CBP Inspections At JFK
The author would like to thank Archi Pyati of Human Rights First and Barbara Wong, Esq. for reviewing the notes on which this article is based.
This past May the U.S. Customs and Border Protection (CBP) gave a tour, for the Young Lawyers Division of the New York Chapter of the American Immigration Lawyers Association (AILA), of the inspections area at Terminal 4 of JFK airport in Queens. This article is a recap of that tour.
CBP inspectors are cross-trained in Georgia to do any inspections (e.g., immigration primary, agricultural, customs primary, etc.). "Legacy" customs officers in CBP at JFK are only doing primary inspections for U.S. citizens and lawful permanent residents (LPR's) arriving from some countries. All primary inspections for visa holders, immigrant and non-immigrant, as well as secondary inspections are still being conducted by legacy INS officers in CBP. Extensive classroom and on-site training of customs and entering officers will take place this summer. Sensitivity to asylum/torture issues will be included in some way though the curriculum has not been designed yet.
CBP says it has always worked with carriers to help train people letting passengers on board their planes in how to screen for false documents. In the mid-1990's, these efforts were strengthened, trainings by US INS in screening techniques began, and the fines on carriers for bringing people with bad or no documents tripled. Increased cooperation between carrier boarding officials and the CBP as well as more trainings have been seen over the last year, and it may be that now, in 2004, the system of pre-screening is "finally working the way it should." No special considerations are made for asylum seekers who must travel with false or no documents in these trainings; instead, carrier operators are encouraged to refer refugees to the U.S. embassy in the country.
The "primary" inspections area is a huge room with many counters marked by signs saying either "U.S. Citizens" or "Visitors" and one counter marked for "Crew" of carriers. Each counter has a digital camera and an "encoder" to scan fingerprints.
CBP has a congressional mandate to try to clear each flight within 45 minutes. Since 9/11, however, it has been closer to an hour to clear a flight because of security checks. The "mandate" is now more of a "guidance" since 9/11 because they are so concerned about security. Primary inspectors have 1 to 2 minutes to inspect each passenger. Still, any time a flight takes longer than 45 minutes to clear primary, a report is made.
CBP tries to clear the U.S. citizens first. Then it will permit other "visitors" to go through the U.S. citizen lines. Depending on the terminal, they might let LPR's go through the U.S. citizen line.
Before visitors depart the origin country to come to the U.S., they must (i.e., mandatory) provide certain information to the carrier. This information is then sent to Virginia and put into the Advanced Passenger Information System (APIS) so that CBP can conduct a security check on each passenger before they arrive in the U.S. [Author's note: for more information on APIS go to http://www.cbp.gov/xp/cgov/travel/inspections_carriers_facilities/apis/ (last visited on July 27, 2004)]. If CBP finds some problem (e.g., a criminal conviction or the persons is on a terrorist watch list or reentry after prior deport order - it does not have to be a criminal problem, it could be simply a visa revocation), they might meet the person at the gate when the plane arrives so that they can escort the person to inspection (and to ensure that the person does not disappear). The "passenger analysis unit" will review the information on the passenger. The APIS check also confirms the arrival of the passenger and ensures that the information provided by the passenger is correct.
According to the CBP officer giving the tour, most passports are machine readable and the lines in primary inspection have scanners to read the passports. He also stated that the U.S. Department of State (DOS) provides a photograph of the person who applied for the visa to ensure that it is the same person who is in the inspection line.
For Visa Waiver Program (VWP) countries that do not yet have machine readable passports, the CBP is waiting for further guidance on what to do. Generally, if the visitor from a VWP country does not have a machine readable passport, then the CBP will turn him/her around.
When asked what is required under the U.S. Visitor and Immigrant Status Indicator Technology (U.S. VISIT) Program to prove departure from the U.S., the CBP officer stated that "it's in the works." They are considering having a kiosk in the terminals where people will give their fingerprints. He said that such a program is currently being piloted in Baltimore and Miami (but he was not sure).
If a person does not have an I-94 at departure, then the airlines will create a "dummy" I-94. CBP monitors airlines to ensure that they submit I-94's. CBP routes all I-94's to Lexington where they're uploaded to system within a few days - to register arrival on a given day.
Carriers must submit an outbound passenger list.
The JFK handles approximately 45,000 flights per year and 7.5 million passengers. The vast number of arrivees are admitted. Less than 1/10 of 1% (7,000 people) are not admitted.
CBP admits that it pays more attention to passengers getting off planes from certain countries that they believe typically carry more individuals with inadmissibility problems. They could not give examples of countries.
