Fraud Waiver?

[diesel1 0]

Hi everyone!

I am European-born and my American Journey began 17 years ago when as a teenager my mother and I visited the States on an organized tour. A couple of years later I returned on a student visa to attend a military academy and later a college. During that time, my brother and mom visited me on different occasions - Thanksgiving, Christmas, etc. and I also traveled back and forth to Europe. During my years at the military academy I befriended the school nurse, her daughter and Army veteran husband.

In the beginning of a Spring semester in college, I applied for and received an EAD (Employment Authorization Document) for practical training from the INS. Over Spring break I got married to the Nurse's daughter, we went to live with her parents and all was well for a while.

... Until the end of the summer, when I learned that my mother and dad are divorcing in Europe. Around that time I also discovered that my wife had started using drugs. She had started a new job 100 miles away from our home, which required her to be gone for 4-5 days of the week. Back then I was working 3 jobs and hardly had any time for apersonal life. I moved out of her parents' and subleased an apartment close to my job.

I offered my mother to come and stay with me for several months until things get settled with her divorce. She came bringing my teenage brother with her. The money I had saved for tuition were spent on supporting the two of them. My mother found peace with me in the States and my brother was fleeing a mandatory military service back home in Europe. Both of them had their extensions of stay approved. That's why I had to drop out of school to work and pay the bills!

My wife filed an I-130 petition on my behalf, which was immediately approved and which I never took advantage of. I never applied for adjustment of status or an immigrant visa through her. She changed and became a totally different person. When I later found out that she had cheated on me and had an abortion... I decided that a divorce would probably be the best option. We separated and did not talk for 4-5 months.

My brother's legal status as a visitor was about to expire in September 1999 and he needed to leave the US and re-enter. Being 20 years of age at the time, he was scared to fly to Canada by himself and asked me to accompany him. At that time we had started talking with my wife - though our marriage had been broken, we decided to remain friends. I worked for an airline at the time and got us 3 dirt cheap tickets. We flew to Toronto on 27.08.1999 and had a great party weekend.

Upon returning to the States in the early hours of 30.08.1999, I was refused admission by Preflight Inspections. My wife handed our Driver Licenses, her US birth certificate and my Airline ID to the INS inspector, who asked whether we were US Citizens and she confirmed. I was asked where I was born and I told them the name of the country... which as you can guess was NOT USA This triggered secondary inspection: I explained that I was a US "National" - that I resided and worked in the States, from where I had arrived into Canada several days earlier. They told me that I have no valid travel documents and offered that I withdraw my application for admission.

I was in a tough situation - in a foreign country, without travel documents and little cash. On top of all this, I had to be at work at the Airport (USA) at 5AM on the following morning! Thanks God I had credit card with me I made several calls to the US and was advised to rent a car and return via Detroit, as the inspections there had been a piece of cake. I followed the advice, found a cheap rental vehicle with US license plates and returned via the Detroit tunnel that same day. I was back at work in the morning and all seemed like a bad dream. Until a speeding ticket made the INS aware that I am back in the States.

The events that followed were:

1. Got arrested by INS Special Agents, served a Notice to Appear (copy attached) and released on bond the next day.

2. Divorced my wife.

2. Went through 3 years of Immigration Court and Board of Immigration Appeals (BIA).

3. At the Final Hearing, the INS Chief Counsel and the Immigration Judge stated ON THE RECORD (transcript attached) that my statements in Canada in 1999 did not amount to False Claim to US Citizenship and that I WOULD be eligible for a Fraud Waiver.

4. In the meantime, my mother had become an LPR and submitted an I-130 (F-2B preference) in 2001.

5. Following the incorrect advice of my former immigration counsel I filed a Motion to Reopen my file to "preserve" the Voluntary departure I was granted. (My counsel claims he never received the letter from the BIA denying the Motion).

6. Again following my former attorney's instructions I paid the fees and submitted in person an I-485 along with $1,000 and Supplement A to the local office. He told me to do so, though my I-130 had not become current!!!

7. Two days later I was taken into custody from my home.

8. Hired a new lawyer and tried to reinstate the Voluntary Departure. Filed a Motion to Reopen based on Ineffective Assistance of Counsel. Submitted a 59-page complaint with supporting evidence to the State Bar Association regarding the ineffectiveness of my prior counsel.

