Does this make sense to you?

[josandme 6]

First, not sure where this goes on this site but since it originated from a b2 I will put it here. I am preparing to send a petition to reconsider to cbp. I need to base it in law. (or at least make an effort since im not an attorney) I want to know before I send it if it make sense, And to the attorneys here I am very curious what your thoughts are. 

( this will be edited to try and save space)

The officer found Her inadmissible as stated on form I-831, page  of 2 of 2 as stated on lower right corner,  “to wit: You cannot overcome the presumption of being an intended immigrant, therefore you are not a bona fide visitor to the United States.”  He denied entry based on 212(a) which means he thought she was going to remain in usa. He then ordered her removed under 235(b)(1)  (we're good to here but now the kink)

                                               He gave her a removal order that states:

You have been found inadmissible...… blah blah… of section 212(a) of the INA or deportable...… blah blah VWPP (irrelevant here).. blah blah.  In accordance with the provisions of section 212 a)(9) of the act you are prohibited from entering, attempting to enter or bein in US. 

For a period of 5 years from the date.. blah blah.. in proceedings under 235(b)(1) or 240 of the act. 

Act 212 (a)(9) says 

(9) ¹²ALIENS PREVIOUSLY REMOVED.-

(A) Certain aliens previously removed.-

(i) Arriving aliens.-Any alien who has been ordered removed under section  235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

SECTION 235 (b)(1) SAYS, 

b) 2/ Inspection of Applicants for Admission.-

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled.-

(A) Screening.-

(i) In general.-If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) , the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.

 

Section 235 applies so that the officer may order her removed. Act 212 doe NOT apply in this instance. she was never PREVIOUSLY REMOVED. 

The officials at the border gave her BOTH papers at the same time. Telling her she would be removed, (section 235)  then telling her she was banned for trying to enter after she had been removed. act 212 a9.  Therefore the officer has overreached himself and not followed the law, so the consequences of 212 must be rescinded.  

 

Do you follow that argument? If a person is deemed inadmissible, their petition to enter has at that point been decided. They are then deported under 235 b. 

To give them after that a 212 a9 ban is like double jeopardy. Obviously a person would not immediately attempt to enter again after they had just been advised of their fate. And since the law says a person attempting to enter has not yet actually "entered" thence no legal rights afforded them by US law, When would a "removal" have occurred? 

 

well, what ya think?

[millefleur 5,046]

 **Moved from Tourist Visas to Waivers (I-601 and I-212) and Administrative Processes (221g); question is beyond the realm of usual tourist visa situation**

 

 

[josandme 6]

3 minutes ago, millefleur said:

 **Moved from Tourist Visas to Waivers (I-601 and I-212) and Administrative Processes (221g); question is beyond the realm of usual tourist visa situation**

 

 

while I understand your point, it is not a 601 or a 212 issue so I didn't put it there.  beyond the normal but perhaps someone reading about visa issues may learn from it? 

[geowrian 22,337]

An expedited removal can apply at POE. While it might sound counter-intuitive since one never was actually admitted into the country, they can be ordered removed anyway.

[josandme 6]

readers but no comments...  hmmmmm 

let me try to be more specific 

 

Section 235 applies so that the officer may order her removed. Act 212 does NOT apply in this instance. She was never PREVIOUSLY REMOVED. 

The officials at the border gave her BOTH papers at the same time. Telling her she would be removed, (section 235) then telling her she was banned for trying to enter after she had been removed. act 212 a9. 

 

 

 

Act 212 was written to in effect “punish” a person who had been previously removed from the US and had knowingly tried to re-enter being inadmissible under the law. (intending to immigrate for example) After the 235 interview the officer could then place the 212 ban on that person to prevent another attempt.

 

 

 

The law plainly says, in bold and capital letters, it is for ALIENS PREVIOUSLY REMOVED, and under (i) who again seeks admission within 5 years of the date of such removal.

This law obviously does not apply in this instance. She was never “Previously Removed”.

She was ordered removed but that order had not been yet completed.

