Entry after Deportation

[Dhat19 2]

13 minutes ago, ra0010 said:

I wonder, also, if there is more misrepresentation once he was inside the US for all these years, such as using his fake identity to obtain a government benefit…

From my understanding, no government benefit was obtained. He has been staying pretty low, taking care of the small kids, and housework while his USC wife worked.  The goal was trying to stay together with his family coming to a new world and helping as best as he can. Of course, looking back now better choices should have been made. 

Edited December 31, 2021 by Dhat19

[Redro 4,611]

11 minutes ago, Dhat19 said:

From my understanding, no government benefit was obtained. He has been staying pretty low, taking care of the small kids, and housework while his USC wife worked.  The goal was trying to stay together with his family coming to a new world and helping as best as he can. Of course, looking back now better choices should have been made. 

Can you clarify did the wife immigrate to the US in 1997 or was he planning on moving to the US in 1997 through his parents? 

Edited December 31, 2021 by Kor2USA

[Rocio0010 5,580]

16 minutes ago, Dhat19 said:

From my understanding, no government benefit was obtained

Well, that’s good. 
 

 

17 minutes ago, Dhat19 said:

Of course, looking back now better choices should have been made. 

Yes, of course. Sometimes people make decisions with the best of their intentions, without thinking of the likely consequences. 

[Demise 1,304]

41 minutes ago, Kor2USA said:

 

So, the ban no longer applies even though he was living in the US?

I was watching a Jim Hacking youtube and he stated being admitted entry by mistake when you had a ban would "pause" said ban..and the ban only expires if you are outside the US for the entire period. 

If he is incorrect that would be good news for anyone allowed back in the States when they had a ban in place. 

 

39 minutes ago, jan22 said:

Just to clarify, the ban for overstaying has not ..."long since expired..." since he did not remain outside the US for 10 years after his deportation; plus, his last entry was in 2000 and he has not left the US since.  You cannot eliminate an overstay ban by remaining in the US; it is not triggered until you Ieave the US.  (The same might be argued about the deportation ban as he did not remain outside the US for 5 years, but that is certainly not clear, since his re-admittance to the US -- even though he was inadmissible at the time -- muddies the case.)

 

But, putting aside those issues -- since overstays are routinely waived for spouses of US citizens-- his bigger problem remains the multiple occurrences of fraud and misrepresentation that were committed.  USCIS takes multiple occurrences very seriously -- especially when they get fooled more than once into admitting the same person who is ineligible for admittance.  Obtaining a false passport, using it apply for and receive a visa (after having been denied an immigrant visa, I believe), and using that visa to enter the US, would actually likely be found to support a finding of fraud, not just misrepresentation.

Okay so I've been digging, and it looks like you two are right and I apologize for my prior wrong advice.

 

In regards to the 5 year bar for removal as an arriving alien under 212(a)(9)(A)(i), you are absolutely correct. 8 CFR 212.2 does require them to spend the 5 years abroad. So looks like he will need an I-212 for this as well.

In regards to the 10 year bar, I can't find any good guidance. Policy manual, Federal Register, nor the now deprecated Adjudicator Field Manual doesn't address this at all, nor are there any BIA precedents on the matter. I went digging further into secondary sources like ILRC and ClinicLegal and they too throw the towel on this one. So it'll probably be better to just err on the side of caution and tick two boxes on the I-601.

 

Also, "misrepresentation" and "immigration fraud" are one and the same. Both fall under the misrepresentation bar found in INA 212(a)(6)(C)(i) and the waiver is found in INA 212(i).

 

So tl;dr. File for AOS, file I-601 for misrepresentation and unlawful presence, and file I-212 for getting removed as an arriving alien, include evidence that wife would suffer extreme hardship which is the standard for both waivers. I-212 is technically strictly discretionary but I would approach it as an extreme hardship waiver as well.

Edited December 31, 2021 by Demise

[Boiler 45,733]

2 minutes ago, Demise said:

 

Okay so I've been digging, and it looks like you two are right and I apologize for my prior wrong advice.

