Help! Reentering the us as an LPR with an old removal order

[Sunny20 0]

On 10/4/2024 at 2:12 PM, Demise said:

OP got rate limited, so replies will likely take a while.

 

From what I gather here from what OP has already posted and what he said in DMs is:

 

OP entered on VWP with abusive ex.

OP filed for AOS.

Ex pulled the rug from under him and the AOS was denied.

OP was given an expedited removal order by ICE

OP was given a stay by ICE to file VAWA/AOS

OP filed VAWA/AOS and that was granted.

OP checked with ICE and was told that "they are unable to cancel it but they would not enforce it."

We are here.

 

So few considerations:

VWP comes with the stipulation that you essentially waive all avenues of relief aside asylum.

USCIS has jurisdiction over I-485 unless IJ has jurisdiction due to the person being in removal proceedings (and pre-1997 deportation proceedings). This is the part that prevents one to file for AOS with an outstanding removal order generally. Those with pre-1997 exclusion orders for example remain eligible to file for AOS with USCIS and later after approval they have to reopen/terminate the exclusion proceedings.

Most expedited removal cases never make it before an IJ unless an asylum claim is made and those that do are essentially "asylum only proceedings".

Having an outstanding removal order doesn't make you inadmissible, as those inadmissibilities are triggered upon physically leaving the US (whether on their own or when deported).

 

So all in all it's a mess. Since nothing really prevented OP from adjustment of status. Similarly I couldn't find anything that'd automatically vacate such an order upon approval of AOS. ICE also says that they can't do anything about it.

 

From what I gather OP should be able to write to ICE and basically request discretion in rescinding it, send it to the main OPLA office in DC. But if ICE says no then well, not sure, petition for review?

 

In DMs I recommended to try via a congressman or senator's office. Hopefully ICE will take that correspondence more seriously because it's just hilarious that they claim that they can't do anything about it.

 

If all else fails, just stay put, do your 3 years, naturalize, and 

 I have a question, does anyone know if number 4 under section  1101(a)(13)(C) applies to me?

Am i still considered to be in removal proceedings?

I know I have a final administrative removal order which, would make a CBP officer assume I'm in removals. But since then I was granted defered action, approved i360 and approved i485. Surely, this means the government is not seeking to remove me. Am I correct to think this?

 

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

Thank you

 

 

On 10/4/2024 at 2:12 PM, Demise said:

OP got rate limited, so replies will likely take a while.

 

From what I gather here from what OP has already posted and what he said in DMs is:

 

OP entered on VWP with abusive ex.

OP filed for AOS.

Ex pulled the rug from under him and the AOS was denied.

OP was given an expedited removal order by ICE

OP was given a stay by ICE to file VAWA/AOS

OP filed VAWA/AOS and that was granted.

OP checked with ICE and was told that "they are unable to cancel it but they would not enforce it."

We are here.

 

So few considerations:

VWP comes with the stipulation that you essentially waive all avenues of relief aside asylum.

USCIS has jurisdiction over I-485 unless IJ has jurisdiction due to the person being in removal proceedings (and pre-1997 deportation proceedings). This is the part that prevents one to file for AOS with an outstanding removal order generally. Those with pre-1997 exclusion orders for example remain eligible to file for AOS with USCIS and later after approval they have to reopen/terminate the exclusion proceedings.

Most expedited removal cases never make it before an IJ unless an asylum claim is made and those that do are essentially "asylum only proceedings".

Having an outstanding removal order doesn't make you inadmissible, as those inadmissibilities are triggered upon physically leaving the US (whether on their own or when deported).

 

So all in all it's a mess. Since nothing really prevented OP from adjustment of status. Similarly I couldn't find anything that'd automatically vacate such an order upon approval of AOS. ICE also says that they can't do anything about it.

 

From what I gather OP should be able to write to ICE and basically request discretion in rescinding it, send it to the main OPLA office in DC. But if ICE says no then well, not sure, petition for review?

 

In DMs I recommended to try via a congressman or senator's office. Hopefully ICE will take that correspondence more seriously because it's just hilarious that they claim that they can't do anything about it.

 

If all else fails, just stay put, do your 3 years, naturalize, and 

 I have a question, does anyone know if number 4 under section  1101(a)(13)(C) applies to me?

Am i still considered to be in removal proceedings?

