Make a Payment 
<a href="https://secure.blueoctane.net/forms/E8TLX753GRBB">Click Here To Load This Formexperts.com Form</a>
Share

NPZ Immigration Law Blog

Monday, March 27, 2017

GREEN CARD HOLDERS NEED TO UNDERSTAND THEIR RIGHTS AT PORTS OF ENTRY


Upon return to the United States from travel abroad, Lawful Permanent Residents (LPRs) or Green Card holders have certain due process rights, including the right to a hearing before an immigration judge before they can be stripped of their permanent resident status. In addition, given increasing reports of CBP inspection of traveler’s electronic devices and/or social media accounts, it is important for Green Card holders or LPRs to understand the risks of refusing such a request.

Constitutional Rights of LPRs:

LPRs enjoy greater due process rights than nonimmigrants when returning to the United States after travel abroad. Like all international travelers, upon return, LPRs are subject to inspection by CBP. CBP may question and screen LPRs to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.” Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless he or she:

• Has abandoned or relinquished LPR status;
• Has been absent from the United States for a continuous period in excess of 180 days;
• Has engaged in illegal activity after having departed the United States;
• Has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
• Has committed an offense under INA §212(a)(2) [criminal and related grounds of inadmissibility], unless since such offense the alien has been granted relief under INA §212(h) [waiver of inadmissibility] or §240A(a) [cancellation of removal for permanent residents]; or
• Is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I- 407, Record of Abandonment of Lawful Permanent Resident Status. It is important to note that an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves “abandonment” by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final.

Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the Form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, by a preponderance of the evidence, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) before an immigration judge. Even LPRs who have signed a Form I-407 retain the right to request a hearing before an immigration judge to determine whether LPR status was abandoned. Should CBP confiscate the LPR’s permanent resident card, an LPR has the right to alternative evidence of LPR status, such as an I-94 card and/or passport stamp.

CBP Search of Electronic Devices and Social Media Accounts:

In 2009, CBP released to the public a document explaining its current policy on searches of electronic devices. This policy states that all electronic devices, including those belonging to U.S. citizens, can be searched at a port of entry “without individualized suspicion.” There appears to be only very narrow limitations to the scope of CBP’s search authority. For example, that policy indicates that privileged material, such as attorney/client communications, while not necessarily exempt from a search, may be subject to special handling procedures which require approval from CBP Associate/Assistant Chief Counsel.

CBP’s right to conduct suspicion-less searches of persons and conveyances has long been upheld by the Supreme Court as a “border search exception” to the 4th Amendment. While the 4th Amendment to the Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court held that it is “reasonable” to conduct border searches without a warrant for national security interests.

CBP’s policy of conducting suspicion-less searches of electronic devices has not yet been meaningfully challenged. Following the publication of the 2009 guidance, the Supreme Court held that the police may not search and seize the digital contents of a person’s cellular telephone or electronic device, incident to an arrest, without first obtaining a search warrant. In arriving at this conclusion, the Court noted that cellphones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The ability of modern cellphones to contain the digital sum total of one’s “papers and effects,” the Court held, makes police searches of these devices unreasonable without a warrant. This ruling, however, only applies to arrests occurring in the interior of the United States and does not address arrests or searches at the border. Though this issue could be considered by a federal court, given the dire consequences to a foreign national who refuses to submit to such a search (including expedited removal), it is more likely that this issue will be pursued by a U.S. citizen who does not consent and is willing to litigate the matter.

A subsidiary issue to warrantless searches of cellphones and electronic devices is whether CBP may access an individual’s social media accounts. In 2016 CBP began collecting social media identifiers from Visa Waiver travelers through changes to the ESTA application. While the ESTA form makes this question optional, and only asks for social media “identifiers,” (as opposed to “passwords”) so that CBP can presumably view the traveler’s public information, there have been several reports of CBP officers requesting the log in information so that they can view private social media accounts and messages. While the CBP electronic device search policy has not been updated to address this specific situation, it appears that CBP may view this information as falling within the “border search exception” to the 4th Amendment.

If a U.S. citizen refuses to consent to a search, CBP may do one of several things, including any of the following or a combination of the following:

• Detain the person until he or she consents.
• Have the person arrested for obstruction of justice.
• Let the person go and seize the device in question.

