Inspector's Field Manual - Gani

Inspector's Field Manual
entry.
(d) Attorney representation at deferred inspection. At a deferred inspection, an applicant for admission is not
entitled to representation. See 8 CFR 292.5(b). However, an attorney may be allowed to be present upon request,
if the supervisory inspector on duty deems it appropriate. The role of the attorney in such a situation is limited
to that of observer and consultant to the applicant.
(e) Medical deferrals. When deferring inspection for medical reasons, consult with the Public Health Service
(PHS) before permitting the alien to proceed. If the alien is required to submit to further medical examination
prior to reporting to the onward office, return all medical documents including local PHS certification and
x-rays to the applicant in a sealed envelope for presentation to the doctor, medical clinic, or PHS facility as
instructed. If the alien is to report first to the onward INS office, forward the medical documents with the
deferral papers directly to the onward office.
17.2 Withdrawal of Application for Admission.
(a) General. A nonimmigrant applicant for admission subject to removal proceedings who does not appear to
be admissible by the inspecting officer may be offered the opportunity to withdraw his or her application for
admission rather than be detained for a removal hearing or other removal proceedings. An alien cannot, as a
matter of right, withdraw his or her application for admission, but may be permitted to withdraw if you
determine that it is in the best interest of justice that a removal order not be issued. Before allowing an alien to
withdraw, you must be sure that the alien has both the intent and the means to depart immediately from the
United States. See section 235(a)(4) of the Act and 8 CFR 235.4.
Keep in mind that withdrawal is strictly voluntary and should not be coerced in any way. It should only be
considered as an alternative to removal proceedings when the alien does not appear to be clearly admissible. In
some instances, POE workload, personnel resources, and availability of detention space may affect whether you
will allow withdrawal or pursue a hearing before an immigration judge. However, in cases where the
alternative to withdrawal is expedited removal, workload and detention space are less significant
considerations. An expedited removal order, and the resultant bar to reentry are a significant law enforcement
tool and have a potentially strong deterrent effect on unlawful entry. An expedited removal order should
ordinarily be used, rather than permitting withdrawal, in situations where there is obvious, deliberate fraud on
the part of the applicant. For example, where counterfeit or fraudulent documents are involved, expedited
removal order is normally the appropriate response. On the other hand, in a situation where the alien may have
innocently or through ignorance, misinformation, or bad advice obtained an inappropriate visa and has not
concealed information during the course of the inspection, permitting withdrawal may be proper.
The BIA, in Matter of Gutierrez (19 I&N Dec 562, BIA 1988) has ruled that a balancing of an alien's personal
equities is not appropriate for determining whether to allow the alien to withdraw, but that factors directly
relating to the issue of inadmissibility can be considered in determining what option would be in the best
interest of justice. Such factors might include, but are not limited to:
(1) The seriousness of the offense;
(2) Previous findings of inadmissibility against the alien;
(3) Intent on the part of the alien to violate the law: and
(4) ability to easily overcome the ground of inadmissibility (i.e., lack of documents).
If an applicant chooses accept an offer to withdraw, complete the necessary paperwork, obtain supervisory
concurrence in accordance with local procedures, and, if arriving at an airport, arrange for departure on the next
available transportation back to the country where the flight originated. An applicant who withdraws his or
her application for admission is not considered formally removed and therefore does not require permission to
reapply for admission to the U.S. Once the grounds of inadmissibility cease to exist, the alien may be eligible to
apply for a new visa to reenter the U.S.
(b) Jurisdiction. In most instances a withdrawal will be taken at the port-of-entry. However, there will be
instances where a detained alien, prior to or during the expedited removal credible fear process, is permitted to