If I Have Trouble With U.S. Border Officials Upon Entry, Can I Get a Lawyer?

When CBP questioning seems to be going too far, here's what to know about bringing in an attorney.

For most people entering or reentering the United States from abroad, whether through an airport, land border, or other port of entry, the biggest problem is the long line before being admitted (through “primary inspection”). But that’s far from the biggest concern for a few people who, for whatever reason, attract extra scrutiny from officials of U.S. Customs and Border Protection (CBP). This can lead to extended questioning, including in what’s called “secondary inspection” (held in a different set of rooms), searches of one’s person and possessions, and most recently, demands for access to one’s electronic devices.

The question then becomes, can you call a lawyer as the situation with CBP is escalating? Legally speaking, the answer depends on your immigration status and certain other factors. Practically speaking, it also depends on the attitude and mood of the CBP officer who meets you upon entry.

Whether a U.S. Citizen Can Call a Lawyer for Representation Before CBP

As a U.S. citizen, you have the right to have an attorney present for questioning by U.S. authorities when you reenter the country, particularly if those questions go beyond your basic eligibility to enter the country as a U.S. citizen.

Of course, your request might cause pushback or delays, or might require you to make return visits to a government office after having been allowed into the United States. And, you will need to contact and pay for the attorney yourself. But you, unlike most other entrants, do have this basic right.

Whether a U.S. Green Card Holder Can Call a Lawyer for Representation Before CBP

If you are a U.S. lawful permanent resident, you have only limited rights to legal representation before CBP. The questioning must be more intrusive than what would normally be needed to adjudge your eligibility for entry. (Normal questions might include topics like whether your green card is valid and whether you fall into any of the grounds of inadmissibility or removability, such as having stayed out of the U.S. too long or committed a crime.)

Even if the questioning seems highly intrusive, however, CBP officials can refuse your request for an attorney. As justification, the officer is likely to cite the Code of Federal Regulations at 8 C.F.R. § 292.5, which describes non-citizens’ right to an attorney in certain situations, but adds that, “nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody.” (In fact, many attorneys report being refused entry even when the applicant for admission has been accused of a crime.)

Also, while the above citation sounds fairly definitive, lawyers argue that it should be overridden by the federal Administrative Procedure Act (APA), which says that anyone “compelled” to appear before an agency has a right to an attorney. (See 5 U.S.C. § 555(b).) Secondary inspection certainly involves compulsion, being a form of detention.

In any case, you can try asking the CBP officer to allow access to your attorney, or to arrange for you to return at a later time to complete the questioning process. The latter approach could give you time to find an attorney and have him or her request CBP consent to accompany you to your next CBP interview. But this type of request might also be denied.

Whether a Nonimmigrant Visa Holder Can Call a Lawyer for Representation Before CBP

As someone with a temporary visa to enter the U.S. with, you are unfortunately at the bottom of the pecking order with respect to rights upon entry. Asking for a lawyer is not likely to get you anywhere (other than a mention of the regulation discussed above).

Nevertheless, you are not forbidden from asking. Your best chance for success is if you had a lawyer’s help preparing your visa application, and that lawyer is standing by and available by phone or in the airport.

If it's possible to foresee trouble entering or reentering the United States, definitely consult with an attorney ahead of time and develop a strategy and means of urgent communication.

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