Criminal record and obtaining a US visa

[Skyring]

Innocent until Proven guilty doesn't apply. You have not entered the USA until you clear customs. The CPB officer has the final say and if he or she refuses you entry, that's it. Aliens have no rights of appeal or access to lawyers etc on that side of the barrier, it's back on the plane and see you later. The situation is different for U.S. Citizens who are entitled to an attorney.

Of course. But can I just clear something up? You implied that incorrectly filling out the ESTA form was an offence which would render one ineligible for entry under the moral turpitude prohibition. You talked about extradition to the US for an incorrect answer.

I say innocent until proven guilty.

And that's me being polite.

 

[Skyring]

No doubt 99% get through customs without a hitch, which is of little comfort if you are unfortunate enough to be in the 1% who do get caught.

That's kinda depressing, coming from an ex-cop.

One of my favorite shows is Borderline Security, where they do pick up drug couriers. It's a treat to see the Customs people working through their scripts, asking questions, sorting out the chaff from the wheat. They don't pull out the latex gloves first up, they look for clues first.

But at least for Australian entry, the immigration forms match the legislation. They ask if you are carrying (say) meat products, rather than asking if you bought meat products overseas.

 

[Skyring]

Immigration and Naturalisation Act. I'm sure you're familiar with it. I'll give you a hint, start at s.214. (b)
USCIS - Immigration and Nationality Act

INA 214(b) is the number one reason for nonimmigrant visa denials. It is referred to as "failure to establish entitlement to nonimmigrant status," or more commonly, "presumption of immigrant intent" because the majority of 214(b) denials are applied to intending immigrants.
The State Department issued 6.5 million nonimmigrant visas in 2008, but also rejected 2.1 million visa applications. Among them, almost 1.5 million (~ 70%) were denied based on INA 214(b).
What is Section 214(b)?

The Immigration and Naturalization Act (INA) states under Section 214b that:

Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status...​

What it means is that a consular officer must view every nonimmigrant visa applicant as an intending immigrant who is planning to visit and then permanently stay in the U.S. The applicant, therefore, must prove to the officer that s/he is going to return home after the temporary visit. If the consular officer is not satisfied, he is required to deny the nonimmigrant visa application.
Visa Denials under INA 214(B) and Presumption of Immigrant Intent

If you jump through those hurdles, or come to the USA under the VWP, you still have to convince Customs and Border Protection of the same if they take an interest in you:

If the CBP officer has any concerns about you, your travel, or your documents, or if you are selected randomly for additional processing, the CBP officer
will direct you to the CBP Secondary Area, where you may be interviewed further to determine whether you are admissible to the United States.
http://www.cbp.gov/linkhandler/cgov/newsroom/publications/travel/welcome2us.ctt/welcome2us.pdf

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

CBP officials – their power and authority – what they can do?

CBP officers conducting the inspection at a U.S. Port-of-Entry have complete power and authority and it is up to their discretion to conclude whether or not a foreign national is eligible to enter the U.S. It is only after a CBP officer stamps and dates the I-94 form, places an admission stamp in the foreign national's passport, and the foreign national passes through the inspection station that the foreign national is admitted to the United States.

Secondary Inspection – what leads you to a secondary inspection?

If the first CBP officer that a foreign national meets feels that the inspection requires additional time for review to determine a foreign national's eligibility, the officer may refer the foreign national for a “secondary inspection.” This secondary inspection at a U.S. Port-of-Entry is a much more comprehensive review, and can take several hours to complete. Generally a foreign national referred for secondary inspection is not considered to be “admitted” to the United States.

What generally happens in a secondary inspection?

In secondary inspection, CBP officers will ask foreign national more detailed questions about their travel plans for the U.S. Foreign nationals may even be asked to produce additional identification and other documentation in order to determine their actual identity and purpose of their visit to the United States. The foreign national and their belongings may also be searched, and the foreign national may be required to give a full set of fingerprints.

Any person, foreign national or person with a claim to U.S. citizenship and presenting a U.S. passport may be sent to secondary inspection at a U.S. Port-of-Entry if the CBP officer has reservations about admitting him to the United States. A person may also be sent to secondary inspection if there is a possibility the person is smuggling contraband or violating any other customs or immigration regulations, or federal law in general.
Do Immigrants Have Any Rights in the U.S.? - VisaPro Immigration Articles

You said, "They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa."

