Access to Counsel Should be Non-Negotiable
“Wait, you mean to tell me you are not allowed to contact a lawyer at the airport?”
That is a familiar response when I tell people of the lack of any protocol for allowing access to counsel to those who are coming into the United States from abroad. The fact is, when someone enters the country, whether a U.S. citizen, permanent resident, valid visa holder, or visitor without a visa, the decision to permit that person to contact their attorney for assistance or advice when problems arise is completely up to the officer’s discretion under current procedures.
Most people with valid travel documents enter the country without incident, and Customs and Border Protection (CBP) processes over a million entries each day. There are an average of 752 people found “inadmissible” and not allowed in the country each day, however, after enduring often many hours of delay and questioning in what is called “secondary inspection.” This is what recently happened to Dr. Henry Rousso, a well-known French Historian and Director of Research at the French National Centre for Scientific Research.
Dr. Rousso was invited to give a keynote address at a conference at Texas A&M University in College Station in February 2017, and was to receive an honorarium of $2,000. The CBP officer at the Houston airport kept him detained for 10 hours and repeatedly told him he was breaking the law and would be sent back to France because he was working without permission on a visitor visa. The University President and Dean of the Law School contacted an immigration lawyer, Jason Mills, who contacted CBP. At the end of the 10 hours, after 1 a.m., Dr. Rousso was finally released in an about face. CBP admitted the officer was inexperienced. The CBP officer was not aware of the 1998 law, INA § 212(q), which permits academics to receive honorarium payments for speeches at universities while in visitor status.
The experience of Dr. Rousso is not new. In 2004, I represented celebrated British novelist Ian McEwan, author of best-selling Atonement and winner of the Man Booker prize, when he was refused entry to the United States over an honorarium issue identical to Dr. Rousso’s – the CBP officer felt it was too high for an honorarium. After 24 hours of talking to border officials, consular officers, senior CBP leadership and Senators’ offices, I was able to get the refusal overturned, permitting Mr. McEwan to return to the United States and make his lectures, with only hours to spare. The result was a formal, written apology by William S. Heffelfinger, III, deputy assistant commissioner of CBP, and a reversal of Mr. McEwan’s ban on using the visa waiver program as a result of the refusal. I had pointed out repeatedly during the efforts that a regulation had been proposed in 2002 which clarified and interpreted the law passed in 1998, but had never been finalized. It stated that the honorarium could be of any dollar amount. CBP recognized that the law clearly permitted the lectures and honorarium payment, and that the absence of regulations had confused CBP officers. Thirteen years after Mr. McEwan’s refusal, and nearly twenty years since the law was passed, we still do not have final regulations on academic honorarium payments.
The immigration law is exceedingly complex. CBP officers have a difficult job in keeping up with constantly changing rules and regulations, all without in most cases any formal academic legal training. A lawyer well versed in immigration law can readily assist in those secondary inspection situations involving legal issues, and reduce embarrassing and damaging situations which spread inspections resources thin and waste time and energy. In Dr. Rousso’s situation, French presidential candidate at the time (and now French President) Emmanuel Macron tweeted, “There is no excuse for what happened to @Henry_Rousso. Our country is open to scientists and intellectuals.” The incident was embarrassing, costly to Dr. Rousso, the University, and to CBP itself. Yet there is no clear way for access of counsel to occur in a standardized manner. He was simply lucky he had others outside his special little locked room working on his behalf, and that the CBP officers allowed his attorney to provide valuable perspective on the law.
Americans are proud of our fair and just system of laws and checks and balances. Access to counsel is critical for a well-functioning immigration system, and that is not only limited to airport inspections. Consular officers also sometimes make mistakes, and yet the State Department has the same policy as CBP with respect to allowing access to lawyers – it is up to the discretion of the officer. This results in regrettable and avoidable mistakes and waste of government resources. For example, the State Department returns thousands of petitions for visas filed by American citizens and American businesses to the USCIS each year, often due to incorrect legal determinations or misunderstandings that could be clarified with access to counsel. This causes immense workload strains on both agencies as the cases go back and forth, and unneeded separation of families and workers.
As Chair of AILA’s national Access to Counsel Task Force, I have worked for the past several years together with an excellent group of AILA legal experts, as well as AILA and AIC leaders to collaboratively draft a petition for rulemaking requesting the establishment of clear regulations which provide for access to counsel in secondary and deferred inspection, and at consulates and embassies abroad. Nothing in the petition requests counsel at government expense. The petition, filed May 25, 2017, provides the administration with a unique opportunity to establish guidelines for the important work of immigration counsel in the inspections and visa issuance processes, to ensure that we have the most efficient, fair system possible.
When we visit the post office, we all expect the price of a stamp to be non-negotiable. Access to legal counsel should share the same protocol, and not be left up to an official’s preference or personal policy.
Written by Brent Renison, Chair, AILA Access to Counsel Task Force