The CBP policy on search of electronic devices provides that CBP officers (with supervisory approval) make take physical possession of an electronic device either (a) when, upon a search of such a device, with or without suspicion of wrongdoing, a CBP officers discovers probable cause to seize it; or (b) when officers have “technical difficulties” in searching the device, such that technical assistance is required to continue the border search. In the latter case, inability to unlock the device due to non-consent could be deemed a “technical difficulty” justifying detention of the device. The policy provides that devices shall generally be returned within five days, but devices may be kept for up to 15 days and extensions beyond 15 days can be approved in 7-day increments thereafter. While CBP policy is to carefully record information about these detentions in its records, the policy sets no maximum period after which a device is required to be returned to its owner.

If an LPR or nonimmigrant refuses to consent to a search, CBP could follow any of the courses of action outlined in the previous paragraph with regard to U.S. Citizens and may, in addition, refuse a nonimmigrant admission to the United States and/or utilize the agency’s expedited removal authority.

Is there a Right to Counsel?

CBP has long held that there is no “right to counsel” during the inspection and admission process, although attorneys are sometimes permitted, at the agency’s discretion, to accompany clients who are detained in secondary inspection and/or are ordered to appear at a deferred inspection office. This interpretation is supported by 8 CFR §292.5(b) which applies generally to all immigration proceedings and states:

(b) Right to representation. Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody. (Emphasis added).

In addition, the CBP Inspector’s Field Manual, at chapter 2.9, states:

Dealing with Attorneys and Other Representatives. No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney – unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action.… (Emphasis added).

Should CBP choose to issue an NTA and initiate removal proceedings, INA §101(a)(27) states that there must be at least ten days between service of the NTA and the first removal hearing. However, the issuance of an NTA does not impose upon CBP an obligation to allow the individual to speak with an attorney while being held in a CBP facility, “unless the applicant has become the focus of a criminal.

If you should have any questions or need more information about the way that the U.S. immigration and nationality laws may impact you, your family, your friends or your colleagues, please feel free to contact the U.S. immigration and nationality lawyers and U.S. immigration attorneys at the NPZ Law Group - VISASERVE by e-mailing us at info@visaserve.com or by calling us at 201-670-0006 (x107) or by visiting our Law Firm's website at www.visaserve.

