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. 

Q: How can I return to the U.S. after being deported for a drug conviction?

Q: Dear SRW Border Lawyers,

In 1984, I was granted permanent resident status. In 2008, I was placed in removal proceedings and then removed to the Dominican Republic after serving a prison sentence for a conviction for conspiracy to distribute 300 grams or more of cocaine. I was charged as inadmissible and removable under INA § 212(a)(2)(A)(i)(II) and INA § 237(a)(2) for violation (or a conspiracy or attempt to violate) any law regulation of a state, U.S., or a foreign country relating to a controlled substance. I have been out of the country for several years now, but would like to return to the U.S. to visit my family (especially my daughter).

A: Based on the information you provided in your question, your previous drug conviction will greatly restrict your efforts to visit the United States. Drug convictions are punished severely under immigration law due to the severe negative impact that drugs have on society. That being said, for you to enter the U.S., you must first acquire a waiver for your inadmissibility under INA § 212(a)(2)(A)(i)(II). Unfortunately, your conviction bars you from ever applying for a green card again because there is no immigrant waiver available for your particular ground of inadmissibility. You will, however, be able to apply for a nonimmigrant waiver under INA § 212(d)(3)(A)(i), together with a non-immigrant visa, which will allow you to visit the U.S temporarily if approved for both. 

To learn more about the nonimmigrant visa/waiver process, please click on the INA § 212(d)(3)(A)(i) nonimmigrant waiver (applying at U.S. Consulate) tab under the “Border Solutions” drop down menu.

For further assistance, please call our office to discuss what the best strategy would be in preparing a strong nonimmigrant visa/waiver package. 

Applicants Needing Non-Immigrant Waivers Are Experiencing Unusual Delays

Nonimmigrant visa applicants who must also submit a nonimmigrant waiver in conjunction with their visa application, must first convince the Consulate that they are deserving of a waiver. Thus, an applicant who is inadmissible to enter the U.S. will submit a package consisting of a visa application (e.g. B1/B2 visa) and a waiver application to the Consulate. If after reviewing the waiver application the Consulate agrees to make a favorable recommendation, the Consulate will then forward the waiver application to the Admissibility Review Office ("ARO") to be adjudicated. 

In determining whether or not to forward a waiver application to the ARO, consular officers conduct a preliminary review of the application package. First, consular officials ensure that the applicant meets certain basic conditions, which include that the applicant: (1) is not inadmissible as an intending immigrant; (2) is not inadmissible under certain security grounds; (3) is not seeking a waiver of nonimmigrant documentary requirements; and (4) is qualified for the nonimmigrant visa he or she is seeking to obtain. Second, consular officers are advised to consider the following factors outlined by the Board of Immigration Appeals ("BIA") in Matter of Hranka: (1) the risk of harm if the applicant is admitted; (2) the seriousness of the applicant's prior immigration or criminal law violations; and (3) the nature of the applicant's reasons for wishing to enter the U.S. If after reviewing the application consular officers are satisfied with the waiver application, the application will be forwarded, together with a favorable recommendation, to the ARO, for final adjudication. 

Recently, the ARO informed all consulates that they are experiencing unusual backlogs. In previous years, the process took only a couple of weeks, but current processing times may take several months. Our office has heard from several frustrated clients whose waiver processing times have now gone beyond two months. Unfortunately, there is nothing that can be done to speed up the process; however, in urgent situations, there is a procedure called parole that may be granted to allow an applicant to enter the U.S. 

If you are interested in more information about nonimmigrant waivers or parole, please contact our office to set up a consultation.