[House Report 117-21]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-21
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ACCESS TO COUNSEL ACT OF 2021
_______
April 16, 2021.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1573]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1573) to clarify the rights of all persons who are
held or detained at a port of entry or at any detention
facility overseen by U.S. Customs and Border Protection or U.S.
Immigration and Customs Enforcement, having considered the
same, reports favorably thereon with amendments and recommends
that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 7
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 23
New Budget Authority and Tax Expenditures........................ 23
Congressional Budget Office Cost Estimate........................ 23
Duplication of Federal Programs.................................. 25
Performance Goals and Objectives................................. 25
Advisory on Earmarks............................................. 25
Section-by-Section Analysis...................................... 25
Changes in Existing Law Made by the Bill, as Reported............ 26
Minority Views................................................... 34
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Access to Counsel Act of 2021''.
SEC. 2. ACCESS TO COUNSEL AND OTHER ASSISTANCE AT PORTS OF ENTRY AND
DURING DEFERRED INSPECTION.
(a) Access to Counsel and Other Assistance During Inspection.--
Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is
amended by adding at the end the following:
``(e) Access to Counsel and Other Assistance During Inspection at
Ports of Entry and During Deferred Inspection.--
``(1) In general.--The Secretary of Homeland Security shall
ensure that a covered individual has a meaningful opportunity
to consult with counsel and an interested party during the
inspection process.
``(2) Scope of assistance.--The Secretary of Homeland
Security shall--
``(A) provide the covered individual a meaningful
opportunity to consult (including consultation via
telephone) with counsel and an interested party not
later than one hour after the secondary inspection
process commences and as necessary throughout the
remainder of the inspection process, including, as
applicable, during deferred inspection;
``(B) allow counsel and an interested party to
advocate on behalf of the covered individual, including
by providing to the examining immigration officer
information, documentation, and other evidence in
support of the covered individual; and
``(C) to the greatest extent practicable, accommodate
a request by the covered individual for counsel or an
interested party to appear in-person at the secondary
or deferred inspection site.
``(3) Special rule for lawful permanent residents.--
``(A) In general.--Except as provided in subparagraph
(B), the Secretary of Homeland Security may not accept
a Form I-407 Record of Abandonment of Lawful Permanent
Resident Status (or a successor form) from a lawful
permanent resident subject to secondary or deferred
inspection without first providing such lawful
permanent resident a meaningful opportunity to seek
advice from counsel.
``(B) Exception.--The Secretary of Homeland Security
may accept Form I-407 Record of Abandonment of Lawful
Permanent Resident Status (or a successor form) from a
lawful permanent resident subject to secondary or
deferred inspection if such lawful permanent resident
knowingly, intelligently, and voluntarily waives, in
writing, the opportunity to seek advice from counsel.
``(4) Definitions.--In this section:
``(A) Counsel.--The term `counsel' means--
``(i) an attorney who is a member in good
standing of the bar of any State, the District
of Columbia, or a territory or a possession of
the United States and is not under an order
suspending, enjoining, restraining, disbarring,
or otherwise restricting the attorney in the
practice of law; or
``(ii) an individual accredited by the
Attorney General, acting as a representative of
an organization recognized by the Executive
Office for Immigration Review, to represent a
covered individual in immigration matters.
``(B) Covered individual.--The term `covered
individual' means an individual subject to secondary or
deferred inspection who is--
``(i) a national of the United States;
``(ii) an immigrant, lawfully admitted for
permanent residence, who is returning from a
temporary visit abroad;
``(iii) an alien seeking admission as an
immigrant in possession of a valid unexpired
immigrant visa;
``(iv) an alien seeking admission as a
nonimmigrant in possession of a valid unexpired
nonimmigrant visa;
``(v) a refugee;
``(vi) a returning asylee; or
``(vii) an alien who has been approved for
parole under section 212(d)(5)(A), including an
alien who is returning to the United States in
possession of a valid advance parole document.
``(C) Interested party.--The term `interested party'
means--
``(i) a relative of the covered individual;
``(ii) in the case of a covered individual to
whom an immigrant or a nonimmigrant visa has
been issued, the petitioner or sponsor thereof
(including an agent of such petitioner or
sponsor); or
``(iii) a person, organization, or entity in
the United States with a bona fide connection
to the covered individual.''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect 180 days after the date of the enactment of this Act.
(c) Savings Provision.--Nothing in this Act, or in any amendment made
by this Act, may be construed to limit a right to counsel or any right
to appointed counsel under--
(1) section 240(b)(4)(A) (8 U.S.C. 1229a(b)(4)(A));
(2) section 292 of the Immigration and Nationality Act (8
U.S.C. 1362); or
(3) any other provision of law, including any final court
order securing such rights,
as in effect on the day before the date of the enactment of this Act.
Amend the title so as to read:
A bill to clarify the rights of certain persons who are
held or detained at a port of entry or at any facility overseen
by U.S. Customs and Border Protection.
Purpose and Summary
H.R. 1573, the ``Access to Counsel Act of 2021,'' amends
section 235 of the Immigration and Nationality Act (INA) to
require the Department of Homeland Security (DHS) to ensure
that certain individuals who are subjected to prolonged
inspection by U.S. Customs and Border Protection (CBP) at ports
of entry have a meaningful opportunity to communicate with
counsel and other interested parties. H.R. 1573 does not create
a ``right'' to counsel during the inspection process, nor does
it impose any obligation on the federal government to pay for
or otherwise provide counsel to individuals during CBP
inspection proceedings. Instead, it will simply ensure that
such individuals are not prohibited from communicating with
outside parties--which may include counsel--or receiving the
support and assistance of such parties during the inspection
process.
Counsel and interested parties would be able to provide
additional information and documentation to the inspecting
officer to facilitate the inspection process and provide
assistance and support to the applicant for admission. The bill
also provides extra protection for lawful permanent residents
(LPRs) by prohibiting DHS from accepting a Record of
Abandonment of Lawful Permanent Resident Status from an LPR
without first providing the LPR a reasonable opportunity to
consult with counsel.
Background and Need for the Legislation
All individuals--including U.S. citizens--who seek to
lawfully enter the United States are subject to ``inspection''
by CBP officers at ports of entry.\1\ Most individuals who are
not U.S. citizens or LPRs, but who are in possession of proper
documentation, are admitted to the United States after
answering a few routine questions involving the intended
purpose and length of their stay in the main queue known as
``primary'' inspection.\2\ However, if CBP cannot verify the
individual's identity or the validity of their documentation,
or if there are questions regarding admissibility, the
individual may be referred to ``secondary'' or ``deferred''
inspection.\3\ Secondary inspection occurs in designated areas
at ports of entry where CBP can ask the individual additional
questions and continue conducting background checks and
research. A person may be scheduled for deferred inspection if
a decision regarding immigration status cannot be made due to a
lack of documentation.\4\ In such cases, the individual is
``paroled'' into the United States and scheduled to appear at a
deferred inspection site to present the requested documentation
at a later date.\5\
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\1\See generally 8 C.F.R. Sec. 235.1.