Archived Posts

2017
June
USCIS Introduces New I-485 Form
Cuidados que estudantes com o visto F-1 precisam ter nas férias
Promoting Cultural Exchange with a J-1 Visa
VISA BULLETIN UPDATE FROM DOS: June 13, 2017
Visto P-3, o visto para artistas e profissionais do mundo do entretenimento
Intercâmbio Cultural com o visto J-1
Exploring the P-3 Visa for Artists or Entertainers in a Culturally Unique Program
IIFA FESTIVAL 2017 ANOTHER REASON TO LOVE NEW YORK! NEW YORK IIFA EVENT 2017! . . . JULY 14TH & 15TH!
Governo Trump anula programa criado por Obama para proteger imigrantes ilegais cujos filhos estão em situação regular nos EUA
Yeni Girişimci Şartlı Tahliye Kuralları 15 Temmuz 2017'de geçerli.
Why Every Immigrant Needs a Lawyer
YEŞİL KART'IN AİLE SPONSORLUĞUYLA YAPILMASI: ABD'ye Göç Etmek İçin Bir Yol
GÖÇMENLİK ÜZERİNE BAŞKANLIK EMİRLERİ
COMO AGIR AO SER ABORDADO POR UM AGENTE DE IMIGRAÇÃO
Departamento do Trabalho dos EUA adota medidas para ampliar proteção aos americanos
Como migrar do visto de turista ou de negócios para o visto de estudante
A Look at the O-1B Artist Visa
La Nouvelle Dérogation pour les Entrepreneurs prendra effet le 15 juillet 2017.
Turistas podem verificar via site o prazo limite de sua permanência nos EUA
DOL updates: US SECRETARY OF LABOR PROTECTS AMERICANS, DIRECTS AGENCIES TO AGGRESSIVELY CONFRONT VISA PROGRAM FRAUD AND ABUSE
CBP Reminds Travelers of Departure Date with New I-94 Website Feature
O visto EB-5 como alternativa ao H-1B
Imigrantes ilegais que trabalham no campo estão na mira do governo americano
May
Check Out the Redesigned Stakeholder Webinars Page
DHS UPDATE: One Year of the 24-month STEM OPT Extension
DHS UPDATE: B-1/B-2 Visitors Who Want to Enroll in School
DHS UPDATE: Summer Vacation Reminders for F-1 Students
Saiba como solicitar o green card no caso de casamento
Nova regra para empreendedores estrangeiros nos EUA entra em vigor em 15 de julho
As the H-1B Visa is Dismantled, Indian Immigrants Look to the EB-5 Visa
Illegal Farm Workers Fear Immigration Crackdown
Mudanças nas regras do visto H1B e a anatomia das auditorias do governo
VISAS MANTIS and Implications for Trump’s “Extreme Vetting”
DOS UPDATE: VISA BULLETIN FOR JUNE 2017
ANÁLISE: As ordens executivas de Trump sobre imigração
Obtaining a Green Card Through Marriage
Estrangeiros vítimas de certos crimes nos EUA têm direito ao chamado Visto U
The New Entrepreneur Parole Rule will be Effective on July 15, 2017.
EXECUTIVE ORDERS ON IMMIGRATION: An Analysis on the Present State of President Trump’s Travel Ban Attempts By: Snehal Batra, Esq.
ANATOMY OF H-1B AUDITS AND INVESTIGATIONS
Green Card por meio de relação familiar
EUA começam a devolver petições para o visto H1B que não foram selecionadas
USCIS: Cap Gap for Students Without a H-1B Application Rejection or Decision
Amor a la “Green Card” no Canadá
GETTING THE GREEN CARD THROUGH FAMILY SPONSORSHIP: One Way To Immigrate to the U.S.
Trabalhadores religiosos podem obter visto específico para os EUA
IMMIGRATION LAWYER VERONIQUE MALKA GIVES INTERVIEW ON NATIONAL RADIO ABOUT THE EFFECTS ON CANADIAN IMMIGRATION FOLLOWING THE TRUMP ELECTION.
Love à La “Green Card” - Canada Immigration
COMUNICADO OFICIAL: DHS cria escritório para vítimas de crimes praticados por imigrantes ilegais
April
Will the U.S. Extend Temporary Protected Status for Eligible Haitians?
Boletim do Departamento de Estado dos EUA para Maio de 2017
DOS UPDATE: VISA BULLETIN FOR MAY 2017
SPIRITUAL ENLIGHTENMENT AND U.S. IMMIGRATION: Understanding the Religious Visa (R Visa).
DHS Announces Launch of new Office for Victims of Illegal Immigrant Crime
Mudança recente no credenciamento de escolas e faculdades nos EUA afeta vistos de alguns estudantes
USCIS UPDATE: Certain Students Applying for English Language Study and 24-month STEM OPT Extension Programs Affected by the ACICS Loss of Accreditation
H-1B GÖÇMEN OLMAYAN ÇALIŞMA VİZESİ GÜNCELLEMESİ: USCIS (Amerika Vatandaşlık ve Göçmenlik Ofisi), 2018 Yılı H-1B Cap Rastlantısal Seçim Sürecini Tamamladı
USCIS, Yeniden Tasarlanmış Yeşil Kartlar ve Çalışma İzin Belgelerini Yayımlıyor
GOVERNO DOS EUA LANÇA NOVAS VERSÕES DO GREEN CARD E DO DOCUMENTO DE AUTORIZAÇÃO DE TRABALHO
ATUALIZAÇÃO SOBRE O VISTO DE TRABALHO H-1B: USCIS conclui processo de seleção via loteria para o ano fiscal de 2018
Esclarecimentos sobre os procedimentos de deportação
USCIS Reminds Beneficiaries of Temporary Protected Status for Guinea, Liberia, and Sierra Leone of May 21 Termination
USCIS Will Issue Redesigned Green Cards and Employment Authorization Documents
