Does the time for a case at a Federal court counts as unlawful presence?

[Felipe]

Mine is a long story but I applied for the I-212 due to the fact that I was deported, Immigration denied the I-212 even though I have no criminal records. According to them; the time my assylum case spent at the US Federal court and from which I never had an answer, counts as unlawful presence, I must mention that Immigration kept issuing me employment authorization.
Is this really true? I applied for stay of deportation when my case was dismissed by immigration, before it went to the US Fifth court of appeals.
I would really appreciate your answer.

[kitkat1]

Hope this helps clarify:

http://www.americanlaw.com/exclud9A.html

Unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application. In cases where the immigration judge finds there was a status violation, unlawful presence begins to accrue as of the date of the order of the immigration judge, whether or not the decision is appealed. (If the judge grants voluntary departure, however, the voluntary departure period is not considered unlawful presence).

INS Memo on Unlawful Presence -- September 19, 1997:
http://www.americanlaw.com/unlawfulmemo2.html

[mendozaidaho]

I understand you have 1 year from the time of entry into the U.S. to apply for asylum.

[Daniel Green]

Unlawful presence starts to run in several scenarios, depending on your entry into the U.S., what visa you entered with, if any, and what immigration benefits you have applied for in the past.

Assuming that you were in legal status when you applied for asylum, and your application was not frivolous, unlawful presence began to run in your case when the order of the immigration judge became final or your appeal to the BIA was dismissed.

A pending circuit court appeal does not stop unlawful presence from accumulating.


-Dan