\2\Lisa Seghetti, Border Security: Immigration Inspections at Ports
of Entry, Cong. Research Serv., 10 (Jan. 26, 2015).
\3\T. Alexander Aleinikoff et al., Immigration and Citizenship:
Process and Policy 489 (8th ed. West 2016).
\4\U.S. Customs and Border Protection, Deferred Inspection Sites,
https://www.cbp.gov/contact/ports/deferred-inspection-sites.
\5\8 C.F.R. Sec. 235.2.
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The Immigration and Nationality Act (INA) provides
individuals in removal proceedings with the right to
representation, at no expense to the government.\6\ Although
the regulations extend this right to any individual subject to
an immigration-related ``examination,'' applicants for
admission in primary or secondary inspection are specifically
excluded, unless they ``become the focus of a criminal
investigation'' and are ``taken into custody.''\7\ Yet the
consequences of being denied admission to the United States can
be significant. A U.S. research institution may lose the
opportunity to employ a next generation cancer researcher if
that researcher is denied admission despite possessing a valid
O-1 nonimmigrant visa.\8\ Individuals who are refused admission
may be unable to reunite with their families, unable to receive
critical medical care unavailable in their home country, or
denied the opportunity to pursue higher education at a U.S.
university. Although some individuals may be permitted to
withdraw their applications for admission and return home
without long term consequences, others may be ordered removed
without a hearing or further review under ``expedited removal''
procedures.\9\ An individual who receives an expedited removal
order is barred from returning to the United States for five
years.\10\
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\6\INA Sec. Sec. 240(b)(4)(a), 292; 8 U.S.C. Sec. Sec.
1229a(b)(4)(A), 1362.
\7\8 C.F.R. Sec. 292.5(b).
\8\O-1 visas are available to individuals with ``extraordinary
ability'' in the sciences, arts, education, business, or athletics. See
generally INA Sec. 101(a)(15)(O)(i); 8 U.S.C. Sec. 1101(a)(15)(O)(i).
\9\INA Sec. Sec. 235(a)(4), (b)(1); 8 U.S.C. Sec. Sec.
1225(a)(4), (b)(1).
\10\INA Sec. 212(a)(9)(A)(i); 8 U.S.C. Sec. 1182(a)(9)(A)(i).
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Due to the complexity of U.S. immigration law, it is not
uncommon for CBP to have difficulty resolving some questions
that arise during the inspection process. Such questions can
involve individuals' citizenship status, the continuing
validity of their LPR status, or whether the stated purpose of
their visit is compatible with their visa. Most applicants for
admission are unfamiliar with the nuances of our immigration
laws, are often alone, and may not be proficient in English. As
a result, individuals can remain in secondary inspection for
hours, largely cut off from the world while undergoing
questioning by CBP.
Complicating matters further, CBP provides no public
guidance on an individual's ability to communicate with counsel
and other individuals during the inspection process. In 2014,
the American Immigration Council released a report summarizing
the results of its request under the Freedom of Information Act
for CBP policies on access to counsel.\11\ According to the
report, with respect to both secondary and deferred inspection,
``CBP policies and practices on access to counsel vary from one
office to another.''\12\ While some ports of entry ``completely
bar counsel in primary or secondary inspection,'' other ports
provide specific procedures for interacting with counsel or
provide the inspecting officer with broad discretion to decide
whether and with whom to communicate.\13\
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\11\American Immigration Council, CBP Restrictions on Access to
Counsel, https://www.americanimmigrationcouncil.org/sites/default/
files/other_litigation_documents/
final_cbp_access_to_counsel_foia_factsheet_2_1.pdf.
\12\Id. at 1.
\13\Id. at 2-3. For example, in Nevada, ``[w]hen an individual in
secondary inspection states that his attorney is waiting in the entry
area, the officer's only responsibility `is to notify a relative or
friend' if the individual is detained for more than two hours.'' Id.
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THE IMPLEMENTATION OF EXECUTIVE ORDER 13769
On January 27, 2017, President Trump issued Executive Order
(EO) 13769, suspending the entry of nationals of seven Muslim
majority countries--Iran, Iraq, Libya, Somalia, Sudan, Syria,
and Yemen--for at least 90 days.\14\ As a result of the Trump
Administration's quick rollout of EO 13769, widespread
confusion unfolded at airports across the nation. Individuals
arriving from covered countries were detained at airports for
hours, and many were sent back to their home countries without
the ability to contact their families or communicate with
counsel.\15\ In the days that followed, several courts issued
orders blocking the federal government from continuing to
implement the EO and mandating access to counsel for LPRs in
secondary inspection.\16\
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\14\Exec. Order No. 13769, Protecting the Nation from Foreign
Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Feb. 1,
2017).
\15\Wesley Lowery & Josh Dawsey, Early Chaos of Trump's Travel Ban
Set Stage For a Year of Immigration Policy Debates, Wash. Post (Feb. 6,
2018), https://www.washingtonpost.com/national/early-chaos-of-trumps-
travel-ban-set-stage-for-a-year-of-immigration-policy-debates/2018/02/
06/f5386128-01d0-11e8-8acf-ad2991367d9d_story.html; Abigail Williams &
Adam Edelman, Lawyers, Activists Gear Up for Travel Ban Airport Issues,
NBC News (June 29, 2017), https://www.nbcnews.com/politics/donald-
trump/u-s-defines-who-can-enter-under-travel-ban-n778031.
\16\See e.g. Washington v. Trump, 2017 U.S. Dist. Lexis 16012 (Feb.
3, 2017).
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A DHS Inspector General report released on the one-year
anniversary of the ban provided additional details regarding
the restrictions placed on individuals due to the EO.\17\ The
Inspector General found that individuals held in secondary
inspection were not afforded the opportunity to consult with
counsel and, in some cases, were not permitted to make
telephone calls at all.\18\ Others had their phones confiscated
by CBP.\19\ Even after the court order mandating attorney
access for LPRs was issued, CBP continued to refuse such
access, arguing that the right to counsel only attaches once
the inspection ``becomes a custodial interrogation or a
criminal investigation.''\20\ The Inspector General concluded
that CBP's ``highly aggressive stance in light of'' the court
orders was ``questionable'' and ``troubling.''\21\
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\17\U.S. Dep't of Homeland Sec., Off. of Inspector Gen., DHS
Implementation of Executive Order #13769 ``Protecting the Nation From
Foreign Terrorist Entry Into the United States'' (January 27, 2017), at
5 (Jan. 18, 2018), www.oig.dhs.gov/sites/default/files/assets/2018-01/
OIG-18-37-Jan18.pdf.
