Can Attorney Help Me Avoid Secondary Inspection By U.S. Border Officers?

Lawyers usually aren't allowed to talk to border officials on your behalf, but if they are, hiring one before you arrive will turn out to be a good decision.

If you are coming to (or coming back to) the United States and are afraid the U.S. border officials won’t let you in, you may be thinking of hiring a U.S. immigration lawyer to help you. Before you do, there are some things you need to know about a lawyer’s role in the U.S. immigration system and what a lawyer can do for you.

Can Lawyers Appear on Your Behalf at a U.S. Port of Entry?

You might have used a U.S. immigration lawyer to help get you a visa to come to the United States, but that lawyer won’t be at the airport or other border crossing to meet you when you arrive. If you’re coming without a visa, arriving as a refugee, or returning home as a permanent resident with a green card, you’ll be on your own, too.

What Happens During Primary Inspection

When the U.S. border official greets you and asks to see your identification and entry documents, you won’t have a lawyer at your side. If you tell the border official during this initial questioning (called “primary inspection”) that you don’t want to answer any questions without your lawyer present, it won’t do any good. Under U.S. law, you have no right to have a lawyer with you during primary inspection.

The border official can let you pass after primary inspection, or the official might have some doubt about whether you should be allowed to enter the United States.

What Happens During Secondary or Deferred Inspection

If the border official decides that further questioning is needed, you will be taken to a room or other area for “secondary inspection.” The border officials may be able to determine whether you are okay to enter the United States fairly quickly after this, or you could be there for many hours before a decision is made.

Another possibility is that you will be allowed into the United States temporarily and told to come back for “deferred inspection,” at which time a decision on your ability to remain in the United States will be made.

Unfortunately, unless you’re a green card holder, you won’t have any right to have a lawyer with you during secondary or deferred inspection either, unless you have become the focus of a criminal investigation and are arrested. Some courts have said that green card holders have a right to a lawyer during secondary inspection under certain circumstances, such as when the U.S. government was denying reentry to green card holders from certain countries in 2017.

Just because you don’t have a right to a lawyer during secondary inspection, however, doesn’t mean you should give up your plan to hire a lawyer ahead of time. The border officials sometimes (but rarely) allow attorneys to get involved in secondary inspection, particularly if it lasts a long time. If deferred inspection is necessary, you have a better chance of having your lawyer there with you. The government’s policy is different at every border crossing point and depends on the case. You’re more likely to be allowed access to a lawyer if your ability to enter the United States is a question of law or evidence that the border official thinks a lawyer can help with.

Hiring a U.S. Immigration Attorney

A U.S. immigration attorney, if allowed to talk to the border officials, can be very helpful in explaining your case to the government and getting you into the United States. Although there’s certainly no guarantee a lawyer will even be able to do anything for you at the border, you might decide to hire one before you come anyway. If you do, there are several things to be aware of.

The lawyer will probably ask you to pay (in U.S. dollars) before you arrive in the United States. Your agreement with the lawyer may require you (or someone you know in the United States) to sign a contract, and the contract might say that you won’t get your money back if there’s nothing the lawyer can do for you at the border.

Lawyers can either charge you a “flat fee” (you pay an agreed-upon amount and nothing more) or charge according to how many hours they work on your case. You should understand everything in the contract before you agree to it.

Unless you already know a U.S. immigration lawyer you want to hire, you’ll want to make sure you’re hiring someone who can really help you. It’s best to hire a lawyer who specializes in immigration law, and particularly border issues. If you don’t know where to find an immigration lawyer, check out the American Immigration Lawyers Association lawyer search at www.ailalawyer.com, and Nolo's Lawyer Directory.

It might be best to hire a lawyer who lives near the airport or border city where you plan to arrive. Those lawyers are more likely to take your case, and they won’t be as expensive, since they won’t have to travel a long distance to see you. If you are allowed to enter the United States and won’t be living anywhere near where your plane landed or where you crossed the border, you do not have to keep using the services of the lawyer you hired to help you upon arrival. If you need help with other immigration issues, you can hire another immigration lawyer closer to where you live.

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