If there is a problem at primary inspection, then the inspector will type comments/information into the computer. Then the inspector will use a "red card" to identify the passenger's case and will physically escort the passenger to secondary inspection where CBP will then determine admissibility. The CBP inspector at secondary can then review the information in the computer from the primary inspector and also conduct a more thorough inspection. The "red card" cases are for "visitors." U.S. citizens and diplomats who have problems at primary inspection get a "blue card" and are escorted to secondary inspections. They get priority over the "red cards." U.S. citizens can be placed in secondary inspection if there is an outstanding warrant or if they were involved in immigrant smuggling.
If the CBP inspector at primary inspections types something into the computer about the passenger, the only way to remove the information is by the CBP inspector during secondary inspection where the inspector has the time to get into more detail and can compare the notes from primary inspector with new information received during secondary inspection. Then the secondary inspector can make a decision regarding admissibility.
Fingerprints taken at primary inspection will go through IDENT, an automated fingerprint identification system which captures the left and right index fingerprints and photograph and enables searches of on-line databases to identify criminal and non-criminal deportable aliens. It's uncertain, however, whether the fingerprints will "hit" against other databases such as the National Crime Information Center (NCIC). [Author's note: for more information on the NCIC go to http://www.fbi.gov/hq/cjisd/ncic.htm (last visited on July 27, 2004)].
A passenger has no access to a lawyer during secondary inspection. The passenger can call from secondary inspection using a phone which CBP provides. The telephone is located right next to the CBP officers and is not private. It is unclear whether the telephone is for local calls only. No cell phones may be used in secondary inspection. Three meals a day are provided to the people kept in secondary. CBP will order out food. The passengers can drink from a water fountain.
The secondary inspection room has airport-style seating for approximately 50 people. The CBP will use "restraints" on people when CBP knows that the person has used fraudulent documents or the person has some criminal issue. The CBP generally uses "ankle bracelets." Not everyone is restrained. People are not shackled to benches. There were approximately 12 officers in the room, dressed in dark blue uniforms with gold badges, like cops - many of them armed. There are a few separate rooms where statements can be given to CBP in private but generally the interviewing by CBP is started and conducted in the larger room in front of everyone else. At one end of the room is an elevated counter behind which a handful of officers have computers and they conduct their interviews there. From their counter, they can look over the room. There were less than a dozen passengers in the room during our tour.
There did not appear to be any telephones next to the computers up on the elevated counter - so it seemed unlikely that the CBP officers could call for translation services during the start of secondary inspection. There appeared to be only one telephone on the elevated counter which was apparently used for passengers to make calls (in front of the officers and everyone else). When asked about use of translators, one of the CBP officers indicated that they rarely use translators because they have enough people on staff who can speak most languages.
The average "turn-around time" for someone in secondary inspection is a few hours, but it depends on the flight. Some flights are only twice a week so the person is stuck there until the next flight or the person will be sent to the "Queens Private Correctional Facility" run by the Global Expertise in Outsourcing (GEO) (formerly run by The Wackenhut Corporation) in Jamaica, Queens where they can have a bed and shower. [Author's note: for more information on GEO go to http://www.thegeogroupinc.com or for more information about GEO and the Queens detention facility go to http://www.thegeogroupinc.com/northamerica.asp?fid=26 (last visited on July 27, 2004)].
Sometimes passengers will arrive in the U.S. with a passport and have several visas under which they could be admitted but they are supposed to be admitted under only one specific visa. Instead, the passenger ends up being admitted under the wrong visa. The CBP will correct the error only if the person asks to speak with a supervisor. [Author's note: the Headquarters CBP issued guidance on how to correct erroneous Forms I-94 issued by the CBP. See infra.]
When asked how the CBP will deal with a Lawful Permanent Resident (LPR) who is abroad and gives birth to a baby abroad and then returns to the U.S., the CBP officer stated that they see these cases and they are very difficult but that they will permit the parent to bring the baby in as long as the parent has a birth certificate for the baby and it is translated into English. [Author's note: 8 CFR §211.1(b)(1) waives the requirement of an immigrant visa under certain conditions for "a child born subsequent to the issuance of an immigrant visa to his or her accompanying parent who applies for admission during the validity of such a visa[.]"]
CBP does not recognize dual citizenship. If you are a U.S. citizen and hold the passport to another country, you are treated like a U.S. citizen but CBP would have to know that you are a U.S. citizen. If dual citizen passenger uses the passport from the second country, then s/he might be treated as a U.S. citizen who merely forgot his/her U.S. citizen passport (as long as CBP knew the person was a U.S. citizen).
