The consequences of an individual being apprehended trying to enter the US and formally sent back can be devastating with far reaching ramifications. Under Section 235 of the Immigration and Nationality Act, all aliens applying for admission are subject to inspection by an immigration officer. Furthermore, under some circumstances, aliens present in the US who have not been admitted are also treated as applicants for admission, ie., if encountered within 100 miles of either border with Mexico or Canada who cannot prove that they have been continuously in the US for at least 14 days. Section 235 authorizes an officer to summarily exclude an individual who is arriving in the US and is determined to be inadmissible under 212(a)(6)(C) or 212(a)(7). 212(a)(6)(C) refers to fraud or willful misrepresentation of a material fact in connection with entry into the US, and (a)(7) refers to documentary requirements. Unlike the vast majority of individuals who are caught by Immigration and Customs Enforcement (ICE) within the US, aliens caught at the border may be ordered removed by an officer without recourse to a further review or hearing unless the person indicates an intention to apply for asylum or expresses some fear of persecution. An order under these circumstances is termed an “expedited removal.” Importantly, it does not need to be issued by a judge, and once excluded, the individual is barred for five years from re-entering the United States.
In order to assess an individual’s case and prospects for status, it is critical to ascertain an individual’s prior history with Immigration. That is why our office, as a policy, recommends filing a Freedom of Information Act Request with the Department of Homeland Security. For example, if a person has already been summarily removed from the US and illegally re-enters the US before the five years have elapsed, we are able to determine what, if anything, can be done. Sometimes, despite what sounds like an Order of Exclusion, we learn that the person was not subject to Expedited Order, but merely “turned away.” These types of situations are also colloquially called “turnbacks” or “voluntary returns.” Although in both cases, the individual was denied entry and sent back, the legal distinctions between an expedited order and a voluntary return are very much different. A voluntary return does not trigger the five-year automatic bar that accompanies an expedited order, as there is no formal Order. A turnback usually arises in the context where an immigration officer encounters the individual but through an exercise of discretion due to any number of reasons, the officer decides to forgo the formal process of removing the person and elects to just send the person back. Under these circumstances, the period of detainment and process of rejection is practically much quicker and less paperwork intensive. This is not to say that there are no consequences to being apprehended and sent back under voluntary return, but rather the alien may have more legal options than someone formally ordered summarily removed.
The lesson here is that when it comes to immigration, things can get exceedingly complex. No assumptions should ever be made about one’s situation. Things can be very bleak if one does have a prior removal order, and if they are, it is nevertheless important to know this in order to have a realistic perspective about one’s case; on the other hand, things are not always what they seem, and in some cases, an immigration violation does not always mean that there is no recourse or remedy.