Archive for the Removal (Deportation) Proceedings Category

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Posted in Immigrant Visas, Lawful Permanent Residence, Naturalization, Removal (Deportation) Proceedings, Voluntary Departure, work permit with tags , , , , , , , , , on September 24, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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Top 10 Reasons Why Immigrants Get Visas Denied

Posted in Grounds of Inadmissibility, Immigrant Visas, Lawful Permanent Residence, Removal (Deportation) Proceedings, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , on September 14, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

We thought it would be fascinating and instructive to analyze and compile a list of why people were denied their visa applications in trying to immigrate to the U.S. An immigrant with one of these reasons potentially lurking in the background could try to gauge their chances of success to some extent using this list.

Only 2017 statistics are included in the list. Also, it only includes people who tried to apply for immigrant visas last year, that is, to immigrate permanently to the U.S. In legalese, these reasons for denial are known as “grounds of inadmissibility” or “inadmissible grounds.” These grounds come into play at the last step of the immigration process: at the consulate interview in the immigrant’s home country before the immigrant receives the immigrant visa for permanent residence. This is after all the years of waiting for the visa priority date to be current, after all the facts of the relationship have been proved to be true between the petitioner and beneficiary, after all the forms appear to have been correct….but then these grounds appear suddenly like thieves in the night to derail the immigrant visa application.

Note:  Our new self-consultation apps on how to immigrate to the US, available as described here, are for applicants who do not have these grounds on their records, except for Nos. 6 and 4 below (Unlawfully present in US 365 days or more) which fortunately, as can be seen below is not too difficult to overcome with the right type of extreme hardship evidence.

For each inadmissible ground, along with our comments, the list includes the total number of people denied last year, as well as the percentage who were denied. In other words, out of the total number of applicants faced with a certain ground of inadmissibility, such as for example, criminal convictions, some percentage of applicants was ultimately approved for their visas because they managed to receive some type of waiver.

The list is ranked by the total number of applicants denied, from the smallest to the largest. So, let’s begin…

No. 10 – Controlled substance violators

Applicants denied: 644 Denial rate: 94%

The extremely high rate of denial is quite fitting here.  Those applicants who violated or were convicted of violating controlled substance laws (no matter in what country, by the way) have an extremely difficult time overcoming this ground, as seen in the 6% figure of those who managed to do so.

No. 9 – Public charge

Applicants denied: 1,221 Denial rate: 38%

A public charge is someone who cannot support themselves in the US but must resort to the government to support them. Such a person cannot immigrate here.  As can be seen, however, this reason for denial is relatively easy to overcome with 62% of applicants able to correct the problem when they were told by the consulate that there was a problem. In reality, the immigrant’s petitioner had to sign the Affidavit of Support form ahead of time to agree they would pledge their income and assets to support the immigrant.  Even if the income is not enough, a joint sponsor’s income can be used to help out. Thus, it’s quite easy to overcome the ground of being a public charge and for the immigrant visa to be approved as a result.

No. 8 – Smugglers

Applicants denied: 1,292 Denial rate: 51%

Just to be clear, this refers to alien smuggling, not contraband. And yes, there is a waiver available if the alien being smuggled was someone in the immigrant’s immediate family. The term “smuggling” makes it seem as though the immigrant committed a very serious act, but actually, it includes acts such as “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” So, it’s not only hiding another person in the trunk of a car that can make you guilty of alien smuggling! Regardless, the 51% denial rate shows that this ground is not so difficult to overcome as in previous years when there was up to 90% denial rate.

No. 7 – Crime involving moral turpitude (CIMT)

Applicants denied: 1,363 Denial rate: 80%

The bad CIMT. In immigration work, lawyers hate to hear this acronym mentioned because it means the client’s case could be a very hard case! A crime, such as DUI (driving under the influence) will not involve moral turpitude because it does not involve “baseness” or a “bad heart,” which is a rough definition of “moral turpitude.” But DUI with death or injury involved may involve moral turpitude, depending on the local DUI law involved and if there was at least recklessness on the part of the driver in causing the death or injury. Of course, it goes without saying that more serious crimes such as fraud, theft, rape, murder, and so forth are CIMTs. A conviction for a CIMT in an applicant’s past will make them inadmissible to the U.S. although a waiver is possible. However, the 80% denial rate shows that the waiver will be quite difficult to get.

No. 6 – Unlawfully present 365 days or more (provisional waiver)

Applicants denied: 1,956 Denial rate: 5%

This category is very common because, as we discussed it in detail in our other article, “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?”, many immigrants have previously accumulated unlawful or illegal presence in the US of 365 days or more, such that if they leave to try to apply for their permanent visa at the US consulate in their country, they are confronted with the 10-year bar.  As was shown in that article, this bar has available an extreme hardship waiver that is applied for in the US even before the applicant leaves for the interview, known as the “provisional unlawful presence waiver” or just “provisional waiver.”