\18\See, e.g. id. at 76.
\19\Id. at 39.
\20\Id.
\21\Id. at 79.
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DETENTION OF IRANIAN-AMERICANS IN SECONDARY INSPECTION AT THE NORTHERN
BORDER
In January 2020, as tensions between Iran and the United
States escalated, up to 200 individuals of Iranian descent were
detained and questioned in secondary inspection at the Peace
Arch Border Crossing in Blaine, Washington.\22\ These
individuals--many of whom were U.S. citizens or LPRs, including
seniors and children--were held for several hours, with some
reportedly held for up to 12 hours.\23\ In one case, CBP held a
family of four U.S. citizens for nearly five hours even though
they were already designated as ``Trusted Travelers'' under
CBP's NEXUS program.\24\ Anecdotal reports indicate that
attorneys who arrived on the scene to assist were refused
admission, and at least some individuals were unable to make
phone calls to family members and others.
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\22\Mike Baker & Caitlin Dickerson, Iranian-Americans Questioned at
the Border: `My Kids Shouldn't Experience Such Things,' N.Y. Times
(Jan. 6, 2019), https://www.nytimes.com/2020/01/06/us/border-iranians-
washington-patrol.html.
\23\Abigail Hauslohner, Advocates Allege Delays at U.S. Border for
Travelers Linked to Iran, a Claim the Government Denies, Wash. Post
(Jan. 6, 2020), https://www.washingtonpost.com/immigration/advocates-
allege-delays-at-us-border-for-travelers-linked-to-iran-a-claim-the-
government-denies/2020/01/06/5e7d0e3e-3093-11ea-a053-
dc6d944ba776_story.html.
\24\Negah Hekmati, I'm a U.S. Citizen. My Family Was Detained at
the Border Because We're From Iran, Wash. Post (Jan. 9, 2020), https://
www.washingtonpost.com/outlook/2020/01/09/im-us-citizen-my-family-was-
detained-border-because-were-iran/. NEXUS is a CBP ``Trusted Traveler''
program that allows approved individuals to enter the United States and
Canada more quickly by using designated lanes and a radio frequency
identification card. See U.S. Customs and Border Protection, Benefits
of NEXUS, https://www.cbp.gov/travel/trusted-traveler-programs/nexus/
benefits-nexus.
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ALLEGATIONS OF BIAS IN INSPECTION PROCEEDINGS
Immigrants and civil rights activists have also raised
concerns that CBP appears to target individuals for inspection
based on racial profiling, and often holds U.S citizens with
proper documentation in secondary inspection without access to
an attorney. For example, three Black CBP officers recently
filed a lawsuit against DHS, alleging CBP routinely targets and
harasses Black travelers at the Blue Water bridge between Port
Huron and Sarnia on the Canada-Michigan border.\25\ A March 25,
2021 report by the American Civil Liberties Union of Michigan
examined CBP data on apprehensions at the Michigan-Canada
border and corroborates these allegations. The report found
that between 2012 and 2019, over 96% of the 13,000 documented
apprehensions involved people of color, and one-third involved
U.S. citizens.\26\
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\25\Tresa Baldas, Customs and Border Protection Officer Says Racism
at Michigan-Canada Border Happens Daily: `It Needs to be Exposed', USA
Today (Apr. 4, 2021) https://www.usatoday.com/story/news/nation/2021/
04/04/cbp-officers-lawsuit-racial-profiling-issue-us-canada-border/
7076949002/.
\26\American Civil Liberties Union of Michigan, The Border's Long
Shadow: How Border Patrol Uses Racial Profiling and Local and State
Police to Instill Fear in Michigan's Immigrant Communities (Mar. 25,
2021), https://www.aclumich.org/en/publications/borders-long-shadow.
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In another example, Tianna Spears, a Black U.S. citizen
diplomat at the U.S. consulate in Ciudad Juarez, Mexico said
that she was targeted regularly for inspection over a four
month period, despite crossing the border daily, possessing a
diplomatic passport and Global Entry approval, and having
registered her car in the SENTRI system.\27\ She states that
during these encounters, she was unable to contact counsel or
State Department colleagues who could verify her identity.
After four months of regular apprehensions, she began to
develop symptoms of PTSD, and was forced to transfer to a
different post. She later resigned from the State
Department.\28\
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\27\Tianna Spears, I Was a U.S. Diplomat. Customs and Border
Protection Only Cared That I Was Black, Politico (Aug. 3, 2020),
https://www.politico.com/news/magazine/2020/08/30/black-us-diplomat-
customs-border-protection-cbp-detained-harassed-325676.
\28\Id.
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OTHER ISSUES WITH LIMITED ACCESS TO COUNSEL
Complications in the inspection process can arise in
response to sweeping changes in immigration policy or shifting
world events. But the greatest impact on individuals on a day-
to-day basis comes from the consistent lack of access to
counsel and other assistance at ports of entry. For example, in
2017, Henry Rousso, a French historian and Holocaust scholar,
was held in secondary inspection at George Bush
Intercontinental Airport in Houston, Texas for more than 10
hours.\29\ Mr. Rousso came to the United States to speak at an
academic conference hosted by Texas A&M University. Upon
questioning, Mr. Rousso was referred to secondary inspection,
where CBP made a preliminary determination that he had violated
the law by receiving a $2,000 honorarium to speak at the
conference. When Mr. Rousso failed to meet the driver who had
been sent to the airport to pick him up, representatives from
the university contacted an attorney.\30\ The attorney was able
to explain to CBP that Mr. Rousso's receipt of an honorarium
was proper under the immigration laws, as section 212(q) of the
INA expressly allows individuals admitted to the United States
on visitor visas to accept honorarium payments and associated
incidental expenses for certain academic activities.\31\ Due to
the assistance of the attorney, Mr. Rousso was eventually
admitted into the United States.\32\
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\29\Erin McCann, French Historian Says He was Threatened with
Deportation at Houston Airport, N.Y. Times (Feb. 26, 2017), https://
www.nytimes.com/2017/02/26/us/french-historian-detained-immigration-
henry-rousso.html.
\30\Id.
\31\Id; INA Sec. 212(q).
\32\Id.
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Mr. Rousso was fortunate for two reasons. First, as a well-
known scholar supported by faculty at an American university,
he had ready access to a lawyer. Second, CBP officials in
Houston were amenable to allowing counsel to assist Mr. Rousso.
