While attempting to enter U.S., Canadian Citizen (and former LPR) discovers she was removed (and is now inadmissible) for failing to file I-751

Question: I am a Canadian Citizen and a former green card holder of the United States.  After I got my green card based on our marriage, my husband and I had planned to stay in the United States, but after we both lost our jobs, we decided to relocate to Canada in May 2009 (this was about a year after I got my green card).  Last month, I had submitted my Form I-407, Abandonment of Lawful Permanent Residence with the U.S. Consulate in Toronto and had sent them my green card also (even though it was expired from 2010). 

Last week, I attempted to cross a local border crossing to meet some family members for dinner (I had not crossed over in several years now) and was advised that the I-407 I had filed wasn't viable because I had actually been issued a deportation order in 2010, which I didn't receive because I forgot to change my address with USCIS.

I am now facing a major issue. Next month, my stepdaughter is graduating from high school in Orlando, Florida and I have a trip booked to go and attend, with my husband and 5-year old daughter. Any help you can offer would be wonderful.

Answer: Thank you for your email and inquiry. While we cannot thoroughly analyze your case and give you specific advice without learning more about your case, we can provide you with some brief advice to address your concerns.

From what you have briefly stated, it seems that you are currently inadmissible to the United States for the foreseeable future as a result of being ordered removed in 2010.  I can surmise that since you obtained your green card through marriage and your green card was only valid for two years, that you were a conditional permanent resident of the United States (i.e. you were given a 2 yr green card since your marriage was less than 2 yrs old at the time you obtained your green card).  Since you left the U.S. in 2009, prior to the expiration of your green card, and did not file a change of address with USCIS, I would presume that your removal order is likely based on your failure to file a Form I-751, Petition to Remove the Conditions of Residence, within the ninety (90) period prior to the expiration date listed on the conditional permanent resident card.   When you failed to file the petition, U.S. Citizenship & Immigration likely terminated your status as a conditional permanent resident and subsequently placed you in removal proceedings.  You were probably eventually order removed in absentia by an Immigration Judge.  Again, this is what we can deduct from what you have stated.  We would need to speak with you in detail and review additional paperwork to ensure this is truly what happened and led to your removal order.   

Having said the above, there may be a few options to address this previous removal order – whether it be attacking the order itself or applying for a waiver to allow you to reapply to enter the U.S. as a visitor (I-212 Waiver).  We’ve had experience with both and could determine the best course of action in your case after speaking with you and learning of your short-term and long-term goals, and going over the pros and cons of each option.  We would also need to determine whether you were subject to any other grounds of inadmissibility under U.S. immigration law.

In the interim, given that your proposed travel for your step-daughter’s graduation is in a few weeks, we would also be happy to discuss the possibility of being paroled into the U.S. for the visit with you.  (Any options regarding your removal order would require more than the few weeks until your step-daughter's graduation to address.)  Just last month, a client of ours was successfully paroled into the U.S. to attend her son’s high school graduation, a few months after being ordered removed.  Click here for more information.

At this time, we invite you to schedule a consultation with our office so we can learn more about your U.S. immigration history, explain the options that may be available to you, as well as expand on the services we may be able to provide you with.  We would also be able to answer any questions or concerns you may have about any of the application processes. 

SRW Border Lawyers Update : After successfully obtaining parole on behalf of this Client through U.S. Customs & Border Protection, our firm was retained to address the previous removal order.  We successfully advocated with ICE Chief Counsel in Nevada and filed a Motion to Reopen & Terminate, explaining the circumstances behind our Client's removal order.  The Dept. of Homeland Security was unopposed and the Immigration Judge signed the order in a matter of weeks.  Our Client will now not require a I-212 waiver to overcome her previous removal order since her removal order has been vacated and her removal proceedings have been terminated.

Adjustment of Status Based on Marriage to a U.S. Citizen and Effect of Failure to Depart the U.S. After Grant of Voluntary Departure Order

Question: I am from Jamaica and entered the U.S. in 2001 on a visitors visa and have never left since then.  In 2003, I was in Immigration Court proceedings and the Immigration Judge granted me Voluntary Departure.  I was supposed to leave in early 2004, but I stayed in the United States.  In 2007, I married my husband, who was a green card holder at that time.  Earlier this year, my husband was approved for naturalization and he is now a U.S. citizen.  Can he file paperwork for me now so I can get my green card?  Do I have to leave the country to apply? 

SRW Border Lawyers Answer:   Hello, Thank you for submitting your question. 

While I cannot thoroughly analyze your case and give you specific advice without learning more about your case, I can give you some brief advice to address your concerns.  If you would like a detailed professional analysis of your case, as well as an opportunity to have us thoroughly explain your options and the processes to you, please contact our office for a consultation. 

Since your husband is now a U.S. citizen, he may be able to file a family-based immigrant petition on your behalf (I-130) to accord you status as an “Immediate Relative”, which means you are not subject to any priority date backlogs and can immediately pursue your green card. 

The good news is that since you last entered the U.S. lawfully (i.e. in 2001 on a visitors (B-2) visa), you may be eligible to adjust your status (I-485) from within the United States under INA §245 to that of lawful permanent resident (aka green card holder).  Normally, one of the main eligibility requirements to adjusting status from within the U.S. is that you have maintained lawful status (which you have not from what you have indicated).  However, this requirement is waived for ‘immediate relatives’ of U.S. citizens.  

For more information regarding adjusting your status based on marriage to a U.S. citizen, please visit: http://srwlawyers.com/adjustment-of-status-marriage-to-u-s-citizen/

However, your case does have a particularly twist arising from the fact that you failed to depart the U.S. after being issued a Voluntary Departure order.  When you did not leave the U.S. in 2004 per your Voluntary Departure order, your Voluntary Departure order converted to a removal order.  As a result, you are ineligible to adjust your status without first obtaining consent to reapply for admission.  In order to apply for this consent, you would need to submit Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  For a detailed discussion of how this application is adjudicated, please visit: http://www.srwborderlawyers.com/-form-i-212-waiver/.

Ideally, you will have all the paperwork available from your Immigration Court proceedings for an attorney to review to ensure that you do in fact require this waiver.  If not, you may need to file a Freedom of Information Act Request to obtain a copy of your file and the relevant court records.

To summarize, given the complexity of your case, I would highly advise you to minimally consult with an experienced immigration attorney before filing any paperwork with USCIS. 

Good luck! 

Q: How will an expedited removal order charging inadmissibility under INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I) affect my ability to reenter the United States?

Q: Dear SRW Border Lawyers,

Last month Customs and Border Protection ("CBP") issued an expedited removal order against me at the Peace Bridge port-of-entry. I was charged as inadmissible under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).

I work for a U.S. based test prep company in Canada, but on more than one occasion I have entered the United States for additional training. I was compensated for my participation in these training sessions. Last month, I tried to enter the U.S. to attend a training session and teach a test prep course, but I was not allowed to enter and told by CBP that I needed employment documents because I was being compensated for my time. Against my better judgment, I attempted to enter the U.S. at another port-of-entry, the Peace Bridge, the following day.

During questioning at the Peace Bridge, I told the inspecting officer that I was entering the U.S. to go shopping. I was eventually pulled over and placed in a room where I was questioned further.  CBP officers searched my phone and found emails discussing the course that I was going to teach and how much I was going to be paid. The officer’s told me about the emails they found and then issued an expedited removal order against me.

How will this expedited removal order affect my ability to travel to the United States?

A: Based on your question, it appears that you were expedited removed under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).  Under the Immigration and Nationality Act (“INA”), a foreign national is inadmissible under INA § 212(a)(6)(C)(i) if he or she seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the U.S. or other benefit provided under the INA by fraud or willful misrepresention of a material fact. Furthermore, a foreign national is inadmissible under INA § 212(a)(7)(i)(I) if he or she applies for admission without a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the INA, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required.

Individuals who are removed from the U.S. by the expedited removal process are barred from reentering the United States for a five-year period. Pursuant to INA § 235(b)(1)(A)(i), individuals removed are not entitled to a hearing before an Immigration Judge (unless the individual seeks asylum under INA § 208). If, however, an individual stopped by an immigration officer is allowed to withdraw his or her application for admission (INA § 235(a)(4)), an expedited removal order will not be lodged and there will be no five-year bar. Only individuals order removed under INA § 235(b) are subject to the five-year bar. 

A charge of fraud or willful misrepresentation under INA § 212(a)(6)(C)(i) creates a lifetime bar for entering the United States. What this means is that an individual charged under this provision will be permanently barred from the U.S., unless they are granted a waiver. Therefore, even after the expiration of the 5-year bar, an individual charged with fraud or willful misrepresentation will still be barred unless they are granted a waiver.

I would encourage you to call our office to discuss all of your options. In cases where it was appropriate, we have had a strong record of attacking fraud charges and having them removed because they were improperly issued. For cases where removing the charge is not an option, however, we have been very successful in acquiring INA § 212(d)(3)(A)(i) and Form I-192 waivers. If you wish to enter prior to the expiration of the 5-year bar, we can also discuss a Form I-212, Application for Admission after Removal.

In the meantime, to learn more about the expedited removal process, INA § 212(d)(3)(A)(i) and Form I-192 waivers, and the Form I-212, Application for Admission After Removal, please visit our website. 

I-212, Application to Reapply After Removal, Approved in record time!

SRW Border Lawyers was notified last week that another I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, was approved! This was especially surprising due to the fact that the approval came only a month after filing the application. Recently, normal processing time for an I-212 application can take several months. 

You should file an I-212 waiver if:

• You were removed from the U.S. as an inadmissible alien through expedited removal proceedings under INA § 235(b)(1) that were initiated when you arrived at a port of entry; or
• You were removed from the U.S. as an inadmissible, arriving alien under INA §240; that is, removal proceedings were initiated upon your arrival at a port of entry in the U.S. (Note: the paperwork you received during your removal proceedings should indicate under which provision you were removed under); or
• You violated the terms of a Voluntary Departure order by not timely departing the U.S.

For more information, please visit our web page on I-212 waivers under the Border Solutions drop down menu.

If you were previously removed from the U.S. and are interested in filing an I-212 waiver, please contact our office so we can discuss the details of your case. 

By SRW BORDER LAWYERS