 

In regards to the 5 year bar for removal as an arriving alien under 212(a)(9)(A)(i), you are absolutely correct. 8 CFR 212.2 does require them to spend the 5 years abroad. So looks like he will need an I-212 for this as well.

In regards to the 10 year bar, I can't find any good guidance. Policy manual, Federal Register, nor the now deprecated Adjudicator Field Manual doesn't address this at all, nor are there any BIA precedents on the matter. I went digging further into secondary sources like ILRC and ClinicLegal and they too throw the towel on this one. So it'll probably be better to just err on the side of caution and tick two boxes on the I-601.

 

Also, "misrepresentation" and "immigration fraud" are one and the same. Both fall under the misrepresentation bar found in INA 212(a)(6)(C)(i) and the waiver is found in INA 212(i).

 

So tl;dr. File for AOS, file I-601 for misrepresentation and unlawful presence, and file I-212 for getting removed as an arriving alien, include evidence that wife would suffer extreme hardship which is the standard for both waivers. I-212 is technically strictly discretionary but I would approach it as an extreme hardship waiver as well.

The I 212 could be filed now but I do not see the point bearing in mind the near certainty of an I 601.

 

I 601 determination would not occur until the interview.

[Dhat19 2]

7 minutes ago, Kor2USA said:

Can you clarify did the wife immigrate to the US in 1997 or was he planning on moving to the US in 1997 through his parents? 

 

 

3 minutes ago, Demise said:

 

Okay so I've been digging, and it looks like you two are right and I apologize for my prior wrong advice.

 

In regards to the 5 year bar for removal as an arriving alien under 212(a)(9)(A)(i), you are absolutely correct. 8 CFR 212.2 does require them to spend the 5 years abroad. So looks like he will need an I-212 for this as well.

In regards to the 10 year bar, I can't find any good guidance. Policy manual, Federal Register, nor the now deprecated Adjudicator Field Manual doesn't address this at all, nor are there any BIA precedents on the matter. I went digging further into secondary sources like ILRC and ClinicLegal and they too throw the towel on this one. So it'll probably be better to just err on the side of caution and tick two boxes on the I-601.

 

Also, "misrepresentation" and "immigration fraud" are one and the same. Both fall under the misrepresentation bar found in INA 212(a)(6)(C)(i) and the waiver is found in INA 212(i).

 

So tl;dr. File for AOS, file I-601 for misrepresentation and unlawful presence, and file I-212 for getting removed as an arriving alien, include evidence that wife would suffer extreme hardship which is the standard for both waivers.

 

Thanks for looking into this.  From what I have been reading they said extreme hardship is rare to get approved, especially now since his children are adults.   Would it be best for his USC wife to file for hardship or would it be best for his mother to file for hardship as she is older and require care? 

[Demise 1,304]

6 minutes ago, Boiler said:

The I 212 could be filed now but I do not see the point bearing in mind the near certainty of an I 601.

 

I 601 determination would not occur until the interview.

I mean all of these could be filed concurrently and prospectively of USCIS demanding them. It's not like an I-212/I-601A case where I-212 has to be filed first. Nor is it like a consular interview case where you go in fully expecting to get denied, get your denial, and then file a waiver with USCIS and later do a second interview.

Edited December 31, 2021 by Demise

[Demise 1,304]

3 minutes ago, Dhat19 said:

 

 

Thanks for looking into this.  From what I have been reading they said extreme hardship is rare to get approved, especially now since his children are adults.   Would it be best for his USC wife to file for hardship or would it be best for his mother to file for hardship as she is older and require care? 

You can have multiple qualifying relatives on the waivers. So he could claim hardship to both USC wife and to his presumably USC or LPR mother.

 

Also, he will be the one filing and signing the I-601/I-212 forms. The qualifying relatives would only sign a statement collaborating the hardship claims.

Edited December 31, 2021 by Demise

[jan22 3,056]

12 minutes ago, Demise said:

...

Also, "misrepresentation" and "immigration fraud" are one and the same. Both fall under the misrepresentation bar found in INA 212(a)(6)(C)(i) and the waiver is found in INA 212(i)....