Most individuals, however, are not so lucky. Because access to
counsel during the inspection process is not required, most
applicants for admission who are referred to secondary
inspection are unable to communicate with counsel or others who
might be able to provide useful information relevant to
admission. Rather than having the opportunity to vindicate
their rights and lawfully enter the country, most are instead
refused admission or issued an expedited removal order.
Hearings
For the purposes of clause 3(c)(6) of House Rule XIII, the
following hearing was used to develop H.R. 1573: ``The U.S.
Immigration System: The Need for Bold Reform,'' held on
February 11, 2021, before the House Committee on the Judiciary,
Subcommittee on Immigration and Citizenship. The Subcommittee
heard testimony from:
Ms. Marielena Hincapie, Executive Director,
National Immigration Law Center;
Dr. Jennifer Hunt, Professor of Economics,
Rutgers University;
Mr. John Lettieri, President and CEO,
Economic Innovation Group; and
Mr. Peter Kirsanow, Partner, Benesch,
Friedlander, Coplan & Aronoff LLP.
The hearing explored the need for immigration reform,
including the Access to Counsel Act.
The following hearing in the 116th Congress was also used
to develop H.R. 1573: ``Oversight of the Trump Administration's
Muslim Ban,'' held on September 24, 2019 before the House
Committee on the Judiciary, Subcommittee on Immigration and
Citizenship and the House Foreign Affairs Committee,
Subcommittee on Oversight and Investigations. The Subcommittees
heard testimony from:
Edward J. Ramotowski, Deputy Assistant
Secretary for Visa Services, Bureau of Consular
Affairs, U.S. Department of State;
Elizabeth Neumann, Assistant Secretary for
Threat Prevention and Security Policy, Office of
Strategy, Policy, and Plans, U.S. Department of
Homeland Security;
Todd Hoffman, Executive Director of
Admissibility and Passenger Programs (APP), Office of
Field Operations (OFO), U.S. Customs and Border
Protection, U.S. Department of Homeland Security;
Dr. Abdollah ``Iman'' Dehzangi, Assistant
Professor at Morgan State University in Baltimore,
Maryland;
Ismail Ahmed Hezam Alghazali, a U.S. citizen
born in Yemen who left his job to travel to Djibouti to
be with his pregnant wife;
Farhana Khera, President and Executive
Director, Muslim Advocates; and
Andrew Arthur, Resident Fellow in Law and
Policy, Center for Immigration Studies.
The hearing explored the initial implementation of the ban,
including the chaos that unfolded at airports around the
country, which stemmed, in part, from the lack of access to
counsel.
Committee Consideration
On April 14, 2021, the Committee met in open session and
ordered the bill, H.R. 1573, favorably reported with an
amendment in the nature of a substitute, by a rollcall vote of
24 to 16, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1573.
1. A motion to table an appeal of the ruling of the Chair
on the germaneness of an amendment by Mr. Biggs to require the
Secretary of Homeland Security to return non-covered
individuals who arrive at the border from a foreign contiguous
territory to such territory while removal proceedings are
pending, was agreed to by a rollcall vote of 21 to 15.
2. An amendment by Mr. Issa to delay the effective date of
the legislation until the Secretary of Homeland Security
certifies that the Department of Homeland Security has
sufficient resources to accommodate access to counsel in
secondary inspection, and that the implementation of the
legislation would not cause a substantial negative impact on
lawful trade and travel to the United States, was defeated 16
to 23.
3. An amendment by Mr. Roy to exclude from the definition
of ``interested party,'' a person or organization that the
immigration officer has reasonable suspicion to believe is
involved in a criminal conspiracy with the covered individual
was defeated 16 to 23.
4. A motion to table an appeal of the ruling of the Chair
on the germaneness of an amendment by Mr. Roy to change the
asylum eligibility requirements for individuals who transit
through at least one country other than their country of
citizenship, nationality, or last habitual residence while en
route to the United States, was agreed to 23 to 16.
5. An amendment by Mr. Issa to render sections 1 and 2 of
the legislation ineffective if a federal court holds that a
covered individual is to be afforded counsel at the expense of
the government was defeated 17 to 22.
6. An amendment by Ms. Spartz to delay the effective date
of the legislation until the Secretary of Homeland Security
certifies that the Department of Homeland Security has
sufficient resources to accommodate access to counsel in
secondary inspection, and that the implementation of the
legislation would not cause a substantial negative impact on
national security and public safety was defeated 16 to 24.
The motion to report H.R. 1573, as amended, favorably was
agreed to by a rollcall vote of 24 to 16.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1573, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 15, 2021.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1573, the Access
to Counsel Act of 2021.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lindsay
Wylie.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
H.R. 1573 would require the Department of Homeland Security
(DHS) to allow individuals subject to secondary immigration
inspection at U.S. ports of entry to consult with an attorney,
accredited immigration official, family member, or immigration
sponsor during the inspection. The bill also would require DHS
to allow the counsel or interested party to appear in person at
the inspection site to the greatest extent practicable. (A
secondary immigration inspection is conducted by customs
officers if individuals entering the United States do not have
the required documents for entry or if their information cannot
be initially verified.)
Approximately 10.2 million individuals were referred to
secondary inspection at the United States' 328 ports of entry
in 2019. Using information provided by Customs and Border
Protection (CBP), CBO expects that roughly 8 percent of
referrals would request access to counsel each year.
Immigration at ports of entry has declined significantly in
fiscal years 2020 and 2021 because of the coronavirus pandemic;
CBO assumes referrals would return to pre-pandemic levels
beginning in mid-2022.
CBO estimates that CBP would need two new full-time
officers on average at each port of entry to provide security
and transportation services for individuals requesting access
to counsel. (The number of CBP officers stationed at each port
of entry ranges from several individuals to up to several
thousands, and the number of additional officers needed at each
port under the bill would vary by the size of the port.) CBO
estimates that salaries, benefits, and overtime for the
additional staff would cost about $700 million over the 2021-
2026 period; such spending would be subject to the availability
of appropriated funds.
Additionally, using information provided by the agency, CBO
expects that 222 ports of entry (nearly two-thirds of all
ports) would need additional space or other upgrades to
accommodate the bill's requirement to allow counsel to appear
in person at inspection sites. Using that same information and
historical patterns of construction costs, CBO estimates the
total cost for construction and operation of the additional
space would total $123 million over the 2021-2026 period.
Specifically, CBO estimates that construction costs at 113
land facilities would total $62 million over the 2021-2026
period, with $10 million spent in subsequent years. CBO
estimates the cost of renting additional space at 109 airport
facilities would total $44 million over the 2021-2026 period.
