As the U.S. government heightens its focus on national security, international travelers—especially visa holders and lawful permanent residents—are experiencing increased scrutiny at ports of entry.
U.S. Customs and Border Protection has broad legal authority to inspect and search electronic devices — including phones, laptops, tablets, USB drives, and external hard drives – at the border. These searches do not require a warrant, probable cause, or even individualized suspicion, and can be conducted as part of routine screening at any U.S. port of entry. CBP’s authority extends to both incoming and outgoing travelers at any U.S. port of entry.
Here’s a summary of what to expect at the border, your rights and responsibilities, and how to prepare.
Recent Executive Order: Heightened national security screening
On January 20, the White House issued Executive Order 14161: Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats. This Executive Order directs federal agencies, including CBP and U.S. Citizenship and Immigration Services, to implement more rigorous screening procedures for individuals seeking entry into the United States.
Key implications for travelers include the following:

• Expanded data collection. The E.O. authorizes enhanced vetting measures and broader analysis of personal data, including social media activity and electronic records.
• More detailed questioning. Travelers may face additional scrutiny related to travel purpose, background, or affiliations.
• Longer processing times. Enhanced screening could result in delays at ports of entry.

Travelers should assume that both device content and online presence may be reviewed during inspection. Accuracy, consistency, and preparedness are essential.
CBP device searches
CBP categorizes searches into two types:
No. 1: Basic search

• Officers may ask you to unlock your device and may manually examine its contents.
• Officers may browse through your photos, documents, contacts, call logs, emails, messages, downloaded apps, and browsing history.
• Officers cannot access cloud content unless it's already downloaded onto the device or auto-synced.
• You may be asked to put the device in airplane mode to prevent cloud-based data retrieval.

No. 2: Advanced search

• If flagged for further scrutiny, CBP may connect your device to a specialized forensic tool to copy, review, and analyze data.
• This could include hidden files or deleted content.
• CBP may retain the device temporarily (typically for no more than five days, though extensions are possible) for off-site analysis.

Social media scrutiny
In addition to CBP’s authority to search devices, U.S. immigration agencies are expanding efforts to review the digital footprints of applicants and travelers. A recent notice proposes that the USCIS begin collecting social media identifiers from individuals applying for immigration benefits—including green cards, naturalization, asylum, and refugee status. This proposed rule reflects a growing trend toward incorporating social media review into vetting and background checks.
Travelers and visa applicants should consider doing the following:

• Review your profiles. Ensure your personal, employment, and location details match your immigration records.
• Adjust your privacy settings. Limit public access to sensitive content, while maintaining a professional presence.
• Be thoughtful about online posts and interactions. Avoid creating content that could be interpreted as inconsistent with your immigration status or entry purpose.
• Delete inactive or outdated accounts. Especially those that may contain conflicting personal details or old user names.

If you refuse to provide access

• U.S. citizens cannot be denied entry for refusing to unlock a device. However, non-citizens—including visa holders and lawful permanent residents—can be refused admission or face delays.
• It is important to note, in some cases, that CBP may seize the device, escalate questioning, or refer the case to other agencies.

Know the limits of your legal recourse
CBP’s border search policies—including those on electronic devices—are governed by internal directives and longstanding federal law. These policies are designed to guide CBP operations but do not create or confer any personal rights, privileges, or legal remedies for travelers. In other words, travelers generally cannot sue CBP for following these policies unless a separate legal violation can be shown​.
Traveling with electronics
To protect your privacy and reduce the risk of delays or data exposure, you should do the following:
Before you travel:

• Back up your device, and travel with minimal data.
• Log out of social media and email apps; disable biometric access (for example, Face ID, fingerprint).
• Consider using guest profiles or temporary “travel devices.”
• Turn off cloud syncing, or remove apps that store sensitive information (for example, Slack, Dropbox, Signal).
• Encrypt your device, and use strong alphanumeric passwords.
• Consider storing critical work files or privileged content in secure cloud storage (and sign out of those services).

During travel:

• Cooperate respectfully if asked to unlock a device, but avoid volunteering access to apps or platforms.
• If detained or questioned extensively, ask to speak with legal counsel or your company’s HR contact.

After re-entry:

• Monitor for signs of data access or tampering if your device was taken or searched.
• Consider changing passwords and enabling multi-factor authentication on sensitive accounts.
• Notify your legal or compliance team if any privileged, confidential, or regulated data may have been accessed.

Additional tips

• Be prepared to explain your travel purpose, employer, and visa status clearly and concisely.
• Ensure device data does not conflict with your stated purpose of entry.
• Avoid saving politically sensitive material or participating in online discussions that could be misinterpreted.

Filing a complaint
If you believe your device was mishandled or your rights were violated during a CBP search, you can file a redress request through the Department of Homeland Security Traveler Redress Inquiry Program, known as “TRIP” for short. TRIP is a formal avenue for travelers to inquire about or resolve issues related to CBP inspections, delays, or treatment at the border. Complaint or redress requests can be submitted here.
Unfortunately for international travelers—particularly visa holders and lawful permanent residents—electronic device searches are no longer rare exceptions but a routine part of CBP’s screening authority. Travelers should assume that anything accessible on a personal device could be subject to review.

Highlights of the New Executive Orders relating to immigration law and policies signed since January 2025.
​
National Emergency Declaration at the Southern Border
President Trump declared a national emergency to mobilize the U.S. military, expedite border wall construction, and bolster surveillance through drones and advanced technology. This measure aims to deter illegal crossings and improve border integrity and security.

