Foreign Nationals' Rights on Entry to the US
 

I've tried searching both the forum and Google for something on this, but couldn't find anything. If there is a previous thread I'd be grateful if you could point me in the right direction. :)

I'll be entering the US as a foreign national for the first time towards the end of this month. I've seen countless debates on the rights of US citizens, but nothing on the rights of foreign nationals. Other than the right of consular notification (and access?), do we have any rights at all if/when pulled in for 'secondary' by CBP?

As a side note, I'll be arriving on QF107 SYD-NYC, which stops in LAX for 2 hours where passengers are processed for immigration. There's a good chance I will be pulled in for secondary (I fit the profile), and will thus miss my onward flight to NYC (which is on the same QF 744 plane I landed in LAX on). Who makes the arrangements for scheduling me on a later flight?

you do not have right to enter US
 

you will be ask personal question to determine your admissibility.
you will ask why you come here,where you stay, you have enough money with you. In port of entry, you do not right to have a lawyer. you can try call consular assistance, i doubt you can get any real assistance. if you get secondary, the airline will normally change your flight for no charge.
good luck.

This holds true for virtually every national at virtually every border across the world (there are notable examples where people are afforded free movement eg: intra-EU for EU nationals).

A visa obtained in advance or on arrival, or a visa waiver merely grants you the right to apply to an immigration officer for entry into the respective country on arrival.

I'd suggest it's safe to assume you have ZERO rights, *including* access to a consular official, I'm afraid to say.

Unfortunately, you do NOT have the right to consular notification or access until you have been actually admitted to the USA. If you are pulled into secondary, you have effectively no rights whatsoever. You may be detained, interrogated and searched indefinitely with no recourse or appeal to higher authority.

If entering under the Visa Waiver Program then you have no rights at all and can be refused entry & sent back if the immigration official doesn't like your face - sorry, believes that your reason for entering the US is not the stated one. If you are entering on a visa then you have the right of appeal to a judge if refused entry. But that will probably mean spending time as a guest of the US Government complete with orange coveralls & manacles

Why are you assuming that you will be sent to secondary? What profile do you think you fit? If you get yourself all worked up and anxious before you even talk to the officer you are setting yourself up to send yourself to secondary. Just talk to the primary officer answer his questions truthfully and you will be fine. The questions will be related to your length of stay, purpose of your trip, the ability to support yourself while on the trip etc.

You didn't included you citizenship, if you are traveling on a visa or under the visa waiver program. These facts can affect what the process is for entry to the United States.

FB

Ah, I see. Many thanks for your responses, this is what I had feared... it's a little scary in concept.

Theoretically, what would happen if I got fed up at secondary screening and decided I no longer wanted to enter the US? Am I free to walk out and return to my home country? Would my rearrangements then have to be made at my own expense?

It complicated by the fact that I'm on a RTW ticket, home is the UK but point of departure for the US is Australia. Do I have to return to my point of departure, or my home country? Or am I free to go anywhere I choose?

I'm not worked up - just accepting the situation as it stands. There is a profile of person they look for as a 'potential terrorist' visually, plus stamps on passports, etc. I fit that profile, without going into more specifics. I'm perfectly capable of being polite outwardly, but who wouldn't be anxious at the prospect of being detained for an unlimited amount with no rights at all?

I accept they have a right to ask these questions but what makes me anxious is anecdotal evidence of the attitude and treatment others in a similar situation have received while undergoing secondary screening - if that helps you understand my mindset at all. Not a pleasant business to be involved in for anyone, no matter how innocent (in fact, particularly so if you are innocent!)

And yes, sorry, I should have provided more info in my OP. British citizen entering on VWP, but as described above entering from Aus. It's a business trip; have always avoided going to US for leisure for this very reason.

Wondering as well how much difference documentation proving I'm there on business would help my case... but I guess it's a combination of factors, so no simple answer.

That is an overly simplistic response. Even when applying for admission with a visa there are circumstances that you can be removed from the United States without Judaical review or appeal. The decision to detain pending a removal hearing is based on many factors. Many aliens placed in removal proceedings at a port of entry are actually paroled into the country until the hearing. Some are on bond some are on their on recognizance. There are way to many variables to say with any accuracy what will happen in every case.

FB

vI am talking about the actual time during the travel leading up to talking to the officer (on the plane, in the waiting line etc). The more you worry about it and the more you think about it the more likely you are to exhibit nervous behavior characteristics while speaking to the officer. CBP does not use a visual profile of a terrorist. However, stamps in your passport show travel history. If you have stamps in your passport that are of interest to the officer just truthfully answer the officers questions concerning those trips. If they are business it will be fine you just need to explain the trips purpose.

As for your currently planed trip, you may want to ask the company, or client that you are coming to visit to furnish you with a letter of introduction. This should be on company letterhead and include the length of the business trip, where you are staying, and the purpose of the business (it can be in general terms. It does not have to be specific.)