In addition, CBO estimates the cost of initial setup, recurring
maintenance, and other operational expenses associated with the
additional space would total $17 million over the 2021-2026
period. All construction and operational costs would be subject
to the availability of appropriated funds.
The costs of the legislation, detailed in Table 1, fall
within budget function 750 (administration of justice).
TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER H.R. 1573
----------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
----------------------------------------------------------------
2021 2022 2023 2024 2025 2026 2021-2026
----------------------------------------------------------------------------------------------------------------
CBP Personnel:
Estimated Authorization.................... 0 62 132 158 189 226 767
Estimated Outlays.......................... 0 50 112 146 180 215 703
Construction and Operation at Ports of Entry:
Estimated Authorization.................... 0 82 12 13 13 13 134
Estimated Outlays.......................... 0 13 27 27 28 28 123
Total Changes:
Estimated Authorization.................... 0 144 145 171 202 239 900
Estimated Outlays.......................... 0 63 139 173 208 243 825
----------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; CBP = Customs and Border Protection.
The CBO staff contact for this estimate is Lindsay Wylie.
The estimate was reviewed by Leo Lex, Deputy Director of Budget
Analysis.
Duplication of Federal Programs
No provision of H.R. 1573 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1573 would require DHS to ensure that certain individuals who
are subjected to prolonged inspection by CBP at ports of entry
have a meaningful opportunity to communicate with counsel and
other interested parties. The bill also provides extra
protection for lawful permanent residents by prohibiting DHS
from accepting a Record of Abandonment of Lawful Permanent
Resident Status from an individual without first providing a
reasonable opportunity for such individual to consult with
counsel.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1573 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Access to Counsel Act of 2021''.
Sec. 2. Access to Counsel and Other Assistance at Ports of
Entry and During Deferred Inspection.
Section (2)(a) amends section 235 of the INA to create a
new subsection (e).
New subsection (e)(1) requires the Secretary of Homeland
Security to ensure that ``covered individuals'' have a
meaningful opportunity to consult with counsel or an interested
party during the inspection process.
New subsection (e)(2) sets forth the scope of such access,
requiring the Secretary to ensure that individuals are
permitted to consult with counsel or interested parties not
later than one hour after secondary inspection commences and
through the end of the inspection process. Counsel and
interested parties shall be allowed to advocate on behalf of
the covered individual and provide supporting documentation and
other information to the Customs and Border Protection (CBP)
inspecting officer. CBP shall, to the greatest extent
practicable, accommodate a request for counsel or an interested
party to appear in-person at the secondary or deferred
inspection site.
New subsection (e)(3) provides extra protection for lawful
permanent residents (LPRs) by prohibiting the Secretary of
Homeland Security from accepting a Record of Abandonment of
Lawful Permanent Resident Status (Form I-407) from an LPR
without providing the LPR with a reasonable opportunity to
consult with counsel. The Secretary may, however, accept such
form if the LPR waives the opportunity to seek advice from
counsel in writing.
New subsection (e)(4) defines the terms ``counsel,''
``covered individual,'' and ``interested party''.
Section (2)(b) establishes the effective date as 180 days
after the enactment of the Act.
Section (2)(c) clarifies that nothing in the Act may be
construed to limit a pre-existing right to counsel or right to
appointed counsel under the INA or any other provision of law,
including a court order.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 1573, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
inspection by immigration officers; expedited removal of inadmissible
arriving aliens; referral for hearing
Sec. 235. (a) Inspection.--
(1) Aliens treated as applicants for admission.--An
alien present in the United States who has not been
admitted or who arrives in the United States (whether
or not at a designated port of arrival and including an
alien who is brought to the United States after having
been interdicted in international or United States
waters) shall be deemed for purposes of this Act an
applicant for admission.
(2) Stowaways.--An arriving alien who is a stowaway
is not eligible to apply for admission or to be
admitted and shall be ordered removed upon inspection
by an immigration officer. Upon such inspection if the
alien indicates an intention to apply for asylum under
section 208 or a fear of persecution, the officer shall
refer the alien for an interview under subsection
(b)(1)(B). A stowaway may apply for asylum only if the
stowaway is found to have a credible fear of
persecution under subsection (b)(1)(B). In no case may
a stowaway be considered an applicant for admission or
eligible for a hearing under section 240.
(3) Inspection.--All aliens (including alien crewmen)
who are applicants for admission or otherwise seeking
admission or readmission to or transit through the
United States shall be inspected by immigration
officers.
(4) Withdrawal of application for admission.--An
alien applying for admission may, in the discretion of
the Attorney General and at any time, be permitted to
withdraw the application for admission and depart
immediately from the United States.
(5) Statements.--An applicant for admission may be
required to state under oath any information sought by
an immigration officer regarding the purposes and
intentions of the applicant in seeking admission to the
United States, including the applicant's intended
length of stay and whether the applicant intends to
remain permanently or become a United States citizen,
and whether the applicant is inadmissible.
(b) Inspection of Applicants for Admission.--
(1) Inspection of aliens arriving in the united
states and certain other aliens who have not been
admitted or paroled.--
(A) Screening.--
(i) In general.--If an immigration
officer determines that an alien (other
than an alien described in subparagraph
(F)) who is arriving in the United
States or is described in clause (iii)
is inadmissible under section
212(a)(6)(C) or 212(a)(7), the officer
shall order the alien removed from the
United States without further hearing
or review unless the alien indicates
either an intention to apply for asylum
under section 208 or a fear of
persecution.
(ii) Claims for asylum.--If an
immigration officer determines that an
alien (other than an alien described in
subparagraph (F)) who is arriving in
the United States or is described in
clause (iii) is inadmissible under
section 212(a)(6)(C) or 212(a)(7) and
the alien indicates either an intention
to apply for asylum under section 208
or a fear of persecution, the officer
shall refer the alien for an interview
by an asylum officer under subparagraph
(B).
(iii) Application to certain other
aliens.--
(I) In general.--The Attorney
General may apply clauses (i)
and (ii) of this subparagraph
to any or all aliens described
in subclause (II) as designated
by the Attorney General. Such
designation shall be in the
sole and unreviewable
discretion of the Attorney
General and may be modified at
any time.
(II) Aliens described.--An
alien described in this clause
is an alien who is not
described in subparagraph (F),
who has not been admitted or
paroled into the United States,
and who has not affirmatively
shown, to the satisfaction of
an immigration officer, that
the alien has been physically
present in the United States
continuously for the 2-year
period immediately prior to the
date of the determination of
inadmissibility under this
subparagraph.
(B) Asylum interviews.--
(i) Conduct by asylum officers.--An
asylum officer shall conduct interviews
of aliens referred under subparagraph
(A)(ii), either at a port of entry or
at such other place designated by the
Attorney General.
