Update on perm. bar and more questions!!!

[alyssa]

hey everyone I am back with more questions. Remember my fiance visa was denied cause of 9c and our waiver was refused.
Well my lawyer received a letter from the US embassy in COsta Rica amd they say they cant reconsider his refusal:

"during his interview Mr. admitted that, in February 2000 he crossed the US/Mexico border without inspection but was caught by US border protection agents. In connection with his apprehension Mr misrepresented his name and nationallity. After being processed under a false name, Mr. was transported back to Mexico. Mr. also admits that a few days later, he again crossed the border without inspection, this time successfully, and lived in the US for a number of years."
...........................

"Visa applicants bear the burden of demonstrating their qualifications for a visa. Given the information available to us at this time, Mr. has not carried that burdon and therefore does not qualify for a visa at this time. If you have any additional information that shows that Mr. was not subject to a removal order in connection with his first unlawful entry, we would be happy to consider it."
............................

1) my fiance NEVER admitted that he CROSSED the border, he said he was stopped at the border.

2) how in the world do I show that a removal order DOES NOT exist???

My lawyer wrote the Immigrant Visa Officer back stating all of the facts and saying that the government would have the removal order, and since they have access to all my fiance's files they would see it.

Any suggestions for anything here?? or opinions??
Thanks!!!!

[emt103c]

This is really weird. Have you done an FBI fingerprint check and submitted it? Even if he gave a false name the fingerprints would be the same AND should show the deportation either on their record or the one he obtains.

They need to prove he's been deported. No fingerprints, no deportation.

[Laura]

Does the fact that he attempted to enter the border through Mexico and is not a Mexican citizen mean he got an expedited removal and not a throwback at the border?

But they don't have record of this, right? They are just stating that because of what he said in the interview he's getting 9(c)... It's so strange though, but isn't there something weird when non-Mexicans get caught at the U.S.-Mex border? Aren't they usually not "caught and released?"

Sorry, this is not helpful because I am not clear on this, but I'm wondering if anyone else know what I am talking about...

[kitkat1]

What does the lawyer say about this? It seems to come down to semantics.

Mr. admitted that, in February 2000 he crossed the US/Mexico border without inspection but was caught by US border protection agents.

Their wording is the same as your wording - where he was caught, meaning physically apprehended -- at the border demarcation line or a few feet inside the US or a few miles inside the US -- doesn't make any difference. He was caught attempting to enter somewhere, without inspection (unless he presented false documentation at a US port of entry - I don't recall the details of your case, but I don't think that's what you're saying).

The part I don't understand that I think the lawyer must explain, is why would he be subject to a "removal order" based on an attempted entry? What exactly does a "removal order" mean. The act of entering the US without inspection is not in and of itself illegal. I can't see how he's subject to 9c unless he accrued 365 days of illegal presence, OR had an order of removal, (this is what the law states) left and THEN re-entered again illegally.

People who are caught at the border and re-entered to Mexico are normally "caught and released". If it was a formal deportation, he should have/would have been given some papers - it would not normally be as simple as being walked back across the border. So ask your lawyer exactly what records you need to request, and how, to show whether or not there was any formal "removal" or deporation at the border. If he was indeed deported upon attempted entry, and then he did re-enter, 9C applies to him.

Hope that doesn't confuse you more - it's more just questions to get clarified from your lawyer. (At the interview, did they say he had been charged with deporation? You stated misrepresentation but not deporation.)

[alyssa]

I know this is crazy confusing. The reason why it was a "catch and release" is because he said he was from Mexico....however he was NOT in the US when this happend he was at the border (Mexico Side) and they took his info (which he lied about) and told him to go back to Mexico. There was no DEPORTATION no jail no judge no court NOTHING thats what im confused about!!! Thanks guys!!!!

[alyssa]

no the word DEPORTATION was never used....and thanks my lawyer is responding to the letter to get answers....i just wanted to hear what you guys thought of the situation!! Thanks guys!!!