If a passenger has two passports (e.g., Israel and the United Kingdom) but hands to the CBP inspector at primary inspection only one passport will the passenger be sent to secondary inspections? It depends on why the passenger is seeking admission.
On a case-by-case basis, the CBP will permit passengers to withdraw their applications for admission. The CBP calls such applications for withdrawal "275's" after the form number [Form I-275, Withdrawal of Application/Consular Notification].
After the visit to the secondary inspection room, the officers took us to a conference room where they gave us a PowerPoint presentation on the CBP and inspections. We were joined by two attorneys for CBP. They were not ICE attorneys. One CBP attorney indicated that she was formerly an attorney with the U.S. Customs but was put into CBP when Customs was subsumed by DHS. She stated that most of the CBP attorneys know customs law but do not know immigration law.
CBP Organizational Structure
She gave a brief description of the structure of DHS and CBP. She also explained how in the past the customs and immigration agencies worked very closely together because of the nature of their work. Each agency had separate but parallel missions. She noted that inspectors (who are in CBP) have now been separated from the agents (who are in ICE) under the new organization. She said that this is "emasculating" what the two agencies could do together. Inspectors are the eyes and ears and agents are the investigators. They never work together now. She stated that they now need more cross-training or cross-pollination rather than the "smoke stacking" (i.e., rather than working up the chain of command). She also expressed her amazement at the level of review given to applicants for entry. She said that from a government perspective it is very difficult. She reviews NTA's in her office.
The PowerPoint presentation went through a brief history of the immigration inspections - starting with the mid-1880's when people would sell their services to a captain to come to the U.S. and before the mid-1880's when people were just dropped off ships onto land with no inspections or anything. Then in 1855, an immigration receiving center was built at Castle Gardens (now known as Battery Park City, NYC). In 1875, the U.S. Supreme Court held that the federal government has sole authority to regulate immigration. In 1882, the Immigration Act of 1882 excluded, amongst others, lunatics, idiots, etc. The Immigration Act of 1891 excluded many other categories of people and created the Superintendent of Immigration. In 1892, the Immigration Receiving Center moved to Ellis Island where screening of arrivees became more thorough. In 1924, the U.S. Border Patrol was created.
The PowerPoint gave a flow chart of the structure of the CBP: Susan Mitchell is the Director of Field Operations. Below her Camille Polimeni is the Port Director of CBP at JFK. Below her John Miradona is the Port Director of Immigration. Below him are two Deputy Port Directors: Richard Pileggi and George Wetteland. Below them are 11 Assistant Port Directors. Below them are 34 Supervisory Inspectors. Below them are close to 1,000 inspectors and support personnel.
There are five inspections sites at JFK airport:
There are other airlines which operate out of the American, British Airways, and Delta terminals, but the terminals use those airlines' names because those airlines operate their respective terminals.
- American Airlines Terminal
- British Airlines Terminal
- Delta Airlines Terminal
- Terminal One (which is a conglomeration of airlines)
- Terminal Four
The Inspectors' Branch is situated at the Port of Entry (POE) and the Pre-Flight Inspection Station (PFI) in certain countries (such as Aruba, Bahamas, Hamilton, Bermuda; Calgary/Montreal/Toronto, Vancouver, Canada; Dublin/Shannon, Ireland). The CBP officers giving the tour could not explain why certain countries have CBP officers placed there while other countries do not have PFI stations but they indicated that the countries which have PFI stations benefit because their passengers make it through primary inspection more quickly. PFI requires many signed agreements between the U.S. and the "host" country. The CBP inspector in the "host" country is there in an advisory role; essentially to say "this person is not admissible so don't let him/her board the plane because we will just put him/her back on the plane in the U.S. to be sent back here."
In addition to the Inspectors' Branch, there are some places which conduct pre-clearance for Customs.
The inspectors are the first government officers encountered by passengers. The CBP must enforce the INA with respect to arriving aliens. Inspections:
At inspections, the CBP will check to see how long an LPR has been out of the country. The CBP officer leading the tour noted that JFK processes very few abandonment cases. Now that there is an electronic record of person coming and going so the CBP officer can tell if the person has been queried about length of absence outside U.S. or presence inside U.S. Typical question to LPR's: "How long were you outside the U.S.?" Because there is no longer the Fleuti doctrine, it is much easier for the CBP inspectors.