Designation of Drug Cartels as Foreign Terrorist Organizations
The administration has classified drug cartels as “foreign terrorist organizations.” This designation will facilitate more robust measures against their operations and may influence broader immigration enforcement actions.

End of Humanitarian Parole Programs
The administration continues to affirm plans to terminate programs that had provided legal pathways for migrants from countries like Cuba, Haiti, Nicaragua, and Venezuela, as well as similar programs for Afghans, Ukrainians, and other groups. This signals a shift away from temporary humanitarian admissions and toward stricter immigration controls.

Re-examination of Temporary Protected Status grants to ensure they “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute”.

Changes to Asylum and Refugee Policies
The executive orders aim to end “catch and release” practices and significantly restrict asylum rights, reducing the ability of migrants to seek protection upon arrival. These measures may face legal challenges claiming they are inconsistent with existing U.S. and international law.
​
Additionally, the administration intends to suspend the refugee resettlement program for four months. The refugee resettlement program has, for several decades, allowed hundreds of thousands of people fleeing war and persecution to come to the United States. President Trump similarly suspended the refugee program at the beginning of his first term, and, after reinstating it, significantly reduced the number of refugees admitted annually.

Enhanced Interior Enforcement
Key actions include reinstating the “Remain in Mexico” policy, expanding the 287(g) program—which deputizes state and local officials as federal immigration enforcement agents—and issuing financial penalties to sanctuary cities that do not cooperate with federal immigration authorities. Both actions reflect the Trump administration’s campaign promise to crack down on illegal immigration and carry out mass deportations.

A measure “ensuring that employment authorization is provided in a manner consistent with [existing employment authorization regulations], and that employment authorization is not provided to any unauthorized alien in the United States.”

A directive to “take all appropriate action. . .to encourage aliens unlawfully in the United States to voluntarily depart as soon as possible.”

Increased use of detention pending removal from the United States.

End Birthright Citizenship
One of the key announcements is the effort to end birthright citizenship. Birthright citizenship ensures that anyone born in the United States automatically becomes an American citizen. It is expected to face legal challenges.

The new Executive Order challenges this historical precedent, and seeks to limit citizenship to children of at least one U.S. citizen or lawful permanent resident (green card holder), regardless of physical presence.
On January 20, 2025, Inauguration Day, President Trump signed an executive order entitled “Protecting the Meaning and Value of American Citizenship”, which interprets the language “subject to the jurisdiction thereof” in the Fourteenth Amendment of the Constitution to mean that U.S. citizenship does not extend to individuals born in the United States:
1. when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth,
2. or when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The Executive Order directs agencies not to “issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to individuals falling within these categories.

The Executive Order specifies that it applies “only to persons who are born within the United States after 30 days from the date of this order”, after February 19, 2025, and does not explain whether the U.S. citizenship of a child who has already been born to two non-U.S. citizen or LPR parents will continue to be recognized.
Based on the text of the EO, citizenship would also no longer be granted children born to individuals on temporary visas, including employment-based visas. The Executive Order is scheduled to take effect on February 19, 2025, however a legal challenge has already been filed. Other lawsuits are sure to follow, and the executive order may be blocked by federal courts. 

Visa applicants and employers can expect to see many of these policies implemented immediately, which may result in processing delays and even possible denials. The Executive Order also directs various agencies to -- within 60 days -- identify countries that may post a security risk and for which a suspension of admission may be warranted. This directive signals a potential return of policies similar to the travel ban that was implemented in 2017 against several countries. 

Florida’s Role in Supporting Federal Immigration Goals
Florida has proposed legislation designed to align Florida’s state policies with the Trump administration’s federal immigration priorities. These include:

• Maximum Participation in the 287(g) Program: Florida will mandate compliance from local officials, imposing penalties for non-compliance.
• State Crime for Illegal Entry: The legislation creates a state offense for illegal entry, coupled with a self-deportation mechanism.
• Unauthorized Alien Transport Program (UATP): Expansion of this program will facilitate the detention and deportation of unauthorized individuals.
• Repeal of In-State Tuition for Undocumented Students: This move underscores a stricter approach to benefits extended to unauthorized residents.
• Voter Registration Reforms: Measures will ensure identity verification and impose severe penalties for voter fraud.
• Restrictions on Financial Transfers: New rules will require identity verification for foreign remittance transfers, aiming to reduce potential misuse.

Implications and Challenges
These policies are expected to face legal challenges. Some of them can be declared invalid by the courts. 

DHS Announces Expedited Asylum Processing at Northern Border to Deter Unauthorized Migrants

The Department of Homeland Security (DHS) has announced measures to reduce unauthorized migration across the U.S. border with Canada:

• Starting August 14, 2024, asylum officers conducting threshold screening interviews (TSI) for noncitizens who are processed pursuant to the U.S.-Canada Safe Third Country Agreement (STCA) are considering credible testimony, documents, and other reliable evidence available at the time of the TSI. Additional documentary evidence may not be submitted after the interview concludes, DHS announced, noting that “[a] lack of documentary evidence alone does not preclude noncitizens from establishing that they qualify for an exception to the STCA.”
• Additionally, DHS has reduced the time period for noncitizens to consult with attorneys or representatives before their TSIs from 24 hours to “a minimum of four hours beginning at the time the noncitizen is provided an opportunity to consult with a person of the noncitizen’s choosing and continuing only during the hours of 7 a.m. and 7 p.m. local time.”

