CBP Policy is Changed on Deferred Inspection of Legal Permanent Residents with Criminal Convictions

This article is from the American Immigration Lawyers Association, a national association of over eleven thousand attorneys and law professors who practice and teach immigration law.

October 1, 2009

“During a teleconference with the AILA/CBP National liaison committee on September 29, 2009, CBP National Headquarters confirmed that, beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be issued a Notice to Appear (NTA) at ports of entry versus a grant of deferred inspection. In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option. CBP explained that it modified its policy based on information reflecting that an appreciable percentage of those granted deferred inspection do not show up for such inspection. More guidance to the field will be forthcoming from CBP, but be aware of the likelihood of an increase in the number of LPRs being detained and/or issued NTAs at ports of entry. CBP confirmed that this policy already had been in place in Georgia and Florida.

The committee raised the following points: We note that LPRs cannot be detained if they are in possession of evidence that proves that their
conviction does not render them inadmissible pursuant to INA 212(a)(2). We also note with great concern that the Ninth and Fourth Circuit Courts of Appeals have ruled that returning LPRs with pre-1997 convictions cannot be lawfully charged by CBP as inadmissible pursuant to INA 212(a)(2), and, therefore, detaining them as returning LPRs at Ports of Entry under these circumstances would not be a lawful action by CBP (see Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004), representing the governing law for CBP inspections at POEs in Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, West Virginia, Virginia, Maryland, North Carolina, and South Carolina).”