H-1B NONIMMIGRANT WORK VISA UPDATE: USCIS Completes the H-1B Cap Random Selection Process for FY 2018
Immigration Arrests Double in Just 11 Years
THERE HAS BEEN A RECENT INCREASE IN IMMIGRATION ENFORCEMENT ACTIONS: What Defenses Are Available to Persons Facing Deportation?
Alvos das ações do ICE
o Departamento do Trabalho dos EUA, por meio da Divisão de Salário e Horas (WHD), continua promovendo auditorias e investigações relacionadas ao visto H-1B
Barreiras de três e dez anos: Como novas regras ampliam elegibilidade para pedido de perdao
O NPZ LAW GROUP CONTINUA A INCENTIVAR QUE EMPREGADORES QUE SOLICITAM OS VISTOS H-1B E L-1 ENTENDAM AS VISITAS AO LOCAL DE TRABALHO FEITAS PELO FDNS REFERENTES AOS VISTOS H-1B E L-1
H-1B NONIMMIGRANT WORK VISA UPDATE: With a Looming Cloud of Anticipated Investigations, Audits and Site Visits, USCIS Reaches FY 2017-2018 H-1B Cap.
USCIS ALERT: BATTLING FRAUD AND ABUSE IN THE H-1B VISA PROGRAM.
WHAT IF MY CASE DID NOT GET CHOSEN IN THE H-1B LOTTERY: EXPLORING WORK VISA OPTIONS BEYOND THE H-1B CAP [i] (PART VII of an VIII Part Series)
Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
H-1B SEASON IS UPON US . . . WILL THIS YEAR'S ECONOMY BRING A LOTTERY? PLANNING FOR THE H-1B VISA SEASON MAY BE THE KEY TO BEING ABLE TO CONTINUE YOUR WORK AUTHORIZED STATUS IN THE U.S.
THE NEW EXPRESS ENTRY SYSTEM EXPLAINED
"Know Before You Go": NPZ Law Group Helps Ease The Stress of Holiday Travel For Certain Foreign Nationals.
5 Cosas que se deben saber sobre cómo las acciones del Presidente Obama impactarán a Inmigrantes Indocumentados.
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte I)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte II)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte III)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte IV)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte V)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte VI)
EL RECIENTE ANUNCIO DEL PRESIDENTE OBAMA SOBRE LA RESPONSABILIDAD INMIGRACIÓN PRESENTA MUCHOS BENEFICIOS PARA MUCHAS COMUNIDADES DE INMIGRANTES!
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part VI)
PRESIDENT OBAMA'S RECENT ANNOUNCEMENT ABOUT IMMIGRATION ACCOUNTABILITY PRESENTS MANY BENEFITS FOR MANY IMMIGRANT COMMUNITIES!
November
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part IV)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part V)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part I)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part II)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part III) Changes to Provisional Waivers and "Extreme Hardship Definition.
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part IV)
5 Things to know about how President Obama's Actions Impacts Undocumented Immigrants.
Programa de Refugiados y de Admisión Condicional para menores de edad de El Salvador, Guatemala y Honduras con padres legalmente presentes en los Estados Unidos.
ÚLTIMAS NOTICIAS DE INMIGRACIÓN EN LOS ESTADOS UNIDOS: Reforma Integral de Inmigración.
USCIS Expands the Definition of "Mother" and "Parent" to Include Gestational Mothers Using Assisted Reproductive Technogy (ART)
U.S. IMMIGRATION NEWS FLASH: President Obama Announces Administrative Relief for Immigrants in the U.S.
In-Country Refugee/Parole Program for Minors in El Salvador, Guatemala, and Honduras With Parents Lawfully Present in the United States
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
July
June
May
April
March
February
January


National in scope, the business immigration law firm of NPZ Law Group represents clients from throughout the United States and around world. Regionally, our attorneys remain committed to serving the immigration needs of businesses in the Tri-state area and the Hudson Valley, including residents of Ridgewood, Newark, and Jersey City, Burlington County, Bergen County, Camden County, Cumberland County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Passaic County, Salem County, Union County, northern New Jersey, southern New Jersey, central New Jersey, NJ; New York City, Rockland County, Orange County, Westchester County, Kings County, Sullivan County, Ulster County, New York, NY; Chicago, Illinois, IL; and Toronto and Montreal, Canada. Our nationwide practice focused on quality legal representation and personal service.



© 2017 NPZ Law Group | Disclaimer
487 Goffle Road , Ridgewood, NJ 07450
| Phone: 866-599-3625

About | Attorneys | Types of Visas | Resources | Testimonials | Types of Immigration Law | Services

Law Firm Website Design by
Amicus Creative