“DHS carefully reviewed its implementation of the Safe Third Country Agreement with Canada and concluded that it could streamline that process at the border without impacting noncitizens’ ability to have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,” the agency said. Migrants crossing the northern border without authorization and taken into U.S. custody increased from 2,200 in 2022 to a record 16, 500 so far in fiscal year 2024.

Read more at:

• USCIS notice (Aug. 13, 2024).
• S. to Speed Up Asylum Processing at Northern Border to Deter Migrant Crossings, CBS News (Aug. 14, 2024).

On February 21, 2023, the Biden administration recently announced a proposed asylum regulation. It would create a new asylum application process for adults and families who present themselves unannounced to U.S. border officials to request asylum, and had traveled through another country on their way to the U.S. without applying for asylum – and being denied — there.

The government insists that every asylum seeker has the power to avoid the ban by sticking to what it calls “lawful pathways”, that implies it’s unlawful to seek asylum if you enter the United States between ports of entry. And the regulation creates a whole procedure to determine whether and how the ban applies.

So, to illustrate the steps of the proposed regulation, here is “How to Seek Asylum In the United States (Under the Biden Administration’s Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps" created by a non-profit  organization American Immigration Council.

• Step 1: If you are from Cuba, Haiti, Nicaragua, Ukraine or Venezuela, and you have not irregularly entered Panama (through the Darién) or Mexico: go to step 2. If not, go to step 3.
• Step 2: If you have people in the U.S. willing to sponsor you who make enough money, cash for airfare, a passport, and time to wait: apply for humanitarian parole, which will allow you to fly into the U.S. and work legally for 2 years. If you don’t, go to Mexico and Step 3.
• Step 3: Try to find safe shelter on the Mexican side of the border (while evading Mexican immigration enforcement if you don’t have permission to be in Mexico). If you can find it, and you have the ability to freely travel to a port of entry (instead of having your smuggler decree where you’ll be crossing), go to step 4. If not, cross into the U.S. between ports of entry, request asylum, and go to step 7 for your eventual screening interview.
• Step 4: If you have a phone that can install CBP One, the ability to read English, Spanish, or Haitian Kreyol (but really just English, since that’s what the error messages are in), and patience to try to search for appointments day after day when the limited slots fill up or the app glitches: download CBP One and keep trying to get an appointment until you access the normal asylum process. If you run out of patience, money, or hope, go to step 5.
• Step 5: Go to the port of entry – assuming there aren’t U.S. or Mexican officials positioned in front of it preventing you from setting foot on U.S. soil. Try to get the attention of an officer and request asylum if you make it onto U.S. soil, then go to step 6.
• Step 6: Wait for your credible fear interview with an asylum officer. You can argue to them that you were unable to use CBP One due to an “ongoing and serious obstacle”; the burden is on you to prove that. If you can persuade the official it is more likely than not you were thus prevented, go to the normal asylum process, starting with a credible fear interview. Otherwise, go to step 7.
• Step 7: The asylum officer will ask whether you applied for—and were denied—asylum in another country before coming to the U.S. If you didn’t, you are now presumed barred: ineligible for asylum. Go to step 8.
• Step 8: The asylum officer will now find out if you qualify for an exemption to the bar – in legal terms, whether you “rebut the presumption” of ineligibility. If you were subject to an “acute” medical emergency; in “imminent and extreme danger;” or being trafficked in a “severe form” and can demonstrate all of this to the asylum officer’s satisfaction, you will be allowed to access the normal asylum process, including a credible fear interview. Otherwise, go to step 9.
• Step 9: At this point, the interview will proceed like a normal asylum screening interview, with questions about persecution faced in your home country and why you fear return. But the standard for passing the interview has shifted. Instead of the normal asylum process, which uses a “credible” standard met by 60 percent of interviewees over the last year (though it’s been higher in the past), you’re now subject to a “reasonable” standard that about a third of interviewees have met over that period. If you can pass the higher bar, you pass the interview and will be allowed to stay in the U.S. to appear before an immigration judge; go to step 11. If you can’t, go to step 10.
• Step 10: You fail the interview. If you want to appeal to a judge, request it in writing and go to step 12; otherwise, you will be deported.
• Step 11: You are allowed to apply for asylum before the immigration judge. However, it’s not clear from the draft regulation what happens next. The text of the draft regulation doesn’t say anything further has to happen, so judging by that, you will be allowed to access the normal asylum process. But the way DHS says the new system will work—in the preamble published in the Federal Register alongside the draft regulation, and on its website—is more complicated, and suggests you may still be ineligible for asylum and could only apply for “withholding of removal.” That means it’s possible the final regulation will be changed to reflect the more complicated process, and if not, the ambiguity may be used to your disadvantage. For that, go to step 12.
• Step 12: The judge reviews your interview transcript with the asylum officer and does their own review of whether you have demonstrated that you meet an exception to the bar (like the asylum officer did in step 8). If they find you do, you will be allowed to access the normal asylum process. If not, they’ll then review whether you demonstrate “reasonable fear” (as in step 9). If they find you do have a “reasonable fear,” you may be allowed to access the normal asylum process, or may be restricted to withholding of removal. If they find you don’t, you will be deported.

This chart is not meant to be legal advice. Because if this seems convoluted—not to mention unclear—then know that the government is giving both itself and the public less than the usual amount of time to comment on and revise the draft regulation before it’s finalized.

