(a) Determinations of inadmissibility. (1) An alien who applies for admission under the provisions of section 217 of the Act, who is determined by an immigration officer not to be eligible for admission under that section or to be inadmissible to the United States under one or more of the grounds of inadmissibility listed in section 212 of the Act (other than for lack of a visa), or who is in possession of and presents fraudulent or counterfeit travel documents, will be refused admission into the United States and removed. Such refusal and removal shall be made at the level of the port director or officer-in-charge, or an officer acting in that capacity, and shall be effected without referral of the alien to an immigration judge for further inquiry, examination, or hearing, except that an alien who presents himself or herself as an applicant for admission under section 217 of the Act and applies for asylum in the United States must be issued a Form I-863, Notice of Referral to Immigration Judge, for a proceeding in accordance with 8 CFR 208.2(c)(1) and (c)(2).
(2) The removal of an alien under this section may be deferred if the alien is paroled into the custody of a Federal, State, or local law enforcement agency for criminal prosecution or punishment. This section in no way diminishes the discretionary authority of the Attorney General enumerated in section 212(d) of the Act.
(3) Refusal of admission under paragraph (a)(1) of this section shall not constitute removal for purposes of the Act.
(b) Determination of deportability. (1) An alien who has been admitted to the United States under the provisions of section 217 of the Act and of this part who is determined by an immigration officer to be deportable from the United States under one or more of the grounds of deportability listed in section 237 of the Act shall be removed from the United States to his or her country of nationality or last residence. Such removal shall be determined by the district director who has jurisdiction over the place where the alien is found, and shall be effected without referral of the alien to an immigration judge for a determination of deportability, except that an alien who was admitted as a Visa Waiver Program visitor who applies for asylum in the United States must be issued a Form I-863 for a proceeding in accordance with 8 CFR 208.2(c)(1) and (c)(2).
(2) Removal by the district director under paragraph (b)(1) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act.
(c)(1) Removal of inadmissible aliens who arrived by air or sea. Removal of an alien from the United States under this section may be effected using the return portion of the round trip passage presented by the alien at the time of entry to the United States as required by section 217(a)(7) of the Act. Such removal shall be on the first available means of transportation to the alien's point of embarkation to the United States. Nothing in this part absolves the carrier of the responsibility to remove any inadmissible or deportable alien at carrier expense, as provided in the carrier agreement.
(2) Removal of inadmissible and deportable aliens who arrived at land border ports-of-entry. Removal under this section will be by the first available means of transportation deemed appropriate by the district director.
[53 FR 24901, June 30, 1988, as amended at 56 FR 32953, July 18, 1991; 62 FR 10351, Mar. 6, 1997; 74 FR 55738, Oct. 28, 2009]
Notes of Decisions
Cited in
80
cases (
11 in the last 5 years), 1992–2026 · leading case:
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010).
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010).
· cites it 4× “See 8 C.F.R. § 217.4 (b). Bayo has not argued that he would be entitled to asylum, and so we have no need to discuss that possibility further.”
Bradley v. Attorney Gen. of the United States, 603 F.3d 235 (3rd Cir. 2010).
· cites it 3× “” 8 C.F.R. § 217.4 (b). But as the Court of Appeals for the Ninth Circuit has recognized, given the ease and convenience with which a VWP visitor may enter the United States, the VWP’s “linchpin .”
Besime Kanacevic v. Immigr. & Naturalization Serv., 448 F.3d 129 (2d Cir. 2006).
· cites it 2× “II 2002); 8 C.F.R. § 217.2 (2006). Aliens admitted under this program forfeit any right to challenge their removal, except that they may apply for asylum.”
Kanagasundram, 22 I. & N. Dec. 963 (BIA 1999).
· cites it 7× “Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Under the provisions of 8 C.F.R. § 217.4 (a)(1) (1999), proceedings against an alien who has been refused admission under the Visa Waiver Pilot Program and who has applied for asy- lum…”
Nreka v. United States Attorney Gen., 408 F.3d 1361 (11th Cir. 2005).
· cites it 2× “” 2 Nreka requested asylum and was there *1364 fore placed in so-called “asylum only proceedings,” pursuant to 8 C.F.R. §§ 217.4 and 208.2(c). While awaiting his hearing before the IJ, he was paroled into the United States.”
Harold Riera-Riera v. Loretta E. Lynch, 841 F.3d 1077 (9th Cir. 2016).
“Though the statute enacting the VWP does not expressly address fraudulent entrants, the Attorney General has filled in that gap via regulation, issuing a rule that those who “present[ ] fraudulent or counterfeit travel documents” will be removed “without referral of the alien to…”
Mihai Nicusor-Remus v. Jefferson Sessions, III, 902 F.3d 895 (9th Cir. 2018).
· cites it 4× “” 8 C.F.R. § 217.4 (b)(1). VWP entrants are not entitled to full removal proceedings under Immigration and Nationality Act § 240, but they are entitled to asylum-only proceedings.”
Ferry v. Ashcroft, 457 F.3d 1117 (10th Cir. 2006).
“” 8 C.F.R. § 217.4 (b)(1). The regulation further states that such removal "shall be effected without referral of the alien to an immigration judge for a determination of deportability, except .”
Olsi Shkembi v. Attorney Gen. United States, 41 F.4th 237 (3rd Cir. 2022).
· cites it 3× “The Court concluded that “the Attorney General appropriately . . . acted here to clarify the scope of the VWP” by enacting regulation § 217.”
Vera v. Attorney Gen. of the United States, 672 F.3d 187 (3rd Cir. 2012).
· cites it 4× “§ 1187 (b) ], and an applicant who does not sign will be refused admission and removed, see 8 C.F.R. § 217.4 (a)(1).” Bradley, 603 F.”
Handa v. Crawford, 312 F. Supp. 2d 1367 (W.D. Wash. 2004).
· cites it 7× “See 8 C.F.R. § 217.4 (a)-(b). Those individuals who are refused admission into the United States are not deemed to have been removed or deported from the United States and are not subject to the ten year re-entry bar in 8 U.”
— 8 C.F.R. § 217.4(c) — 1 case
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