[Adriane]

The fact that he was subject to removal- does that mean that even though they thought he was Mexican, since he was in fact Costa Rican he technically was subject to removal even though it wasn't carried out? Does that make any sense?

[alyssa]

is that possible???

[kitkat1]

however he was NOT in the US when this happend he was at the border (Mexico Side) and they took his info (which he lied about) and told him to go back to Mexico.

Who apprehended him? US Immigration agents? If he was not inside the US, they would not have had any authority to apprehend him. US immigration officials cannot charge someone with illegal entry if they haven't actually entered the US. It's not as if they can walk across the border to Mexico and start arresting or apprehending people who are standing on a border. So he had to have been caught attempting to enter, on the US side. Otherwise there would not be any "charges". If you are saying the Mexican border patrol caught him, it wouldn't have any bearing on his US immigration case.

[Laura]

It seems like they are interpreting this as an expedited removal, no? I mean, that still seems sort of crazy, but an expedited removal can happen without a judge or much paperwork.

Or, perhaps the consulate is Costa Rica is simply inexperienced with these things (catch and release that is definitely not a deportation) and is therefore interpreting this as him having been removed and then EWI? Either way, I think you have a case to get this overturned... but it's still really tough.

Keep us updated please.

[kitkat1]

This is old (you can tell by the reference to INS) but it may just explain it - just not sure how he could PROVE that this process wasn't followed:

http://www.visalaw.com/02nov3/2nov302.html

Since April 1, 1997, INS has applied the expedited removal provisions to individuals who arrive at a United States port-of-entry with invalid entry documents or who attempt to enter the United States through fraud or misrepresentation.

Initial Process


INS officers participating in the expedited removal process have authorization to issue orders of removal. These orders, which must be reviewed by a senior level supervisory immigration officer, have the same authority as an order issued by an immigration judge. Consequently, aliens who receive an expedited order of removal are subject to the five-year bar to re-entry.

Individuals issued a removal order pursuant to this procedure must 1) have been read and understand a sworn statement and 2) have been asked if they fear returning to their home country. Therefore, aliens subject to the expedited removal provisions will inevitably be issued orders and removed unless the individuals express a fear of returning to their home country.

[emt103c]

But in an expedited removal THERE ARE FINGERPRINTS taken. Nothing gets around the fingerprints.

It is not your job to prove he was not removed. . .they have to have proof that he was removed. Are they saying that they do?

[pen1137]

problem is, once immigration has a "verdict", burden of proof is up to the USC.

[Adriane]

Yep, it's not like "innocent until proven guilty"- once they deem you "guilty, you're guilty until you can procve otherwise- And convince someone to listen....

[Shrek]

Here is the link to the original thread: http://immigrate2us.net/forum/showthread.php?t=8979

Is it possible that they are applying 9C because he EWI, stayed for 6 years, left then fraudulently obtained another visa and entered again? In the previous thread it was stated that he lied on his visa application that he never was in the us and was granted the H2B. So this entry was obtained by fraud. Could they be looking at this a an illegal entry since the visa would not be valid due to fraud?

[kitkat1]

Looking at the old thread - review of the facts:

He EWI in 2000 - stopped, fingerprinted, lied about identity and nationality. So one attempted illegal entry. One count of misrepresentation. Possible deportation or expedited removal. You need to know if he was deported or was charged with "expedited removal". Did you check his fingerprints?

Re-entered successfully shortly thereafter.

Left US in 2006 - so that was 6 years approximately of illegal presence

Lied and got an h2b visa and re-entered the US again by fraud/misrepresentation

Tried to get another h2b visa in o7 and they told him that they found his fingerprints from 2000 and that he also lied on his visa application in o6. They have his prints - they know if he was deprorted or charged with "expedited removal". You need to know this too.

Ewi in 2000 and stayed in the US illegally for more than 365 days.
Left and attemped to re-enter and was allowed to re-enter
Left again and was denied another visa

Like PP said, they are interpretating the 9C rule to mean anyone who has an overstay of more than 365 days and attempts to re-enter EWI gets the 9C bar. (Even if they have a new valid visa because in order to get a new valid visa after 1 EWI and overstay of more than 365 days you need an approved waiver).