Please note that this is still a proposed rule. The period for public comment is short—30 days instead of 60—and the time the government will take to read those comments could be constrained. The Biden administration has said that it anticipates it will have a new policy regime in place to succeed Title 42 when the national COVID emergency ends, which is currently set to happen on May 11, 2023. This regulation is written to serve as that policy: it says it won’t go into effect until Title 42 ends, which means the administration thinks there’s a good chance it will be finalized before then. That gives the government as little as six weeks for a process that often takes up to a year.

Read more here.

After almost three months of using facial recognition biometrics to help verify international travelers at U.S. points of entry, Customs and Border Protection officials say they have used the technology to prevent 26 alleged imposters from entering the country.

Border Protection officials began rolling out facial biometric projects at airports and land crossings this summer. As travelers enter the U.S., they are ushered directly to a CBP official, who checks their documentation while overhead cameras match their faces to a gallery of images. For U.S. citizens, the picture is matched to the passport photo on file. If the photos don’t match, the travel is pulled aside for further investigation.

Washington Dulles International Airport recorded the first detention due to facial recognition technology just three days after the new system was turned on, stopping a Congolese national attempting to enter the country on a false French passport. Since that time, Dulles’ program has stopped two more alleged imposters.

The facial recognition entry program is currently running at 15 international airports, though no others have reported detentions or arrests due to the systems, according to CBP figures.

Facial biometric programs in place at land border crossings have proven more useful, according to the numbers. As of Nov. 20, 2018, CBP officers have apprehended 23 people trying to enter the country illegally at the southwest border in Arizona: 18 at the crossing in Nogales and five at San Luis.

With land and air pilots running, CBP recently began testing the technology at sea, as well. Facial recognition pilots have started for travelers debarking in the U.S. from Royal Caribbean, Norwegian and Celebrity cruise lines. These pilots have yet to flag any potential imposters traveling aboard.

Several airlines and eight international airports are also using facial recognition for boarding planes, including Air France/KLM, Scandinavian Airlines and some United flights out of Dulles.

Read here.

Know Your Rights:

International travelers to USA continue to experience heightened scrutiny at U.S. Ports of Entry (airports). Travelers often carry an electronic device such as a cell phone or a laptop.

The current administration’s focus on border security has increased concerns about how to protect personal and corporate data contained on electronic devices from searches at the border, airport.

On January 4, 2018, CBP issued a new directive titled “Border Search of Electronic Devices.” The directive provides “guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices.”

CBP has long engaged in the search of electronic devices at the airport and the border. This new guidance addresses “the rights of individuals against unreasonable search and seizure and ensure privacy protections” while setting forth specific procedures CBP must follow in carrying out their duties.

One major topic is the type of information CBP officers may access on electronic devices. Specifically, CBP may only access information that is stored directly on the device at the time it is presented for inspection. CBP officers may not access information that is stored remotely (in the cloud). In order to ensure that this procedure is properly carried out, CBP has instructed officers to disable a device’s wireless features that would allow access of remote information.

The directive further addresses how officers should review and handle sensitive material, such as documentation protected by attorney-client privilege, medical records, and work-related information carried by journalists. The guidance does not indicate that this information is off-limits, but instead puts in place limitations on which government agencies may review and share the information in order to ensure proper security protections are in place. A CBP officer may request passwords to access any password-protected or encrypted information contained directly on an electronic device.

CBP officers have the discretion to search electronic devices when a traveler makes an application for entry into the United States. If an individual refuses to allow the search of a device, the device can be confiscated. CBP also may refuse to admit a nonimmigrant visa holder who does not comply with search requests.

The January 4th 2018 directive does not change CBP existing border search practices and policies, but provides some clarification. Electronic devices may continue to be seized if a traveler refuses to present them for inspection, but the guidance provides some specifics as to maintenance of both devices and information obtained from devices, of which detention should be limited to a “reasonable period of time.” CBP states that a device that is seized should generally not be held for more than five days to determine whether there is reasonable cause for continued search and seizure.

​DHS and CBP new directive and guidance can be found here.

Starting in January 2017, a new administration has issued multiple immigration-related Executive Orders and implementing memoranda.

These orders and memoranda touch on nearly all areas of immigration enforcement, including the treatment of immigrant children.

March 2017 ILRC guidance addresses possible ways that UACs may be affected by these changes.

We do not know how these policies will play out in practice, and there will likely be legal and advocacy challenges to their implementation.

Limiting Who Can Be Considered a UAC.

 UAC is defined as a child who:

1) has no immigration status in the U.S.;

2) is under 18 years old; and

3) has no parent or legal guardian in the U.S., or no parent or legal guardian in the U.S. who is available to provide care and physical custody.

When children from non-contiguous countries are apprehended by Customs & Border Protection (CBP) or Immigration & Customs Enforcement (ICE), those agencies must notify the Department of Health & Human Services (HHS) within 48 hours, and transfer the child to HHS within 72 hours of determining them to be a UAC.

Such notice and transfer are also required for UACs from contiguous countries, provided that they trigger trafficking or asylum concerns or are unable to make an independent decision to withdraw their application for admission.

Many UACs are apprehended by CBP at the border, such that even those who do have parent(s) in the U.S. typically do not have parents that are “available to provide care and physical custody” in the short time in which CBP must determine if the child meets the UAC definition. Because of this, some children are classified as UACs even though they have a parent in the U.S., consistent with the definition’s disjunctive third prong.