- admits people;
- identifies, apprehends, and processes aliens who fall within grounds of removal;
- "process" includes credible fear interview and criminal prosecution.
the major questions asked are about intended purpose, length of stay, family, etc. The documents are scrutinized for authenticity and validity. The Inter-Agency Border Inspection System (IBIS) computer check is performed. When appropriate, the person is enrolled in US VISIT. If admissible, the person is admitted for the appropriate time period.
has more experienced inspectors. There are no time limits on conducting the inspection. The CBP officer takes sworn statements from passengers and conducts additional computer inquiries. If necessary, the CBP officer also contacts other agencies, employer, family, etc. If necessary, additional processing can be done, such as EAD's, or immigrant visas or stamps in passport. For example, an immigrant applicant using an immigrant visa can go through secondary for additional processing.
All POE's will have information on applicant for admission that was entered into computer at one POE.
How often will you adjudicate a 3/10-year bar waiver application? Inspections will not receive 3/10-year bar waiver applications. If it appears that someone is affected by the 3/10-year bar, then CBP will refer the person to section 240 (removal) proceedings where the IJ will handle the waiver application.
Also, any cases which appear to involve marriage fraud will also be referred to section 240 proceedings.
referred to as "ER." It can only be considered under 6 predicate grounds of inadmissibility relating to fraud and documents. It cannot be considered for LPR's, refugees, or asylees. The inspector conducts ER in secondary inspection.
CBP is familiar with the application process to get passports and so will ask person in ER how s/he obtained his/her passport. Then the CBP officer will determine whether to permit an application to withdraw application for admission or whether to expeditiously remove the person. Many CBP officers (usually 5 or 6 people) will "step-on" (i.e., review) an ER case before a final decision is made. The regulations require that an authorized agent review the case including the sworn statement to ensure "fear of return" issues are addressed. The CBP inspectors ask credible fear (C/F) questions a minimum of four different ways to make sure the issue is addressed. The CBP rarely uses telephonic interpreters because they have many native speakers on staff. Usually, the CBP can find an interpreter based on the passport presented by the passenger.
Based on a meeting with the Lawyers Committee for Human Rights (now Human Rights First), the CBP added some changes to ensure the use of a private room for interviews and to ensure that the passenger feels comfortable with the interpreter and that the CBP will ask these questions of applicants of Visa Waiver Program (VWP) countries (even though CBP is not required to). Most of the cases they see are of "document destroyers" (e.g., Cubans from Spain). They see very few People's Republic of China (PRC) cases.
They give a two-day training to airlines' staff to identify fraudulent documents and prevent boarding.
The CBP re-admits people to the U.S. as long as they have a valid passport and a valid visa - even if that visa is going to expire soon. THEREFORE: if a visa is about to expire in a couple of days but the passport and visa are valid on the date the passenger is seeking admission, then CBP will not prevent re-admission.
In Fiscal Year 2003, the JFK CBP processed 270 cases of ER credible fear interviews.
The CBP will not consider applications to withdraw application for admission from LPR's, asylees, or refugees. The application to withdraw an application for admission (i.e., the 275's) are offered in the alternative to ER in certain situations where there are humanitarian concerns (medical, etc.) and person leaves on next flight.
JFK CBP encounters many people from third countries who are trying to gain admission using VWP - so the CBP, pursuant to a BIA precedent decision, will treat them as VWP applicants.
For people who maintain that they are LPR's or USC's. It is done by an Immigration Judge (IJ). If the person is not an LPR or USC, then ER goes into effect.
If there is any issue of abandonment of LPR status, then the case is referred to an IJ for a "section 240 hearing" because only the IJ, and not the CBP, could take away LPR status. [Author's note: It is unclear, however, whether CBP would take away the person's "green card" pending the removal hearing.]
also referred to as "8 by 8" or "88" because of the 8-page statement to be completed and the period of time for the appointment. It only applies to LPR's with apparent criminal issues. It would not be used for numerous or violent convictions. The eight week deferral period allows CBP to obtain certificates of disposition of criminal cases.
an administrative warrant for alien with some unresolved criminal matter which might make him/her inadmissible. 271 passengers at JFK in FY 2002.
Fiscal Year 2003 Pie Chart of "Adverse Actions": 6,267 total adverse actions during the fiscal year broken down into: (1) 1163 withdrawals; (2) 240 hearings; (3) 2837 ER's, (4) Limited Review, and (5) VWP refusals.
The top "fraud" countries: (1) Dominican Republic (551); (2) Brazil (503); (3) United Kingdom, (4) Jamaica, (5) Trinidad, (6) Italy, (7) Nigeria, (8) India, (9) Colombia, (10) France.