Since your fiance EWI and was illegally present for more than 365 days and then left and attempted to re-enter (and did enter fraudulantly, I presume they consider this entry without inspection) he is charged with 9C. Regardless of the first attempted entry, this appears to be in line with the law. He had more than one year of illegal presence.He re-entered on a visa falsly obtained.

Again, your lawyer needs to go through each of these details and charges clearly. You need his fingeprints. But to me, it looks like 9C is correct and you should start thinking about living in a third place while waiting out the ten years.

[alyssa]

KitKat thank you for taking the time to help me. I would understand if 9C was being applied to the 6 years he was in the US. The problem is they are applying 9C to the incident in 2000.

"It is Mr. first unlawful entry into the U.S that is at issue. You have suggested that Mr. was not "removed" from the U.S, but was rather subject to a process you refer to as "catch and release". As an initial matter, the term "catch and release" is found nowhere in the governing statutes, and you do not define it. Additionally, you provide no evidence to support your clients position."
........................... THIS IS PART OF MY LAWYER'S RESPONSE..............

"As for your contention that i did not provide legal support for our position you are incorrect. I did so in my Feb. 7, 2008 letter and in our pending appeal to the BIA. A copy of each is enclosed for your handy reference.
By this letter I am asking you to review you file to confirm if there is such an Order of Removal in the file. If there is no such order in the file, I respectfully request that you reconsider your position and reverse your decision in order to allow Mr. to immigrate to the US to joing his USC fiance, A, and end her extreme and undue hardship that she is sufferig due to this unfair denial of the I-129 petition and arbitrary and capricious refusal to even consider the I-601 waiver petition"

[emt103c]

It does not matter WHY 9C is being applied, if he is subject to it. If he stayed in the US for 6 years, left and fraudulently entered, he is subject to 9C, they are just picking a battle. Even if you won this one, he would be subject to it for the other reason.

Kitkat is right on all points.

[kitkat1]

In addition Alyssa, I would be a bit concerened that your lawyer is using the term "catch and release" in his appeal. As emt103c said, it's not really going to matter if they relent on the attempted entry in 2000 because 9c would be applied anyway. But your lawyer should be experienced enough to know that "catch and release" is not a legal term -- trying to argue immigration law referring to a term that does not exist is not going to help your case in anyway. While I agree that he can certainly argue that there was no order of removal, that he was simply returned across the border and it was nothing more than an attempted entry, going about it in the manner he is is clearly not helping your case. :(

[Pinkpig]

IMHO:

the catch and release is not even relevant no matter what you call it......

He actually did enter without inspection after that first incident and stayed in the US illegally for 6 years. So he did EWI, stayed 6 years, left and entered again by fraud (this was not a legal entry).


Bottom line is this: He EWI, stayed 6 years illegally, left, and entered again, ....this is clearly 9C.

Additionally, they have charged him with misrepresentation/fraud for lying on a visa application.

If you enter the US without inspection, stay illegally more than 6 months, and then leave the only way that you can legally re-enter is with a visa based upon an approved waiver.

If you enter the US without inspection, stay illegally more than 1 year, and leave the US the only way that you can legally re-enter is with a visa based upon an approved waiver.

If you enter the US without inspection, stay illegally more than 1 year, leave the US and again re-enter without an approved waiver, and then leave, the only way you can return to the US is to file a waiver AFTER YOU HAVE BEEN OUT OF THE US FOR 10 YEARS, have the waiver approved and then enter the US legally with a visa.


IMHO: If you want to keep your lawyer, then your lawyer needs to do a consult with Laurel Scott so that he understand what is going on in this case.

Nothing I post is legal advice either. Just my opinion which is worth nothing.