9. After 100 days in jail, I was put on a plane and removed back to Europe.

10. My mother became a naturalized USC and my petition was upgraded to Family 1st preference category. The fee bill was released last year and the rest of the paperwork submitted this Spring.

11. The Consulate sent me an interview notice several months ago, just a week before the interview date!!! As the time was insufficient to gather all required documents, I called to reschedule. The Consulate employee I spoke to was very rude and asked why we had wasted our money for the fees... She said that there would be no way that I would be issued an Immigrant Visa since I had made a false claim to US citizenship before a US Government official!

12. I got scared that all our efforts would go to waste and decided to obtain a copy of my file from the Toronto Preflight Inspections. Through our immigration attorney we filed a FOIA request in July 2007. The USCIS advised us that it will take a minimum of 15 months to obtain the requested information.

With no immediate family in Europe, I am confused and aggravated. My grandparents, except my mom's mother, died in 1997 and 2000. My father died in 2004. My mom is a USC, while my brother and grandmother are both LPRs and they all live in the States. After wasting 8 years of my life in the immigration maze I am now stuck waiting for this FOIA request.

I do hope that all will go well, that I will get my I-212 and I-601 Waivers approved and will get to reunite with my family.

If I get denied, so be it. I will then know that my only chance to return to the US would be through a Visitor Visa, which will still be better than nothing as I will be able to visit my family there.

A friend, who's a solicitor told me that the false claim issue should be treated as "res judicata" or "colatteral estoppel".

Have a look at the Notice to Appear and the 2 relevant pages from the Final Immigration Hearing and let me know what you guys think - do I have a chance?

[Craneman 2]

My wife filed an I-130 petition on my behalf, which was immediately approved and which I never took advantage of. I never applied for adjustment of status or an immigrant visa through her.

Sometimes we make the wrong choices.

[Otto 83]

IMO you're barking up a tree that, in the end, will not bare fruit...

[athena_ny 1]

My wife filed an I-130 petition on my behalf, which was immediately approved and which I never took advantage of. I never applied for adjustment of status or an immigrant visa through her.

Sometimes we make the wrong choices.

This is of no use to the OP.

OP, I am moving this to the waivers forum. It's more possibly they can help you.

If you've been through removal proceedings though, very unlikely you'll ever get back into this country on a tourist visa. As for the immigration part, I have no clue about that.

[diesel1 0]

My wife filed an I-130 petition on my behalf, which was immediately approved and which I never took advantage of. I never applied for adjustment of status or an immigrant visa through her.

Sometimes we make the wrong choices.

Had I known back then.. what I know now.... I was clueless that an Approved Alien Relative Petition confers no rights or anything else on the Beneficiary until an Immigrant Visa is issued or the Beneficiary's status Adjusted to LPR.

I later discovered that the Special Agents who arrested me and served me the NTA contacted my wife to get her to withdraw her petition after we returned from Canada (we were separated at the time). They told her that our marriage means nothing in the eyes of the INS since we no longer live together... They threatened her and used all possible methods to coerce her to sign the withdrawal! They told her that even if I get deported to my country of birth, she will remain to live in the USA and they can make her life hell - she could be imprisoned, fined, etc. Though she initially refused to sign, they returned and obtained her withdrawal signature and the petition was revoked. They also ordered her NOT to even attempt to contact me.. (I guess to warn me what's happening).

I guess I could have reunited with her and she could have filed another I-130. Then I could have adjusted my status in Immigration Court. I didn't want to lie though, I couldn't have forgiven her what she did. Had I gone that way, I would have been a USC already and gotten an officer rank in the US Military, had I joined the Reserves on gone on active duty.

I decided to be honest (as always) do the difficult "right thing", rather than the "easy wrong" and I lost big time.

Somehow the immigration system of this country is fundamentally screwed up...

[chispas 0]

Whether you are told you have a chance or not, I would look at your history and say you will find a way. I don't sense that you are ready to give despite all of the proceedings. If that is your resolve, I wish you the best.

[diesel1 0]

Whether you are told you have a chance or not, I would look at your history and say you will find a way. I don't sense that you are ready to give despite all of the proceedings. If that is your resolve, I wish you the best.

I am just very tired on putting my life on hold in a lot of aspects - 8 years is a long time. I am not a quitter and will try to get this resolved somehow. What I am looking for is .. closure.

If an Immigrant Visa is a No Go at present, then I'll apply for an I-212 to allow me to enter as a non-immigrant to be able to visit my family in the US. And of course will hope that laws will change in the future.