(ii) Referral of certain aliens.--If
the officer determines at the time of
the interview that an alien has a
credible fear of persecution (within
the meaning of clause (v)), the alien
shall be detained for further
consideration of the application for
asylum.
(iii) Removal without further review
if no credible fear of persecution.--
(I) In general.--Subject to
subclause (III), if the officer
determines that an alien does
not have a credible fear of
persecution, the officer shall
order the alien removed from
the United States without
further hearing or review.
(II) Record of
determination.--The officer
shall prepare a written record
of a determination under
subclause (I). Such record
shall include a summary of the
material facts as stated by the
applicant, such additional
facts (if any) relied upon by
the officer, and the officer's
analysis of why, in the light
of such facts, the alien has
not established a credible fear
of persecution. A copy of the
officer's interview notes shall
be attached to the written
summary.
(III) Review of
determination.--The Attorney
General shall provide by
regulation and upon the alien's
request for prompt review by an
immigration judge of a
determination under subclause
(I) that the alien does not
have a credible fear of
persecution. Such review shall
include an opportunity for the
alien to be heard and
questioned by the immigration
judge, either in person or by
telephonic or video connection.
Review shall be concluded as
expeditiously as possible, to
the maximum extent practicable
within 24 hours, but in no case
later than 7 days after the
date of the determination under
subclause (I).
(IV) Mandatory detention.--
Any alien subject to the
procedures under this clause
shall be detained pending a
final determination of credible
fear of persecution and, if
found not to have such a fear,
until removed.
(iv) Information about interviews.--
The Attorney General shall provide
information concerning the asylum
interview described in this
subparagraph to aliens who may be
eligible. An alien who is eligible for
such interview may consult with a
person or persons of the alien's
choosing prior to the interview or any
review thereof, according to
regulations prescribed by the Attorney
General. Such consultation shall be at
no expense to the Government and shall
not unreasonably delay the process.
(v) Credible fear of persecution
defined.--For purposes of this
subparagraph, the term ``credible fear
of persecution'' means that there is a
significant possibility, taking into
account the credibility of the
statements made by the alien in support
of the alien's claim and such other
facts as are known to the officer, that
the alien could establish eligibility
for asylum under section 208.
(C) Limitation on administrative review.--
Except as provided in subparagraph
(B)(iii)(III), a removal order entered in
accordance with subparagraph (A)(i) or
(B)(iii)(I) is not subject to administrative
appeal, except that the Attorney General shall
provide by regulation for prompt review of such
an order under subparagraph (A)(i) against an
alien who claims under oath, or as permitted
under penalty of perjury under section 1746 of
title 28, United States Code, after having been
warned of the penalties for falsely making such
claim under such conditions, to have been
lawfully admitted for permanent residence, to
have been admitted as a refugee under section
207, or to have been granted asylum under
section 208.
(D) Limit on collateral attacks.--In any
action brought against an alien under section
275(a) or section 276, the court shall not have
jurisdiction to hear any claim attacking the
validity of an order of removal entered under
subparagraph (A)(i) or (B)(iii).
(E) Asylum officer defined.--As used in this
paragraph, the term ``asylum officer'' means an
immigration officer who--
(i) has had professional training in
country conditions, asylum law, and
interview techniques comparable to that
provided to full-time adjudicators of
applications under section 208, and
(ii) is supervised by an officer who
meets the condition described in clause
(i) and has had substantial experience
adjudicating asylum applications.
(F) Exception.--Subparagraph (A) shall not
apply to an alien who is a native or citizen of
a country in the Western Hemisphere with whose
government the United States does not have full
diplomatic relations and who arrives by
aircraft at a port of entry.
(G) Commonwealth of the northern mariana
islands.--Nothing in this subsection shall be
construed to authorize or require any person
described in section 208(e) to be permitted to
apply for asylum under section 208 at any time
before January 1, 2014.
(2) Inspection of other aliens.--
(A) In general.--Subject to subparagraphs (B)
and (C), in the case of an alien who is an
applicant for admission, if the examining
immigration officer determines that an alien
seeking admission is not clearly and beyond a
doubt entitled to be admitted, the alien shall
be detained for a proceeding under section 240.
(B) Exception.--Subparagraph (A) shall not
apply to an alien--
(i) who is a crewman,
(ii) to whom paragraph (1) applies,
or
(iii) who is a stowaway.
(C) Treatment of aliens arriving from
contiguous territory.--In the case of an alien
described in subparagraph (A) who is arriving
on land (whether or not at a designated port of
arrival) from a foreign territory contiguous to
the United States, the Attorney General may
return the alien to that territory pending a
proceeding under section 240.
(3) Challenge of decision.--The decision of the
examining immigration officer, if favorable to the
admission of any alien, shall be subject to challenge
by any other immigration officer and such challenge
shall operate to take the alien whose privilege to be
admitted is so challenged, before an immigration judge
for a proceeding under section 240.
(c) Removal of Aliens Inadmissible on Security and Related
Grounds.--
(1) Removal without further hearing.--If an
immigration officer or an immigration judge suspects
that an arriving alien may be inadmissible under
subparagraph (A) (other than clause (ii)), (B), or (C)
of section 212(a)(3), the officer or judge shall--
(A) order the alien removed, subject to
review under paragraph (2);
(B) report the order of removal to the
Attorney General; and
(C) not conduct any further inquiry or
hearing until ordered by the Attorney General.
(2) Review of order.--(A) The Attorney General shall
review orders issued under paragraph (1).
(B) If the Attorney General--
(i) is satisfied on the basis of confidential
information that the alien is inadmissible
under subparagraph (A) (other than clause
(ii)), (B), or (C) of section 212(a)(3), and
(ii) after consulting with appropriate
security agencies of the United States
Government, concludes that disclosure of the
information would be prejudicial to the public
interest, safety, or security,
the Attorney General may order the alien removed
without further inquiry or hearing by an immigration
judge.
(C) If the Attorney General does not order the
removal of the alien under subparagraph (B), the
Attorney General shall specify the further inquiry or
hearing that shall be conducted in the case.
(3) Submission of statement and information.--The
alien or the alien's representative may submit a
written statement and additional information for
consideration by the Attorney General.
(d) Authority Relating to Inspections.--
(1) Authority to search conveyances.--Immigration
officers are authorized to board and search any vessel,
aircraft, railway car, or other conveyance or vehicle
in which they believe aliens are being brought into the
United States.
(2) Authority to order detention and delivery of
arriving aliens.--Immigration officers are authorized
to order an owner, agent, master, commanding officer,
person in charge, purser, or consignee of a vessel or
aircraft bringing an alien (except an alien crewmember)
to the United States--
(A) to detain the alien on the vessel or at
the airport of arrival, and
(B) to deliver the alien to an immigration
officer for inspection or to a medical officer
for examination.