You are not going to detained for an unlimited amount of time. You are applying for entry under the Visa Waiver Program. If CBP is not satisfied that you are admissible to the United States they will simply refuse your entry under the Visa Waiver Program. You would be returned to the country that you departed from to enter the United States. In this case, it would be Aus. on the next available flight. The airline will use your return trip ticket for this purpose. This is one of the reasons a return trip ticket is required to be able to use the Visa Waiver Program. If you are refused under the Visa Waiver Program the only truly negative consequences for the traveler, except the obvious of missing the current trip, is that you will never be eligible to use the Visa Waiver Program again in the future. You would have to obtain a non-immigrant visa for all future trips to the United States.

If you have anymore specific questions continue to ask. I will answer as many as I can.

FB

CBP may allow you to withdrawal your application for admission to the United States. However, this is not your right it is at the discretion of CBP. CBP generally does not allow withdrawal when applying under the Visa Waiver Program. CBP will make a decision to either admit or refuse entry. Even, in the rare case that CBP did allow withdraw you are not going to be free to walk out of the Federal Inspection Area to make your own arrangements. An airline representative would be in the Federal Inspection Area to assist you in making those arrangements. It would be using your return trip ticket back to the country you departed from to enter the United States. When it came time to board the aircraft for your departure from the United States, you would be escorted to the gate by CBP officers who will remain at the gate until the plane pushes back from the gate.

FB

I travel to the US often and have had limited "further questioning" they like to browse your paperwork, wallet, flight bookings, the entries in your planner, laptop, and pictures on your camera, The term dates for my job and the pictures of my cats and house seemed to satisfy them. All because the airline didnt remove the green stub from my passport last time!

Not if you are placed in "Expedited Removal" proceedings (which is what happens to the majority of NIV aliens denied entry at airport POEs). You are sent back to the country that you departed from (even if you are just in transit through the USA eg. AKL-LAX-LHR you will be sent back to AKL rather than onward to LHR) and you face an unappealable 5 year mandatory ban of entry to the USA.

Unless of course the FIS area is in a PFI facility, in which case the CBP agent doesn't have a choice regarding permitting an alien to withdraw application for entry and leave.

The OP is applying to enter the United States under the Visa Waiver Program. Expedited Removal is not an option when applying under the Visa Waiver Program. You are also incorrect concerning the majority of NIV aliens being denied entry at airport POE's being placed in Expedited Removal proceedings. The majority of aliens applying for entry with a non-immigrant visas that are found to be inadmissible are allowed to withdrawal their application. Expedited Removal is mostly used in fraudulent documents cases or some serious misrepresentation cases.

FB

Interesting use of words. How can a finding of inadmissability be made if the application is withdrawn? IIRC, the wording of the document given to aliens prior to withdrawal of application is that they "appear to be inadmissable" but there is no formal finding of inadmissability (this is critical because it determines if they need to obtain a waiver of inadmissability prior to reapplying for an NIV).

I only bring this up because DHS and State have had disagreements on the above in the past and I know multiple persons who had new NIVs issued by consular officers on the basis that no finding of inadmissability existed in CLASS, only to be faced with Expedited Removal at POE by an INS/CBP officer who treated the previous withdrawal of application as a finding of inadmissability requiring a waiver.

First the alien does not have the right to withdrawal their application to the United States. The alien cannot in the middle of the inspection say I changed my mind I just want to go home and the whole process stops. The withdrawal of the application is at the discretion of CBP. CBP is not going to allow you to withdrawal if they think you are admissible they are just going to admit you. If CBP chooses to exercise discretion because they believe you are inadmissible to the United States, CBP can allow you to withdrawal your application instead of being placed in formal 240 removal proceedings or instead of being removed from the United States in Expedited Removal proceedings.

The withdrawal is not considered an adverse action in regards to the alien because there is no bar imposed on the alien. Their visa is canceled at the port and they are required to obtain a new visa before attempting to enter the United States in the future.

Determining if the alien needs a wavier before obtaining a new visa and attempting to re-apply for entry can be different depending on the facts of the case. For example if during the sworn statement the subject has admitted to the essential elements of a crime involving moral turpitude, controlled substance violation etc or has admitted to being convicted of a crime involving moral turpitude etc, the alien may be allowed to withdrawal his application. The alien will have to obtain a waiver before attempting to re-apply for entry to the United States. In any case the alien must overcome what ever the ground of inadmissibility was, in most cases this means getting a waiver.

The alien can apply for a waiver to whatever grounds of inadmissibility apply (there are many) If the office of admissibility (the office in CBP that grants waivers) will do one of three things.
1. It will grant the waiver for a specific period of time.
2. It will deny the waiver.(you can apply at a later time. Many times not enough time has lapsed since your offense)
3. It will determine that you don't need a waiver and will issue a September letter. The September letter will allow the consulate to issue a visa and will allow the officer inspecting you in the future to disregard the results of the past inspection and any admissions that happened during that inspection.

It is not nearly as cut and dry as you think it is. There are many variables that are involved in US Immigration Law.

FB

in a way, they are very much like bouncers at night clubs..... if they don't
like your face, you don't get in... :)