Lawyer's freaking me out!

[milomito]

We went to see a lawyer today about doing our waiver packet for us. My husband was caught twice trying to cross the border in 2003. On the third time he made it and has been here ever since. The two times he was caught, they fingerprinted him and photographed him, he didn't sign anything, didn't go to court, wasn't given papers. He didn't have any ID on him so he gave a different name. I thought this was simple catch and release because he didn't sign anything or see a judge or anything. They just threw him back.

The lawyer says it was deportation and since he came back after being removed, he's ineligible for the waiver (will automatically be denied). She says the FBI fingerprint checks are not reliable - that immigration has information that doesn't show up on the FBI check. She advised us not to file and to just wait. If we want to do it, she will help us but she said that if she were in our place, she wouldn't file.

What do I believe? how can you tell if it's catch and release or deportation / removal?

Anyone with experience with this - especially approvals for those who had this on their record....

Thanks for your help.

[Luckysprite]

milomito - My case is similar to yours - hubby came in 2001 - caught and fingerprinted, crossed successfully next day. But we did file an FBI and FOIA check. Both came back no record - although our lawyer also advised us that 'it didnt mean a deportation didnt happen'. It could have been an 'expedited removal' in which he may not have knowledge that it was a deportation - but that is 'probably' not the case.

The only thing I can say - is that the consulate will be aware of his catch and release most likely - so if asked at the interview about it - don't try to conceal the fact. The other thing - is that there have been many members who have been approved with catch and release situations. One girl who used to be on the Juarez forum stands out in my mind right now - I believe she was approved in June. Her husband was actually asked at the consulate if he ever entered before - he said no - and they came out with proof that he had been caught at the border. He told them he just tried coming then, and made it the next day.

To try and ease your mind - we actually consulted with 2 attorneys. One told us we could file a waiver and told us all about the pilot program (in Mexico) - shouldnt be a problem and we stood a chance of coming home same day - the other told us to wait for CIR - and that simply because of the catch and release my husband would not qualify for the pilot progam and would be sent to the backlong for sure. We have a very clean case, other than the catch and release - and sometimes I believe they just have to tell you the 'worst case' option as to not get your hopes up. I see that you are processing through Peru - not Mexico like I am - I was just pointing out how lawyers can be inconsistant.

I would continue processing if I were you - but if you totally don't feel comfortable - atleast get a second professional opinion, by doing a consult with another lawyer. Or even ask Laurel her thoughts on it in a weekly chat.

I hope that was a little help!

[Laura]

We went to see a lawyer today about doing our waiver packet for us. My husband was caught twice trying to cross the border in 2003. On the third time he made it and has been here ever since. The two times he was caught, they fingerprinted him and photographed him, he didn't sign anything, didn't go to court, wasn't given papers. He didn't have any ID on him so he gave a different name. I thought this was simple catch and release because he didn't sign anything or see a judge or anything. They just threw him back.

The lawyer says it was deportation and since he came back after being removed, he's ineligible for the waiver (will automatically be denied). She says the FBI fingerprint checks are not reliable - that immigration has information that doesn't show up on the FBI check.

If he didn't see a judge and didn't sign anything IT IS a simple catch and release. This lawyer doesn't sound very knowledgeable about this process. At least do a consult with Laurel. Lots of people around here had catch and releases before eventual entry into the U.S. and they have been fine. It's true you can't really trust the FBI and FOIA reports, but you have no reason to think your husband was formally deported. Don't worry, don't hire that lawyer, and carry on!

[bb_vaz]

my husband was in the same situation and i wish i hadn't applied he was denied and can't submitte a waver intel 10 years past of the date he got cought

[Laura]

my husband was in the same situation and i wish i hadn't applied he was denied and can't submitte a waver intel 10 years past of the date he got cought

But was he actually deported? If they made a mistake and didn't let you file the waiver, you can fight it. This recently happened with ce&ll's sister and they fought the decision and now are able to file the waiver. However, if it was deportation followed by re-entry, you are indeed, not eligible. But in Milo's case, it really doesn't sound like a deportation. Of course, that is the key.

[Shrek]

my husband was in the same situation and i wish i hadn't applied he was denied and can't submitte a waver intel 10 years past of the date he got cought

Did he enter illegally more than once? What are the details of your situation?

[bb_vaz]

he entered twice first time in 1993 and second 2005 and he was never deported i realy don't know how to fight this case lawyers are charging me lot of money i don't know to fight or go to mexico and wait

[Shrek]

he entered twice first time in 1993 and second 2005 and he was never deported i realy don't know how to fight this case lawyers are charging me lot of money i don't know to fight or go to mexico and wait

So he had two illegal entries? How long did he stay each time?

[Pinkpig]

BB,

(1) If you were in the US illegally (EWI) for more than 365 days in total

(2) and you left the US for any length of time

(3) and then you returned to the US illegally (EWI)

(4) then if you leave the US again you will have to stay outside of the US for 10 years.

(5) At the end of the 10 years spent totally outside of the US you will be eligible to file an I-601 waiver to apply for permission to enter the US legally.

This is referred to as a 9C problem.