I know I have a final administrative removal order which, would make a CBP officer assume I'm in removals. But since then I was granted defered action, approved i360 and approved i485. Surely, this means the government is not seeking to remove me. Am I correct to think this?

 

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

Thank you

 

 

[Demise 1,267]

3 hours ago, Sunny20 said:

 I have a question, does anyone know if number 4 under section  1101(a)(13)(C) applies to me?

Am i still considered to be in removal proceedings?

I know I have a final administrative removal order which, would make a CBP officer assume I'm in removals. But since then I was granted defered action, approved i360 and approved i485. Surely, this means the government is not seeking to remove me. Am I correct to think this?

 

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

Thank you

On its face - yes.

 

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,

 

This chapter basically means the entire "CHAPTER 12-IMMIGRATION AND NATIONALITY", which includes 8 USC 1225 (INA 235) which contains expedited removal, 8 USC 1229a (INA 240), which are the normal removal proceedings. Basically if it's in INA it's part of that. So in theory, yes, you would be subject to inspection and admission while seeking re-entry. Like, I wouldn't risk it personally, if you want to YOLO it then maybe you could do that, and if CBP admits you back in - great, if not demand to see a judge and maybe the judge would lift the order? Of course there is the risk that the judge puts fingers in his ears and decides that you've self-deported though then there's at least the out of filing I-212.

Edited October 8 by Demise

[Sunny20 0]

1 hour ago, Demise said:

On its face - yes.

 

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,

 

This chapter basically means the entire "CHAPTER 12-IMMIGRATION AND NATIONALITY", which includes 8 USC 1225 (INA 235) which contains expedited removal, 8 USC 1229a (INA 240), which are the normal removal proceedings. Basically if it's in INA it's part of that. So in theory, yes, you would be subject to inspection and admission while seeking re-entry. Like, I wouldn't risk it personally, if you want to YOLO it then maybe you could do that, and if CBP admits you back in - great, if not demand to see a judge and maybe the judge would lift the order? Of course there is the risk that the judge puts fingers in his ears and decides that you've self-deported though then there's at least the out of filing I-212.

Once an order of removal is executed a person is no longer considered to be in removal proceedings, correct me if im in the wrong

 

 Lets say CBP says I'm inadmissible due to 10 year bar after self deportation.

However, LPR's are considered 'admitted' into the usa by being granted LPR status and are not subject to grounds of inadmissibility upon reentry. I would be subject to ground of deportability. I haven't done anything to be considered deportable. 

 

If they do give me problems on my way in, by law, I have rights to an immigration judge. Who would either dismiss my case or like you said there is a waiver available that the judge might request I file. Then this will be all dealt with and closed and I wouldn't have worry about it again. 

 

Or, I can just sit here another 5 years to be eligible to file for citizenship and then another 1 or 2 years to be approved before I can see my family. And I would still run into the issue of a final removal order that hasn't been administratively closed. You can't become citizen while in removal proceedings.

 

 

 

With very limited exceptions, a person admitted for lawful permanent residence cannot be considered to be “seeking admission” into the United States. This means that an LPR, unless he or she falls under one of the exceptions in section 101(a)(13)(C) of the Immigration and Nationality Act (INA), cannot be charged with inadmissibility under section 212(a). Rather, in order to be placed into removal proceedings, such an LPR would have to be charged with deportability under section 237.

 

[Demise 1,267]

15 hours ago, Sunny20 said:

Once an order of removal is executed a person is no longer considered to be in removal proceedings, correct me if im in the wrong

 

 Lets say CBP says I'm inadmissible due to 10 year bar after self deportation.

However, LPR's are considered 'admitted' into the usa by being granted LPR status and are not subject to grounds of inadmissibility upon reentry. I would be subject to ground of deportability. I haven't done anything to be considered deportable. 

 

If they do give me problems on my way in, by law, I have rights to an immigration judge. Who would either dismiss my case or like you said there is a waiver available that the judge might request I file. Then this will be all dealt with and closed and I wouldn't have worry about it again. 

 

Or, I can just sit here another 5 years to be eligible to file for citizenship and then another 1 or 2 years to be approved before I can see my family. And I would still run into the issue of a final removal order that hasn't been administratively closed. You can't become citizen while in removal proceedings.

