U.S. Customs and Border Protection Inspector’s Field Manual Charles M. Miller, Editor Editor’s Notes This publication of the U.S. Customs and Border Protection Inspector’s Field Manual (hereinafter cited as the IFM) is the result of a successful Freedom of Information Act appeal. Since the tragic loss of life due to the terroristic acts of foreigners in the United States on September 11, 2001, there has been continued governmental scrutiny of the procedures by which persons are admitted at over 300 air, sea, and land ports of entry by U.S. Customs and Border Protection (CBP) employees. In November 2007, the General Accountability Office issued the public version of its Border Security Report which analyzed the procedures by which the cross-border travel of millions of persons is regulated. 1 The GAO Border Security Report cited the IFM as a primary resource for its review of CBP inspections procedures.2 The CBP, created in March 2003 as part of the massive government reorganization which created the Department of Homeland Security, represents a merger of components from the U.S. Customs Service, the U.S. Immigration and Naturalization Service, and the Animal and Plant Health Inspection Service. Our attention as immigration lawyers is similarly directed to the inspections process. In fiscal year 2006, the CBP found over 200,000 persons to be either inadmissible aliens or interdicted as law violators.3 We are aware that inspection is a crucial function made difficult by the millions of travelers that enter the country each year. The high volume of international travel to the U.S. means that officers typically have little time to make decisions about who is permitted to enter the country lawfully. However, we are also aware that this time pressure leads to mistakes that adversely affect travelers with legitimate purposes. Readers are reminded that they are using a government manual with sections that may be out-of-date by later changes to the law or policy4 or may reflect an arguable exposition of the law. I indicate withheld FOIA material by use of noted redactions. 1 GAO Report, GAO-08-219, Border Security, Despite Progress, Weaknesses in Traveler Inspections Exist at Our Nation’s Ports of Entry (November 2007). Hereinafter cited as GAO Border Security Report. 2 Id. 3 Id. 4 An example of a subsequent regulatory change is that: "[E]ffective January 31, 2008, CBP Officers will no longer generally allow travelers claiming to be U.S., Canadian, or Bermudian citizens to establish citizenship by relying only on an oral declaration. Beginning on that date, all travelers, including those claiming to be U.S., Canadian, or Bermudian citizens arriving by land and sea will generally be expected to present some form of documentation to satisfy the CBP Officer of his or her identity and citizenship." 72 Fed. Reg. 72744 , December 21, 2007. CBP Inspector’s Field Manual i On May 26, 2006, I submitted a FOIA request asking that the CBP provide a copy of the Inspector’s Field Manual, the current title of the book. The request was denied on June 30, 2006 on the basis of 5 U.S.C. § 552(b)(2). The CBP had selected as its statutory basis a ground that required them to show that the withheld material relates solely to “trivial administrative matters of no genuine public interest.” My appeal to the CBP Assistant Commissioner, Office of Regulations and Rulings was based on the argument that inspections and admissions practices and procedures impact the vast number of immigrants and nonimmigrants seeking to lawfully enter the United States every year. It was my position that those parts of the IFM which directly impact those individuals, who are by definition members of the public, should be released without redaction. The gist of the appeal was that the CBP denial determination was contrary to the decision in Founding Church of Scientology, Inc. v. Smith. 5 That court held that the agency determination must show that the withheld material relates solely to ‘trivial administrative matters of no genuine public interest.’ My appeal argued that there is genuine public interest among immigrants and nonimmigrants seeking to lawfully enter the United States. There is also a genuine interest among those persons and organizations that petition and apply for them. The appeal reasoned that release of the requested information is needed to prepare beneficiaries and other applicants for entry and CBP benefits. Without such release, many hours of extra time would be spent at ports of entry by CBP officers and the public alike simply because the alien did not understand what the officer wanted. I argued in the appeal that portions of the IFM are repeatedly cited in GAO and Congressional Reports. My appellate position was that without release of those portions of the IFM publicly cited, the voting public could not readily inform itself regarding these issues. As immigration reform is one of the major topics of Congressional attention at this time, release of the IFM is clearly in the public interest. On April 24, 2007, the CBP reversed its decision to withhold the IFM in its