(3) Administration of oath and consideration of
evidence.--The Attorney General and any immigration
officer shall have power to administer oaths and to
take and consider evidence of or from any person
touching the privilege of any alien or person he
believes or suspects to be an alien to enter, reenter,
transit through, or reside in the United States or
concerning any matter which is material and relevant to
the enforcement of this Act and the administration of
the Service.
(4) Subpoena authority.--(A) The Attorney General and
any immigration officer shall have power to require by
subpoena the attendance and testimony of witnesses
before immigration officers and the production of
books, papers, and documents relating to the privilege
of any person to enter, reenter, reside in, or pass
through the United States or concerning any matter
which is material and relevant to the enforcement of
this Act and the administration of the Service, and to
that end may invoke the aid of any court of the United
States.
(B) Any United States district court within the
jurisdiction of which investigations or inquiries are
being conducted by an immigration officer may, in the
event of neglect or refusal to respond to a subpoena
issued under this paragraph or refusal to testify
before an immigration officer, issue an order requiring
such persons to appear before an immigration officer,
produce books, papers, and documents if demanded, and
testify, and any failure to obey such order of the
court may be punished by the court as a contempt
thereof.
(e) Access to Counsel and Other Assistance During Inspection
at Ports of Entry and During Deferred Inspection.--
(1) In general.--The Secretary of Homeland Security
shall ensure that a covered individual has a meaningful
opportunity to consult with counsel and an interested
party during the inspection process.
(2) Scope of assistance.--The Secretary of Homeland
Security shall--
(A) provide the covered individual a
meaningful opportunity to consult (including
consultation via telephone) with counsel and an
interested party not later than one hour after
the secondary inspection process commences and
as necessary throughout the remainder of the
inspection process, including, as applicable,
during deferred inspection;
(B) allow counsel and an interested party to
advocate on behalf of the covered individual,
including by providing to the examining
immigration officer information, documentation,
and other evidence in support of the covered
individual; and
(C) to the greatest extent practicable,
accommodate a request by the covered individual
for counsel or an interested party to appear
in-person at the secondary or deferred
inspection site.
(3) Special rule for lawful permanent residents.--
(A) In general.--Except as provided in
subparagraph (B), the Secretary of Homeland
Security may not accept a Form I-407 Record of
Abandonment of Lawful Permanent Resident Status
(or a successor form) from a lawful permanent
resident subject to secondary or deferred
inspection without first providing such lawful
permanent resident a meaningful opportunity to
seek advice from counsel.
(B) Exception.--The Secretary of Homeland
Security may accept Form I-407 Record of
Abandonment of Lawful Permanent Resident Status
(or a successor form) from a lawful permanent
resident subject to secondary or deferred
inspection if such lawful permanent resident
knowingly, intelligently, and voluntarily
waives, in writing, the opportunity to seek
advice from counsel.
(4) Definitions.--In this section:
(A) Counsel.--The term ``counsel'' means--
(i) an attorney who is a member in
good standing of the bar of any State,
the District of Columbia, or a
territory or a possession of the United
States and is not under an order
suspending, enjoining, restraining,
disbarring, or otherwise restricting
the attorney in the practice of law; or
(ii) an individual accredited by the
Attorney General, acting as a
representative of an organization
recognized by the Executive Office for
Immigration Review, to represent a
covered individual in immigration
matters.
(B) Covered individual.--The term ``covered
individual'' means an individual subject to
secondary or deferred inspection who is--
(i) a national of the United States;
(ii) an immigrant, lawfully admitted
for permanent residence, who is
returning from a temporary visit
abroad;
(iii) an alien seeking admission as
an immigrant in possession of a valid
unexpired immigrant visa;
(iv) an alien seeking admission as a
nonimmigrant in possession of a valid
unexpired nonimmigrant visa;
(v) a refugee;
(vi) a returning asylee; or
(vii) an alien who has been approved
for parole under section 212(d)(5)(A),
including an alien who is returning to
the United States in possession of a
valid advance parole document.
(C) Interested party.--The term ``interested
party'' means--
(i) a relative of the covered
individual;
(ii) in the case of a covered
individual to whom an immigrant or a
nonimmigrant visa has been issued, the
petitioner or sponsor thereof
(including an agent of such petitioner
or sponsor); or
(iii) a person, organization, or
entity in the United States with a bona
fide connection to the covered
individual.
* * * * * * *
Minority Views
House Democrats' answer to the raging Biden Border Crisis
is to send in the lawyers. H.R. 1573 would amend section 235 of
the Immigration and Nationality Act to provide a right to
consult with counsel and an ``interested party'' during
secondary inspections of travelers to the United States at any
port of entry. U.S. Customs and Border Protection (CBP) has
raised concerns about the serious operational and practical
implications of providing a right to consult with counsel and
an ``interested party'' during the secondary inspection
process. Yet, the Democrat majority held no legislative hearing
on this bill prior to markup. At a time when the U.S. faces an
unprecedented crisis at the southern border, this bill will
significantly burden federal immigration agencies and do
nothing to stop the Biden Border Crisis.
I. THE BILL'S RIGHT OF ACCESS TO COUNSEL AND AN INTERESTED PARTY IS
MISGUIDED
H.R. 1573 would require the Secretary of the Department
Homeland Security (DHS) to provide a individual in the
secondary inspection process with a meaningful opportunity to
consult with counsel not later than one hour after the
secondary inspection process commences. This requirement would
apply at any port of entry where secondary inspections are
conducted, including land, air, and sea ports. There are 328
U.S. ports of entry.\1\
---------------------------------------------------------------------------
\1\Information provided by U.S. Customs and Border Protection.
---------------------------------------------------------------------------
H.R. 1573 also grants the individual in secondary
inspection access to an interested party during the first hour
of referral to secondary inspection. Under the bill, an
``interested party'' is defined as a relative of the covered
individual; the petitioner or sponsor of the covered
individual; or a person, organization, or entity in the U.S.
with a bona fide connection to the covered individual. The bill
does not address the serious potential that a person could use
the ``interested party'' contact in furtherance of a crime. For
example, an individual part of a criminal conspiracy could
contact and communicate with a co-conspirator while in
secondary inspection.
The right to consultation under the bill applies to
nationals of the United States, returning Lawful Permanent
Residents, aliens seeking admission with unexpired immigrant or
nonimmigrant visas, refugees, returning asylees, and aliens
approved for parole or in possession of an advance parole
document. The bill also prohibits DHS from accepting an
abandonment of Lawful Permanent Resident status unless the
individual has the ability to consult with counsel or waives
that right.