 

 

 

With very limited exceptions, a person admitted for lawful permanent residence cannot be considered to be “seeking admission” into the United States. This means that an LPR, unless he or she falls under one of the exceptions in section 101(a)(13)(C) of the Immigration and Nationality Act (INA), cannot be charged with inadmissibility under section 212(a). Rather, in order to be placed into removal proceedings, such an LPR would have to be charged with deportability under section 237.

 

 

It's a bit more complicated than that due to the whole thing of reinstatement of removal order and the fact that proceedings can be reopened even after physical removal. The fact that there's the whole thing of reinstatement of removal where ICE can revive an old removal order to throw you out again without a day in court, and the fact that you can collapse a reinstatement by reopening removal proceedings.

 

I'd imagine that someone who got deported, and served off the ban, would need a new removal order to get deported again but well, google isn't being really how many such cases have there been? From what I've seen if someone manages to get around something like that they'll drive the speed limit until they naturalize.

 

Then there's also the part that you are subject to inspection, admission, and grounds of inadmissibility if you've done anything to make yourself inadmissible since becoming an LPR, regardless of the time spent outside US. (Seen a case like that, guy became an LPR in like 2006, got two CIMTs in 2007, lived just fine until he went on a vacation abroad in 2016, got detained on entry, sent to removal proceedings, filed I-601 with the court for that which was approved and he got released). The 180 days is just the normal cut-off for cases where no other bullet point applies where CBP can prod if you did anything to abandon your permanent residence in US.

 

Naturalization with expedited order is also murky because the policy manual doesn't touch on that. The pertinent part in INA 318 states "no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act", they do explicitly consider NTAs to be such "warrant of arrest" everywhere except the 9th circuit (Yith v Nielsen). If you are in the 9th circuit I guess Yith v Nielsen could be expanded to you, elsewhere it's a good question.

 

I'd say give the senator/congressman option a try first and see what happens there before branching out because now you'll just drive yourself mad.

 

If that doesn't work then I-212 can be filed prospectively of traveling out. So you could file that and see what USCIS says. If they approve it - great the removal order and relevant ground of inadmissibility got vacated. If they deny it for mootness (i.e. it doesn't apply to you) also great hang onto that denial letter for when you travel and naturalize. Also as an aside - time to naturalize as a VAWA LPR is 3 years, not 5.

[Sunny20 0]

On 10/9/2024 at 7:48 AM, Demise said:

 

It's a bit more complicated than that due to the whole thing of reinstatement of removal order and the fact that proceedings can be reopened even after physical removal. The fact that there's the whole thing of reinstatement of removal where ICE can revive an old removal order to throw you out again without a day in court, and the fact that you can collapse a reinstatement by reopening removal proceedings.

 

I'd imagine that someone who got deported, and served off the ban, would need a new removal order to get deported again but well, google isn't being really how many such cases have there been? From what I've seen if someone manages to get around something like that they'll drive the speed limit until they naturalize.

 

Then there's also the part that you are subject to inspection, admission, and grounds of inadmissibility if you've done anything to make yourself inadmissible since becoming an LPR, regardless of the time spent outside US. (Seen a case like that, guy became an LPR in like 2006, got two CIMTs in 2007, lived just fine until he went on a vacation abroad in 2016, got detained on entry, sent to removal proceedings, filed I-601 with the court for that which was approved and he got released). The 180 days is just the normal cut-off for cases where no other bullet point applies where CBP can prod if you did anything to abandon your permanent residence in US.

 

Naturalization with expedited order is also murky because the policy manual doesn't touch on that. The pertinent part in INA 318 states "no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act", they do explicitly consider NTAs to be such "warrant of arrest" everywhere except the 9th circuit (Yith v Nielsen). If you are in the 9th circuit I guess Yith v Nielsen could be expanded to you, elsewhere it's a good question.

 

I'd say give the senator/congressman option a try first and see what happens there before branching out because now you'll just drive yourself mad.

 

If that doesn't work then I-212 can be filed prospectively of traveling out. So you could file that and see what USCIS says. If they approve it - great the removal order and relevant ground of inadmissibility got vacated. If they deny it for mootness (i.e. it doesn't apply to you) also great hang onto that denial letter for when you travel and naturalize. Also as an aside - time to naturalize as a VAWA LPR is 3 years, not 5.

You have some interesting points, so frustrating to not know where you stand legally. 

However, they can't deport an LPR without court proceedings.