Upon presentation at a U.S. port of entry, inspecting officers sometimes allow inadmissible noncitizens to withdraw their applications for admission instead of subjecting them to removal proceedings.
Removal vs. Withdrawal
Under the IIRAIRA, nonimmigrants who are deemed inadmissible by inspecting officers may well prefer to withdraw their petitions. The stakes are high, with at least a five-year ban on admission if removal proceedings are successful and a perpetual ban on admission if inadmissibility is based on fraud or misrepresentation.
Conversely, lawful permanent residents, asylees, and refugees may prefer to contest removal. Noncitizens in these categories are not subject to expedited removal under the IIRAIRA; however, they are subject to abandoning their status if they fail to contest removal proceedings.
Factors Considered in Permitting Withdrawal
Withdrawal is not a matter of right; several factors are considered by inspecting officers in determining whether to allow withdrawal. The threshold factor that must appear is that the foreign national must appear to be inadmissible. If this criterion is met, the officer then considers whether withdrawal should be allowed in the best interest of justice. If a noncitizen is not subject to expedited removal, the officer may consider administrative factors such as the availability of detention space and the workload of immigration judges (IJs).
However, if the noncitizen is subject to expedited removal, the officer considers several factors, including the individual's intent, the seriousness of the individual's violation, any earlier findings of the individual's inadmissibility, the individual's age and health condition, and the individual's ability to later overcome the ground of inadmissibility. The officer may also consider any other humanitarian or public interest considerations.
Withdrawal procedures vary depending upon whether withdrawal is permitted at the port of entry or during a removal proceeding.
Withdrawal at a U.S. Port of Entry
If an officer at a port of entry decides to allow an individual to withdraw his or her application for admission to the U.S., the officer completes a form, detailing the inspection and including the individual's acknowledgement that the withdrawal was voluntary. If fraud was the ground of inadmissibility, the officer also takes the individual's sworn statement.
Generally, the officer stamps the noncitizen's visa as cancelled, noting the reason for cancellation on the visa page. If fraud was not the ground of inadmissibility, the officer sometimes leaves the visa intact. The visa, the form permitting withdrawal, the individual's acknowledgement, and the sworn statement, if applicable, are then forwarded to the consulate that issued the visa.
Withdrawal at a Removal Proceeding
The IIRAIRA explicitly permits IJs to allow noncitizens to withdraw their applications for admission during removal proceedings. In determining whether withdrawal will be allowed, an IJ must first determine that the noncitizen intends to leave the U.S. immediately and that he or she has the means to do so. Next, the IJ must be satisfied that the allowing the noncitizen to withdraw his or her application is in the interest of justice. Finally, after issues of excludability are resolved, the IJ should only grant withdrawal if U.S. Citizenship and Immigration Services (USCIS) agrees.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.