§ 235 (8 USC 1225) Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing |
§ 235 (8 USC 1225) Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing |
Inspection
Aliens treated as applicants for admission
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.
Stowaways
An arriving alien who is a stowaway is not eligible to apply for admission or to be admitted and shall be ordered removed upon inspection by an immigration officer. Upon such inspection if the alien indicates an intention to apply for asylum under section 208 of this Act [8 U.S.C 1158] or a fear of persecution, the officer shall refer the alien for an interview under subsection (b)(1)(B) of this section . A stowaway may apply for asylum only if the stowaway is found to have a credible fear of persecution under subsection (b)(1)(B) of this section . In no case may a stowaway be considered an applicant for admission or eligible for a hearing under section 240 of this Act [8 U.S.C 1229a] .
Inspection
All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.
Withdrawal of application for admission
An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.
Statements
An applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the United States, including the applicant's intended length of stay and whether the applicant intends to remain permanently or become a United States citizen, and whether the applicant is inadmissible.
Inspection of applicants for admission
Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled
Screening
In general
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) [8 U.S.C 1182(a)(6)(C)] or section 212(a)(7) of this Act [8 U.S.C 1182(a)(7)] , the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 of this Act [8 U.S.C 1158] or a fear of persecution.
Claims for asylum
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) [8 U.S.C 1182(a)(6)(C)] or section 212(a)(7) of this Act [8 U.S.C 1182(a)(7)] and the alien indicates either an intention to apply for asylum under section 208 of this Act [8 U.S.C 1158] or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).
Application to certain other aliens
In general
The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.
Aliens described
An alien described in this clause is an alien who is not described in subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.
Asylum interviews
Conduct by asylum officers
An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.
Referral of certain aliens
If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.
Removal without further review if no credible fear of persecution
In general
Subject to subclause (III) , if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.
Record of determination
The officer shall prepare a written record of a determination under subclause (I) . Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer's interview notes shall be attached to the written summary.
Review of determination
The Attorney General shall provide by regulation and upon the alien's request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).
Mandatory detention
Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.
Information about interviews
The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien's choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.
“Credible fear of persecution” defined
For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208 of this Act [8 U.S.C 1158] .
Limitation on administrative review
Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under
section 1746 of title 28
, after having been warned of the penalties for falsely making such claim under such conditions, to have been lawfully admitted for permanent residence, to have been admitted as a refugee under section 207 of this Act [8 U.S.C 1157] , or to have been granted asylum under section 208 of this Act [8 U.S.C 1158] .Limit on collateral attacks
In any action brought against an alien under section 275(a) of this Act [8 U.S.C 1325(a)] or section 276 of this Act [8 U.S.C 1326] , the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).
“Asylum officer” defined
As used in this paragraph, the term “asylum officer” means an immigration officer who—
has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 208 of this Act [8 U.S.C 1158] , and
is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.
Exception
Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.
Commonwealth of the Northern Mariana Islands
Nothing in this subsection shall be construed to authorize or require any person described in section 208(e) of this Act [8 U.S.C 1158(e)] to be permitted to apply for asylum under section 208 of this Act [8 U.S.C 1158] at any time before January 1, 2014.
Inspection of other aliens
In general
Subject to subparagraphs (B) and (C) , in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 of this Act [8 U.S.C 1229a] .
Exception
Subparagraph (A) shall not apply to an alien—
Treatment of aliens arriving from contiguous territory
In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240 of this Act [8 U.S.C 1229a] .
Challenge of decision
The decision of the examining immigration officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer and such challenge shall operate to take the alien whose privilege to be admitted is so challenged, before an immigration judge for a proceeding under section 240 of this Act [8 U.S.C 1229a] .
Removal of aliens inadmissible on security and related grounds
Removal without further hearing
If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under subparagraph (A) (other than clause (ii), (B), or (C) of section 212(a)(3) of this Act [8 U.S.C 1182(a)(3)] ), the officer or judge shall—
Review of order
The Attorney General shall review orders issued under paragraph (1).
If the Attorney General—
is satisfied on the basis of confidential information that the alien is inadmissible under subparagraph (A) (other than clause (ii), (B), or (C) of section 212(a)(3) of this Act [8 U.S.C 1182(a)(3)] ), and
after consulting with appropriate security agencies of the United States Government, concludes that disclosure of the information would be prejudicial to the public interest, safety, or security,
the Attorney General may order the alien removed without further inquiry or hearing by an immigration judge.
If the Attorney General does not order the removal of the alien under subparagraph (B), the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case.
Submission of statement and information
The alien or the alien's representative may submit a written statement and additional information for consideration by the Attorney General.
Authority relating to inspections
Authority to search conveyances
Immigration officers are authorized to board and search any vessel, aircraft, railway car, or other conveyance or vehicle in which they believe aliens are being brought into the United States.
Authority to order detention and delivery of arriving aliens
Immigration officers are authorized to order an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft bringing an alien (except an alien crewmember) to the United States—
Administration of oath and consideration of evidence
The Attorney General and any immigration officer shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service.
Subpoena authority
The Attorney General and any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States.
Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer may, in the event of neglect or refusal to respond to a subpoena issued under this paragraph or refusal to testify before an immigration officer, issue an order requiring such persons to appear before an immigration officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof.