Payment of U.S. Customs Fine and Inadmissibility
Monday, July 6, 2009
Recently our office has encountered several individuals who have been told they are inadmissible to the U.S. by Customs and Border Protection (“CBP”) officials based solely on the individual’s having signed the former U.S. Customs Service “Agreement to Pay Monetary Penalty” and paying the associated Customs fine. Contrary to what these individuals have been told, the payment of a Customs fine and signing of the Agreement do not alone constitute acts sufficient to render someone inadmissible to the United States.
The most common example of this situation is in the case of an individual who, prior to the dissolution of the U.S. Customs Service in 2002, was found to be in possession of a small amount of marijuana during a Customs inspection. Rather than being turned over to local law enforcement and criminally prosecuted, the Customs Service chose to impose administrative penalties on many of these individuals, charging them an administrative fine, and allowing them to proceed into the U.S. upon payment of the fine.
The former U.S. Customs Service used an “Agreement to Pay Monetary Penalty” (“Agreement”) in disposing of cases involving an individual who was found to have a controlled substance in his possession at the time of a Customs Inspection. If the individual agreed to pay a monetary penalty (fine), the Customs officer could release him, together with the conveyance and baggage that he brought to the U.S.
Alexander Aleinikoff, General Counsel of the former Immigration and Naturalization Service (“INS”), issued a written legal opinion on January 20, 1995, which provides analysis of the U.S. Customs Service practice of imposing administrative fines on individuals found to be in possession of controlled substances during a Customs inspection.
As stated in the legal opinion, the authority of the Customs Service to assess the penalty referred to in the Agreement is not based on any law or regulation relating to a controlled substance. Rather, the penalty that an individual agrees to pay by signing the Agreement is the penalty fixed by 19 USC § 1459 for violating the Customs reporting requirements. Section 1459(a)(2)(B) specifically requires: “all individuals arriving . . . in the United States . . shall immediately present themselves, and all articles accompanying them for inspection.”
The penalty imposed, therefore, is a penalty for failure to present for inspection, as opposed to a penalty for possession of a controlled substance. Accordingly, and as stated by General Counsel Aleinikoff, “[a]n alien who agrees to pay the penalty does not by doing so admit having committed acts which constitute the essential elements of a controlled substance violation” under INA § 212(a)(2)(A)(i)(II). In other words, payment of a Customs penalty by an individual found to have a controlled substance in his possession at the time of a Customs Inspection, does not serve to render that person inadmissible under INA § 212(a)(2)(A)(i)(II).
General Counsel Aleinikoff ends his opinion with the following direction: “[t]he Service may not rest an exclusion charge under Section 212(a)(2)(A)(i)(II) solely on an alien’s having signed this Agreement.”
By citing to this opinion in our legal submissions, our office has been able to secure the admission and entry of individuals who were previously refused admission by CBP and told they required a waiver (Form I-192) to overcome their inadmissibility for having committed a controlled substance offense.
In other situations, where individuals already submitted applications for waivers of inadmissibility (Form I-192) based solely upon the payment of a Customs fine, our office has been successful in obtaining letters of non-inadmissibility, which state that no waiver is required.