And I asked for the legislation backing up this statement. I thought you might know it. I was wrong.

 

[harvyk]

With the VWP, you do wave all rights to appeal should you be denied entry, it is something which they draw you attention to when applying for an ESTA, should CBP decide to reject you, you must leave no questions asked.

I do believe you have the ability to appeal a denied entry should you have a visa, in which case a judge would actually determine your immigration status, not the CBP. CBP will of course make it difficult, but you have the right to appeal their decisions in that instance.

 

[harvyk]

That's kinda depressing, coming from an ex-cop.

One of my favorite shows is Borderline Security, where they do pick up drug couriers. It's a treat to see the Customs people working through their scripts, asking questions, sorting out the chaff from the wheat. They don't pull out the latex gloves first up, they look for clues first.

But at least for Australian entry, the immigration forms match the legislation. They ask if you are carrying (say) meat products, rather than asking if you bought meat products overseas.

A few years ago, I was doing some work for AQIS, we where doing an upgrade of their computer systems and I was one of the guys who needed to go out onsite and be a smiling face ( / there if the proverbial hit the fan). When we did the Sydney Airport upgrade, it ran smoothly, so I spent most of my time in customs hall B just watching on with what was going on (and watching a guy get busted for having a suitcase full of medicine, the AQIS guys later said to me that they knew he was up to something dodgy before he was even through immi). It was extremely interesting, almost like my own viewing of border security, but without the narration / censoring. I also saw them filming an episode at Qantas mail handling at SYD airport as well, where they found cocaine in chess pieces, again very interesting although it was a re-enactment as the actual find had been made a couple of weeks before hand.

 

[Skyring]

When we did the Sydney Airport upgrade, it ran smoothly, so I spent most of my time in customs hall B just watching on with what was going on. It was extremely interesting, almost like my own viewing of border security, but without the narration / censoring.

I love looking at intricate human systems. Airports are amazing places for seeing so many people doing so many jobs, all working together to keep people moving, planes flying, feathers unruffled, and always safety is a priority.

I really don't mind that there are procedures to screen passengers for various things. Stopping disease, drugs, crime, terrorism are all important. What bugs me is when needless friction is introduced.

Like directing passengers through a maze of retail outlets, when what you really want to do is get to your plane if you are running late, or the lounge if not.

Immigration halls are places where I get to spend a fair bit of time, sometimes inadvertently if there's a couple of longhaul jumbos arrive before mine. I could be bored and fretful. Or I could watch what's going on, admiring the beauty of the system and how smoothly - or not - hundreds of travellers are processed.

I prefer to be mindful and alert, appreciating the little human dramas playing out all around me.

 

[harvyk]

I love looking at intricate human systems. Airports are amazing places for seeing so many people doing so many jobs, all working together to keep people moving, planes flying, feathers unruffled, and always safety is a priority.

What was interesting was I got to see quite a few of the behind the scenes stuff which the general public will never get to see as well. It was also a little bit strange crossing over the immi line 30 times in a single day. (although we where told to use the corridor at the side as customs would get a little shirty with us if we cut through the processing hall)

 

[will2rob]

Of course. But can I just clear something up? You implied that incorrectly filling out the ESTA form was an offence which would render one ineligible for entry under the moral turpitude prohibition. You talked about extradition to the US for an incorrect answer.

I say innocent until proven guilty.

And that's me being polite.

I didn't imply anything, I thought I was quite clear that falsely filling out a declaration is an offence both here and also under the US INA. That has nothing to do with the Moral Turpitude provisions of the INA, however a conviction for a fraud related offence is covered under the definition of Moral Turpitude as defined in U.S. Department of State Foreign Affairs Manual Volume 9 Visas:

9 FAM 40.21(a) N2.3-1 Crimes Committed Against
Property
(CT:VISA-1318; 09-24-2009)
a. Most crimes committed against property that involve moral turpitude
include the element of fraud. The act of fraud involves moral turpitude
whether it is aimed against individuals or government. Fraud generally
involves:
(1) Making false representation;
(2) Knowledge of such false representation by the perpetrator;
(3) Reliance on the false representation by the person defrauded;
(4) An intent to defraud; and
(5) The actual act of committing fraud

http://www.state.gov/documents/organization/86942.pdf

The full list of offences considered to constitute Moral Turpitude for the purposes of the INA are contained at that link. In short, there is very little that is not captured under their definition.

