At the Ambassador Bridge in Detroit, Michigan CBP handles up to 68,000 applicants for admission each day. According to the narrator, “a Canadian traveler’s edgy attitude lands her a secondary inspection.” Meanwhile, the officers searching her car observed that she was nervous. As her story unfolded, officers became more suspicious. Although she claimed to be meeting someone at the airport, she did not know the flight number or airline. Ultimately, the supervisor allowed her to withdraw her application for admission.
Canadians applying for admission to the United States in visitor status do not require a visa (8 CFR § 212.1(a)). They do, however, need to demonstrate that they meet the requirements for admission in visitor status. As written here before, applicants for admission to the U.S. in visitor status must meet three requirements (INA § 101(a)(15)(B)):
- A residence abroad that they do not intend to abandon,
- A temporary visit to the United States, and
- Engaging only in legitimate activities related to business or pleasure.
If a CBP officer determines that a Canadian applying for admission to the U.S. is not “clearly and beyond a doubt entitled to be admitted” then she may be returned to Canada pending a removal proceeding (see INA § 235(b)(2)(A), (C)). Alternatively, CBP officers have discretion to allow withdrawal of an application for admission to the U.S. (INA § 235(a)(4)).
CBP Directive 3340-043 and Ch 17 of the Inspectors Field Manual guide officers in appropriately exercising discretion to allow someone to withdraw an application for admission. According to these documents, applicants for admission do not have a right to withdraw their application, but withdrawal may be allowed as an alternative to removal proceedings when the alien is not clearly admissible. Factors that an officer may consider in deciding whether to allow someone to withdraw an application for admission include:
- good faith efforts to obtain correct information or documents prior to arrival,
- knowledge or ignorance of correct procedures or admissibility requirements,
- seriousness of the violation,
- previous findings of inadmissibility,
- intent to violate the law, and
- ability to easily overcome the ground of inadmissibility (i.e., lack of documents).
Generally, withdrawal of an application for admission is favored when the applicant makes innocent mistakes, or can easily overcome inadmissibility by obtaining proper documents.
Here, the traveler’s responses to CBP’s questions appeared consistent with the requirements for visitor travel. Meeting a friend at an airport is a legitimate activity, and nothing on the show suggested that she was coming to the U.S. permanently or did not have a residence in Canada. As the officer noted, however, she did not have the flight information for the person she claimed to be meeting. Since she did not have evidence of her claimed activities in the U.S., she was not “clearly and beyond a doubt entitled to be admitted.”
At the same time, she did not appear to have any intent to violate the law, or commit any serious violation. She could have easily marshaled some evidence in support of her application for admission, such as her friend’s flight records and other correspondence with her friend. Since the factors in this case were consistent with the factors listed above, she was permitted to withdraw her application for admission and return to Canada.