CBP’s Exercise of Discretion v. Prosecutorial Discretion

U.S. Customs and Border Protection (CBP) has a policy to use discretion where appropriate and in keeping the CBP strategy of risk management and focusing CBP’s resources on those cases that pose the greatest risk. Each applicant for admission to the United States is evaluated on a case by case basis and the decision is based on the totality of each circumstance.

Exercise of Discretion

  1. Waiver (fee/no fee)
  2. Parole (fee/no fee)
  3. Deferred Inspection

1. Waivers of Documentary Requirements

Waivers approved at Ports of Entry will be for documentary deficincies and will be documented using Form I-193, Application for Waiver of Passport and/or Visa.

2. Paroles

Permits an otherwise inadmissible alien to physically be present in the U.S. for a temporary period of time due to compelling reasons (not an admission).

Ports of Entry may grant paroles for:

  • Deferred Inspection
  • Referral for removal proceedings
  • to facilitate an alien’s departure
  • other situations deemed to be in the public interest

The following situations are a few examples when parole may be appropriate:

  • Court appearances
  • Medical reasons
  • emergency workers responding to natural disasters
  • when a document deficiency is not the only ground of inadmissibility
  • Significant public benefit parole

3. Deferred Inspection

a deferred inspection may be used:

  • When an immediate decision concerning admissibility cannot be made at a port of entry
  • When it appears likely that the issues surrounding admissibility can be resolved favorably at the onward port of entry

Prosecutorial Discretion Options – applies to enforcement decisions

  1. Withdrawal of Application for Admission
  2. Voluntary Return
  3. NTA release

1. Withdrawal of Application for Admission

Under INA Section 235(a)(4), the Attorney General may, in his or her discretion, permit an alien to withdraw his or her application for admission in lieu of removal proceedings under Section 240 of the INA. Factors might include, but are not limited to:

  • the seriousness of the immigration violation
  • previous findings of inadmissibility against the alien
  • intent on the part of the alien to violate the law
  • ability to easily overcome the ground of inadmissibility
  • age or poor health of the alien
  • other humanitarian or public interest consideration

2. Voluntary Return

a voluntary return is used when CBP Officers encounter outbound illegal aliens.

3. NTA Release

If the person is served with a Notice to Appear (NTA) and released, he or she must be paroled on a Form I-94 for removal proceedings, this is called Port Authorized Parole. When an alien does not pose a potential risk to the US and transfer to a detention center may cause undue hardship.

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