The 5% rate of denial is misleading; it does not mean this waiver is easy to get (anything involving the showing of “extreme hardship” to a US relative is not easy to begin with).  It only means that even after the provisional waiver had been approved for the applicant before leaving the US, he or she was confronted with something seriously deficient about the waiver:  for example, maybe the consulate discovered there was fraud in applying for the waiver, or some other problem, etc.  All this statistic really shows is that for 95% of applicants who had the provisional waiver approved before leaving the US for consulate interview (if it’s not approved, they most likely wouldn’t leave), they will eventually be approved for their visa.

No. 5 – Unlawfully present after previous immigration violations

Applicants denied: 2,648 Denial rate: 83%

This category is an extremely harsh category to be caught under. It consists of immigrants who had been unlawfully present in previous times in the U.S. for a total period of more than 1 year, or who were ordered removed or deported, but later they entered or tried to enter the U.S. illegally. At their consulate visa interview, when this negative immigration history is discovered, such a person cannot be admitted to the U.S. It’s a lifetime bar! However, the person could wait 10 years outside the U.S. then apply to immigration authorities for permission to reapply for admission to the U.S.

No. 4 – Unlawfully present 365 days or more (non-provisional waiver)

Applicants denied: 3,022 Denial rate: 39%

This category is the same 10-year bar as in No. 6 above, except that for these applicants, for whatever reason, they did not obtain an approved provisional waiver before leaving the US for their consulate interview.  Instead, at the interview they are confronted with the 10-year bar.  And, as was shown in the same article, this bar does have an extreme hardship waiver available to excuse it when the applicant is applying from outside the US, the non-provisional waiver type.  This waiver had a 39% denial rate last year, or in other words, nearly 6 out of 10 applicants got the waiver approved.

However, this doesn’t necessarily mean this waiver is easy to get. Obviously, the statistics used to construct this list does not, and indeed, cannot tell us how many people who knew ahead of time they would be denied and did not bother to apply. For example, someone with a weak case might have obtained legal advice ahead of time from their immigration lawyer that applying for a visa would be a waste of time even if there is a waiver available in the law. Thus, it may be that for certain waivers such as this one, there were more applicants with stronger cases to begin with anyway, thus biasing the rate of success toward approval. To obtain approval of this waiver, the immigrant has to leave behind their family in the U.S. and travel back to their home country and apply at the U.S. consulate. If the waiver is denied, they are stuck in their country unable to return to their family. Thus, looking at the statistics we believe that it’s likely only people who felt more confidently ahead of time that they have a strong hardship case would take this risk.

No. 3 – Misrepresentation

Applicants denied: 4,360 Denial rate: 74%

This is the “When you lie, you fry” category. These were immigrants who had their visas denied due to being caught committing fraud or misrepresenting (lying) some fact in order to obtain the visa or even any previous visa or admission document. The relatively high denial rate shows that U.S. immigration authorities do not have a high tolerance for immigrants not being truthful on their applications. Still, 26% of them last year ended up overcoming this due to a waiver being available. The waiver is to show extreme hardship to a spouse, child or parent who is a U.S. citizen or legal permanent resident and thus, is quite similar to the waiver used for the very common 10-year bar, which is the next category.

No. 2 – Labor certification

Applicants denied: 8,363 Denial rate: 96%

A less well-known way of immigrating to the U.S. is through an employer petition. A U.S. employer can petition for an immigrant worker to take a permanent job position in the U.S. In order to qualify, however, the employer must file a labor certification application with the U.S. Department of Labor to certify that there are no willing, able, and qualified U.S. workers for the job position. Only if this labor certification is certified will the immigrant worker be approved a visa to immigrate. However, at the consulate interview, there are many applicants whom the consulate found to have intended to immigrate to the US to work, without having had a labor certification filed and certified for them.  Those cases must be denied.  Or, even if a labor certification has been obtained, the visa may still be denied, such as when the consulate officer believes the worker does not truly intend to work for the employer, or fraud in obtaining the labor certification, etc.   This ground of denial is almost impossible to overcome as seen in the almost 100% rate of denial.

Finally, we come to the TOP REASON FOR VISA DENIAL, which is…:

No.1 – Application does not comply with provisions of law or regulations!

Applicants denied: 85,185 Denial rate: 33%

Amazingly, for something that is #1, it is not a fancy reason to deny a visa! The Department of State does not break out in fine details what these consisted of, but they have to do with reasons such as the applicant not being eligible for the visa being sought, filing requirements not met, lack of required evidence, missing forms, missing information, etc. Pretty mundane reasons actually. That said, this category seems to also be a catch-all category containing reasons for denial that do not fit neatly into any of the main categories laid out in the Immigration and Nationality Act (INA).

