Tourist detentions at the US border: What international visitors should know

New York: In recent weeks, a flurry of international visitors attempting to enter the United States from other countries have been denied entry at border checkpoints, leading to either deportations to their home countries or days or weeks of detention.

A 28-year-old British woman arrived in Britain last week after she was held at an immigration detention centre in Washington state for three weeks. She had attempted to enter the US from Canada, and questions arose at the land-border crossing whether she had the correct visa.

Her ordeal came shortly after two German tourists in separate incidents were deported after trying to enter the US from Mexico. Both had spent weeks in a detention centre in San Diego, and both said they were unclear as to why they had been detained and deported.

US federal law gives government agents the right to search people’s property, including their phones and laptops, at border entry points.Credit: Getty

The incidents have sparked international concern over what travellers can expect at US border crossings. Most citizens of most European countries have for years enjoyed visa-free travel, for up to 90 days, to the US.

Here’s what to know about travel visas and rights for international visitors entering the US.

Basics of entering and exiting the US

People seeking to enter the US who are not US citizens must have a valid passport that is not set to expire within six months. Additionally, most people need either a visa or, for citizens of countries participating in the visa-free travel agreement, an electronic system for travel authorisation, known as an ESTA.

ESTAs are applied for online by submitting a photo (or computer scan) of a valid passport, as well as an email address, home address, phone number and emergency contact.

For citizens of countries that were not part of the visa-free program, most vetting for visas occurred at consulates in visitors’ home countries, said Jeff Joseph, an immigration lawyer in Denver. Consulate officials looked for signs that people planned to overstay their tourist visas or intended to work, among other things.

The visa – or the authorisation – was just an entry document to get people to the airport or a land border, Joseph said. It does not guarantee entry to the US. Once a traveller arrives, they have to prove that they intend to use the visa as directed.

Immigration officials will ask routine questions, usually regarding purpose of the visit, duration of the stay, where travellers plan to stay and what they plan to do. Visitors can be taken for a second round of questioning, which is longer and more detailed.

Most common visas for visitors

The US has three categories of visas for non-immigrant visitors: a visitor visa for those who want to enter temporarily for business purposes, known as a B-1; a tourism visa, known as a B-2; and then a combination visa for both purposes – a B-1/B-2.

Although the visas themselves are valid for up to a decade, visitors are allowed to stay in the country for six months at most.

Travellers with these tourist visas are not allowed to study, work a permanent job, do any paid performances, arrive as a member of a crew on an aircraft or ship, work in foreign press or take up permanent residence, according to the US State Department.

To obtain these visas, prospective visitors must complete an online application, provide required documents such as a passport and photo, and schedule a visa interview. The interviews cost $US185 ($295).

According to the State Department, the Department of Homeland Security and US Customs and Border Protection, officials “have authority to permit or deny admission to the United States”.

Countries with visa-waiver programs

The visa-waiver program, which allows most citizens to travel to the US for business or tourism purposes for up to 90 days, applies to 43 countries. In return, US citizens can travel to those countries for a similar length of time without a visa.

The program began in 1986 and is seen as a “security partnership” with US allies.

Travellers still need a valid ESTA to enter the country. The applications cost $US21, and the authorisations are active for two years. The ESTA must be obtained at least 72 hours before boarding a flight.

There is fine print – for example, you cannot obtain an ESTA if you visited certain countries after certain times, such as Cuba on or after January 12, 2021. If you are not eligible for the ESTA, you must obtain a tourist visa.

Those entering the US with an ESTA are not allowed to study or work a permanent job.

In this process, visitors “waived” a lot of rights, Joseph said, including waiving the right to contest deportation. Because of that, people using this program can be subject to mandatory detention.

What rights do visitors have?

US federal law gives government agents the right to search people’s property, including their phones and laptops, at border entry points. They do not need to be suspected of wrongdoing to be searched, according to the American Civil Liberties Union.

All visitors have the right to remain silent. But the burden of proof rests with visa holders. For example, if an officer asked if someone planned to work on their tourist visa, and that person remained silent, the officer was likely to deny them entry, Joseph said.

If a person is found inadmissible during questioning, they can withdraw their intent to enter the country and may then be allowed to travel back to their home country. Their visa is cancelled and they often get the next flight home. But an officer can deny the withdrawal, at which point the visitor is detained.

Because these confrontations technically occurred outside the country, the rights outlined in the US Constitution did not apply, Joseph said, and detainees were not necessarily entitled to a lawyer. The government has about 90 days to deport people. That period can be extended if detainees don’t co-operate by providing the correct travel documents, at which point they can be subject to criminal proceedings. Following an order of removal, people are barred from entering the US for five years.

This article originally appeared in The New York Times.

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