entirety, and instead released the IFM with some information withheld under exemptions (b)(2), (b)(7)(C) and (b)(7)(E). I have communicated further with the CBP’s FOIA Appeals, An example of a policy announcement made in a press release on the Department of State Website: Effective Oct. 1, 2007, U.S. Citizens traveling by air to Canada, Mexico, the Caribbean, and Bermuda must present a passport or other WHTI-compliant documentation to enter or depart from the United States, ending a grace period which was necessitated by passport application backlogs during the Summer of 2007. DHS Reminds Carriers and Traveling Public About the End of the Temporary WHTI Accommodation, Release Date: September 4, 2007 http://www.dhs.gov/xnews/releases/pr_1188939218061.shtm . For specific WHTI compliant documentation that may be used another DOS Webpage should be consulted. See Western Hemisphere Travel Initiative: The Basics, http://www.dhs.gov/xtrvlsec/crossingborders/whtibasics.shtm#content . 5 721 F.2d 828, 831 n.4 (D.C. Cir. 1983). CBP Inspector’s Field Manual ii Policy and Litigation Branch and asked for specific justification for each withheld portion; I will endeavor to amend this publication if CBP releases more of the requested material. This publication of the IFM is the result of that successful Freedom of Information Act appeal. Its publication represents a debt of gratitude owed to my colleague, John B. Bartos, who helped me with the successful administrative appeal. Another person who is owed my thanks, is Aris Bogosian. Aris, who has worked with me since 1979, has contributed her formidable editing and formatting skills to this project. It is my hope that this publication, made possible through the use of the Freedom of Information Act, will encourage readers to find their own ways make our government more accessible to the public. Charles M. Miller Studio City, California February 1, 2008 CBP Inspector’s Field Manual iii Chapter 1. Organization and Content of the U.S. Customs and Border Protection (CBP) Inspector's Field Manual (lFM). Chapter 2. Mission and Conduct of Inspections Officers. 2.1 Mission Statement 2.2 Authority 2.3 Reserved 2.4 The Inspector and the Public 2.5 Uniforms, Badges and Identification 2.6 The Work Environment 2.7 Reporting Unusual Incidents 2.8 Hostage Situations 2.9 Dealing with Attorneys and Other Representatives 2.10 Land Border Integrity Program (Added 6/23199; IN99-22) Chapter 3. The Organization of Inspections. 3.1 (Chapter removed and reserved 2/10/06; CBP 17-06) 3.2 (Chapter removed and reserved 2/10/06; CBP 17-06) 3.3 (Chapter removed and reserved 2/10/06; CBP 17-06) 3.4 (Chapter removed and reserved 2/10/06; CBP 17-06) Chapter 4. Conducting Research. 4.1 General Considerations 4.2 Sources and Organization of Immigration law 4.3 Basic Research Methods 4.4 Factual Research and Service Data Bases 4.5 (Removed 2/10/06; CBP 17-06) I. Policies and Procedures: Application for Admission. Each chapter from 11 through 18 describes the policies and procedures peculiar to persons inducted in the chapter title. Other special topics discussed within each chapter are noted in the chapter descriptions. Chapter 11. Persons Exempt Inspection. 11.1 Inspection and Examination 11.2 Members of the U.S. and NATO Armed Forces 11.3 American Indians Born in Canada Chapter 12. United States Citizens and Other Nationals. 12.1 Inspection of U.S. Citizens 12.2 Evidence of Citizenship 12.3 Oral Testimony 12.4 United States Passports 12.5 United States Passport Waivers 12.6 Other Documentary Evidence 12.7 Loss of Citizenship 12.8 Non-Citizen Nationals 12.9 Northern Mariana Islanders 12.10 Nationals of Former Trust Territories Chapter 13. Returning Residents. 13.1 Inspection of Returning Lawful Permanent Residents (LPRs) 13.2 Returning Residents Lacking Evidence of Alien Registration (Revised 5/16105; CBP 9-05) 13.3 Returning Military Dependents 13.4 Question of Meaningful Departure CBP Inspector’s Field Manual iv 13.5 Returning Residents with 88-1 VIS8S 13.6 Readmission of Temporary Residents 13.7 Conditional Residents Chapter 14. New Immigrants. 14.1 Inspecting New Immigrant Applicants 14.2 Passport Requirements 14.3 Inspection of Family Groups 14.4 Immigrant Visa Admission Processing Procedures 14.5 Admission of Certain Immigrant Children without Immigrant Visas 14.6 Conditional Residents 14.7 Immigrant Commuters Chapter 15. Nonimmigrants and Border Crossers. 15.1 General Considerations and Processing Instructions (Revised 5/16/05; CBP 9-05) 15.2 Passports 15.3 Visas 15.4 Requirements and Procedures for Nonimmigrant Classes 15.5 NAFTA Admissions 15.6 Transit without Visa Admissions 15.7 Visa Waiver Program 15.8 Guam Visa Waiver Program 15.9 Border Crossing card (BCC) Admissions 15.10 Entry of Nonimmigrant Workers during labor Disputes 15.11 Special Interest Aliens (Revised IN02-34) 15.12 Correction of Erroneous Admissions 15.13 Nationals of Former Trust Territories 15.14 Hong Kong Travel Documents 15.15 Cancellation of Nonimmigrant Visas under Section 222(g) of the 15.16 Student and Exchange Visitor (SEVIS) Processing Chapter 16.