Update To Detained TN Visa Applicant
Yesterday, I wrote about the case of a Canadian citizen, Jasmine Mooney (a former actress), who has been detained by US Immigration & Customs Enforcement (ICE) since March 3rd following a denial of her TN visa status application, which she filed at the U.S./Mexico border. As stated previously, it is highly unusual for an individual to be detained in this scenario, and also contrary to prior U.S. immigration policy.
According to a statement made to CBS News, ICE detained Ms. Mooney in furtherance of President Trump’s Securing Our Borders Executive Order, which directs authorities to detain “to the maximum extent authorized by law, aliens apprehended on suspicion of violating Federal or State law, until such time as they are removed from the United States.” ICE did not provide any further specifics regarding Ms. Mooney’s alleged violations, but in the TN visa application context the most commonly alleged violations are overstaying a visa, working without authorization, or making false statements to U.S. immigration officials in order secure approval of the application.
The typical result in this situation, and which is actually required by USCBP policy in place since 2000, is for the individual to either be denied entry to the U.S. and sent back to their country of origin, or in more egregious cases, to be expedited removed from the U.S. Under the expedite removal process, a USCBP officer makes the allegation, evaluates the case, and determines the individual’s fate. This procedure does not afford the individual with any court proceeding before a judge. (Removal proceedings before a judge can take several months.) If an officer believes that an individual committed an immigration violation, USCBP denies the person entry to the U.S. and immediately returns them to their country of origin. In addition to the denial of entry, individuals who are expedited removed from the U.S. are also barred to returning to the U.S. for either 5 years, or in the case of alleged misrepresentation or fraud, for their lifetime.
Either the officers at this port were unaware of their own removal policy - at least as it relates to TN visa applications, or in light of Trump’s Executive Order they are disregarding it. Given that ICE appears to be removing Ms. Mooney without a hearing before an immigration judge (Ms. Mooney’s father expects her to be released tonight), she is still likely being processed through the expedited removal process anyway. As result, she may be facing a 5-year or lifetime bar to the U.S. But instead of making this decision and immediately sending her back to Canada on the day she filed her TN visa application, it appears that USCBP is taking a more punitive approach. By referring her to ICE, Ms. Mooney may suffer the same expedite removal result, but only after almost 2 weeks of confinement.
The government’s approach in this case raises several questions: Did USCBP make a mistake in placing Ms. Mooney in detention? Or did they intentionally do so in order to punish her and make an example or her? Will we see USCBP refer more TN visa applicants to ICE for detention before ultimate removal from the U.S.?