This reason for denial (legally, section 221(g) of the INA) is relatively easy to overcome. This is understandable if the denial has to do with deficient application forms or missing evidence since those can be easily fixed by the applicant. A HUGE number of applicants were told initially they were in this category last year, more than 254,000, which easily dwarfs all the other nine categories combined. The lesson here is, make sure you are eligible for the visa ahead of time and your applications and documents in tip-top shape! Hiring a good immigration lawyer is obviously a good start toward this end.

So, those are the top 10 reasons for denial in terms of number. In terms of percentage, the ranking goes like this from the most difficult to overcome to the easiest:

1. Labor certification – 96%
2. Controlled substance violators – 94%
3. Unlawfully present after previous immigration violations – 83%
4. Crime involving moral turpitude (CIMT) – 80%
5. Misrepresentation – 74%
6. Smugglers – 51%
7. Unlawfully present 365 days or more (10-year bar)(non-provisional waiver) – 39%
8. Public charge – 38%
9. Application does not comply with provisions of law or regulations – 33%
10. Unlawfully present 365 days or more (10-year bar)(provisional waiver) – 5%

We hope you will never face any of these reasons for denial in your quest to immigrate to the U.S.!

Source:  US State Department, Fiscal Year 2017 Annual Report, Table XX, Immigrant and Nonimmigrant Visa Ineligibilities, available at http://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2017AnnualReport/FY17AnnualReport-TableXX.pdf

Copyright © 2009-2018 Law Offices of Larry L. Doan – GuruImmigration

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

Can I Be Deported When I’m Not Even There in Court?

Posted in Removal (Deportation) Proceedings with tags , on August 25, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Dear GuruImmigration,

after my 130 and 485 was denied, i left the usa. that was last year. unfortunately, last week, my parents told me that i have received a ”notice to appear.” at their usa mailind address. I read online that I would be deported ”in absentia” by the Immigration Judge. what should i do please?

Answer:

Deported in absentia (now called “removal in absentia”) means that, yes, you indeed can be deported in your absence if you were present in the US and you fail to show up in Immigration Court for proceedings after being properly notified.  In your case, however, you cannot be ordered deported if you have already left the country.  An attorney would need to appear in court for you at the hearing set on the Notice to Appear, with proof of your non-presence in US, and move to dismiss.  It’s important that you do that, or else the government will assume that you’re still here and continue the deportation proceedings against you leading to an order of deportation in absentia.  That order of deportation (or removal) will be on your records for at least 10 years and will prevent you from being eligible to re-apply for any type of visa back to the US for that long.

If the Immigration Court is in Southern California, contact our office and we can represent you.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

Boyfriend got DUI hit-and-run and now deported

Posted in Removal (Deportation) Proceedings with tags , , on August 20, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Today we have a very interesting question from a young woman that illustrates that sometimes, loved ones and close friends are very concerned for the immigrant and want to help, but unfortunately are prevented from doing anything under the law.

By the way, these questions are unedited without fixes as to spelling or grammatical errors.

——

Dear GuruImmigration,

My boyfriend (we lived together but weren’t married) got a DUI, hit and run he was in jail
and got sent to Mexico on early January but not deported and he had a court date for early April. When he was trying to cross the border to come back in March 19 he was caught by the border patrol and they deported him for 5 years. He got send to Mexico when we had just had our first baby he was a week old. is there anything i can do? Can I apply to get him a legal residence card? I’m a legal resident. if i can howmuch would it cost? would i need to go get married?
THANK YOU for all your help

Answer:

Probably nothing can be done for years. First, boyfriends and girlfriends cannot do anything for each other. So, you would have to get married to him first. Second, lawyers who answer need to tell you upfront that with only a green card (i.e, you’re a legal permanent resident, not a US citizen), even if the deportation could be waived for your husband (when he becomes your husband), and you apply for him today as the spouse of a legal resident, he is stuck in Mexico until a visa number is available for a spouse of a legal resident. And when will that be? Well, currently they’re running about 4 years behind for Mexicans in that category. SeeWhat to Look for When Your Green-Card Holder Helps You Immigrate.”

If you apply for citizenship (at least 5 years after obtaining green card), then the wait won’t be 4 years. But, the waiver of deportation will be pretty difficult to get approved, especially since he has repeated illegal entries to the US AND he has a DUI hit-and-run on his records, which is very bad.

Few cases are impossible, but this is a pretty difficult case. Cases like this can sometimes be successful, but it will cost you a LOT of money in attorney’s fees because so many resources have to be thrown at it. And, frankly, in this economy, a lot of people are not willing to spend that money.

Best.

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

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