This show is available on Netflix, and is worth watching for anyone practicing U.S. immigration law because the penalties presented on camera are far less severe than the actual penalties that the travelers likely suffered. While not necessarily deliberate, the picture presented to viewers may set up unwitting travelers to a game of ‘gotcha’ at the port of entry.
Introduction
At the Pacific Highway Port of Entry in Washington, a German couple on their way to California was sent into secondary inspection. One of the applicants for admission had a Canadian work permit and claimed to have a job at a restaurant. Both declared that they did not intend to work in the U.S. After telling the couple to take a seat, the officers began a more thorough inspection.
While one officer searched their phones, two more began searching the car. In the car, officers found documentary confirmation that the couple intended to begin employment in California. After being asked again about employment, and being warned a second time that lying could result in being banned from the U.S. and possible criminal charges, the couple continued to deny that they were coming to the U.S. to work. At that point, they were confronted with the evidence found in the car.
The couple claimed that they only expressed interest in working and were later told that the employer couldn’t hire them. On camera, an officer stated that the couple did not have any evidence that they had ceased seeking employment in the U.S. At the conclusion of secondary inspection, the interviewing officer told them that they did not appear to have an unrelinquished foreign residence in Germany. Additionally, CBP found that they were intending to work in the U.S. Lastly, they were told that in the future, they will need to go to a U.S. embassy or consulate to obtain a visa before seeking admission to the United States.
What this episode does not show the viewer is that this couple was probably also subject to a formal finding of inadmissibility, and will need to seek an inadmissibility waiver at the same time either of them applies for a visa in the future.
Visa Waiver Program
Germany participates in the visa waiver program, which means that German citizens may be able to bypass the visa application process.[1] Anyone who is “removed as deportable” from the United States, however, can no longer participate in the program.[2] Refusal of admission to the US, by contrast, does not necessarily exclude someone from participation in the visa waiver program.[3] Since the couple was told that they can no longer participate in the visa waiver program (i.e. they must seek a visa before returning to the U.S.), they must have been ordered removed from the United States.
Among the classes of deportable aliens are aliens who are inadmissible to the United States at the time of entry.[4] Based on the information revealed to the viewer, the most likely basis for this couple’s inadmissibility is misrepresentation of a material fact.
Misrepresentation
Any alien who seeks to obtain an immigration benefit by misrepresenting a material fact is inadmissible to the United States.[5] A fact is “material” if it has a “natural tendency to influence the decision” of an immigration officer.[6]
Here the couple told the inspecting officer several times that they did not intend to work in the United States. As the evidence demonstrated their intent to work in the United States, this statement was a misrepresentation. Since intent to accept unauthorized employment is a basis for refusing admission to the United States, this fact naturally tends to influence an inspecting officer’s decision of whether to grant or refuse admission. Therefore, this couple sought an immigration benefit by misrepresenting a material fact.
Additional penalties for misrepresentation
A finding of misrepresentation at a port of entry results in lifetime inadmissibility to the United States. Additionally, aliens arriving at a port of entry who are found inadmissible due to misrepresenting a material fact are subject to expedited removal.[7] Any alien subject to expedited removal is inadmissible to the United States for a period of 5 years from the date of removal.[8] Therefore, each individual shown on this episode must seek a waiver before applying for admission to the United States. If either of them wishes to travel to the United States within the next five years, he or she must simultaneously seek a waiver of the 5-year bar.
These legal conclusions were not shown to the viewer. Indeed, the couple themselves may not encounter this reality until they apply for a visa to visit the United States.
Conclusion
Any alien removed as deportable is ineligible to participate in the visa waiver program. Since no other basis for ineligibility is listed in the regulations, the couple in this episode must have been removed from the United States. Based on the available footage, they were likely found inadmissible due to misrepresentation of a material fact. This finding is punished by permanent inadmissibility as well as a five-year bar from applying for admission to the United States. As a result, each of them will require at least one waiver of inadmissibility for the rest of their border crossing days.
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