Obtaining A Copy of Your CBP File by filing a Freedom of Information Act (FOIA) Request

Question: Dear SRW Border Lawyers,  I am a 40-year-old citizen of Great Britain. Recently, I was denied an F-1 visa pursuant to section 214(b) of the Immigration and Nationality Act (INA). I was under the impression that I had a strong case, but obviously the consulate did not feel the same. During my visa interview, the officer asked me about my previous travels to the U.S. under the Visa Waiver Program (VWP).  The officer’s line of questioning led me to believe that something may have been noted on my record about a previous entry several months ago in February.

In February, I traveled to the U.S. and applied for admission at the Los Angles airport. I was questioned and subsequently sent to secondary inspection where Customs and Border Protection (CBP) proceeded to search my belongings.  When CBP searched my wallet, they found my business card and began to question me about working in the U.S. I flatly denied that I was entering the U.S. to work. I was eventually allowed to enter the U.S., but I fear that CBP may have made a note about this incident in my record, which will make it more difficult to enter the U.S.  How can we contact CBP to see what is in my record?

Answer: Thank you for your question.  Under INA §214(b), “Every alien (with limited exceptions) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under INA §101(a)(15).”  There are some exceptions to this presumption, but none that apply in your case from what you have stated.

Put another way, under INA §214(b), a foreign national has the burden to prove to the satisfaction of the consular officer that he or she qualifies for the visa they are seeking.  Consular officers apply a two-prong analysis when determining whether a foreign national is eligible for a particular visa. Pursuant to 9 FAM 40.7 N2, a foreign national must: (1) provide sufficient evidence of “ties” to his or her own country to overcome the presumption of immigrant intent, and (2) satisfactorily prove that he or she is entitled to the nonimmigrant status being applied for (e.g. F-1 as in your case).

At this point it, it is likely premature to conclude that your F-1 visa denial was due to a previous incident with CBP. Your denial may have been the result of simply failing to satisfy both prongs of the 214(b) analysis listed above. It is possible, however, that CBP placed an entry in your record that contributed to your denial. Simply put, we do not know. The best course of action is to suspend any travel to the U.S. until we can determine what, if anything, is on your record.

In order to obtain a copy of your file from U.S. Customs & Border Protection (CBP), we can assist you in filing a Freedom of Information Act (FOIA) Request with CBP to request a complete copy of your record. Once we have a copy of your record, we will then be able to determine what steps need to be taken in order to restore your ability to travel to the U.S., whether it be reapplying for a F-1 visa through the U.S. Consulate, following up with CBP to update your records, etc.    

Should you wish to speak to us in further detail regarding your U.S. immigration concerns, please call our office and set up a consultation.  We look forward to hearing from you and being able to assist you with your U.S. immigration matters. 

Best,

The SRW Border Team

Why Consultations are important

CBP finds Canadian Citizen Inadmissible to the U.S. for Unlawful Presence

Dear SRW Border Lawyers,

Question: I am a Canadian citizen who lives in Toronto, Ontario with my husband (who is also a Canadian citizen). I was born in Russia, but I acquired my Canadian citizenship several years ago. Both my mother and brother live in the U.S. and I try to visit them as much as I can. During my last stay in the U.S., I was admitted as a visitor and I stayed for one year; however, CBP did not stamp a date in my passport in which I had to leave. I returned to Canada briefly and then tried to re-enter the U.S. several weeks later. During that entry, Customs and Border Protection (CBP) saw that I was in the U.S. for a year and denied me admission. CBP told me that I was only authorized to say in the U.S. for six (6) months and found me inadmissible for three (3) years. As a Canadian, I thought I could stay in the U.S. as long as I wanted. Is there anything I can do remove my (3) three-year bar? How can I enter the U.S. to visit my family? I do not have any desire to be a U.S. LPR or U.S. citizen; I just want to enter the U.S. to see my family as much as possible.

Answer: Thank you for your question. We frequently encounter Canadians in situations similar to yours. On one hand, you are not given a date certain to leave the U.S., but when you remain in the U.S. past a certain period of time, CBP determines that you have accrued unlawful presence and as such, are subject to an unlawful presence bar under INA §212(a)(9)(B)(i). 

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are given an authorized time period in which they may remain. Once that time period has ended, if they have not otherwise sought to extend/change their status, they must depart the U.S.  If they do not depart the U.S., any periods of unlawful overstay could result in an "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.   As a Canadian citizen, while exempt from the requirement to obtain a non-immigrant visa to visit the U.S., you could become subject to this unlawful presence bar in certain circumstances.

Based on the facts that you have provided, CBP has found you inadmissible to the U.S. under INA §212(a)(9)(B)(i)(I), which means that you cannot re-enter the U.S. for a three (3) year period without first obtaining a waiver of such inadmissibility.  For information about how Canadians can apply for a non-immigrant waiver of inadmissibility (Form I-192), please click here.  This three (3) year bar applies to individuals who have been unlawfully present in the U.S. for a period of more than 180 days but less than one year, and have voluntarily departed the U.S. prior to commencement of removal proceedings.

However, from the brief information you have provided, it seems that when you were last admitted to the U.S., you were not given a exact date to depart by.  As a Canadian citizen who was not given a date certain to leave the U.S., you would not begin to accrue unlawful presence until one of the following takes place: (1) United States Citizenship and Immigration Services “USCIS” makes a finding that youl have violated your status; or (2) an Immigration Judge makes a determination that there was a status violation. Since it seems neither happened in your situation, I would question whether you are truly subject to a unlawful presence bar.  

In order to determine the next steps for you moving forward, whether it be a non-immigrant waiver to restore your ability to travel to the U.S. or to request that CBP update their records to reflect that you are not subject to an unlawful presence bar, we would need to speak with you to learn more about your particular case facts and review any documents you may have received from CBP when you were denied entry.  If our legal analysis determines that you should not be subject to an unlawful presence bar, then we can prepare a detailed packet to submit to CBP explaining how you could not have legally accrued a period of unlawful presence that would in effect subject you to a unlawful presence bar.

I encourage you to call our office to set up a consultation, so that we can discuss your case in greater detail. We look forward to assisting you with your immigration needs.