Questions submitted to CBP prior to the tour
(1) B-2 applicant married to USC would be denied admission? Answer: It depends if person is working illegally in the U.S. and really residing in the U.S. If someone has equity, then the CBP will allow them to withdraw the application for admission. If you have a good job back home and you are just coming to visit, then CBP will admit you.
(2) Will admit person if visa will expire tomorrow? Answer: Yes, and the CBP will advise you to extend the visa.
(3) What is the best way to get the I-94 corrected? The CPB officer leading the tour advised the attendees to call him and to send the incorrect I-94 by mail to be corrected. According to him, there is no protocol for correcting I-94's BUT the correction must be done within a reasonable period of time. [Author's note: The Headquarters CBP issued guidance on how to correct the Form I-94, Arrival/Departure record, which was issued by the CBP. Some examples of errors in I-94's include misspelled name, incorrect date of entry, incorrect nonimmigrant classification, or other data entry error. The guidance is included in §15.12 of the Customs and Border Protection Inspector's Field Manual. The CBP website at http://www.cbp.gov/xp/cgov/toolbox/ports/ lists addresses, phone numbers, and hours of operation of all CBP ports-of-entry (last visited on July 27, 2004). It is recommended that you contact the CBP office at the port-of-entry before attempting to visit the office because the office may not be easily accessible. Separately, if the USCIS, as opposed to the CBP, issues an I-94 with an error, then the process for correcting the erroneous I-94 is handled through the USCIS rather than through the CBP. See Memorandum from William R. Yates to Regional Directors, "I-94 Errors Issued by U.S. Citizenship and Immigration Services," HQOPRD 70/42.10 (Mar. 30, 2004) reproduced in 81 Interpreter Releases 607 (May 3, 2004).]
(4) Who do we address for FOIA requests? Answer: It's handled through HQ. Call Joanne Stump, the CBP Disclosure Officer in Washington, DC. Author's note: the CBP website also contains information on submitting a Freedom Of Information Act request to CBP. Visit http://www.cbp.gov/xp/cgov/admin/fl/foia/
(5) Do you verify conditional resident status of conditional resident with I-751 pending and when the person is traveling on an I-797 approval? CBP only takes action when the I-751 is denied and conditional residence is terminated. If another I-751 is filed, then CBP might just admit the person to permit processing of the I-751 (and will do the same where the I-751 was not previously filed before conditional residence expired but the I-751 was then filed and is currently pending).
(6) Is information on aggravated felonies available at POE's? Answer: Yes. Have access to NCIC and the Interstate Identification Index (III) in easily digestible fashion. CBP will take statements from aliens and will permit deferred inspection for LPR's, but the burden on proof is on non-immigrants. CBP takes into account the misdemeanor exception under the CIMT ground of inadmissibility. CBP will actually call the courts to get criminal records. CBP receives INTERPOL alerts. There is an INTERPOL desk in CBP to handle whether to hold persons for INTERPOL.
(7) If a conditional resident cannot get a passport from the home country, what can s/he do? Answer: Permanent residents don't require a passport for admission into the U.S. as long as they have their I-551 green card. The other country, however, might require the passport for travel purposes. An expired national passport with a green card is sufficient for a conditional resident to travel back to the U.S. [Follow-up question: Do the airlines know this? Answer: We believe so.]
If an LPR is applying for NATZ, how far back can the government check for departures from the U.S.? Answer: Unknown. Check with USCIS. NOTE: records for arrival/departure were only for nonimmigrants NOT for LPR's or USC's.
(8) If an individual on a B-2 marries a USC and applies to adjust status and travels on advance parole, will there be a problem returning or gaining readmission? Answer: CBP would generally not consider this at time of return. Let CIS deal with it at time of adjustment. CBP just ensures that the advance parolee has no criminal record nor that there are marriage fraud problems.
(9) Will CBP be able to reimplement employment authorization documents (EAD's) for K-visa holders? Unknown because it is time-consuming to prepare EAD's for refugees and asylees. The CBP is considering stopping it.
(10) What do you do with a person who traveled on an advance parole receipt rather than on the actual advance parole document? Answer: Maybe put person into deferred inspection for a couple of weeks so that CBP can check the computers to verify grant of advance parole.
Expired advance paroles are treated by CBP as ER (because the CBP previously tried referring such cases to the IJ but the IJ returned the cases to CBP stating that the IJ did not have jurisdiction over such cases).
About The Author
Thomas J. Shea is a Field Office Attorney with the Catholic Legal Immigration Network, Inc. (CLINIC) and a member of the NY Chapter of the American Immigration Lawyers Association (AILA). He can be contacted at Tshea@cliniclegal.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.