SB391, the Access to Counsel Act of 2025, adds a new subsection to the Immigration and Nationality Act to guarantee a meaningful opportunity to consult with counsel and an interested party during inspection at ports of entry and during deferred inspection. It defines the key participants and sets practical timelines to ensure representation can be developed and presented to the examining officer.
The act also imposes an 180-day effective date after enactment and preserves existing rights to counsel under other provisions of law.
The core of the bill is procedural: it requires the Secretary of Homeland Security to facilitate timely consultation and advocacy by counsel or an interested party, including by telephone, and to accommodate in-person appearances when practicable. It also establishes who may act as counsel and who counts as a covered individual or an interested party, with explicit examples.
Finally, the measure includes a savings clause to avoid erasing rights that already exist under other statutes or court orders.
At a Glance
What It Does
The bill adds new subsection (e) to 8 U.S.C. 1225, requiring DHS to ensure a meaningful opportunity to consult with counsel and an interested party during the inspection process at ports of entry and during deferred inspection, with defined timing and advocacy rights.
Who It Affects
Covered individuals undergoing secondary or deferred inspection and their families, along with attorneys and accredited representatives who assist in immigration matters, and the CBP officers who perform inspections.
Why It Matters
It sets a clear, court-admissible standard for counsel access at the border, reducing potential due-process gaps and ensuring that individuals can provide information and evidence to support their case during entry and exit processing.
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What This Bill Actually Does
The Access to Counsel Act of 2025 codifies a right to counsel at critical border processing moments. It creates a framework in which people queued for border inspection can consult an attorney or accredited representative, and an interested party, during the screening process.
The measure specifies that counsel consultations should begin within roughly one hour after secondary inspection starts, and should continue as needed throughout the process, including deferred inspections when applicable. Counsel and interested parties can present information and evidence to help the reviewing officer make a decision, and, to the extent possible, in-person appearances should be accommodated.
The bill defines who counts as a counselor and who is a covered individual, including US nationals, lawful permanent residents returning from abroad, visa holders, refugees, asylees, and parolees. It also creates a broad notion of an “interested party,” including relatives, petitioners or sponsors, and a person or organization with a bona fide connection in the United States.
An important carve-out protects longstanding rights: nothing in the act limits existing rights to counsel under other law, and the act provides a savings provision. The effective date is 180 days after enactment.
Overall, the measure is procedural in nature but substantive in its impact: it tightens the duty on DHS to enable counsel access during entry processing, potentially improving accuracy, accountability, and fairness for individuals facing immigration screening at the border.
The Five Things You Need to Know
The bill adds 8 U.S.C. 1225(e), requiring meaningful access to counsel and an interested party during port-of-entry and deferred inspections.
Consultation must begin within 1 hour after secondary inspection begins and continue as needed throughout the process.
Counsel may advocate by supplying information, documentation, and evidence to the examining officer.
In-person appearances should be accommodated to the greatest extent practicable.
For lawful permanent residents, Form I–407 cannot be accepted without prior meaningful opportunity to seek counsel, unless waivers are knowingly and voluntarily given in writing.
Section-by-Section Breakdown
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Short Title
This act may be cited as the Access to Counsel Act of 2025. The provision establishes the official name by which the measure will be known in subsequent enforcement and administrative contexts.
Access to Counsel and Other Assistance at Ports of Entry and During Deferred Inspection
This is the substantive core. It adds 8 U.S.C. 1225(e) to require DHS to ensure that each covered individual has a meaningful opportunity to consult with counsel and an interested party during the inspection process. The secretary must ensure the opportunity to consult—by telephone if needed—within one hour after secondary inspection begins and as needed for the remainder of the inspection, including deferred inspection. Counsel and interested parties may advocate on the individual’s behalf by conveying information and evidence to the examining officer, and, to the greatest extent practicable, the act requires accommodations for in-person appearances. A special rule protects lawful permanent residents: they may not be required to give up the opportunity to seek counsel before Form I–407 is accepted, except if they knowingly and voluntarily waive that opportunity in writing. The definitions of “counsel,” “covered individual,” and “interested party” are set out to prevent ambiguity in implementation.
Savings and Effective Date
The amendment takes effect 180 days after enactment. The savings provision ensures that nothing in the Act, or its amendments, alters existing rights to counsel under other law (e.g., section 240(b)(4)(A) or section 292) or any court order in effect on the day before enactment. This section preserves preexisting remedies and rights while implementing the new access standards.
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Who Benefits
- Covered individuals undergoing secondary or deferred inspection gain structured, timely access to counsel and an interested party during a critical border process, increasing opportunities to present information and challenge or clarify DHS determinations.
- Accredited representatives and immigration attorneys who assist at the border gain clearer authority and a defined window to advise clients, likely expanding the pool of eligible participants who can engage in the process.
- Relatives or sponsors who qualify as interested parties gain a formal channel to advocate on behalf of the individual.
- Organizations in the United States with a bona fide connection to the individual can participate as interested parties, broadening support networks.
- DHS and CBP benefit from a clearer procedural framework that can reduce disputes and provide a transparent standard for counsel access.
Who Bears the Cost
- CBP officers and support staff will shoulder additional coordination tasks to arrange consultations and, when possible, in-person appearances.
- DHS resources may be stretched to accommodate more concurrent consultations, especially at busy ports of entry.
- Training and systems updates will be required to implement the new consultation timelines and the broadened definitions of counsel and interested party.
- Potential short-term processing delays could occur as consultations are integrated into existing inspection workflows.
- There could be increased demand on accredited representative networks to staff consults in high-volume ports of entry.
Key Issues
The Core Tension
The central dilemma is balancing border processing efficiency and security with a robust, timely right to counsel for individuals subjected to secondary and deferred inspections. Providing counsel access can improve accuracy and fairness but may introduce delays or operational frictions at busy ports, requiring careful resource planning and clear guidance to avoid undermining border-control objectives.
The bill introduces a right to counsel that interacts with border-security priorities and inspection efficiency. While it creates a structured mechanism for consultation and advocacy, the actual implementation will depend on agency staffing levels, interpreter and translation needs, and the availability of qualified counsel at or near ports of entry.
The definitions of “counsel” and “interested party” are broad, but practical access will require robust coordination between CBP, DHS, and EOIR-recognized entities. A potential tension is balancing timely processing with meaningful rights, particularly in high-traffic periods or at heavily used ports.
The act leaves intact other sources of counsel rights, ensuring no rollback of existing protections, but the practical takeaway is that the border processing workflow will now be measured against a clearer standard for counsel access.
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