Can non-US citizens challenge US border entry refusal?

Question

Reading this article where an Australian citizen was refused entry at the US border because the officer considered she was about to undertake "paid employment" when in fact under the visa waiver programme she was allowed to do lectures and receive honorariums at universities made me think of what one could possibly do in that situation.

So, if US border officer does something that is contrary to the publicly available visa or border entry rules, can one, for example, appeal immediately to their supervisor so that the matter is resolved promptly? If this cannot be done or does not help, can the traveler later file a complaint or even challenge the Department of Homeland Security in court to recover the losses (e.g. missed flights/accommodation)?

Answer 1

For most grounds of inadmissibility, most nonimmigrants are actually entitled to a hearing before an immigration judge before being removed from the US. See 8 CFR 235.3(b)(3):

(3) Additional charges of inadmissibility. In the expedited removal process, the Service may not charge an alien with any additional grounds of inadmissibility other than section 212(a)(6)(C) or 212(a)(7) of the Act. If an alien appears to be inadmissible under other grounds contained in section 212(a) of the Act, and if the Service wishes to pursue such additional grounds of inadmissibility, the alien shall be detained and referred for a removal hearing before an immigration judge pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all charges. Once the alien is in removal proceedings under section 240 of the Act, the Service is not precluded from lodging additional charges against the alien. Nothing in this paragraph shall preclude the Service from pursuing such additional grounds of inadmissibility against the alien in any subsequent attempt to reenter the United States, provided the additional grounds of inadmissibility still exist.

(emphasis added)

However, those who apply for admission under the visa waiver program are not entitled to such a hearing. See 8 CFR 217.4(a)(1):

§ 217.4 Inadmissibility and deportability.

(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).

(emphasis added)

Note that "at the level of the port director or officer-in-charge, or an officer acting in that capacity" means that the supervisor must already have approved the refusal of admission, so asking to speak to the supervisor may be of limited use.

Answer 2

The short answer is "no." The executive branch has broad discretionary authority to make a border entry refusal even if someone's paperwork is in order under immigration law.

I don't have the chapter and verse of the authority in hand, but basically there is not a legally enforceable right of a non-citizen to enter enforceable under non-immigration law, unless created by an immigration statute.

There is more to the analysis and nuance than that as explored in some of the recent travel ban legal opinions, but that is the general rule.

Answer 3

It depends ...

The US government (like all governments) enjoys Sovereign Immunity: basically it cannot be sued without it giving permission for the suit to be brought.

However, in the Federal Tort Claims Act passed in 1946 "make the federal government liable for certain torts and actions of its employees in the same way a private individual might be liable, although with many exceptions."

One of those exceptions is the discretionary acts exemption:

“[A]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

It applies unless a plaintiff can show that a reasonable person in the official’s position would have known that the action was illegal or beyond the scope of that official’s legal authority. Harlow v. Fitzgerald, 457 U.S. 800 (1982)

For the particular example you cite, the US could probably rely on the defense. Denying entry on a reasonable (if erroneous) belief that the subject was ineligible is not illegal per se; in the context of a busy official with many entrants to process it is not reasonable to expect that they should know the subtleties of the law around honorariums or that they should take time to look them up. If the traveler had actually produced the US Department of State memo to the official and had still been denied she may have a case.