An example of what can happen if you choose to lie in a Visa application:

BOSTON — A federal jury today convicted a Rwandan woman of lying to enter the country and again when seeking asylum. This case is being investigated by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and the U.S. Department of State, Bureau of Diplomatic Security.
Prudence Kantengwa, aka Prudentienne, 47, of Boston, who is a native and citizen of Rwanda, was convicted of fraud in immigration documents, visa fraud, perjury during testimony before an immigration judge and obstruction of administrative proceedings. Judge Richard G. Stearns scheduled sentencing for July 31, 2012.
Evidence at trial revealed that when Kantengwa entered the United States Jan. 29, 2004, she possessed and used a non-immigrant visa she had fraudulently obtained by providing false information when she submitted with her visa application. After arriving in the United States March 8, 2004, she provided false information to the U.S. government on a form which, if approved, would allow her to remain in the country. On specific dates between August 2006 and May 2008, Kantengwa committed perjury during testimony before an immigration court. Between March 2004 and December 2008, Kantengwa endeavored to obstruct administrative proceedings being conducted in connection with her application to stay in the United States by providing false and misleading testimony and submissions. The questions to which Kantengwa provided false information all involved her activities and associations during the Rwandan genocide in 1994.
Kantengwa faces up to 10 years in prison to be followed by three years of supervised release and a $250,000 fine, on the fraudulent immigration document charges. Kantengwa also faces five years in prison, to be followed by three years supervised release and a $250,000 fine on each of the perjury and obstruction of administrative proceedings convictions.
Rwandan national convicted of visa fraud, false statements, perjury and obstruction

You said, "They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa."

And I asked for the legislation backing up this statement. I thought you might know it. I was wrong.

As I actually work full time since retiring from the cops I don't have the time to research the exact section of the INA from which CBP draw their authority however, I'll join the dots for you as it is all contained in my previous posts. US Customs and and Border Protection say this:

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

US Embassy in Sydney website:
Neither possession of a visa, nor meeting the basic requirements for traveling visa-free on the VWP, guarantees admission to the United States. As with most countries, the final determination of admissibility is made by immigration officials at the port of entry.
Home | Consulate General of the United States Sydney, Australia

So as I commented, whether you have a visa or not is irrelevant. the CBP officer on the barrier will make a determination based on their "training". If they decide that they are not going to allow you in, that is the end of the story. You get turned around at the airport. No appeal, no right to counsel if you are not a U.S. citizen. S.214(b) of the INA presumes that everyone coming to the U.S. is an immigrant unless they satisfy the consular officer (or CBP) that they are a nonimmigrant i.e. a tourist etc.

While you are perfectly entitled to accept, reject or challenge any of my statements,you have not posted any references to legislation that refutes anything I have posted. I am happy to be corrected so please point me to where the presumption of innocence applies in the circumstances under discussion or anything that you say, restricts the authority of the CBP officer carrying out a determination at a point of entry.

 

[will2rob]

With the VWP, you do wave all rights to appeal should you be denied entry, it is something which they draw you attention to when applying for an ESTA, should CBP decide to reject you, you must leave no questions asked.

I do believe you have the ability to appeal a denied entry should you have a visa, in which case a judge would actually determine your immigration status, not the CBP. CBP will of course make it difficult, but you have the right to appeal their decisions in that instance.

I think you'll find that if you are refused, visa or no visa, you will be effectively deported. I should have been clearer, that you have no right of appeal or access to courts etc at the point of entry if you are not a U.S. Citizen. I believe you can appeal once you have left the U.S. but that is little comfort if you have just wasted an airfare to get turned back.

 

[harvyk]

So as I commented, whether you have a visa or not is irrelevant. the CBP officer on the barrier will make a determination based on their "training". If they decide that they are not going to allow you in, that is the end of the story. You get turned around at the airport. No appeal, no right to counsel if you are not a U.S. citizen. S.214(b) of the INA presumes that everyone coming to the U.S. is an immigrant unless they satisfy the consular officer (or CBP) that they are a nonimmigrant i.e. a tourist etc.

