I-601 does not apply, but asked to file....

[Noah Lot 387]

My husband was detained by the border petrol, so they do know for sure when he entered the country and when he left....they should also know that the time in US was less than 180 days, if they actually do check their files....

If your husband was detained by our border patrol, they would NOT have admitted him to the US! If they detained him sometime after he snuck into my country, well, who really knows how long he had been in the US? It's a certainty that the BP did not detain him, notice he had no visa, etc, and then waved him through the gate...so something else is going on...did he claim he was a USC?

[Noah Lot 387]

Ohhh, yeah, Albania probably has limited experience with people who have entered without inspection. They definitely made a mistake here. A person who entered the US illegally still doesn't have to file an I-601 waiver unless they've accrued over 180 days unlawful presence (this would be INA 212 a 9 B i), so it sounds like there still was an error if the consulate is saying it's INA 212 a 9 A. Here's the text of 212 a 9 A, for those interested:

This section only refers to those "ordered removed" meaning formally deported. Voluntary Departure allows a person to escape these clauses. 9A is not relevant here, and neither is 9B for unlawful presence exceeding 180 days. Also, someone mentioned checking whether he EWI more than once. This would only be an issue if 1) He had stayed more than a year before EWI the second time or 2) if he had been formally deported and then EWI after that. In that case, he would be banned under INA 212 a 9 C. I think Tirana is just confused. My husband just had a visa interview at Seoul and we have a complication under a section of the law Seoul never sees, and they completely misinterpreted it, in our favor actually, hahaha, although their interpretation was so misguided it could never hold any water outside that embassy. So no, these officers are not necessary all-knowing, all-understanding when it comes to unfamiliar sections of the law and if they made an erroneous call, they need to be corrected.

The COs are a LOT more knowledgeable about immigration laws than any other individual who does not work in the field of immigration law...including any self appointed know-it-all who has never worked in an embassy or consulate...and we still do not know the entire story...we keep hearing bits and pieces, so I imagine there are some significant missing elements that might shed more light on the issue than castigating our consular officers overseas....

Edited December 4, 2012 by Noah Lot

[jaycali 415]

Agree with Noah. If he was detained by Border Patrol there would not be any overstay as he would never have been admitted to the country at all. Unless he was detained by BP somewhere close to the border after 5 months?

Are you sure he was detained by Border Patrol as opposed to Customs and Border Protection? Did he actually cross into the country illegally through Mexico/Canada?

Edited December 5, 2012 by Jay Jay

[jaycali 415]

This is the embassy in Albania GlobeHoopperMama.

I have never heard of an Albanian EWI. The COs in Albania probably haven't either.

Edited December 5, 2012 by Jay Jay

[jaycali 415]

The COs are a LOT more knowledgeable about immigration laws than any other individual who does not work in the field of immigration law...including any self appointed know-it-all who has never worked in an embassy or consulate

Actually, I would disagree slightly with this. A CO in Albania would not be anywhere near as experienced with EWIs as a CO in Juarez.

[Alb4Ever 0]

Agree with Noah. If he was detained by Border Patrol there would not be any overstay as he would never have been admitted to the country at all. Unless he was detained by BP somewhere close to the border after 5 months?

Are you sure he was detained by Border Patrol as opposed to Customs and Border Protection? Did he actually cross into the country illegally through Mexico/Canada?

I am sorry guys if I have not been clear enough. He crossed the border through Mexico illegally and was comprehended and detained at an immigration facility/jail for almost 1 month, that is where he first decided to file for asylum; and, that is why he was allowed to come into the country. Once a hearing was set, he asked for voluntary departure and was granted pre-conclusion voluntary departure....Sorry for the confusion.

[Alb4Ever 0]

The COs are a LOT more knowledgeable about immigration laws than any other individual who does not work in the field of immigration law...including any self appointed know-it-all who has never worked in an embassy or consulate...and we still do not know the entire story...we keep hearing bits and pieces, so I imagine there are some significant missing elements that might shed more light on the issue than castigating our consular officers overseas....

Noah Lot, I just wish the consular officers overseas were a bit more helpful, and Im definitely refering for the embassy in Albania. For instance, rather than just telling me "contact DHS", it would have been helpful to tell me this is the number for DHS that you can call if you think our decision was an error. After contacting them several times, all I have gotten is an automated response saying the same thing....

[jaycali 415]

Thank you, that is very helpful information.

Asylum is an immigration benefit given to people who are likely to be killed, tortured, unjustly imprisoned, persecuted or otherwise face dire consequences if returned. Applying for asylum knowing neither of the above will happen is considered a frivolous asylum application.

An Albanian asking for asylum, then asking for voluntary departure sounds like a frivolous asylum case. If you're asking the US government for protection, then voluntarily saying "nevermind, I'm going home" tells me he knew he wouldn't be killed or tortured upon returning. If his asylum case was found to be frivolous, I can almost guarantee you that this is the reason for his re-entry bar. In that case, this is actually more serious than an EWI and 5 month overstay. You should at least consult with an attorney who is experienced in asylum cases.

Whether the bar is due to frivolous asylum or a CO error, this is beyond DIY. You will need legal assistance.

Edited December 5, 2012 by Jay Jay

[GlobeHopperMama 95]

I can't seem to properly multi-quote but I just wanted to say two things:

1) If a person EWI and interviewed at Albania, there's a good chance Tirana got confused, especially based on the fact that the INA section referenced is not related to the person's history. Consular officers are well-trained, they are very familiar with lots of sections of the law, but immigration law is terribly complex. It is just so difficult for all of them to know every single minutia of the law, and some of us who deal with those specific sections every day in our own family's cases understand them better than someone who is dealing with every part of the spectrum of immigration law. I still think consular officers are under an immense amount of pressure and deal with it amazingly, but mistakes are made, all the time, and we often see them on online forums when people have odd problems. True, unless we're reviewing a person's entire case history, it's difficult to really know what's going on, but it's not outside the realm of possibility that a consulate mis-applies the law.

2) Some posters here may not be familiar with the procedure when a person from a non-Mexican country EWIs. They are not simply "kicked out" if caught entering without inspection because the US can't just toss somebody into Mexico if that person isn't clearly a Mexican national. Many non-Mexicans claim (and pretend) to be Mexican citizens at this point because getting simply kicked out at the border is preferable to what comes next if you're not Mexican, which that you get detained and placed in detention until DHS can properly deport you to your actual country of origin, or long ago when they dealt with tons of entrants of this type, people were simply given a court date and told to show up for removal proceedings, which in most cases they didn't, which is why they now have detention centers and long detentions. It's actually impressive that this particular person not only got released from detention after only a month, even with an asylum plea, but also that he was able to secure voluntary departure. Generous judge I guess.

Anyway, the only inadmissibility mentioned was the INA 212 a 9A reference, which is specifically for deportation rather than VD. So either he WAS formally deported at government expense and somehow mistakenly thinks he got VD, or the consular determination of inadmissibility was wrong. They wouldn't say it was INA 212 a 9A if they're actually holding this as a frivolous asylum claim, which I think falls under INA 208 or something like that.

[jaycali 415]

Thanks GlobeHopper - I overlooked where the OP mentioned the actual part of INA that he was barred under.