Port of Entry Issues
Posted Feb 08, 2002

Based on several recent incidents involving problems at various Ports of Entry (POEs), we thought it timely update our readers. Most of you need to travel abroad on occasion for personal or professional reasons. The first government officials that you encounter when entering the U.S. are the INS POE Inspectors. The importance and the level of responsibility vested in these POE officers, particularly after September 11, 2001, makes it important for each person to understand the process and take responsibility to review your paperwork after the POE officers stamp the I-94 card or her/his passport.

Recent Meeting with Officers of Dulles International Airport

Several attorneys from The Law Office of Sheela Murthy attended a meeting of the American Immigration Lawyers Association, Washington, D.C. Chapter, on January 30, 2002. There, we had the pleasure of personally meeting with the Port Director and the Assistant Area Port Directors in charge of inspection at Dulles International Airport outside Washington D.C. The recently appointed Area Port Director, Valentine Garcia, who was previously stationed at J.F.K. International Airport in New York, spoke about the inspection process and policies at the Dulles Airport.

Frequent Errors on the I-94 Cards

The Law Office of Sheela Murthy made specific inquiry regarding resolution of problems that arise when the INS Inspectors (also known as Officers) make errors on I-94 cards. As many of you are aware, the I-94 card is the small, white card stapled into the passport that carries the individual's immigration status and the authorized length of stay in the U.S. On occasion, the Inspectors will indicate incorrect dates or categories on the I-94 card. These simple errors cause serious issues with respect to the individual's immigration status and permission to remain in the U.S.

One frequent cause for this problem is when an inexperienced Inspector issues an I-94 card with the expiration date from the individual's visa stamped in the passport, rather then the correct and later date from the individual's subsequently approved INS petition. Since the person's status in the U.S. is determined by the date on the I-94, such an error causes a significant problem, sometimes placing the foreign national out of status prematurely. The Area Director and the Assistants all indicated that they were willing to entertain requests to correct errors of this nature. We were very pleased to establish this level of cooperation and communication with the Port of Entry (POE). The Law Office of Sheela Murthy has often resolved these errors directly with POE officers at various airports throughout the U.S. to help our clients correct errors on their I-94 cards. This process is usually faster and less risky than traveling abroad, especially when the person has already stayed past the expiration date on the I-94 card and could be subject to the three-year or ten-year bar.

Your Responsibility to Double-Check Your Documents

We also take this opportunity to remind our MurthyBulletin and MurthyDotCom readers to double-check their entry documents, and those of accompanying family members, prior to leaving the inspections counter. The Port Director advised that the Inspectors only have one minute per person for initial inspections at the POE. The POE Inspectors at Dulles Airport process approximately 3 million passengers arriving from overseas per year. Of these 3 million, approximately 1.8 million are non-U.S. citizens. With this volume and limited time frame, clerical mistakes are likely to occur. Additionally, the Inspectors are short-staffed and the INS is finding it difficult to fill these positions. While it is the Inspector's duty to do his/her job correctly, each applicant for entry into the U.S. needs to take responsibility and check his/her own documents upon entry. It is easier to fix the problem on the spot than to try to fix it later. The Port Director also indicated that Inspectors encounter travelers who have expired visas. In order to avoid such problems, we remind our readers to check their visas before traveling and make sure they have all other required documents. A little advance preparation will make the inspection process much less problematic.

Non-Immigrant Must Establish Non-Immigrant Intent

The POE Officers make determinations as to one's admissibility to the U.S. "Immigrant intent" was one specific ground mentioned. Individuals arriving on non-immigrant visas, such as B-2 tourist visas, must truly be coming to the U.S. temporarily for a visit. The POE Officer may check the amount of luggage and types of items the individual is carrying. If the luggage contents are not consistent with the individual's stated intent to visit briefly, entry might ultimately be denied. For example, the Port Director explained that visiting the U.S. for allegedly two weeks with five large suitcases will give rise to suspicion possibly resulting in a thorough search of the baggage and, ultimately, denial of permission to enter.

Primary Inspection Process

The initial inspection is the only inspection needed for those who are "clearly admissible." Although the inspectors on average have only one minute per person, each person is checked through a centralized computer system. The vast majority of individuals are "clearly admissible" and are coming to the U.S. for legitimate purposes with legitimate documents.

Secondary Inspection Process

If the Inspectors detect a problem or concern, the individual is sent to secondary inspection. A "seasoned Officer" with at least three years experience undertakes the secondary inspection. That Officer will question the applicant further, perform a criminal background check, make telephone calls as needed to verify the information provided by the applicant, inspect documents, and conduct any other investigation that may be appropriate to the circumstances. One common situation is a type of document fraud known as "photo substitution." Photo substitution is the practice of placing an individual's picture into someone else's passport in order to gain admission. Inspectors are quite adept at detecting irregularities of this type. The secondary inspection can last only a few extra minutes or several hours. This depends upon their backlogs and the nature of the problem encountered.

Claiming Asylum at POE

The POE Officers are also involved with persons who do not have the required travel documents but who claim asylum at the border. Ordinarily a person without the proper documentation cannot be admitted, but there is an exception for those who indicate that they intend to apply for asylum or that they fear persecution in their home countries. In such cases, it must be determined whether the individual has "credible fear." Those without credible fear are summarily removed from the U.S. Those who can establish credible fear have their asylum claims heard before an Immigration Judge.

Nature of Adverse Actions at POEs

The Dulles POE takes approximately 700 adverse actions per year against applicants for entry. Apparently over 3 million people seek to enter the U.S. About 40% are U.S. citizens and 60% or 1.8 million are non-citizens. These adverse actions include: (a) allowing the applicant to withdraw his/her application and leave on the next plane; (b) expedited removal, i.e. sending the person back with a five-year restriction on attempting to return to the U.S.; (c) issuing Notices to Appear before the Immigration Court for removal proceedings; and (d) referring individuals for criminal prosecution. As part of the adverse action, Inspectors can take sworn statements that will be used later in either immigration or criminal court. The prosecutions include actions against individuals who attempt to reenter the U.S. after having been deported, those attempting to bring drugs and other prohibited substances, and those using falsified documents.

While the percentage of individuals who are subjected to adverse actions is small, the Port Director was confident that they are maintaining very tight control of our borders. In discussions with our Office, they explained that they instituted random checking for an extended period of time to determine whether individuals were "slipping through the cracks." The random checking did not result in any additional adverse actions and confirmed that the current procedures and safeguards are working.

We appreciate the POE personnel's taking time to explain their policies and procedures and we are happy to share this valuable information with you, our MurthyBulletin and MurthyDotCom readers.