[JMRJ]

Alyssa's old timeline did not mention anything about the EWI after the attempted illegal re-entry. This is the new discovery of her case. One might think that it was the accumulation of illegal presence and the fraudulently obtained H2B visa that resulted in 9C interpretation but it's not. According to the letter of the consulate:

"during his interview Mr. admitted that, in February 2000 he crossed the US/Mexico border without inspection but was caught by US border protection agents. In connection with his apprehension Mr misrepresented his name and nationallity. After being processed under a false name, Mr. was transported back to Mexico. Mr. also admits that a few days later, he again crossed the border without inspection, this time successfully, and lived in the US for a number of years."

Right here is the root of triggering 9C.

The expedited removal process is laid out at 8 C.F.R. § 235.3(b). (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|8cfrsec2353&s_type=all&hash=0-0-0-12645)It describes who must be removed under this process and identifies exceptions to expedited removal.

(b) Expedited removal . (1) Applicability . The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|act212a6C&s_type=all&hash=0-0-0-2459)or (7) of the Act.

Catch and release or withdrawal of an application to admission as a legal term under the statute is at the discretion of the officer who must make a judgement at the POE.

Alyssa's misrep case triggered a lifetime ban.The simple fact of withdrawing the application that will not result in a five year ban will not necessarily erase these consequences because whatever happened at the POE is entered on their lookout system.

These records followed them up to the consular interview.

Not legal advice, alyssa... just IMO.

Sorry guys. My opinion is quite different...

[kitkat1]

JMRJ, I think we are all actually on the same page here and in agreement, with the exception of Alyssa's lawyer who doesn't seem to see the root of the 9C charge. I think you're saying that whatever happened at the border doesn't matter - because 9C would be triggered regardless based on the other facts - to which both PP and I seem to agree. Not a good outcome for Alyssa's fiance, but I doubt it's a surprise - I remember this case from the beginning, and I recall that many people pointed this out at that time. But the lawyer (whether it was the one who advised lying or a different one) does not seem to get it.

[Adriane]

IMHO:

the catch and release is not even relevant no matter what you call it......

He actually did enter without inspection after that first incident and stayed in the US illegally for 6 years. So he did EWI, stayed 6 years, left and entered again by fraud (this was not a legal entry).


Bottom line is this: He EWI, stayed 6 years illegally, left, and entered again, ....this is clearly 9C.

Additionally, they have charged him with misrepresentation/fraud for lying on a visa application.

If you enter the US without inspection, stay illegally more than 6 months, and then leave the only way that you can legally re-enter is with a visa based upon an approved waiver.

If you enter the US without inspection, stay illegally more than 1 year, and leave the US the only way that you can legally re-enter is with a visa based upon an approved waiver..[/COLOR]

But the second entry wasn't without inspection- it was fraudulent and the work permit was obtained by misrep, but it wasn't without inspection. So I'm not sure that this entry should actually trigger 9(C).

For instance, Mach13's husband overstayed his visa by years, left, claimed not to have overstayed and re-entered ont hat visa- and he was not charged with 9(C)... And those who enter the US fraudulently but with inspection are then allowed to file waivers in-country, or am I wrong?

I need to research this more heavily, admittedly, but that sort of sticks out for me....

Regardless, I'd absolutely do a consult with Laurel.

[JMRJ]

I just re read all of alyssa's threads and this thread once again. Yes, kitkat1, you are exactly correct. The lawyer(s) was/were making this complicated case much more complicated. Sounds like the lawyer is not a trained fact finder on this particular scenario alone based on her/his letters to the consulate.

A clear cut explanation may be best handled by an experienced lawyer like Laurel. She'll give you a legal straightforward answers.

[JMRJ]

Adriane, the OP's fiance, EWI'd days after the illegal entry. This was before he obtained the fraudulent visa:

"during his interview Mr. admitted that, in February 2000 he crossed the US/Mexico border without inspection but was caught by US border protection agents. In connection with his apprehension Mr misrepresented his name and nationallity. After being processed under a false name, Mr. was transported back to Mexico. Mr. also admits that a few days later, he again crossed the border without inspection, this time successfully, and lived in the US for a number of years."

[Pinkpig]

But the second entry wasn't without inspection- it was fraudulent and the work permit was obtained by misrep, but it wasn't without inspection. So I'm not sure that this entry should actually trigger 9(C).