Edited December 22, 2007 by realtor 1

[Nanusia & Lukaszek 0]

Yikes, you have quite a hard case here. Did you file whatever waiver they said you should before your mom filed for you?

It's sad that you sacrificed your life to help out your family and now they are USCs & LPRs and all these years have gone by in a mess that you are trying to fix.

Have you consulted with an immigration lawyer in the country you reside in now? Pehaps they can provide some guidance on what the CO at the respective country may say at interview.

My heart goes out to you.

[diesel1 0]

Yikes, you have quite a hard case here. Did you file whatever waiver they said you should before your mom filed for you?

Thank you! No, the waiver applications are filed at the time of the immigrant visa interview.

However, the CO may choose to ignore the court records and find me inadmissible for false claim to us citizenship. In that case, they may not even allow me to submit the waiver applications. While there is a waiver for misrepresentation or fraud, there is none for a false claim.

Thus I am patiently awaiting for a copy of my file at Preflight Inspections. When we see the notes of the inspecting officer at the POE, we'll know what I'll have to try to overcome!

It's basically my word against his... Actually my brother was pretty close - would a sworn statement from him carry any weight?

[diesel1 0]

Found this on USCIS's website - in the manuals:

"Finally, it is possible for an alien to be charged with inadmissibility under both sections 212(a)(6)C(i) and (ii) of the Act for false claims to U.S. citizenship made on or after September 30, 1996.

For example, an alien who made a false claim to U.S. citizenship on or after September 30 to gain admission at a Port-of-Entry would be inadmissible under section 212(a)(6)C(i) of the Act for having willfully misrepresented a material fact, and under section 212(a)(6)C(ii) of the Act for having made a false claim to U.S. citizenship to obtain a benefit under the Act. When both grounds of inadmissibility under sections 212(a)(6)C(i) and (ii) apply, the alien should be charged with both grounds and advised of the availability of a waiver (or lack thereof), as appropriate."

Edited December 22, 2007 by realtor 1

[JVKn'CVO 11]

Hi realtor_1

I think you need the advice of a knowledgeable lawyer to help you through this. I'd look for lawyer that is a member of the AILA (american immigration lawyers association).

Good luck

Saludos,

Caro

[jpaula 20]

I would post this on www.immigrate2us.net in the waiver section and see if you get any answers. Also, try a consult with lawyer Laurel Scott (http://www.visacentral.net/) who specializes in waivers. She comes highly recommended by the many I2US members who have used her to file waivers. And, it sounds like you need someone who specializes. Also, has your mother tried getting any help from her Congressman? I do know of cases where the Consulate has refused to allow someone to file a waiver and a Congressman's office has successfully intervened. If you have a ruling from an IJ stating that it was not a false claim, I think you should be prepared to really argue that should it be challenged. Very good luck to you.

[desert_fox 32]

Im curious...How was your mother able to adjust status and become a US Citize/?? thru a new marriage??

Very complex situation and you screwed up by saying that you were a US National...which is a citizen...and then finding another way to enter the US.

Im sure there are many good IMMIGRATION attorneys out there that could advise you... You case will cost big bucks.

[diesel1 0]

Im curious...How was your mother able to adjust status and become a US Citize/?? thru a new marriage??

Very complex situation and you screwed up by saying that you were a US National...which is a citizen...and then finding another way to enter the US.

Im sure there are many good IMMIGRATION attorneys out there that could advise you... You case will cost big bucks.

Re mom - yes, she married my stepdad in 2000 and naturalized in 2004.

Regarding the weekend trip to Canada - you are right, major screw up. Had a great time, but paid a huge price for it... Didn't know what I was thinking then.. or whether I was thinking at all As an airline employee at the time, I had never even had to show a Driver License on US domestic flights - my airline ID was all that was needed. I assumed it's the same for a flight to Toronto.

My hopes are that the USCIS treats the misrepresentation issue as a "res judicata" = a matter already adjudicated in court. The DHS Counsel stated on the record that my conduct and claims amounted to a waiveable misrepresentation (as shown on the transcript) and that I should seek a waiver as the son of a USC/LPR parent.

I am wondering whether his statements are binding on the all-powerful USCIS?

[desert_fox 32]

His statement would not be binding, as it was just his opinion...only the decision of the court is binding. You really need a good immigration attorney....board certified.