Under previous USCIS guidance and practice, once a child is classified as a UAC, the child continues to be treated as a UAC, regardless of whether they continue to meet the definition. The UAC designation is generally beneficial because the law provides for more child-friendly standards for UACs. In an apparent effort to limit the number of youth who are classified as UACs, the Dept. of Homeland Security (DHS) Memorandum implementing the recent Executive Order on border enforcement (“Border Enforcement Memo”) directs U.S. Citizenship & Immigration Services (USCIS), CBP, and ICE to develop “uniform written guidance and training” on who should be classified as a UAC, and when and how that classification should be reassessed.5 This guidance has not yet been developed.

But we anticipate that we may see any or all of the following changes:

--  Fewer children being classified as UACs upon apprehension. This could result in these children being subject to expedited removal (fast-track deportation without seeing an Immigration Judge), rather than being placed in removal proceedings under INA § 240, as the law requires for all UACs from non-contiguous countries and those who pass the screening from contiguous countries.

-- This could also result in more children being detained by DHS in detention centers rather than by HHS in less restrictive settings.

-- Children who are initially classified as UACs being stripped of that designation—formally or informally--once they turn 18 and/or reunify with a parent and/or obtain a legal guardian.

Federal law offers certain benefits to UACs. Losing that designation may deprive the affected children of those protections, meaning that they may:
1) no longer be able to avail themselves of the provision of law that allows UACs to file their asylum applications with USCIS in a non-adversarial setting despite being in removal proceedings;
2) be subject to expedited removal after being released from HHS custody rather than being placed in removal proceedings under INA § 240;
3) not receive post release services from HHS;
4) no longer be eligible for certain government-funded legal representation programs for UACs; and
5) no longer be eligible for voluntary departure at no cost.

Punishing Sponsors & Family Members of UACs

The Border Enforcement Memo also seeks to penalize parents, family members, and any other individual who “directly or indirectly . . . facilitates the smuggling or trafficking of an alien child into the U.S.” This could include persons who help to arrange the child’s travel to the U.S., help pay for a guide for the child from their home country to the U.S., or otherwise encourage the child to enter the U.S.10 Pursuant to the Border Enforcement Memo, enforcement against parents, family members or other individuals involved in the child’s unlawful entry into the U.S. could include (but is not limited to) placing such person in removal proceedings if they are removable, or referring them for criminal prosecution. We do not know how this provision will play out in practice.

​But even the inclusion of this language in the memo may cause panic and dissuade parents, family members or other adults from 1) sending children to the U.S. (typically done when children face imminent harm in their home country); 2) sponsoring children out of HHS custody once they are in the U.S.; 3) assisting in children’s applications for immigration relief, including asylum; 4) otherwise assisting children in fighting against deportation.

Criminalizing Young People

​Under the DHS memo implementing the Executive Order on interior enforcement, DHS’s enforcement priorities have been vastly expanded. While DHS previously focused its resources on removing people with serious criminal convictions, now DHS will take action to deport anyone it considers a “criminal alien.” The current administration’s definition of a criminal alien is incredibly broad, including people with criminal convictions, but also those charged with criminal offenses, or who have committed acts that could constitute a criminal offense.

Immigration law has long treated juvenile delinquency differently than criminal convictions, and that law is unchanged. However, it is unclear given the broad scope of the new enforcement plan whether delinquency will be considered a “criminal offense” and thus a priority for purposes of enforcement (even though it may not make a person inadmissible or deportable under the immigration laws). It remains to be seen how these expanded enforcement priorities will play out. 

See a new March 2017 guidance here.

​

​
​On February 20 and 21, 2017, DHS USCIS had published several Memorandums, Fact Sheets and Q&As at their official website, explaining changed border and interior immigration policies and priorities, following the executive branch's January 2017 executive orders. 

Two USCIS Memorandums, both dated February 20, 2017, and signed by the DHS Secretary John Kelly, authorize CBP, ICE and USCIS to significantly increase interior and border enforcement efforts:

Border protection and enforcement, building the wall and hiring at least 10,000 more ICE agents; expedited removal will apply to a broader class of undocumented immigrants; changes to asylum application process and credible fear interview, intended to make it more difficult to get a grant of asylum; criminal sanctions for parents of unaccompanied children; anyone present in USA without a proper visa or status will be subject to deportation; changing old DHS removal priorities from criminal aliens to all undocumented aliens; DACA grantees are safe from deportation at present time.

• Implementing the President's Border Security and Immigration Enforcement Improvements Policies
• Enforcement of the Immigration Laws to Serve the National Interest
• Fact Sheet: Executive Order: Border Security and Immigration Enforcement Improvements
• Fact Sheet: Enhancing Public Safety in the Interior of the United States
• Q&A: DHS Implementation of the Executive Order on Border Security and Immigration Enforcement
• Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States

Actions (Fact Sheet, 02/21/2017, Executive Order: Border Security and Immigration Enforcement Improvements ):

• Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense. 
• Establishing policies regarding the apprehension and detention of aliens. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) will release aliens from custody only under limited circumstances, such as when removing them from the country, when an alien obtains an order granting relief by statute, when it is determined that the alien is a U.S. citizen, legal permanent resident, refugee, or asylee, or that the alien holds another protected status, when an arriving alien has been found to have a credible fear of persecution or torture and the alien satisfactorily establishes his identity and that he is not a security or flight risk, or when otherwise required to do so by statute or order by a competent judicial or administrative authority.
• Hiring more CBP agents and officers. CBP will immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air & Marine agents and officers, while ensuring consistency in training and standards.
• Identifying and quantifying sources of aid to Mexico. The President has directed the heads of all executive departments to identify and quantify all sources of direct and indirect federal aid or assistance to the government of Mexico. DHS will identify all sources of aid for each of the last five fiscal years.
• Expansion of the 287(g) program in the border region. Section 287(g) of the INA authorizes written agreements with a state or political subdivision to authorize qualified officers or employees to perform the functions of an immigration officer. Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions.
• Commissioning a comprehensive study of border security. DHS will conduct a comprehensive study of the security of the southern border (air, land, and maritime) to identify vulnerabilities and provide recommendations to enhance border security. This will include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control of the border.
• Constructing and funding a border wall. DHS will immediately identify and allocate all sources of available funding for the planning, design, construction, and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project.
• Expanding expedited removal. The DHS Secretary has the authority to apply expedited removal provisions to aliens who have not been admitted or paroled into the United States, who are inadmissible, and who have not been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility, so that such aliens are immediately removed unless the alien is an unaccompanied minor, intends to apply for asylum or has a fear of persecution or torture in their home country, or claims to have lawful immigration status. To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. The Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act that expands the category of aliens subject to expedited removal to the extent the DHS Secretary determines is appropriate, and CBP and ICE are directed to conform the use of expedited removal procedures to the designations made in this notice upon its publication.
• Returning aliens to contiguous countries. When aliens apprehended do not pose a risk of a subsequent illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings, saves DHS detention and adjudication resources for other priority aliens.  CBP and ICE personnel shall, to the extent lawful, appropriate and reasonably practicable, return such aliens to such territories pending their hearings.
• Enhancing Asylum Referrals and Credible Fear Determinations. U.S. Citizenship and Immigration Services (USCIS) officers will conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. USCIS will also increase the operational capacity of the Fraud Detection and National Security Directorate.
• Allocating resources and personnel to the southern border for detention of aliens and adjudication of claims. CBP and ICE will allocate available resources to expand detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable. CBP will focus on short-term detention of 72 hours or less; ICE will focus on all other detention capabilities.
• Properly using parole authority. Parole into the United States will be used sparingly and only in cases where, after careful consideration of the circumstances, parole is needed because of demonstrated urgent humanitarian reasons or significant public benefit. Notwithstanding other more general implementation guidance, and pending further review by the Secretary and further guidance from the Director of ICE, the ICE policy directive with respect to parole for certain arriving aliens found to have a credible fear of persecution or torture shall remain in full force and effect.
• Processing and treatment of unaccompanied alien minors encountered at the border. CBP, ICE, and USCIS will establish standardized review procedures to confirm that alien children who are initially determined to be unaccompanied alien children continue to fall within the statutory definition when being considered for the legal protections afforded to such children as they go through the removal process.
• Putting into place accountability measures to protect alien children from exploitation and prevent abuses of immigration laws. The smuggling or trafficking of alien children into the United States puts those children at grave risk of violence and sexual exploitation.  CBP and ICE will ensure the proper enforcement of our immigration laws against those who facilitate such smuggling or trafficking.
• Prioritizing criminal prosecutions for immigration offenses committed at the border. To counter the ongoing threat to the security of the southern border, the directors of the Joint Task Forces-West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs), are directed to plan and implement enhanced counter-network operations directed at disrupting transnational criminal organizations, focused on those involved in human smuggling.
• Public Reporting of Border Apprehensions Data. In order to promote transparency, CBP and ICE will develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for violating the immigration law.

Actions (Fact Sheet, 02/21/2017: Enhancing Public Safety in the Interior of the United States)

• Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense. 
• The Department’s Enforcement Priorities. Congress has defined the Department’s role and responsibilities regarding the enforcement of the immigration laws of the United States. Effective immediately, and consistent with Article II, Section 3 of the U.S. Constitution and Section 3331 of Title 5, U.S. Code, Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens. 
• Strengthening Programs to Facilitate the Efficient and Faithful Execution of the Immigration Laws of the United States. Facilitating the efficient and faithful execution of the immigration laws of the United States—and prioritizing the Department’s resources—requires the use of all available systems and enforcement tools by Department personnel.
• Exercise of Prosecutorial Discretion. Unless otherwise directed, Department personnel may initiate enforcement actions against removable aliens encountered during the performance of their official duties. Department personnel should act consistently with the President’s enforcement priorities as identified in his executive order and any further guidance issued by the director of ICE, the commissioner of CBP, and the director of USCIS prioritizing the removal of particularly dangerous aliens, such as convicted felons, gang members, and drug traffickers.
• Establishing the Victims of Immigration Crime Engagement (VOICE) Office. The Victims of Immigration Crime Engagement (VOICE) Office within the Office of the Director of U.S. Immigration and Customs Enforcement (ICE) will create a programmatic liaison between ICE and the known victims of crimes committed by removable aliens. The liaison will facilitate engagement with the victims and their families to ensure, to the extent permitted by law, that they are provided with information about the offender, including the offender’s immigration status and custody status, and that their questions and concerns regarding immigration enforcement efforts are addressed.
• Hiring Additional ICE Officers and Agents. To effectively enforce the immigration laws in the interior of the United States in accordance with the president’s directives, additional ICE agents and officers are necessary. The director of ICE shall—while ensuring consistency in training and standards—take all appropriate action to expeditiously hire 10,000 agents and officers, as well as additional mission support and legal staff necessary to support their activities.
• Establishment of Programs to Collect Authorized Civil Fines and Penalties. As soon as practicable, the director of ICE, the commissioner of U.S. Customs and Border Protection (CBP), and the director of U.S. Citizenship and Immigration Services (USCIS) shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties for which the Department is authorized under the law to assess and collect from removable aliens and from those who facilitate their unlawful presence in the United States.
• Aligning the Department’s Privacy Policies with the Law. The Department will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents. 
• Collecting and Reporting Data on Alien Apprehensions and Releases. The collection of data regarding aliens apprehended by ICE and the disposition of their cases will assist in the development of agency performance metrics and provide transparency in the immigration enforcement mission.
• No Private Right of Action. This document provides only internal DHS policy guidance, which may be modified, rescinded, or superseded at any time without notice.