For instance, Mach13's husband overstayed his visa by years, left, claimed not to have overstayed and re-entered ont hat visa- and he was not charged with 9(C)... And those who enter the US fraudulently but with inspection are then allowed to file waivers in-country, or am I wrong?

I need to research this more heavily, admittedly, but that sort of sticks out for me....

Regardless, I'd absolutely do a consult with Laurel.

I agree with you, Adriane! If I were the OP, my next move would be a consult with Laurel Scott.


and this is why...

That really is the point...I would stop everything I was doing and get an opinion from another impeccable source.

There are differing decisions based on 9C and this is a fluid issue.

Several members have been charged with 9C from different countries in the recent past on different issues, some that previously had been interpreted differently.

At least one good resource has weighed in on the fact that trying to enter using fraud/misrepresentation can invalidate a legal entry.

We also know that they have files on individuals that contain information that no one outside the officials are privy to even through FOIA or FBI file checks.

Also, they use the applicants own words and we are not privy to what the OP's fiance actually said and was recorded at any of the interviews.

There is no definitive stance on what really triggers the charge, or how different consulates interpret it.

Another case in point are the recent charges for members on here who were charged with 9C when they were under the age of 18. Previously, seemingly, that did not trigger 9C and now it does.

There are way too many variables in this case.

I could see this case being charged in a multitude of ways. (Even those of us who have chimed in here disagree.) Hence, my best advice to the original poster when she first posted it and it remains the same today. If this were my situation, I would be consulting with Laurel Scott, or Carl Shusterman, or have my lawyer consult with them.

I have not talked with her lawyer and maybe he is arguing the correct law. I do not know. I can only say to her that this is complicated enough that I think she needs another opinion to make sure they are doing it the best possible way.

That is always my point in urging posters to get a consult with someone who many people through their experience trust. That is the reason for the list of recommended lawyers and the warnings about those of us who have been taken by shady lawyers the first time out or until we found this site.

I am taken back when members take the opinions on here at face value or don't follow through with at least a consult with one of the lawyers that we know are experienced with immigration, and then are hit with a decision at the consulate that is not fixable. My heart aches for these families. I understand that there are valid reasons not to consult with an attorney but for me when dealing with immigration that is a responsibility that not everyone should be taking on.

What is so valuable about this site is the fact they you can get all angles and thoughts of the situation...and most of the time the members do get it right.

In this situation, as I told the OP in the very beginning there are way too many complications and she needs the best legal advice she can get to try and overcome this.

[Shrek]

Here are prior threads about the lawyer used in her case:

http://immigrate2us.net/forum/showthread.php?t=2659

http://immigrate2us.net/forum/showthread.php?t=6237

It seems to me from reading all the information that has been posted on this forum that he does not have experience in handling this type of case. He submitted the waiver in the US, before the fiance visa appointment, before he even knew the grounds of ineligibility. I have never heard of this, have any of you?

He went to Costa Rica to the fiance interview. Again, I have never heard of this. What was the purpose of this? Has anyone here had their lawyer go to the interview?

He charged her $10,000 for the fiance petition, which she paid before the interview. And this fee supposedly included the adjustment of status fee in the US after the marriage took place. All of this before the visa interview in which the visa would surely be denied based on the facts of the case. And then another $5000 on top of this for the waiver, which she posted that she has already paid. Did he charge to go to Costa Rica? That's $15,000. Ouch. It seems quite clear that he does not have the proper experience to handle this type of case. There are only a handful of lawyers in the country who have any experience with this.

I think it is vital to consult with someone who knows what they are doing. This guy is hurting her case. If $15,000 has been paid so far, why not spend $150 and consult with Laurel. She will give you an honest assesment of your case. Your current lawyer should have known about the reality of a 9C ruling when he took this case. Again, this shows me lack o0f experience. I do not mean to sound harsh, I am hoping to help her avoid anymore disasters. We have seen here many times what problems an inexperienced lawyer can cause. I think this is another example.

