Withdrawing An Application For Admission At A Port Of Entry
The immigration laws and regulations in the United States are complicated. Our immigration lawyers at Wilson Law Group have decades of experience helping non-citizens obtain the right visas, defend deportations during removal proceedings and secure lawful resident status in the United States. If you have arrived at a port of entry as a temporary visa holder or returning permanent resident and have been deemed inadmissible by customs, our immigration lawyers can advise you of your options, including withdrawing your application for admission.
What Is A Withdrawal Of Application For Admission?
Individuals arriving at a port of entry either as temporary visa holders or returning permanent residents may find themselves in the unique position of debating whether to continue trying to “arrive” into the United States or withdraw the request to leave to protect a person’s immigration options going forward. This alternative is not well known, but it is an important one to help a person avoid a possible fraud or misrepresentation bar. It is also helpful to returning residents who have been gone too long but may have the ability to apply to adjust their status again as a lawful permanent resident.
At U.S. ports of entry, some foreign nationals who apply for admission and are deemed inadmissible to the U.S. In this situation, Customs and Border Protection (CBP) officials have a few options as to how to proceed, including:
- Issuing an order of expedited removal
- Referring individuals for removal proceedings before an Immigration Judge
- Granting individuals permission to withdraw their application for admission completely
At its discretion, CBP may offer a withdrawal of an application for admission. The benefit of this at a port of entry is that the traveler avoids removal proceedings and a ban on entry and is allowed to depart from the United States.
Factors For Granting Permission To Withdraw An Application For Admission
When deciding whether to grant permission to withdraw an application for admission, CBP officials consider the following factors:
- The seriousness of the immigration violation
- Previous findings of inadmissibility against the applicant
- The applicant’s intent to violate the law
- The applicant’s ability to overcome the ground of inadmissibility
- The age or poor health of the applicant
- Other humanitarian or public interest considerations
See IFM Chapter 17.2; 8 C.F.R. § 235.4. If CBP permits withdrawal, Form I-275 Withdrawal of Application for Admission/Consular Notification will be prepared by an officer and signed by the applicant.
CBP may defer the inspection of a person, and then later issue a Notice to Appear. The individual is still an arriving alien. Arriving aliens in removal proceedings can request to withdraw their application for admission before the immigration judge. An arriving alien is defined as:
“an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.” See 8 C.F.R. § 1.2.
Even if an arriving alien is paroled under INA Section 212(d)(5), he or she remains an arriving alien. An arriving alien is not eligible for bond, and so being informed of alternative options is particularly important. An immigration judge typically will only grant permission to withdraw an application for admission when there is an agreement with DHS. 8 C.F.R. § 1240.1(d). When deciding whether to grant permission to withdraw, an Immigration Judge must be satisfied that the individual has the means and intent to depart immediately; and that the individual has established that factors directly relating to the issue of inadmissibility indicate that granting withdrawal would be in the interest of justice. 8 C.F.R. § 1240.1(d).
When Is It A Good Option To Withdraw An Application?
Permission to withdraw the application for admission may be an option for cases involving a lawful permanent resident (“LPR”) of the U.S. who has been charged with abandoning their permanent resident status. An example of this is when a LPR departs the United States and remains outside of the country for more than one year. When this person returns to the U.S., at the port of entry, CBP may charge the person with abandoning their residence.
CBP may give this individual the option to voluntarily surrender their permanent resident status. This is done by executing Form I-407. If the applicant for admission would like to challenge the notion that they abandoned their residency, CPB will issue a Notice to Appear for removal proceedings in immigration court. The immigration judge will then determine whether the individual has abandoned their residency. If an individual is issued a Notice to Appear, but then decides not to contest whether they have abandoned their residency, the individual can request permission to withdraw the application for admission. If granted, the individual will bear the travel costs of returning to their home country, like voluntary departure.
If an individual is granted permission to withdraw the application for admission, they avoid an order of removal. They also will likely not face a bar returning to the U.S. in the future and they are able to freely reapply for readmission to the U.S.
Consult An Immigration Lawyer For Free
At Wilson Law Group our immigration lawyers offer free, initial consultations. If you are in need of an immigration attorney, call our office at 612-430-8022 or send an inquiry through our website form to schedule your free appointment to discuss your case with our experienced attorneys.