Policies Concerning the Exercise of Discretion by U.S. Customs and Border Protection

Admission to the United States by Customs and Border Protection (CBP)

On September 3, 2008, the U.S. Customs and Border Protection (CBP) agency issued guidelines providing for the exercise of discretionary authority in the enforcement of immigration laws across the country. The purpose of these guidelines is to provide guidance and direction in order to promote fair, objective and consistent application of CBP’s enforcement of immigration laws.

The policy considerations for these guidelines are to protect the United States from threats brought by terrorism. Accordingly, the CBP seeks to verify the identity, citizenship and admissibility of people entering the U.S. where a threat related to terrorism or related criminality is posed.

However, the CBP can exercise discretion for aliens that are inadmissible due to minor/technical violations of the Immigration and Nationality Act. Discretion can include the use of waiver and/or parole to allow low risk aliens into the U.S. CBP will focus resources on those cases that pose the greatest risk.

Exercising Discretion – The Discretionary Checklist

The Discretionary Checklist serves as an aid to front-line personnel and managers in exercising discretionary authority. It also ensures that the Immigration and Nationality Act (INA) is consistently applied and that each applicant is viewed as unique. Accordingly, the Discretionary Checklist should be completed by the inspecting CBP officer and reviewed by a first and/or second line supervisor. The checklist should be maintained as part of an aliens port file or A-file (if one exists), regardless of whether discretionary authority is exercised or denied. Discretionary authority should generally not be exercised if the alien is unable to establish his or her identity or citizenship or if the alien has terrorist ties or affiliations, significant criminal history, or is likely to contribute to the illegal population of the United States. In addition, previous grants or denials of waiver and parole should be considered. So too, should an alien’s current immigration status be considered along with the length of residence in the United States.

Exercising Discretion Through Parole

Generally, cases requiring parole authorization will present more complex circumstances than those in which a waiver would be considered. Parole authority is normally exercised when an alien is inadmissible for reasons other than simple documentary deficiencies. Parole, however, is not regarded as an “admission.” Accordingly, paroled aliens remain subject to proceedings as inadmissible.  Examples of appropriate parole use include an inadmissible alien in need of emergency medical treatment, emergency workers responding to a natural disaster or other emergency situation, land and air ambulance crew and/or patients, a minor accompanying a detained parent, missing or abducted minor located and paroled to another agency, and sick or injured minor who is being released pursuant to an order of preference found.

Deferred Inspection

A deferred inspection may be used when an immediate decision concerning admissibility cannot be made at a port of entry and when it appears likely that the issues surrounding admissibility can be resolved favorably at the onward port of entry. As a form of parole, this authority is delegated to port management at the GS-13 level and above, and port directors at the GS-12 level.

Withdrawal of Application for Admission

A nonimmigrant applicant for admission who does not appear to be admissible may be offered the opportunity to withdraw his or her application for admission pursuant INA §235(a)(4), rather than being placed in proceedings. An alien cannot, as a matter of right, withdraw his or her application for admission but must be permitted withdrawal.

Voluntary Return

Voluntary Return is an act of discretion that can be applied to non-arriving aliens in circumstances analogous to those where withdrawal of application for admission is allowed, and should be approved by a first-line supervisor. When an alien has demonstrated his or her intent to depart the United States, it serves no purpose to issue a Notice to Appear, because the alien is already executing the ultimate objective of removal from the U.S.

Fee Collection

When a form of discretion under consideration requires the payment of an associated fee (such as waiver applications and certain paroles), CBP should determine if the action taken is solely for the benefit of alien. If the discretionary action is taken for reasons of significant public benefit, CBP should not charge a fee.

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