[Adriane]

Adriane, the OP's fiance, EWI'd days after the illegal entry. This was before he obtained the fraudulent visa:

"during his interview Mr. admitted that, in February 2000 he crossed the US/Mexico border without inspection but was caught by US border protection agents. In connection with his apprehension Mr misrepresented his name and nationallity. After being processed under a false name, Mr. was transported back to Mexico. Mr. also admits that a few days later, he again crossed the border without inspection, this time successfully, and lived in the US for a number of years."

Right, he attempted to enter, was caught and kicked back to Mexico (because he misrepresented himself)- but this was not a removal or a deportation, misinformed thought it may have been- then he successfully entered, stayed for well over 365 days and then left and re-entered with a work visa, also fradulently obtained- but he did enter that time with inspection....

[Pinkpig]

Shrek, I agree....there have been red flags all over this case since the first post.

All we can do is to encourage the OP to stop and call Laurel. She will give you the best opinion that you can get and if she does not know the answer to your dilemena she will find it...

[JMRJ]

Right, he attempted to enter, was caught and kicked back to Mexico (because he misrepresented himself)- but this was not a removal or a deportation, misinformed thought it may have been- then he successfully entered, stayed for well over 365 days and then left and re-entered with a work visa, also fradulently obtained- but he did enter that time with inspection....


He could have triggered the 212(a)(9)(A) on the first entry. When an alien has a misrepresentation, he/she is placed in an expedited removal without any judicial review according to the statute.



8 C.F.R. § 235.3(b). (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|8cfrsec2353&s_type=all&hash=0-0-0-12645)

(b) Expedited removal . (1) Applicability . The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|act212a6C&s_type=all&hash=0-0-0-2459)or (7) of the Act.

9A + EWI=9C (Acc. to Albright's memo)

[JMRJ]

This is so messed up from the very beginning.:(

[Adriane]

He could have triggered the 212(a)(9)(A) on the first entry. When an alien has a misrepresentation, he/she is placed in an expedited removal without any judicial review according to the statute.



8 C.F.R. § 235.3(b). (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|8cfrsec2353&s_type=all&hash=0-0-0-12645)

(b) Expedited removal . (1) Applicability . The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|act212a6C&s_type=all&hash=0-0-0-2459)or (7) of the Act.

9A + EWI=9C (Acc. to Albright's memo)

I totally forgot about that, you're totally right. Ugh- what a mess! I wonder if they can apply that even though it wasn't done at the time (I think it's time to get a new lawyer....)

[Shrek]

(I think it's time to get a new lawyer....)


Absolutely vital if she is to have any chance of a positive outcome.

[Laura]

Here are prior threads about the lawyer used in her case:

http://immigrate2us.net/forum/showthread.php?t=2659

http://immigrate2us.net/forum/showthread.php?t=6237

It seems to me from reading all the information that has been posted on this forum that he does not have experience in handling this type of case. He submitted the waiver in the US, before the fiance visa appointment, before he even knew the grounds of ineligibility. I have never heard of this, have any of you?

He went to Costa Rica to the fiance interview. Again, I have never heard of this. What was the purpose of this? Has anyone here had their lawyer go to the interview?

He charged her $10,000 for the fiance petition, which she paid before the interview. And this fee supposedly included the adjustment of status fee in the US after the marriage took place. All of this before the visa interview in which the visa would surely be denied based on the facts of the case. And then another $5000 on top of this for the waiver, which she posted that she has already paid. Did he charge to go to Costa Rica? That's $15,000. Ouch. It seems quite clear that he does not have the proper experience to handle this type of case. There are only a handful of lawyers in the country who have any experience with this.

I think it is vital to consult with someone who knows what they are doing. This guy is hurting her case. If $15,000 has been paid so far, why not spend $150 and consult with Laurel. She will give you an honest assesment of your case. Your current lawyer should have known about the reality of a 9C ruling when he took this case. Again, this shows me lack o0f experience. I do not mean to sound harsh, I am hoping to help her avoid anymore disasters. We have seen here many times what problems an inexperienced lawyer can cause. I think this is another example.

