US Customs And Border Protection Inspector's Field Manual
This publication of the U.S. Customs and Border Protection Inspector’s Field Manual (hereinafter cited as the IFM) is the result of a successful Freedom of Information Act appeal.Since the tragic loss of life due to the terroristic acts of foreigners in the United States on September 11, 2001, there has been continued governmental scrutiny of the procedures by which persons are admitted at over 300 air, sea, and land ports of entry by U.S. Customs and Border Protection (CBP) employees. In November 2007, the General Accountability Office issued the public version of its Border Security Report which analyzed the procedures by which the cross-border travel of millions of persons is regulated. 1 The GAO Border Security Report cited the IFM as a primary resource for its review of CBP inspections procedures.2 The CBP, created in March 2003 as part of the massive government reorganization which created the Department of Homeland Security, represents a merger of components from the U.S. Customs Service, the U.S. Immigration and Naturalization Service, and the Animal and Plant Health Inspection Service. Our attention as immigration lawyers is similarly directed to the inspections process. In fiscal year 2006, the CBP found over 200,000 persons to be either inadmissible aliens or interdicted as law violators.3 We are aware that inspection is a crucial function made difficult by the millions of travelers that enter the country each year. The high volume of international travel to the U.S. means that officers typically have little time to make decisions about who is permitted to enter the country lawfully. However, we are also aware that this time pressure leads to mistakes that adversely affect travelers with legitimate purposes. Readers are reminded that they are using a government manual with sections that may be out-of-date by later changes to the law or policy 4 or may reflect an arguable exposition of the law. I indicate withheld FOIA material by use of noted redactions. On May 26, 2006, I submitted a FOIA request asking that the CBP provide a copy of the Inspector’s Field Manual, the current title of the book. The request was denied on June 30, 2006 on the basis of 5 U.S.C. § 552(b)(2). The CBP had selected as its statutory basis a ground that required them to show that the withheld material relates solely to “trivial administrative matters of no genuine public interest.” My appeal to the CBP Assistant Commissioner, Office of Regulations and Rulings was based on the argument that inspections and admissions practices and procedures impact the vast number of immigrants and nonimmigrants seeking to lawfully enter the United States every year. It was my position that those parts of the IFM which directly impact those individuals, who are by definition members of the public, should be released without redaction. The gist of the appeal was that the CBP denial determination was contrary to the decision in Founding Church of Scientology, Inc. v. Smith. 5 That court held that the agency determination must show that the withheld material relates solely to ‘trivial administrative matters of no genuine public interest.’ My appeal argued that there is genuine public interest among immigrants and nonimmigrants seeking to lawfully enter the United States. There is also a genuine interest among those persons and organizations that petition and apply for them. The appeal reasoned that release of the requested information is needed to prepare beneficiaries and other applicants for entry and CBP benefits. Without such release, many hours of extra time would be spent at ports of entry by CBP officers and the public alike simply because the alien did not understand what the officer wanted. I argued in the appeal that portions of the IFM are repeatedly cited in GAO and Congressional Reports. My appellate position was that without release of those portions of the IFM publicly cited, the voting public could not readily inform itself regarding these issues. As immigration reform is one of the major topics of Congressional attention at this time, release of the IFM is clearly in the public interest. On April 24, 2007, the CBP reversed its decision to withhold the IFM in its entirety, and instead released the IFM with some information withheld under exemptions (b)(2), (b)(7)(C) and (b)(7)(E). I have communicated further with the CBP’s FOIA Appeals, Policy and Litigation Branch and asked for specific justification for each withheld portion; I will endeavor to amend this publication if CBP releases more of the requested material. This publication of the IFM is the result of that successful Freedom of Information Act appeal. Its publication represents a debt of gratitude owed to my colleague, John B. Bartos, who helped me with the successful administrative appeal. Another person who is owed my thanks, is Aris Bogosian. Aris, who has worked with me since 1979, has contributed her formidable editing and formatting skills to this project. It is my hope that this publication, made possible through the use of the Freedom of Information Act, will encourage readers to find their own ways make our government more accessible to the public. To read the US Customs and Border Protection Inspector's Field Manual please see here.
End Notes1GAO Report, GAO-08-219, Border Security, Despite Progress, Weaknesses in Traveler Exist at Our Nation's Ports of Entry (November 2007). Hereinafter cited as GAO Border Security Report. 2Id 3Id 4an example of a subsequent regulatory change is that: “[E]ffective January 31, 2008, CBP Officers will no longer generally allow travelers claiming to be U.S., Canadian, or Bermudian citizens to establish citizenship by relying only on an oral declaration. Beginning on that date, all travelers, including those claiming to be U.S., Canadian, or Bermudian citizens arriving by land and sea will generally be expected to present some form of documentation to satisfy the CBP Officer of his or her identity and citizenship.” 72 Fed. Reg. 72744, December 21, 2007. 5721 F. 2d 828, 831 n.4 (D.C. Cir. 1983)
Charles M. Miller helped to establish immigration law as a field of specialization in California, serving on the State Bar's first Advisory Commission, first as a member, and then as Chairman. He was recipient of the American Immigration Lawyers Association's Jack Wasserman Memorial Award for excellence in immigration litigation. Mr. Miller has been recognized annually in The Best Lawyers in America since 1991. He has served on the AILA Board of Governors, as Southern California Chapter Chair, and as a member of the California State Bar's Board of Legal Specialization. He is a founding Editor of the Visa Processing Guide now in it's 14th edition. Charles Miller is a partner in The Miller Law Offices in Studio City, California, with Martindale-Hubbell AV and Preeminent Law Firm rankings.
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