It's not irrelevant, having a Visa dos give you some rights at the border beyond someone attempting entry using the VWP. With the VWP the final determination is at the CBP level, when you sign up for an ESTA you specifically sign something stating you have no right of appeal, with a Visa the final determination can be at a higher up level. A few years back a friend of mine was originally denied entry at the border, however since she had a visa (a student visa) she was able to appeal the decision and thus enter the US. She was able to stay in the country whilst appealing the decision.

 

[Skyring]

I didn't imply anything, I thought I was quite clear that falsely filling out a declaration is an offence both here and also under the US INA. That has nothing to do with the Moral Turpitude provisions of the INA, however a conviction for a fraud related offence is covered under the definition of Moral Turpitude as defined in U.S. Department of State Foreign Affairs Manual Volume 9 Visas:

9 FAM 40.21(a) N2.3-1 Crimes Committed Against
Property
(CT:VISA-1318; 09-24-2009)
a. Most crimes committed against property that involve moral turpitude
include the element of fraud. The act of fraud involves moral turpitude
whether it is aimed against individuals or government. Fraud generally
involves:
(1) Making false representation;
(2) Knowledge of such false representation by the perpetrator;
(3) Reliance on the false representation by the person defrauded;
(4) An intent to defraud; and
(5) The actual act of committing fraud

http://www.state.gov/documents/organization/86942.pdf

The full list of offences considered to constitute Moral Turpitude for the purposes of the INA are contained at that link. In short, there is very little that is not captured under their definition.

An example of what can happen if you choose to lie in a Visa application:

BOSTON — A federal jury today convicted a Rwandan woman of lying to enter the country and again when seeking asylum. This case is being investigated by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and the U.S. Department of State, Bureau of Diplomatic Security.
Prudence Kantengwa, aka Prudentienne, 47, of Boston, who is a native and citizen of Rwanda, was convicted of fraud in immigration documents, visa fraud, perjury during testimony before an immigration judge and obstruction of administrative proceedings. Judge Richard G. Stearns scheduled sentencing for July 31, 2012.
Evidence at trial revealed that when Kantengwa entered the United States Jan. 29, 2004, she possessed and used a non-immigrant visa she had fraudulently obtained by providing false information when she submitted with her visa application. After arriving in the United States March 8, 2004, she provided false information to the U.S. government on a form which, if approved, would allow her to remain in the country. On specific dates between August 2006 and May 2008, Kantengwa committed perjury during testimony before an immigration court. Between March 2004 and December 2008, Kantengwa endeavored to obstruct administrative proceedings being conducted in connection with her application to stay in the United States by providing false and misleading testimony and submissions. The questions to which Kantengwa provided false information all involved her activities and associations during the Rwandan genocide in 1994.
Kantengwa faces up to 10 years in prison to be followed by three years of supervised release and a $250,000 fine, on the fraudulent immigration document charges. Kantengwa also faces five years in prison, to be followed by three years supervised release and a $250,000 fine on each of the perjury and obstruction of administrative proceedings convictions.
Rwandan national convicted of visa fraud, false statements, perjury and obstruction



As I actually work full time since retiring from the cops I don't have the time to research the exact section of the INA from which CBP draw their authority however, I'll join the dots for you as it is all contained in my previous posts. US Customs and and Border Protection say this:

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

US Embassy in Sydney website:
Neither possession of a visa, nor meeting the basic requirements for traveling visa-free on the VWP, guarantees admission to the United States. As with most countries, the final determination of admissibility is made by immigration officials at the port of entry.
Home | Consulate General of the United States Sydney, Australia

So as I commented, whether you have a visa or not is irrelevant. the CBP officer on the barrier will make a determination based on their "training". If they decide that they are not going to allow you in, that is the end of the story. You get turned around at the airport. No appeal, no right to counsel if you are not a U.S. citizen. S.214(b) of the INA presumes that everyone coming to the U.S. is an immigrant unless they satisfy the consular officer (or CBP) that they are a nonimmigrant i.e. a tourist etc.

While you are perfectly entitled to accept, reject or challenge any of my statements,you have not posted any references to legislation that refutes anything I have posted. I am happy to be corrected so please point me to where the presumption of innocence applies in the circumstances under discussion or anything that you say, restricts the authority of the CBP officer carrying out a determination at a point of entry.

Thanks. Of the form, I said "innocent until proven guilty", because you seemed to imply that merely filling out the form incorrectly would be a moral turpitude offence which would prevent entry at that moment. Of course due process would have to take its course before that occurred. I think you accept this point now.

I'm still wondering where the legislative basis may be found for your statement "They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa.".

If you don't know where it can be found in legislation, that's fine. You're not a lawyer and neither am I. The USA being a sovereign nation, any power exercised on behalf of the executive must have a legislative basis. You said "They give...", and if "They" refers to the US executive, then there must be some formal mechanism for the "give" part. A power doesn't just grow out of the pocket of a customs official, nor even from whatever handbook might be in that pocket. Somewhere there is going to be a law passed by Congress and signed by the President allowing power - virtually unfettered power as you put it - to be exercised by a government agent.

An alternative scenario is that the power is given by the traveller through the VWP as a condition to the contract created by accepting the terms of the VWP. IOW, the traveller explicitly waives any right to due process of law through the courts in exchange for the US government waiving the requirement to get a visa. In this case, the power isn't given by the US government, it is given by the traveller, and it is not "They give...", but "We give...".

What I'm getting at is that although the USA - like any sovereign nation - has the right to determine its own laws, conditions of entry and so on, these laws or regulations must be formally produced through official channels. They aren't derived from some clerk writing a brochure or a programmer developing a website.

Not trying to be a smart a*rse or have a go at you, so much as trying to understand the system, particularly that disconnect between the wording on the ESTA form and the immigration legislation.

 

[harvyk]

I think you'll find that if you are refused, visa or no visa, you will be effectively deported. I should have been clearer, that you have no right of appeal or access to courts etc at the point of entry if you are not a U.S. Citizen. I believe you can appeal once you have left the U.S. but that is little comfort if you have just wasted an airfare to get turned back.

It should also be pointed out that they have no right to deport you as a US Citizen. They can hold you for things like importing drugs etc, but in terms of your right to entry as a US Citizen that is a given and CBP can not prevent that from happening full stop once evidence is produced of your Citizenship. There is no need to appeal.

Whilst slightly different but still along the same vein, a couple of years ago I did BNE-SYD via QF8. I had the "D" sticker but customs never stamped it in BNE to prove that's where I boarded the flight. Needless to say I had AU customs question me as to where I was coming from when I arrived in SYD. They turned around and said since I was an AU citizen (with AU passport in hand) I would be waived through. Had I not been an AU citizen I expect I would have had a bit more rigorous discussion.

 

[Skyring]

It should also be pointed out that they have no right to deport you as a US Citizen. They can hold you for things like importing drugs etc, but in terms of your right to entry as a US Citizen that is a given and CBP can not prevent that from happening full stop once evidence is produced of your Citizenship. There is no need to appeal.

Whilst slightly different but still along the same vein, a couple of years ago I did BNE-SYD via QF8. I had the "D" sticker but customs never stamped it in BNE to prove that's where I boarded the flight. Needless to say I had AU customs question me as to where I was coming from when I arrived in SYD. They turned around and said since I was an AU citizen (with AU passport in hand) I would be waived through. Had I not been an AU citizen I expect I would have had a bit more rigorous discussion.

They woulda deported you straight back to Queensland.

Or better yet, LAX!

 

[harvyk]

They woulda deported you straight back to Queensland.

Or better yet, LAX!

It'd be DFW...

 

[will2rob]

I'm still wondering where the legislative basis may be found for your statement "They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa.".

If you don't know where it can be found in legislation, that's fine. You're not a lawyer and neither am I. The USA being a sovereign nation, any power exercised on behalf of the executive must have a legislative basis. You said "They give...", and if "They" refers to the US executive, then there must be some formal mechanism for the "give" part. A power doesn't just grow out of the pocket of a customs official, nor even from whatever handbook might be in that pocket. Somewhere there is going to be a law passed by Congress and signed by the President allowing power - virtually unfettered power as you put it - to be exercised by a government agent.

An alternative scenario is that the power is given by the traveller through the VWP as a condition to the contract created by accepting the terms of the VWP. IOW, the traveller explicitly waives any right to due process of law through the courts in exchange for the US government waiving the requirement to get a visa. In this case, the power isn't given by the US government, it is given by the traveller, and it is not "They give...", but "We give...".

