Ability to Withdraw Application for Admission
When a foreign national applies for inspection and admission into the U.S. with U.S. Customs & Border Protection (CBP) officers, he or she may be unable to establish to the satisfaction of CBP that he or she is eligible to enter the U.S. In these circumstances, CBP may offer the foreign national the opportunity to withdraw his or her application for admission rather than be detained for a removal hearing or issued an expedited removal order.
According to the federal regulations, a foreign national's decision to withdraw his or her application for admission must be made voluntarily, however, permission to withdraw an application for admission is not guaranteed. Also, permission to withdraw an application for admission should not normally be granted by CBP unless the foreign national intends and is able to depart the United States immediately. [8 C.F.R. 1235.4]
Factors CBP Considers When Granting Permission to Withdraw
In considering whether to grant permission for an applicant to withdraw their application for admission, CBP relies on factors enumerated in the CBP Inspector's Field Manual. Specifically, the CBP Inspector's Field Manual relies the Board of Immigration Appeals (BIA) decision in Matter of Gutierrez, which held that factors relating directly to the foreign national's inadmissibility can be considered in determining what option (whether to grant or deny the applicants application for permission to withdraw their application for admission) would be in the "best interest of justice". Such factors might include, but are not limited to:
- The seriousness of the offense;
- Previous findings of inadmissibility against the alien;
- Intent on the part of the alien to violate the law: and
- Ability to easily overcome the ground of inadmissibility (i.e., lack of documents).
Withdrawing Application for Admission in Practice
In some circumstances, an immigration officer may allow a foreign national to withdraw his or her application, while at the same time, making inaccurate allegations in the foreign national's file. As a result, the negative language may cause problems for the foreign national at a later date by prevent admission into the U.S., either as a immigrant or nonimmigrant. In these circumstances, SRW's attorneys can assist the foreign national by advocating that the individual's record be cleared to accurately reflect events as they occurred.