Any foreign nationals who travels to the U.S. on a visa and applies for admission at a designated port of entry may be told by CBP that they are inadmissible (not eligible to enter the U.S.) following an inspection. Grounds for inadmissibility are varied, but most often are related to previous violations of immigration law or procedure, security and related grounds, and criminal and related grounds.
When CBP determines a foreign national to be inadmissible, they may either (i) issue an order of expedited removal (resulting in a five-year bar on entry to the U.S.), which is conducted by CBP officials at the port of entry and completed in a matter of hours; (ii) refer individuals for removal proceedings before an Immigration Judge for a formal adjudication of the application for admission, whereby the foreign national may enter immigration custody; or (iii) grant individuals permission to withdraw the application for admission completely, which allows the traveler the opportunity to avoid removal proceedings and any potential ban on entry, and depart immediately from the U.S.
This decision as to whether or not to permit a foreign national to withdraw an application is purely at the discretion of the CBP officer at the port of entry or afterwards at a deferred inspection site. Permission to withdraw may be offered to the foreign national after an interview to determine the seriousness of the previous immigration violation, any previous findings of inadmissibility, the ability of the foreign national to overcome the alleged ground of admissibility, age or health considerations, any criminal or immigrant intent on the part of the individual, and other humanitarian or public interest considerations.
The CBP officer must be made certain of the foreign national’s intent to depart the U.S. immediately, in addition to having the means to do so. When the foreign national is applying for nonimmigrant admission, a finding of inadmissibility may often be rooted to the belief that the nonimmigrant has the intent to remain permanently despite the stated intent to enter for a temporary stay. In these situations, we always counsel our clients to request a withdrawal and to re-apply at a later date with greater evidence of strong ties to the country of citizenship (proof of employment, proof of residence or property ownership, family ties etc.).
The great benefit to seeking the CBP’s determination that justice will be ill-served if a removal order is issued is avoiding any potential bans on entry that may attach to the foreign national, or in cases involving questions of immigrant intent, the permanent entry of the denial into the applicant’s immigration history.
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