What I'm getting at is that although the USA - like any sovereign nation - has the right to determine its own laws, conditions of entry and so on, these laws or regulations must be formally produced through official channels. They aren't derived from some clerk writing a brochure or a programmer developing a website.

Not trying to be a smart a*rse or have a go at you, so much as trying to understand the system, particularly that disconnect between the wording on the ESTA form and the immigration legislation.

No worries Skyring. My understanding is that CBP derive their power from the INA Act, but I haven't the time to examine it in minute detail to confirm the relevant section. I have looked at the CBP website but have found little that assists in this regard. I can find plenty of references to the fact that CBP have the power to decide to refuse entry at a port of entry, notwithstanding you may have a valid visa, but not which Act, section or regulation specifically gives them the power nor the wording.

I do recall prior to my little run in at LAX watching one of those border protection/ airport type shows not long before we actually travelled. Part of the show including interviewing a CPB officer who said among other things that they are given great latitude in deciding who comes in or gets refused based on their "experience" "intuition" and "training". The gist of it was their word is law and they had the final say at the barrier, which appears to be in line with what I have been able to find on the subject since. That interview was ringing in my head during my couple of hours I spent at LAX with the CBP officers and ICE team. Normally, I would have been arguing the toss with them after ten minutes, but there was no way I was going to be a smartarse and find myself refused entry on some custom officer's whim because I gave him an excuse to exercise his "intuition".

I agree there must be some sort of legislative basis for exercising their powers to refuse entry, but whether it is an explicit statement or how a section has been interpreted or not I cannot say. S214(b) of the INA is the closest thing I have been able to find:

The Immigration and Naturalization Act (INA) states under Section 214b that:

Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status...​

What it means is that a consular officer must view every nonimmigrant visa applicant as an intending immigrant who is planning to visit and then permanently stay in the U.S. The applicant, therefore, must prove to the officer that s/he is going to return home after the temporary visit. If the consular officer is not satisfied, he is required to deny the nonimmigrant visa application.
Visa Denials under INA 214(B) and Presumption of Immigrant Intent

However, this does not exactly apply because the CBP officer can refuse entry notwithstanding you might be in possession of a valid visa. There may be some regulation, guideline or legal precedent that applies which is not contained within the INA legislation but I assume they must have some legal basis for the exercise of their powers or surely, someone would have litigated and challenged them before.

Having said all that, sometimes practices develop over time which are outside of the scope of legislation which are essentially ignored by Govt and the Courts until things come to a head. A good example in Australia for many years was the practice of arrest for minor matters instead of proceeding by summons or arrest and interviewing for many hours when the power of arrest (in NSW) was "...arrest him and take him and any property found upon him before a justice to be dealt with according to law" This meant that the Crimes Act actually said that police had to take an arrested person straight before the court, not back to the station for questioning and a walk through of the crime scene first. Things came to a head in the late 80's in the High Court in a case known as Williams' Case, where the High Court found Williams' arrest and detention to be unlawful. Tasmania Police had arrested Williams after a series of break and enters in Hobart and had taken him for a drive around while he pointed out all the houses he had burgled prior to charging him. Notwithstanding the High Court decision, it still took many years for the states to introduce legislation that overcame that by creating detention after arrest provisions. In the meantime, Courts would generally exercise discretion and allow the police evidence in, so the wheels of justice didn't fall off.

In the case of the CBP, how they exercise their duties may not be 100% compliant with legislation, but a result of procedure that has developed over time. Unless I can find an explicit statement that CBP officers exercise the power to refuse entry under s.xx_ of whatever Act it is hard to say, but I would like to know what part of the INA or other legislation they rely on.

This might explain some of what they rely on

In United States v. Flores-Montano, 541 U.S. 149 (2004), the U.S. Supreme Court wrote:

• The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the [153] border." United States v. Ramsey, 431 U.S. 606, 616, 52 L. Ed. 2d 617,xx_XX 1972 (1977). Congress, since the beginning of our Government, "has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 87 L. Ed. 2d 381,xx_XX 3304 (citing Ramsey, supra, at 616-617, 52 L. Ed. 2d 617,xx_XX 1972 (citing Act of July 31, 1789, ch 5, 1 Stat 29)). The modern statute that authorized the search in this case, 46 Stat 747, 19 U.S.C. § 1581(a)[19 USCS § 1581(a)], 1 derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch 35, § 31, 1 Stat 164, see United States v. Villamonte-Marquez, 462 U.S. 579, 584, 77 L. Ed. 2d 22,xx_XX 2573 (1983), and reflects the "impressive historical pedigree" of the Government's power and interest, id., at 585, 77 L. Ed. 2d 22,xx_XX 2573. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.