QUESTIONS & ANSWERS.

Q20: How does the expansion of expedited removal account for those who may be eligible for immigration benefits?
A20: The Secretary’s intentions regarding expedited removal are under development and will be set forth and effective upon publication of a notice in the Federal Register.
Q21: How soon will DHS make changes to more closely align its use of the expedited removal authority with Congressional intent?
A21: DHS is working to issue appropriate parameters in which expedited removal in these kinds of cases will be used.

Q22: Is it true that DHS is going to make the threshold for meeting credible fear in asylum cases more difficult to meet?
A22: The goal of DHS is to ensure the asylum process is not abused. Generally speaking, to establish a credible fear of persecution, an alien must demonstrate that there is a “significant possibility” that the alien could establish eligibility for asylum, taking into account the credibility of the statements made by the alien in support of the claim and such other facts as are known to the officer.
Asylum officers are being directed to conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. In determining whether the alien has demonstrated a significant possibility that the alien could establish eligibility for asylum or torture protection, the asylum officer shall consider the statements of the alien and determine the credibility of the alien’s statements made in support of his or her claim and shall consider other facts known to the officer, consistent with the statute.

Q23: How will the enhancements to asylum referrals and credible fear determinations under INA section 235(b)(1) affect the work of USCIS?
A23: The Secretary’s memorandum outlines several points:

• The director of USCIS shall ensure that asylum officers conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination.
• The director shall also increase the operational capacity of Fraud Detection and National Security (FDNS) and continue to strengthen its integration to support the Field Operations Directorate (FOD), Refugee Asylum and International Operations (RAIO), and Service Center Operations (SCOPS), consulting with Operational Policy and Strategy (OP&S) as appropriate.
• The USCIS director, CBP commissioner, and ICE director shall review their agencies’ fraud detection, deterrence, and prevention measures and report to the Secretary within 90 days regarding fraud vulnerabilities in the asylum and benefits adjudication processes, and propose measures to enhance fraud detection, deterrence, and prevention.
• The asylum officer, as part of making a credible fear finding, shall determine the credibility of statements made by the individual in support of his or her claim. This determination should include, but is not limited to, consideration of the statistical likelihood that the claim would be granted by the Department of Justice’s Executive Office for Immigration Review (EOIR).
• The asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence and determined, based on credible evidence, that the alien has a significant possibility of establishing eligibility for asylum, or for withholding or deferral of removal under the Convention Against Torture, based on established legal authority.


• Q25: Is it true that in cases of UACs (unaccompanied children) who travel to the U.S. to reunite with a parent, if a parent is identified by ORR as an appropriate guardian, that parent could also be prosecuted for possibly having their child smuggled into the U.S.?

• A25: Correct. The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country. Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico to the United States. Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable. Accordingly, DHS shall ensure the proper enforcement of our immigration laws against those who—directly or indirectly—facilitate the smuggling or trafficking of alien children into the United States. This includes placing parents or guardian who are removable aliens into removal proceedings, or referring such individuals for criminal prosecution, as appropriate.
  and report to the Secretary within 90 days regarding fraud vulnerabilities in the asylum and benefits adjudication processes, and propose measures to enhance fraud detection, deterrence, and prevention.

Q12: Will ICE still be hiring the 10,000 officers called for in the executive orders?
A12: ICE is currently developing a hiring plan.

Q13: What is the 287(g) program and how will it be used by ICE?A13: The 287(g) program allows local law enforcement agencies to participate as an active partner in identifying criminal aliens in their custody, and placing ICE detainers on these individuals. ... To strengthen the 287(g) program, ICE field leadership has begun examining local operational needs and liaising with potential 287(g) partners and will collaborate with CBP in these efforts. Existing 287(g) applications are also undergoing an expedited review process. 

Q14: Are 287(g) officers now going to do ICE’s job?A14: The 287(g) program, one of ICE’s top partnership initiatives, enables state and local law enforcement agencies to enter into a partnership with ICE, under a joint memorandum of agreement. The state or local entity receives delegated authority for immigration enforcement within their jurisdictions.

Q15: When will 287(g) task force agreements be available to local jurisdictions? Will these new task force agreements be modeled after the previously canceled task force model?A15: ICE and CBP will be  is developing a strategy to further expand the 287(g) Program, to include types of 287(g) programs, locations, and recruitment strategies.  ... Existing 287(g) applications are also undergoing an expedited review process. ...

Q16: How will ICE accommodate an immigration judge in each of its facilities? How about asylum officers?A16: ICE is working with the Department of Justice Executive Office for Immigration Review and U.S. Citizenship and Immigration Services to review current procedures and resources in order to identify efficiencies and best practices to improve the system. Most dedicated detention facilities already house immigration courts and have enough space to accommodate asylum officers. ICE is also seeking to increase the use of technology, mainly through the use of video teleconferencing, in locations with insufficient space or staffing.

Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States Release Date: February 21, 2017

Q2: How is ICE conducting interior enforcement operations based on this executive order?A2: Effective immediately, ICE will direct its personnel as well as its state and local partners through the 287(g) program to apply the enforcement priorities stated in Executive Order No. 13768. 
To that end, within 180 days, ICE will carry out a number of actions to implement the enforcement priorities stated in the executive order. Some of those actions include, but are not limited to, conducting targeted enforcement operations and allocating resources to work in jurisdictions with violent crime tied to gang activities.
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Q3: Does this new memoranda substantively change the authority of immigration enforcement officers throughout DHS to exercise traditional law enforcement discretion?A3: DHS officers and agents maintain discretion to determine which action(s) to take against removable aliens, but they have been provided with additional guidance by the president and secretary. 

Q5: What are ICE’s priorities under this executive order?A5: Under this Executive Order, ICE will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States. 

Q14: When is the Priority Enforcement Program (PEP) being terminated (Previous Administration's policy)?
A14: ICE has terminated the Priority Enforcement Program (PEP) and restored Secure Communities, directing its personnel to take enforcement action consistent with the priorities set forth in the executive orders. 

Q18: What threshold of abuse of a public benefit program will render someone removable?
A18: Those who have knowingly defrauded the government or a public benefit system will be priority enforcement targets.

Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)?
A22: No. (Presently, new immigration enforcement policies do not affect DACA grantees. However, there have been recent arrests of DACA grantees)

When a person is arriving at the U.S. border and applying for admission to the United States, the CBP officers are required to determine the nationality or citizenship of each applicant for admission (including U.S. citizens).

When a a non-U.S. citizen applies for admission to USA, a decision is made by the CBP officer as to whether the applicant is admissible to the U.S.A. or inadmissible and should be removed or not allowed to enter the U.S. 

Even a lawful permanent resident returning to the U.S. after an extended stay abroad, in certain situations can be questioned as a person applying for admission.

All travelers to the U.S.A. should know the following:

1. Border Search Authority. Federal regulations are clear regarding CBP’s authority to conduct a search: “All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable for inspection and search by a Customs officer.” For those traveling to the U.S. in a vehicle, a CPB officer may stop, search, and examine any vehicle or search any trunk wherever found.  However, CBP cannot conduct intrusive searches (such as strip searches) or repeated detentions unless there is a “reasonable suspicion” of an immigration violation or crime.  Additionally, CBP’s policy requires that all searches be “conducted in a manner that is safe, secure, humane, dignified, and professional.”
2. Electronic Devices Search (smartphones, laptops, tablets). CBP’s border search authority also includes the right to examine electronic devices, such as computers, disks, hard drives, cell phones, and other electronic or digital storage devices, without “reasonable suspicion”. CBP officers conduct border searches of electronic devices to determine whether a violation of U.S. law has occurred.  While the U.S. Supreme Court has ruled that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional in violation of the Fourth Amendment right against unreasonable searches and seizures, there appears to be an exception for individuals desiring to enter the U.S.  If your electronic device is seized for further examination, which may include copying of data, you will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property upon completion of the examination.  Unless extenuating circumstances exist, the detention of devices should not exceed 5 days.
3. Discrimination and Coercion. An individual may not be searched on any discriminatory basis (e.g. race, gender, religion, ethnic background).  Nevertheless, a search based on consideration of citizenship or travel itinerary that includes a narcotics source or transit country is not deemed  unlawful. Additionally, CBP cannot threaten a person being questioned; if there is coercion, any statements obtained may be excluded in a subsequent removal proceeding under the Due Process Clause.  You can file a complaint with the Office of Civil Rights and Civil Liberties within the U.S. Department of Homeland Security if you believe there has been improper discrimination, inappropriate questioning, or other civil rights and civil liberties violations.
4. Right to Attorney. Any applicant for admission (including U.S. citizens) is not entitled to representation in primary or secondary inspections, unless he or she has become the focus of a criminal investigation and has been taken into custody. Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process.
5. Right to Remain Silent, But Be Prepared to Answer Questions. Even though you have the right to remain silent, if you don’t answer questions to establish your citizenship, officials may deny entry to the U.S. or detain you for a search and/or questioning. CBP officers can ask people applying for admission to the U.S. almost any question.  If you choose not to answer all or some of the questions, you can be denied admission to the U.S. or delayed by the CBP officer if selected for secondary inspection, search of your electronic devices. Make sure you can answer the following questions:

• What is the purpose of your visit? (what do you plan to do in USA)
• Where will you be staying? (address)
• Who will you be visiting? (name, address, contact phone number)
• How often do you travel to the U.S.? (for example, how many times a year; every 3 months)

When a non-US citizen applies for admission to the U.S., it’s important to be clear that your purpose for the visit to U.S.A. must be consistent with the visa category held. For example, if you are arriving on a tourist or visitor's visa, the purpose of the visit is to engage in tourist activities or visit family or friends, or if you a student, it’s to study, if you are a temporary worker it’s to work, and if you are returning as a permanent resident, the purpose must be to return to the U.S. as a place of your permanent residence.

Please read our guidance for lawful permanent residents returning to the USA who are facing  request from the CBP to sign the form I-407 and to abandon permanent residency (aka green card).

#knowyourrights #CBP #DHS #USCIS #GreenCard #admissiontoUSA #I407 #search #seizure #bordersearch #electronicdevicesearch #righttoattorney #detention