CBP Can Place Foreign Nationals in Removal Proceedings for Failing to Obtain Non-Immigrant Waivers Prior to Applying for Admission at POE

Our firm often encounters individual in a similar predicament - They have recently been placed into removal proceedings in Immigration Court because they continuously appeared at a Port of Entry (POE) seeking admission into the U.S., despite the fact that they were previously advised by U.S. Customs & Border Protection (CBP) that they were inadmissible to the U.S. under INA § 212, whether it be for previous immigration violations, previous criminal convictions, or some other ground of inadmissibility.

This situation also has one other common denominator: these individuals tend to be Canadian citizens, given that Canadian citizens are visa exempt.

So why are these individuals in removal proceedings? In fact, they usually don’t even live in the U.S., but are simply trying to enter for a temporary visit. Well, what happens is that when CBP encounters these individuals at the POE, who after being repeatedly advised that they need a nonimmigrant waiver (Form I-192) to enter the U.S. continue to attempt to enter the U.S. without acquiring the waiver, CBP choses to exercise its authority and places them in removal proceedings in front of an Immigration Judge. CBP will issue a Notice to Appear (NTA), which is the charging document for immigration matters. The individual is then either provided with a date/time to appear in front of the Immigration Judge or receives a notice in the mail at a future date. For those individuals that end up in removal proceedings after appearing at a POE near Buffalo, New York, they end up in removal proceedings in front of the Immigration Judge in Buffalo, New York, who has a backlogged docket of over a year.

Now, this is the situation these individuals have placed them in – they were already inadmissible to the U.S. under INA § 212 (whether it was for previous immigration violations, criminal convictions, etc.), and now they may become subject to yet another ground of inadmissibility if they are ordered removed from the United States (which they may be if they are unable to overcome the charge of inadmissibility being lodged against them). If the individual is ordered removed from the U.S., they are going to be barred from re-entering the U.S. for a period of ten (10) years. If they want to enter the U.S. prior to the expiration of their ten-year bar, they need to apply for yet another waiver – Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. This is in addition to the Form I-192, Application for Advance Permission to Enter as Nonimmigrant, that they already require.

However, one option that may be available for these individuals in order to avoid a formal removal order is to request that they be allowed to withdraw their application for admission. Put simply, it is the individual saying to the Court “I’m sorry I applied to enter the U.S. I would like to take my application back and go home now.” This is a highly discretionary request, and not a right or a benefit, so the Immigration Judge does have the discretion to deny the request. Nonetheless, in some cases, it may be worth pursuing this strategy in order to avoid a removal order that will incur either a ten (10) year bar to the US or require applying for yet another waiver.

For those individuals who have been previously advised by CBP that they require a nonimmigrant waiver to enter the U.S., before re-appearing at the POE to enter, it is highly advisable that these individuals apply for their waivers to avoid being placed in removal proceedings. Should an emergency arise during the pendency of the waiver application, there may be the opportunity to apply for parole while the waiver application is pending.

If you are one of these individuals who has already been placed into removal proceedings based on a scenario described above, please schedule a consultation with our office to determine whether withdrawing your application for admission may be a advisable and feasible strategy.

USCIS Centralizes Filing of Overseas I-601 (and I-212) Filings

USCIS has announced that as of June 4, 2012, foreign nationals filing Form I-601, Application for Waiver of Grounds of Inadmissibility, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, in connection with their applications for a immigrant visa, will mail them to a USCIS Lockbox facility for adjudication by the Nebraska Service Center.

From June 4 to October 4 (first six months), for those foreign national applicants Filing I-601’s in Mexico, they will have the option of filing their applications with either the USCIS Lockbox or with the USCIS Ciudad Juarez Field Office.

Foreign nationals should be aware that this change is separate from the provisional hardship waiver that is currently under a comment period. 

The I-212 Waiver – An Immigrant Waiver and a Non-Immigrant Waiver

Foreign nationals who have been ordered deported or removed from the U.S., have been issued an expedited removal order, or who have violated the terms of a voluntary departure order by not timely departing the United States, have common questions – Can they ever re-enter the United States? Do they have to wait for 5 or 10 years before they can re-enter the United States? Can they ever obtain their permanent resident status (i.e. green card)?

These foreign nationals have the same dilemma – as a result of being previously deported or removed from the U.S., or having been issued a expedited removal order, or who have violated the terms of a voluntary departure order by not timely departing the United States, are inadmissible to the United States for a specified period of years under INA § 212(a)(9)(A).

The good news is that these foreign national’s do have options available – whether it be to obtain non-immigrant status (i.e. B-1/B-2, H-1B, E, F, L, etc.) or immigrant status (i.e. green card).  While each foreign national’s situation is different in terms of the benefits they are seeking and how soon they can apply for a waiver, in most situations, an experienced attorney who has extensive experience in waivers (such as SRW Border Lawyers) will be able to provide the foreign national with a good idea of when they should consider applying for the waiver. Not only that, SRW Border Lawyers can help the foreign national determine how to coordinate their waiver application with their non-immigrant and immigrant applications to allow for the smoothest possible process.  Additionally, our team also analyzes the previous removal order to determine whether there is any legal and/or factual basis to challenge the removal order itself. 

Should the foreign national wish to re-enter the U.S. prior to the end of their inadmissibility bar, they do have a option – they may apply for permission to reapply for admission into the U.S. by submitting Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, to the appropriate agency (dependent on the circumstances of the removal and the purpose for which entry is being sought). Luckily, unlike some other waiver applications, the I-212 application is a one time application and is valid for both immigrant and non-immigrant purposes.

If you are a foreign national who has been previously ordered removed, been issued an expedited removal order and/or violated the terms of a voluntary departure order, please contact our office to schedule a consultation with our experienced attorneys.