As can be observed from the above-quoted Supreme Court text, U.S. Customs and Border Protection can prohibit the entry of anyone, "at will," if there is any belief, reasonable or otherwise, that the person may be a danger to the sovereignty of the USA.

 

[will2rob]

It's not irrelevant, having a Visa dos give you some rights at the border beyond someone attempting entry using the VWP. With the VWP the final determination is at the CBP level, when you sign up for an ESTA you specifically sign something stating you have no right of appeal, with a Visa the final determination can be at a higher up level. A few years back a friend of mine was originally denied entry at the border, however since she had a visa (a student visa) she was able to appeal the decision and thus enter the US. She was able to stay in the country whilst appealing the decision.

It would appear the US Government doesn't agree according to the below quoted text, a visa gives you no guarantee of entry, it is up to the CPB at the port of entry to determine:

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

US Embassy in Sydney website:
Neither possession of a visa, nor meeting the basic requirements for traveling visa-free on the VWP, guarantees admission to the United States. As with most countries, the final determination of admissibility is made by immigration officials at the port of entry.
Home | Consulate General of the United States Sydney, Australia

 

[harvyk]

It would appear the US Government doesn't agree according to the below quoted text, a visa gives you no guarantee of entry, it is up to the CPB at the port of entry to determine:

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

US Embassy in Sydney website:
Neither possession of a visa, nor meeting the basic requirements for traveling visa-free on the VWP, guarantees admission to the United States. As with most countries, the final determination of admissibility is made by immigration officials at the port of entry.
Home | Consulate General of the United States Sydney, Australia

I never said that a visa would guarantee entry, what I said was a Visa allows you to appeal an entry denial unlike the VWP where by you explicitly sign away your right to appeal as part of the process.

 

[Skyring]

As can be observed from the above-quoted Supreme Court text, U.S. Customs and Border Protection can prohibit the entry of anyone, "at will," if there is any belief, reasonable or otherwise, that the person may be a danger to the sovereignty of the USA.

That's fair enough. I doubt that the guy on the gate acts decisively on whims - he'd bump it up if he thought there was something fishy. Just as we do.

If travellers were being rejected arbitrarily or unfairly, we'd know about it quick enough. All my dealings with the US CBP have been routine and friendly. I try to smile and be helpful because these folk must sometimes have a tedious existence. The most memorable was the time I landed at JFK in the middle of the night after leaving Heathrow on 3 July. There was quite a crowd and quite a delay by the time I got to the gate. I looked at my watch and greeted him. "Happy Birthday!" It took him a moment, but I got a smile.

As I said, my beef is with the wording on the form. It causes people some serious stress and expense and it's not - so far as I can see - backed up by the legislation.

A similar - though less serious - situation used to exist with the inwards forms for Australia. One of the questions was if you were carrying any food. Most of the time I was, because the kids would load me up with a list of American lollies they wanted, and so I'd answer yes, and the customs bloke would ask me what I had and I'd say "lollies for the kids", and he'd wave me through.

But I wasn't going to declare that I had no food on me, because one might consider Twizzlers or Candy Corn or Reese's bloody Peanut Butter Cups to be food, and I didn't want to be in the position of feeling uncomfortable because I'd technically lied.

But they have since tightened the wording and I may walk straight through with a clear conscience.

 

[cgichard]

Just as an aside: does the US form that you have to fill in at entry, even if only in transit, still require you to declare that you are not guilty of 'moral turpitude'? If I am honest, I think I am perpetually guilty of that.

 

[basso]

Of course. But the ESTA form asks about arrests and the legislation doesn't. I don't think I'm being unduly picky by wondering about the discrepancy. This forum is populated with people hunting for loopholes and exceptions. Flounging via JQ or buying large quantities of petfood in a weekend.

The discrepancy lies in the risk assessment that underlies the ESTA/VWP. The US has decided that certain characteristics are low risk and allow you onto the VWP. If you don't meet the characteristics, you need to go through the visa process.