Be careful not to get your immigration client "no bond" on result of bogus allegations!
Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.
The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:
8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.
A recent example on a popular listserve we work with should illustrate:
My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".
In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.
Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.
Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!
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