CBP’s “Zero Tolerance” Policy and the Exercise of Discretion

Zero Tolerance Policy and the Exercise of Discretion

On March 22, 2002 the Immigration and Naturalization Service (INS) instituted a “Zero Tolerance Policy” to its employees in the U.S. Customs and Border Protection (CBP) directing them to perform their duties in full compliance with law, regulations, and CBP policy and procedures. The tone of the “Zero Tolerance Policy” memorandum and the circumstances under which it was instituted had a chilling effect on the ability of CBP employees to exercise discretion in cases of alien inadmissibility, instead leaning on the side of extreme caution.

This policy, which has carried over into the new CBP structure has had the effect of causing several highly publicized or controversial incidents in which arriving aliens, who before the policy would have benefited from the favorable exercise of discretion, have been subject to the full adverse consequences of their inadmissibility, including, in some cases, search and detention. Such caution has been unnecessarily applied in cases where the threats of terrorism and danger to the security of the country are not an issue.

Use of Discretion In Cases Where Terrorism and National Security Are Not A Threat

Under the Immigration and Nationality Act, discretionary mechanisms, such as waivers of document requirements and parole can be utilized to provide relief in situation where formal removal, withdrawal, refusal of admission, and associated procedures such as detention are unnecessary under the circumstances.  Accordingly, the responsible CBP supervisors and managers are expected to assess every case involving a prospective adverse action to ensure that their legal authority is being exercised judiciously and in a fashion consistent with the facts.

While cases involving reasonable suspicion that an alien may be associated with terrorism, criminality, unlawful migration, smuggling or anything else counter to the national security interests of the U.S. should be considered with extreme caution, cases where technical inadmissibility to the U.S. that arises from an applicant’s ignorance of law or procedure, minor violations should be weighed where the law allows.

Land Border Cases v. Domestic Air and Sea Environments

At a land border location it is reasonable, in most cases involving inadmissibility, to refuse admission or accept a withdrawal where an inadmissible person can access a U.S. embassy or consulate in the contiguous country to seek relief or where the individual can secure additional evidence to support a subsequent application for admission.

However, in domestic air and sea environments, the CBP officer is provided less flexibility and must ensure that the treatment of a particular case is appropriately considered in lights of the facts and circumstances of that case. Generally, in an air and sea environment, when a determination is made that inadmissibility of an alien is technical in nature and not related to the any scheme or intent to enter for an unlawful purpose, it may be appropriate to entertain applications for relief if permissible by law. Accordingly, in cases of minor violations and apparent “bona fide travel” it is appropriate to exercise discretion in cases of minor violations by the applicant.  Also, in the aforementioned situations, the uses of restraints are to be avoided unless required in the interest of officer or public safety.

In these cases, sound supervisory and managerial judgment should trump a tendency for blanket strict enforcement.

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