Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
American Immigration Council v. DHS and CBP
Cover letter dated 10/12/12 from Shari Suzuki, Chief, FOIA Appeals, Policy and Litigation Branch, CBP, describing renewed searches by Office of Border Patrol and Office of Field Operations, which were asked to search “every division, port, sector and station,” and indicating that 60 pages of responsive records were being released.
Pages 1-2: CBP memo (7/30/03) re: attorney representation during the inspection process. 8 CFR 292.5(b) governs primary and secondary inspections at ports of entry, as well as deferred inspections, “which are the continuation of a secondary inspection conducted at an onward office.” Supervisory inspector may allow an attorney to attend a deferred inspection interview if he or she acts as “an observer and consultant to the applicant.”
Pages 8-9: Memo re: access to counsel in St. Albans Area Port in response to AIC/AILA letter alleging denial of access to counsel (at pages 10-18). Confirms that 7/30/03 CBP memo (at pages 1-2) is still in effect. No official policy to bar counsel from L and TN adjudications or from deferred inspection. Sets forth guidelines for legal professionals at ports of entry.
Pages 19-21: E-mail correspondence (6/24/11) from Acting Area Port Director, CBP, Boston, MA, instructing supervisors to allow attorneys to be present during deferred inspections provided they do not interfere or answer questions on behalf of clients. Characterized as a “dramatic change in policy” in e-mail response from Port Director, Service Port of Providence.
Pages 31-32: Letter (2/13/09) from Mike J. Fisher, Chief Patrol Agent, CBP, to David Blair-Loy, Legal Director, ACLU of San Diego & Imperial Counties, regarding procedures for attorney access to immigration detainees at Border Patrol temporary detention facility (“Barracks 5”) in San Ysidro. Also notes that immigration detainees at Barracks 5 have access to telephones, and that those who have requested removal hearings have received list of free legal service providers.
Page 39: Excerpt from Inspector’s Field Manual (IFM) (revised 5/16/05), Ch. 17.1 re: attorney representation at deferred inspection.
Page 41: Excerpt from IFM re: attorney access by noncitizens detained at ports of entry. 126.96.36.199 states in part: “The detainee will not be given the opportunity to consult with an attorney at any time before Miranda warnings are required and such right is invoked by the detainee.”
Page 45: Excerpt from undated IFM re: attorney representation at deferred inspection. Indicates that questions regarding attorney presence during deferred inspection may be referred to CBP Field Counsel.
Pages 46-47: CBP-AILA/LACBA liaison meeting questions & CBP responses (9/14/09). “Pursuant to 8 CFR 292.5(b) an alien at primary or secondary inspection is entitled to representation only when s/he becomes the focus of a criminal investigation and has been taken into custody. When the CBP officer examines an alien under these limited circumstances, the officer will advise the alien of his/her Miranda rights and afford the alien an opportunity to assert those rights and request that his/her attorney be present for the interrogation.”
Page 50: Contact Advisory of CBP Detention. Provides script for notifications by supervisory inspector at the request of an individual detained for more than 2 hours for a personal search. Notes that CBP detentions for personal searches do not constitute an arrest.
Page 51: Excerpt from unidentified manual re: request for attorney during personal search. “If, during the course of a personal search beyond a patdown, the person requests the presence of an attorney, you must advise him that no interrogation will take place; and, therefore, there is no right to have an attorney present during the remainder of the CBP examination. You may ask routine administrative questions, but be sure that you do not interrogate the person.”
Pages 52-54: Weekly muster (4/2/12), Blaine, WA Office of Field Operations, re: dealing with attorneys and other representatives at a port of entry.
Pages 57-60: E-mail correspondence (5/18/11-7/27/12) between Baltimore Field Office Operations Specialist – Border Security and Director of Field Operations, Baltimore re: restrictions on access to counsel. Distinguishes between rights under 8 CFR 292.5(b) of individuals already admitted to the United States, who are subject to “examination,” and applicants for admission outside the country, who are subject to “inspection.” Indicates willingness of Baltimore Field Office ports to exercise discretion to allow counsel to attend deferred inspection if they “abide by a few basic rules.”