While you are correct that they both fall under 212 (a)(6)(C)(i), fraud and misrepresentation are not "one and the same".  If they were, there would be no reason to distinguish the two.  Most of the time, what officers see are misrepresentations.  There is a different standard for a fraud finding (See 9 FAM 302.9-4(B)(2)  https://fam.state.gov/fam/09FAM/09FAM030209.html).  Fraud requires a willful intent by a person to deceive that is acted upon by the officer; misrepresentations may not.  Fraud is viewed more seriously.

Edited December 31, 2021 by jan22

[Crazy Cat 41,984]

35 minutes ago, Dhat19 said:

and housework while his USC wife worked.

That is not what you said earlier.......the story keeps changing.....

You said "Very hard worker. He washes cars and does carpentry work. "

Edited December 31, 2021 by Crazy Cat

[Demise 1,304]

4 minutes ago, jan22 said:

While you are correct that they both fall under 212 (a)(6)(C)(i), fraud and misrepresentation are not "one and the same".  If they were, there would be reason to distinguish the two.  Most of the time, what officers see are misrepresentations.  There is a different standard for a fraud finding (See 9 FAM 302.9-4(B)(2) https://fam.state.gov/fam/09FAM/09FAM030209.html).  Fraud requires a willful intent by a person to deceive that is acted upon by the officer; misrepresentations may not.  Fraud is viewed more seriously.

Yes I do suppose you are right. Still, ultimately the only solution is to file the appropriate waivers and see what happens.

[African Zealot 1,455]

2 hours ago, Crazy Cat said:

Can he have been "lawfully inspected" when he had "dirty hands"?  

YES

 

 

Quote

 

Administrative and Judicial Precedents

The BIA and federal courts have consistently held, with limited exceptions, that so long as the process was procedurally legal, the alien is considered to have been admitted. With regard to nonimmigrants, this means that the only issue with regard to “admission” is whether the alien was inspected and authorized to enter. Circuit courts have applied the same reasoning to persons who are “admitted” as LPRs when the LPR admission is not legal. However, it is important to note that admission under false pretenses neither entitles one to immigration benefits nor does it cure inadmissibility.

 

 

Edited December 31, 2021 by African Zealot

[Dhat19 2]

1 minute ago, Crazy Cat said:

That is not what you said earlier.......the story keeps changing.....

The story hasn't changed;  Let me clarify. When the kids were younger, he stayed home. The kids are adults now. So he washes cars with a relative and does handyman work for a few years—sort of like word of mouth,  and definitely wasn't stable.  Like, hey, I know a person that can paint a house well, etc., he wasn't even working for a large company. Since the pandemic, he has not worked. 

[Crazy Cat 41,984]

1 minute ago, Dhat19 said:

The story hasn't changed;  Let me clarify. When the kids were younger, he stayed home. The kids are adults now. So he washes cars with a relative and does handyman work for a few years—sort of like word of mouth,  and definitely wasn't stable.  Like, hey, I know a person that can paint a house well, etc., he wasn't even working for a large company. Since the pandemic, he has not worked. 

Work is work...... 

Instead of violating the TOS, I'm out.  

 

[African Zealot 1,455]

9 hours ago, aaron2020 said:

He was inspected and admitted after he lied to obtain a visa using his real passport in 2000.  So the admission was not exactly clean.  It was full of material misrepresentation because I doubt he disclosed that he used a fake passport to enter the US or was deported in obtaining that visa.  

All what you wrote is quite irrelevant. He was lawfully inspected and admitted regardless of all that.

 

 

Quote

 

Administrative and Judicial Precedents

The BIA and federal courts have consistently held, with limited exceptions, that so long as the process was procedurally legal, the alien is considered to have been admitted. With regard to nonimmigrants, this means that the only issue with regard to “admission” is whether the alien was inspected and authorized to enter. Circuit courts have applied the same reasoning to persons who are “admitted” as LPRs when the LPR admission is not legal. However, it is important to note that admission under false pretenses neither entitles one to immigration benefits nor does it cure inadmissibility.

 

 

Edited December 31, 2021 by African Zealot