Oh... this is the 10K fiance petition lawyer! OMG - I had forgotten about that.

Everyone is right. There are so many red flags here. It seems that the real legal question should be whether the fraudulent visa entry after the long period of illegal presence creates a 9(c) issue, or whether it is considered "with inspection." At least, that is one question I would really like to know the answer too.

It seems though that the consulate is somehow interpreting the denied, probably C&R entry at the border as 9(c). So much strangeness.

In any case, Alyssa - please consult with another attorney. The writing is really on the wall with this one. This guy doesn't know what he is doing with this process. Laurel or another one of the people recommended will be able to give you some straight answers.

[Pinkpig]

I totally forgot about that, you're totally right. Ugh- what a mess! I wonder if they can apply that even though it wasn't done at the time (I think it's time to get a new lawyer....)

Yes, Adriane,

They can apply it at anytime, whether it was done then or not.

Even though immigration officials may make mistakes at any point in the process if something comes to light or a different CO interprets something differently it can be applied to the case.

I think we have seen it a few times, when the OIC (DOS) at the visa interview allows someone to file a waiver and then the adjudicating officer (DHS) decides that they are not eligible and (s)he makes that determination.

Sometimes they make an incorrect finding...but after they make the finding it is up to the individual to prove them incorrect.

As I understand it if something is not kosher at any stage of the process they can make a finding against you. That is why it is so important to become a USC as quickly as possible.

..and also, IMO why it is so important to understand every fact of your case before you begin the process.

[kitkat1]

He could have triggered the 212(a)(9)(A) on the first entry. When an alien has a misrepresentation, he/she is placed in an expedited removal without any judicial review according to the statute.



8 C.F.R. § 235.3(b). (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|8cfrsec2353&s_type=all&hash=0-0-0-12645)

(b) Expedited removal . (1) Applicability . The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) (http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|act212a6C&s_type=all&hash=0-0-0-2459)or (7) of the Act.

9A + EWI=9C (Acc. to Albright's memo)

This is what I understood as well. Plus everything PP and Shrek and everyone else have said. The lawyer appeared to be shady from the beginning. The whole cost, upfront, filing the waiver in country before the interview, going to the interview, "giving the IO hell" in Costa Rica after the denial - it all points to a lawyer who appears to have no idea what he is doing. And since as PP said we have no way to know what truly happened at the border or what information the consulate truly has, the smartest thing to do here would be to consult a qualified, experienced, knowledgable attorney who can determine if there is anyway to save this one. Good luck Alyssa.

[JMRJ]

I really hope you can talk to Laurel, Alyssa... Or to other highly recommended lawyers on this site and THIS site only. Be wary of consulting another lawyer to whom you don't know if he/she is a skilled specialist for your very complex case. I used to think that the more expensive the lawyer fees are, the better. I ran into Heather Poole's website before in search of a lawyer and I did not like her because she offers free consult - I thought "How could this be? A free legal advice?!? Hmmm, ((think think))" I questioned the quality of her service. So I search for an expensive lawyer in my area - and the lawyer screwed up my case and my life... and Oh, boy I was wrong! Heather is member Pinkpig's highly recommended lawyer:crying: Oh well, life must go on.



The consulate in Costa Rica is challenging you the burden of proof to this:

"If you have any additional information that shows that Mr. was not subject to a removal order in connection with his first unlawful entry, we would be happy to consider it."

But what kind of burden? A question of law referencing the relevant legal principles or a question of fact with relevance to evidence on what happened at the border? -- or both perhaps?

Question of law = " Is my fiance being subjected to expedited removal for misrepresenting facts at the border?" (This may require an action of Advisory Opinion)

Question of fact = " Is my fiance has an expedited removal on his record?" (This may require lots of evidence submission to prove them false of their presumption.)

An experienced lawyer will tell you the percentage of your chances.

Your current lawyer may be nice and understanding, but that's not enough. He lacks expertise in the specific category you are in. His past mistakes speak for itself.

Goodluck...