scenario when seeking to enter the U.S.: the U.S. Customs and Border Protection (CBP) officer reviews your documents and starts asking you questions. You might be sent to secondary inspection for further questioning. You tell the officer that you would like to speak with your lawyer. Is the CBP officer required to allow you to do so? Do those being inspected by CBP at a port of entry have a right to legal representation?
In this blog post, we answer this question and also consider other options that might be available.
- Is There a Right to Legal Representation at a Port of Entry?
- When Does an Applicant for Admission Have a Right to Legal Representation?
- What Are Your Options If You Are Not Taken Into Custody?
- Can an Attorney Letter Improve Your Chances of Admission?
- Prepare With an Immigration Attorney Before You Travel
- Applicants for admission at a U.S. port of entry generally have no right to legal representation during CBP primary or secondary inspection under 8 CFR § 292.5(b).
- A right to legal representation exists only if the applicant becomes the focus of a criminal investigation and is taken into custody by CBP.
- Applicants can improve their chances of admission by bringing an attorney letter prepared in advance by an immigration attorney that explains their circumstances and legal arguments.
Is There a Right to Legal Representation at a Port of Entry?
What 8 CFR § 292.5(b) Says About the Right to Legal Representation
Unfortunately, an applicant for admission into the United States generally does not have a right to legal representation. This means that the CBP officer is not required to call the applicant’s lawyer or to allow the applicant to call their lawyer. This is made clear in the federal regulations at 8 CFR § 292.5(b), which 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. (emphasis added)
When Does an Applicant for Admission Have a Right to Legal Representation?
There is a right to legal representation if the applicant for admission is the focus of a criminal investigation and has been taken into custody. This will only apply to a small number of the people who are inspected at primary or secondary inspection.
What does this mean in practice? If you are being held by CBP and not being allowed entry, you can ask whether you are the focus of a criminal investigation and being taken into custody. If the answer is “yes,” you can then ask the officer to allow you to speak with your lawyer since, under the circumstances, you have a right to legal representation.
What Are Your Options If You Are Not Taken Into Custody?
Fortunately, there are other options available for the lawyer’s perspective to be heard, even if the applicant for admission is not being taken into custody.
Bring an Attorney Letter to the Port of Entry
One important option is for the applicant for admission to bring with them a letter from their lawyer explaining the circumstances and the legal arguments for why the applicant is admissible.
Such letters are typically appropriate when the applicant for admission has a known issue in their immigration history. For example, they might have previously been denied entry due to suspected unauthorized work. They might have been charged with a minor crime years in the past. Or, they might have made frequent and long trips into the U.S. on their visitor visa in the past year.
How an Attorney Letter Helps the CBP Officer
These attorney letters are specific to the circumstances and can often be extremely helpful for CBP officers as they try to understand the facts and how the relevant statutes and regulations apply to them.
Oftentimes, the officer will escalate the matter to a supervisor or the government’s legal counsel based on the information in the attorney letter, helping to ensure that the reasons in support of the applicant’s admission are fully considered.
In addition, the lawyer’s contact information will typically be on the attorney letter, giving the CBP officer the option to contact the lawyer for clarification. While the CBP officer is not required to take this step, providing an attorney letter with the attorney’s contact information makes it much easier for the officer to understand the circumstances and how they can contact the lawyer should they have any questions.
Can an Attorney Letter Improve Your Chances of Admission?
For someone seeking entry into the United States, primary and secondary inspection can be an intense and intimidating place.
While the applicant typically does not have a right to legal representation, if there are aspects of their immigration history that could give rise to their entry being denied, an attorney letter can go a long way toward improving their chances of admission.
Prepare With an Immigration Attorney Before You Travel
If your immigration history includes a prior refusal, a past arrest or charge, a question about unauthorized work, or a pattern of long visits, it is worth addressing before you reach the port of entry. The immigration attorneys at Scott Legal, P.C. can assess the issue, explain how it may affect your admission, and prepare an attorney letter tailored to your circumstances. Schedule a consultation with our team before your next trip.
