CBP PRIMARY AND SECONDARY INSPECTION
A foreign national applying for admission generally does not have a regulatory right to have an attorney present during CBP primary or secondary inspection. The rules change if the person becomes the focus of a criminal investigation and is taken into custody, and different representation rights apply in later immigration court proceedings.
8 C.F.R. §292.5(b) generally provides a right to representation during examinations conducted under the immigration regulations, but expressly states that this does not give an applicant for admission a right to representation during primary or secondary inspection.
A traveler may ask to contact an attorney, but an applicant for admission generally cannot require CBP to stop ordinary primary or secondary inspection until an attorney is present.
The same regulation contains an important exception when the applicant for admission has become the focus of a criminal investigation and has been taken into custody.
A routine immigration admissibility interview should therefore be distinguished from questioning that has developed into a criminal investigation.
If DHS later places the person into removal proceedings before an immigration judge, the person may be represented by qualified counsel at no expense to the government.
The lack of a general right to counsel during CBP inspection should not be confused with representation rights in immigration court.
A person referred from expedited removal for a credible fear interview has separate regulatory rights to consult with a person of the individual’s choosing before the credible fear interview and review, subject to the applicable detention procedures and without unreasonably delaying the process.
That consultation right arises after the fear referral and is not the same as a right to have counsel present during the original CBP inspection.
A returning lawful permanent resident is not automatically treated as seeking admission in every case. If CBP determines that one of the INA §101(a)(13)(C) exceptions applies and treats the person as an applicant for admission, the border-inspection framework becomes especially important.
See Green Card Holder Seeking Admission Under INA §101(a)(13)(C).
An applicant for admission generally has no regulatory right to representation during primary or secondary inspection.
You can ask, but the ordinary inspection regulation does not give an applicant for admission the right to require CBP to delay inspection until counsel participates.
8 C.F.R. §292.5(b) specifically distinguishes an applicant who has become the focus of a criminal investigation and has been taken into custody.
These government materials provide the principal CBP inspection and expedited-removal rules discussed on this page.
Because counsel generally cannot insist on participating in ordinary primary or secondary inspection, identifying problems before travel can be especially important.