Therefore the officer has overreached himself and did not follow nor apply the law correctly.  Thus the consequences of 212 must be rescinded.

 

 

Edited February 17, 2019 by josandme
edit

[SusieQQQ 11,586]

56 minutes ago, josandme said:

readers but no comments...  hmmmmm 

 

 

 

People read posts to see if they can help. If they can’t, they don’t comment. It’s not a surprising outcome to have many more readers than comments.

 

waivers are one of the few issues on this site that people tend to recommend attorneys rather than DIY.

[geowrian 22,337]

I'm not entirely sure what your argument is, sorry. That one cannot be removed with the 5 year bar under that provision since they had not tried to re-enter after being removed? That is a well settled matter - the 5 year bar applies.

That's basically arguing that most expedited removals and the subsequent bar at the border are unlawful. That's certainly not a legal argument that will be settled on VJ...it would need to be with the BIA or federal courts or even SCOTUS. That's well beyond the scope of anything here, and only something a very good immigration lawyer would even consider.

But as noted, this is a well settled matter and SOP, so I just don't see it going anywhere.

I would not be so quick to assume the intent of any INA 212 provision.

[josandme 6]

30 minutes ago, geowrian said:

That's basically arguing that most expedited removals and the subsequent bar at the border are unlawful. That's certainly not a legal argument that will be settled on VJ

Thank you sir for response. That is basically correct. Except the removal is lawful. It is the ban they attach to a first time removal that is, (as I read the law) unlawful. 

I agree this is not a subject to be decide on VJ. It was only my intent to see if I was being clear with the argument of my opinion, and hopefully a few lawyers might chime in there onion.  😊

 

22 minutes ago, geowrian said:

But as noted, this is a well settled matter and SOP

To me that means it has been challenged before and decided. 

Can you give me reference as to where it is well settled? 
you are correct it is SOP, but as I read the law it is being applied incorrectly. And yes it would have sweeping consequences if I am right.  It looks to me like they have twisted the actual intention of the law just a bit and use it as justification.

[josandme 6]

I see where they apply that law, was a shot in the dark 😕

Its sad that a person has done nothing wrong, has only good intentions and can suffer such a harsh penalty only because they tried to do it the right way. 

thanks for those who replied

subject closed

[geowrian 22,337]

Quote

To me that means it has been challenged before and decided. 

Can you give me reference as to where it is well settled? 
you are correct it is SOP, but as I read the law it is being applied incorrectly. And yes it would have sweeping consequences if I am right.  It looks to me like they have twisted the actual intention of the law just a bit and use it as justification.

I would start with a reading of the following resource:

https://fas.org/sgp/crs/homesec/R45314.pdf (especially page 34 onward)

 

Also, the FAM lays out the bar as a consequence of thew removal pretty clearly:

https://fam.state.gov/fam/09FAM/09FAM030211.html

"9 FAM 302.11-2(B)(1)  (U) Five Year Bar

(CT:VISA-272;   12-20-2016)

(U) An alien who has been found to be inadmissible as an arriving alien, whether as a result of a summary determination of inadmissibility by an immigration officer at the port of entry under INA 235(b)(1) – (“Expedited Removal”) or as a result of a finding of inadmissibility by an Immigration Judge during a hearing in Immigration Court under INA 240 (“Removal Proceedings”) that DHS initiated upon the alien’s arrival in the United States, is inadmissible under INA 212(a)(9)(A)(i) unless the alien has remained outside of the United States for five consecutive years since the date of deportation or removal.  Under INA 101(g), an alien who departs the United States while a final removal order is in effect is deemed to have been removed, even if the alien leaves on his or her own."

 

You acknowledge that the removal is lawful. That being the case, INA 212(a)(9)(A)(i) must apply for any subsequent application for admission or visa. I think your understanding of the workflow is incorrect - being removed is not the bar, but the bar then applies for any subsequent attempt. So they are essentially separate items but linked.

 

If you do ever make any headway into this, please update the thread. Thank you.

Edited February 17, 2019 by geowrian