Under current regulations, applicants for admission are not
entitled to representation in primary or secondary inspections
unless the applicant has become the focus of a criminal
investigation and has been taken into custody.\2\ The right to
counsel only attaches once the screening turns from questions
of admissibility of people or goods to a custodial
interrogation relating to a criminal offense.\3\ An alien
seeking admission to the United States has no due process right
to counsel except insofar as Congress would provide,\4\ and
there is no right to counsel in secondary inspection.\5\
However, the CBP Adjudicator's Field Manual does provide that
the inspecting officer may, at his or her discretion, permit a
relative, friend, or representative access to the inspection
area to provide assistance.\6\
---------------------------------------------------------------------------
\2\8 C.F.R. Sec. 292.6 (``Provided, 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.'').
\3\Miranda v. Arizona, 384 U.S. 436 (1966).
\4\See Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (``Whatever
the procedure authorized by Congress is, it is due process as far as an
alien denied entry is concerned'').
\5\American Immigration Lawyer's Assn. v. Reno, 199 F.3d 1352 (D.C.
Cir. 2000) (affirming lower court's determination that ``ban[ning]
access to counsel during the secondary inspection stage is reasonable
in view of Congress's dual purposes in providing fair procedures while
creating a more expedited removal process''); AILA v. Reno, 18 F. Supp.
2d 38, 55 (D.D.C. 1998).
\6\CBP Inspector's Field Manual, Chapter 2.9, available at https://
www.aila.org/File/Related/11120959A.pdf.
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II. THE BILL WILL HAVE SIGNIFICANT NEGATIVE EFFECTS ON CBP
Secondary inspection--as opposed to primary inspection in
which travelers are quickly screened for admissibility\7\ and
customs\8\ purposes--is a tool used by customs officers to
conduct additional screening and vetting of certain individuals
without causing delays for other travelers.\9\ A person
``referred to secondary'' is usually\10\ directed to wait at an
adjacent inspections location for additional questioning by a
customs officer, physical searches, or to give customs officers
more time to research the applicant in law enforcement
databases.\11\ CBP conducts over 17 million secondary
inspections of persons each year at various ports of entry.\12\
---------------------------------------------------------------------------
\7\INA Sec. 235(a)(3) (``All aliens (including alien crewmen) who
are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be inspected
by immigration officers.'').
\8\19 C.F.R. Sec. 162.6 (``All persons, baggage and merchandise
arriving in the Customs territory of the United States from places
outside thereof are liable to inspection by a CBP officer.'').
\9\See Privacy Impact Assessment, U.S. Customs and Border
Protection, TECS, (Dec. 22, 2010), available at https://www.dhs.gov/
xlibrary/assets/privacy/privacy-pia-cbp-tecs.pdf (``At primary, CBP
obtains information directly from the traveler via his or her presented
travel documents (e.g., passport) and/or verbal communication between
the CBP officer and the traveler If the CBP officer at primary
determines that additional inspection is needed, the traveler will be
referred to secondary.'').
\10\However, in some ports of entry, primary and secondary will
occur at the same time with the same CBP officer.
\11\Saghetti, Lisa: Border Security: Immigration Inspections at
Ports of Entry, (Jan. 26, 2015) Congressional Research Service,
available at https://fas.org/sgp/crs/homesec/R43356.pdf.
\12\Data provided by CBP to Committee Staff on February 7, 2020.
---------------------------------------------------------------------------
Giving individuals the right to access counsel during
secondary inspection would have serious logistical and
practical consequences for CBP's ability to screen travelers
and carry out its mission of facilitating lawful trade and
travel quickly and efficiently. CBP enforces nearly 500 U.S.
trade laws and regulations on behalf of 49 different government
agencies.\13\ In fiscal year 2019, CBP processed more than 410
million travelers at ports of entry, including almost 136
million at airports.\14\ Each day CBP inspects over one million
people at the various land, air, and sea ports of entry.\15\
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\13\CBP Trade and Travel Report: Fiscal Year 2019, (Jan. 2020),
available at https://www.cbp.gov/sites/default/files/assets/documents/
2020-Jan/CBP%20FY2019%20Trade%20and
%20Travel%20Report.pdf.
\14\Id.
\15\Id.
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According to the Congressional Budget Office (CBO), CBP
officials have indicated that H.R. 1573 could increase the
length of secondary inspections and drastically delay
processing, which would have an upstream effect on primary
inspection as well.\16\ CBO also notes that CBP does not have
physical space in its ports to accommodate in-person attorney
visits for everyone referred to secondary inspection. CBP will
thus need to build out facilities to accommodate in- person
attorney consultations and will have to dedicate countless
additional manhours holding individuals in secondary inspection
who are waiting for counsel or interested parties to show up at
the port and spend time consulting.\17\ CBP will need to hire
additional personnel at each port of entry, provide security
and transportation for each individual seeking access to
counsel, upgrade current space, and construct new space for
necessary meetings.\18\ CBO estimates that H.R. 1573 will cost
$825 million over the next five years.\19\
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\16\Congressional Budget Office, Cost Estimate of H.R. 1573 Access
to Counsel Act of 2021 (Apr. 15, 2021).
\17\Id.
\18\Id.
\19\Id.
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During the week of April 5, 2021, Republican Members of the
Judiciary Committee traveled to McAllen, Texas and visited the
Hidalgo Port of Entry, where officers explained that facilities
were already too small, outdated, and in dire need of upgrades.
The officers explained that the city of McAllen was already
paying for structural upkeep of the port facility because
Congress had neglected to do so for so long. H.R. 1573 would
only further strain CBP's resources and complicate CBP's
ability to carry out its mission and protect our country.
Other than Republican fact-finding in McAllen, Texas--which
Democrats declined to join--the Democrat majority made no
effort this Congress to gather information about how H.R. 1573
would affect CBP or border communities. The Committee
considered H.R. 1573 without any legislative hearing this
Congress to receive and examine input from CBP, immigration
stakeholders, and members of border communities. Additionally,
during the Committee's consideration of the bill. Democrats
rejected all amendments offered by Republicans that would have
improved the bill's provisions.
III. CONCLUSION
The Democrats failed to conduct any legislative due
diligence on H.R. 1573 in the 117th Congress. As a result, the
bill's access to counsel and interested party provisions are
misguided. The bill's implementation will severely and
negatively affect CBP's ability to facilitate lawful trade and
travel. Most egregiously, at a time when CBP and other
immigration agencies are stretched thin by the Biden
Administration's radical immigration policies, H.R. 1573 does
nothing to address the Biden Border Crisis.
Jim Jordan,
Ranking Member.