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CBP Open Forum: AILA Annual Conference 2009

by Sheela Murthy et al., attorneys from the Murthy Law Firm

At the 2009 AILA Annual Conference in June, the U.S. Customs and Border Protection (CBP) held an open forum. Representing the CBP were Mr. Daniel Tanciarctor, the Acting Director of Model Ports for the CBP in Washington DC, and Maureen Dugan, Assistant Executive Director, Admissibility and Passenger Programs, CBP, Department of Homeland Security (DHS) in Washington DC.

Ms. Dugan explained that they are pleased with the Western Hemisphere Travel Initiative (WHTI) with 1.1 million people having been processed with travel documents compliant with WHTI. The implementation of the full land and sea phase occurred on June 1, 2009. They report that, so far, things are going well. Daily monitoring reflects 80 to 90 percent compliance by traveling passengers.

Correcting Misinformation in the CBP Database

Questions were asked regarding situations in which the CBP database has errors, resulting in delays in processing at the Ports of Entry (POE). For example, a person shown as having a criminal record, when, in fact, s/he does not and has been cleared by both the DHS and the police in the country of origin. CBP responded that there may be something else in the individual's name that is causing the problem at the POE.

Mr. Tanciar mentioned that, when a person has been stopped improperly, CBP investigates and clears the individual's record. Ms. Dugan pointed out that CBP has cleared over 700,000 improper alerts so far, but caution must be exercised in clearing a name, should one pose a security threat.

There is no timeframe within which one is assured that s/he can enter the U.S. without delays, even after his/her record is cleared. Ms. Dugan explained that, at this time, there is no simple legal redress option available. A person in such a situation may write to the CBP Office of Chief Counsel or the CBP Ombudsman or to her/his congressional representative for resolution of the problem.

CBP Officers Asking for Inappropriate Documents at Entry to U.S.

Questions were asked regarding reports of CBP officers requesting inappropriate documents and denying entry into the United States. The CBP suggested that an individual in such a situation should speak with the CBP supervisor for resolution of the matter. If this does not result in a satisfactory outcome, the CBP Ombudsman should be contacted. The traveler should outline the reason s/he was improperly denied entry into the United States, so that the CBP Ombudsman may review and resolve the issue.

Applicant Must Meet Burden of Admissibility to the U.S.

Ms. Dugan mentioned that the individual must meet the burden for eligibility to enter the U.S. by showing, in most nonimmigrant situations, the unexpired visa stamp and the petition approval, if required. It is not the CBP's burden to help one to enter the United States. They do, however, verify certain documents; particularly those susceptible to fraud. For example, if one does not have a valid I-551 (commonly referred to as the green card), and seeks to use an I-551 temporary evidence stamp in the passport, then the CBP would investigate and confirm the validity or bona fides of the permanent resident, or green card, status.

H1B1 Applicants Do Not Need H1B1 Petition Approval

An AILA attorney pointed out that many in the H1B1 category for nationals of Singapore and Chile are being requested to present their approved petitions. This category, however, does not require approved petitions. It is possible to apply directly for a visa at the consulate. Ms. Dugan agreed to take the information to ensure training of CBP officers. This is not to be confused with the H1B category, which does require an H1B petition approval.

Renewed Focus on Passengers Departing the U.S.

Ms. Dugan highlighted the CBP's success in apprehending people traveling to Mexico, and taking them into custody. We at the Murthy Law Firm are often asked if one who was out of status can safely depart the United States. Normally, the answer to that would be yes, if one only had immigration status violations and no criminal matters, which could give the appearance of fleeing the country. This has changed, with respect to travel to Mexico. The CBP has begun to work closely with Mexican officials, spurred by concern over the ongoing criminal activity and violence in Mexico and near the U.S./Mexico border.

If one wishes to depart the United States in order to apply for a visa and either a nonimmigrant or immigrant waiver at a U.S. consulate abroad, or simply to depart the U.S. for good, the CBP indicated that this should be possible. The CBP may expand its verification of departing passengers to include nationals of other countries but, currently, the focus remains limited to flights to Mexico and on the U.S.-Mexico border.

Improper Admission Time by CBP Inspector

When a blanket L-1 petition is shown as the basis for a requested admission, the CBP should admit the individual for three years. Ms. Dugan explained that they comport their policy with the USCIS policy. They intend to put this information on the CBP WebSite. If a mistake is made during the period of admission, it is often possible to present the I-94 at the airport or other deferred inspection site to correct the error.

Americans with Dual Citizenship Sometimes Encounter Problems

It appears that CBP inspectors frequently ask U.S. citizens about the countries to which they have traveled. For a U.S. citizen who claims dual citizenship, there have been instances of requests to show the other country's passport, for verification of the travel history, for security-related reasons. Although this may appear intrusive, in fact, it is permissible for security reasons.

Possible Abandonment of the GC Due to Extended Absences from U.S.

The CBP has the authority to confiscate one's green card if it is believed that the individual has abandoned permanent resident status by remaining outside the U.S. for an extended length of time or for other reasons. In such a case, one is paroled into the United States and scheduled for a removal hearing before an Immigration Judge. Final determination regarding abandonment of status is made by the Immigration Judge.


As can be seen from the many topics discussed in this open forum session, the CBP is involved in a wide range of issues. Their work touches on every immigration category, as well as on matters of enforcement. We at the Murthy Law Firm appreciate the clarifications these CBP representatives provided during the AILA conference in Las Vegas, NV earlier this month.

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