USCIS have FINALLY Publicized their VWP Policy

[Myopia 93]

Why shouldn't a tourist on VWP have to go back to their country and start the process as a CR1?

And how many people can REALLY just go on a vacation or whatever and decide in the middle of the trip to leave their lives in home countries behind (school, job, bank accounts, lease or house, bills, other unfinished business...) because they met someone, fell in love and got married? Not many. That's why I think that most people that come here on VWP, get married and adjust status do that to avoid visa and that's just wrong.

Well speaking for myself, if there is the ability to do so, why should I? Some came here on VWP as a child, some came and were abused by USC, there are a multitude of reasons that someone overstayed.

[JimVaPhuong 4,863]

But by withdrawing a removal order, is it not effectively the same thing as cancellation of removal?

I understand that VWP entrant will not be able to file. Thats crystal clear BUT if ICE withdraw a removal, isnt that a cancellation?

Obviously USCIS are not sure as those cases will be held in abeyance.

Perhaps if you mean that in a generic way. Having a removal order withdrawn and cancellation of removal both result in the removal order going away. The similarity ends there. Cancellation of removal is a very specific form of relief. An alien must be qualified to receive it, and must specifically ask for it. A non-immigrant alien generally needs 10 years of presence in the US, no inadmissibilities, and proof of extreme hardship to a qualifying relative before they can even ask for cancellation of removal.

I don't think USCIS is not sure how to handle a case where a removal order has been issued. There's really only two ways they could have come down on this; deny the AOS application for lack of jurisdiction, or hold it in abeyance until the impediment to adjudication no longer exists. The fact that they have a policy means they've already decided how to handle it.

[Myopia 93]

Perhaps if you mean that in a generic way. Having a removal order withdrawn and cancellation of removal both result in the removal order going away. The similarity ends there. Cancellation of removal is a very specific form of relief. An alien must be qualified to receive it, and must specifically ask for it. A non-immigrant alien generally needs 10 years of presence in the US, no inadmissibilities, and proof of extreme hardship to a qualifying relative before they can even ask for cancellation of removal.

I don't think USCIS is not sure how to handle a case where a removal order has been issued. There's really only two ways they could have come down on this; deny the AOS application for lack of jurisdiction, or hold it in abeyance until the impediment to adjudication no longer exists. The fact that they have a policy means they've already decided how to handle it.

Hold on. Wasn't the entire question pertaining to this memo regarding whether filing for adjustment constituted cancellation of removal; at least that's what I thought you were talking about on the other thread. When you used that phrase I understood it to mean that applying for an adjustment was the same thing as cancellation of removal and that was the issue that was causing issues in the courts as they ruled that a VWP asking to adjust was the same thing as asking for cancellation of a removal(Or was that appeal)

Anyways it makes sense that ICE would remove the impediment before the adjustment could go forward. Sounds like they are using the memo that was issued last year from ICE and the subsequent memo from USCIS as a springboard for this.

An B1 overstayer in removal proceedings will have the opportunity to have their AOS adjudicated and ICE will give them the opportunity to do that.

A VWP overstayer who has a removal order will have to have ICE withdraw the order before their AOS can be adjudicated. The difference being VWP entrants will be held in abeyance(An internal hold) rather than going through the court system like other overstayers.

Have I got it?

Edited April 14, 2011 by Myopia

[JimVaPhuong 4,863]

Hold on. Wasn't the entire question pertaining to this memo regarding whether filing for adjustment constituted cancellation of removal; at least that's what I thought you were talking about on the other thread. When you used that phrase I understood it to mean that applying for an adjustment was the same thing as cancellation of removal and that was the issue that was causing issues in the courts as they ruled that a VWP asking to adjust was the same thing as asking for cancellation of a removal(Or was that appeal)

Anyways it makes sense that ICE would remove the impediment before the adjustment could go forward. Sounds like they are using the memo that was issued last year from ICE and the subsequent memo from USCIS as a springboard for this.

An B1 overstayer in removal proceedings will have the opportunity to have their AOS adjudicated and ICE will give them the opportunity to do that.

A VWP overstayer who has a removal order will have to have ICE withdraw the order before their AOS can be adjudicated. The difference being VWP entrants will be held in abeyance(An internal hold) rather than going through the court system like other overstayers.

Have I got it?

We're stuck on technical terminology. As I said, cancellation of removal is a very specific form of relief. I doubt I ever used that term to describe what a VWP overstay is doing by submitting an AOS application. What I did say was that the circuit courts had concluded that the AOS application constituted a form of appeal because the VWP overstay was immediately removable; i.e., one signature away from being kicked out of the US, and the AOS application constituted a request for USCIS to waive that. There are many different types of appeals. Filing for cancellation of removal is only one of them, and it's specifically not what a VWP overstay is doing by filing for AOS.

A VWP overstay with a removal order would need that removal order withdrawn before USCIS would be able to adjudicate their AOS application. The problem is that a VWP overstay cannot actually request the agency that issued the removal order to withdraw it. A request like that would be a form of appeal. I also don't think it's reasonable to presume that the agency that issued the removal order is actually going to withdraw it. I think that would be extremely rare. I mentioned it because the coin has two sides, and withdrawing the removal order is one side. The other is that the removal is enforced, and the alien is kicked out of the US. Until either of those happen, the alien has a removal order hanging over their head.

What I'm trying to do is literally read what the USCIS policy is if there is a removal order. That removal order constitutes a decision by an immigration officer. The AOS application constitutes an appeal of that decision. USCIS can't accept an appeal from a VWP entrant. USCIS has two possible options - reject the AOS application because they don't have the jurisdiction to accept an appeal of another immigration officer's decision (immigration courts routinely use this excuse when they get an appeal from a VWP entrant), or sit on the application until that impediment is removed. Their policy, according to what they told the AILA, is that they'll sit on the application. There are two possible outcomes; the removal order could be withdrawn and USCIS would then be free to adjudicate the AOS application, or the removal order could be enforced, the alien leaves the US, and USCIS can close the AOS application as abandoned. I don't realistically believe there is any real chance that the removal order will be withdrawn, but it IS one of the two possibilities, and is the only rational reason for USCIS to sit on the AOS application. As I said above, until one of those two things happens then the alien has a removal order hanging over their head, and their AOS application remains in limbo.

Personally, I think it would make more sense for USCIS to just reject the AOS application, but I don't get to write policy for USCIS.

[Myopia 93]

Yea probably. When I say cancellation, I didnt mean it in the sense that you meant it (Which is the correct way, I suppose).

I guess that will be the next step in this saga. What happens to those in removal proceedings. I wonder what happened to that VJ'er in San Diego, who was denied.

Edited April 15, 2011 by Myopia