When Is an Alien Admitted?

By Dan Cadman, January 18, 2017

My colleague David North penned a blog post on Monday entitled "Interesting Migrant Screening Suggestion from an Unlikely Source", in which he picked up the idea from a Northern Mariana Islands legislator that one way to figure out if an alien seeking admission is truly a tourist is by gauging the amount of luggage he (or she) is bringing — the larger the amount, the less likely the intent to depart as promised.

North noted that the logistical problem with this method of detection is that in virtually every sterile area in the world, baggage and customs inspection takes place in a different area, and after the immigration inspection has taken place: "I suppose this suggestion could be implemented by instructing the baggage inspectors to send suspect aliens back to a secondary immigration inspection, even after (and despite) the fact that the person or persons involved had already been admitted by the immigration official." (Emphasis added.)

Actually, there are already protocols for such events — although they don't encompass anything like the baggage calculation described in the blog — and these protocols have been in place for many, many years.

Imagine this scenario: An alien goes through immigration processing, has his passport and tourist visa scrutinized, answers a question or two, has the entry document stamped "admitted", and passes on to international baggage claim and customs inspection. There, for whatever reason, the inspecting officers decide to open his luggage and find inside a letter from a relative, or a job contract, or some other incontrovertible evidence that the alien has absolutely no intention of abiding by the terms of his tourist visa. He is escorted back upstairs to secondary immigration inspection with the evidence now literally in hand.

The conundrum: His immigration documents have already been stamped. Has he been admitted? The answer is no. No alien has been admitted until he or she has cleared the entire process. Courts have generally recognized the fact that, from time to time, such circumstances are going to occur, and that it would be unreasonable for the government to be held to disadvantage because of the alien's willful withholding of evidence or material information relating to his intent to violate the immigration laws.

This would be true whether that evidence of malintent consisted of the kind of material I've just described or contraband narcotics (which is by far the more frequent scenario), because even a moment's reflection will cause you to realize that alien narcotics traffickers are just as excludable from the United States as intended visa violators who plan to remain and work without permission.

So as a general proposition, just because an inspector has stamped your immigration documents you are not home free — not unless and until you have also passed customs inspection and walked out of the sterile international inspections area, and into the public airport arrivals lounge. Only after that is the burden on the government to take back what it has until that moment only provisionally given.