[Laura]

he entered twice first time in 1993 and second 2005 and he was never deported i realy don't know how to fight this case lawyers are charging me lot of money i don't know to fight or go to mexico and wait

Sorry BB - your husband is indeed ineligible for the waiver for 10 years, but it's not the same story as milomito's case, because her husband didn't accumulate any illegal presence on those first entry attempts. This is extremely unfair, but you fall under what is called the 9(c) part of the law. There really isn't anything a lawyer can do. Your only option is really to make plans to move to Mexico or a third country. I'm so sorry. Another new member, slvjvm922000 (http://immigrate2us.net/forum/member.php?u=897), is in the same situation as you. I believe they are living in CDJ and she travels back and forth every day so her kids can go to school in El Paso. Not ideal, but be very wary of any lawyer telling you they can fix this.

Section 212(a)(9)(C)(i)(I) of the Act renders inadmissible those aliens who were previously unlawfully present in the United States for an aggregate period of more than one year who enter or attempt to re-enter the United States without being admitted. These aliens re permanently inadmissible, however, after they have been outside the United States for at least 10 years, they may seek consent to reapply for admission from the Attorney General.

[Shrek]

Time prior to April 1, 1997 does not count toward unlawful presece. When did he leave the US?

[Pinkpig]

If he didn't see a judge and didn't sign anything IT IS a simple catch and release. This lawyer doesn't sound very knowledgeable about this process. At least do a consult with Laurel. Lots of people around here had catch and releases before eventual entry into the U.S. and they have been fine. It's true you can't really trust the FBI and FOIA reports, but you have no reason to think your husband was formally deported. Don't worry, don't hire that lawyer, and carry on!

Milomito, I have to agree with Laurafern11 on this one. As you have described your situation you should be eligible for the waiver.

If you have any question, you may clear it up with a consult with Laurel.

You will just have to be forthcoming with the true facts of your case in your paperwork and your interview but you should be eligible.

[kitkat1]

Time prior to April 1, 1997 does not count toward unlawful presece. When did he leave the US?

That's my take too - based on this:

http://www.americanlaw.com/unlawfulmemo5.html

DOS Cable on Unlawful Presence April 4, 1998

9)(C)(i)(I), which is aimed primarily at aliens seeking to circumvent a 9B ineligibility, follows the same rule as 9B: unlawful presence prior to 4/1/97 does not count. On the other hand, (9)(C)(i)(II), which is aimed primarily at aliens seeking to circumvent a 9A ineligibility, follows the same rule as 9A: deportations prior to 4/1/97 generally do/do count (at least for purposes of 9A2).

Then I read this which entirely confsued me:

http://www.americanlaw.com/unlawfulmemo3.html


INS Cable on Unlawful Presence March 31, 1997

For purposes of section 212(a)(9)(B), time in “unlawful presence” begins to accrue on April 1, 1997. For example, although an alien may have been in the United States illegally for one year prior to April 1, 1997, as of April 2, 1997, the same alien has accrued only one day of “unlawful presence” for purposes of section 212(a)(9)(B). For purposes of section 212(a)(9)(C), time in “unlawful presence” may accrue prior to April 1, 1997. Thus, the same alien who would only have one day of unlawful presence for purposes of section 212(a)(9)(B) on April 2, 1997, would have one year and one day of “unlawful presence” for purposes of section 212(a)(9)(C).

In addition, when measuring time spent “unlawfully present” in the United States, the time is measured cumulatively for purposes of section 212(a)(9)(C), but not for purposes of section 212(a)(9)(B). For example, an alien who was “unlawfully present” in the United States for 5 months, departed the United States, returned, and was “unlawfully present” for 2 more months would have accrued 7 months of “unlawful presence” for purposes of section 212(a)(9)(C), but not for purposes of section 212(a)(9)(B).

Maybe someone else can figure it out?

[aguafria]

I have a question about this. My fiance's brother EWI through Mexico after 1997 and was caught in Arizona, fingerprinted and returned to Mexico. He re-entered later that day and has been here ever since. His fiance, a naturalized American citizen saw a lawyer and was basically told to marry and wait for the laws to change.

Would he be eligible for a waiver? My fiance's entered once and never had a deportation, so my situation is different his brother's.

[milomito]

Now I remember what the lawyer explained to us.....apparently the authority of border agents changed somewhere around 2002. Before that they didn't have authority for deportation, and just caught and sent them back. After 2002 or so, it changed and they were given the authority for deportation although they weren't doing anything different. So, even though he wasn't served papers or signed anything, it could still be a deportation / removal because the agents now have that authority. It looks the same but it has a different name. Something like that... anyone heard anything like that before?

Thanks all of you for reassuring us -a previous lawyer who we consulted had said we would need to file the 212 because of his two attempts - and then this one is saying essentially the same thing. It's very different from bb_vaz.

Thanks again!

[kitkat1]

I have a question about this. My fiance's brother EWI through Mexico after 1997 and was caught in Arizona, fingerprinted and returned to Mexico. He re-entered later that day and has been here ever since. His fiance, a naturalized American citizen saw a lawyer and was basically told to marry and wait for the laws to change.

Would he be eligible for a waiver? My fiance's entered once and never had a deportation, so my situation is different his brother's.

The lawyer is an idiot. He was caught and released (attempted entry) and later that day he successfully entered. He did not accrue any illegal presence during his attempted entry. He has ONE illegal entry. He is 100% eligible for a waiver (based on what you've written) and his USC fiance should file for a FIANCE visa. Waiting until they get married would add almost another year to this process because of the wait for a spousal interview in CDJ but there is no waiting for Fiance interviews. And clearly no laws are going to change any time soon - all of the lawyer's advice is worthless.

Tell her to fire the lawyer and read everything in my signature.

[Luckysprite]

http://www.dhs.gov/xnews/testimony/testimony_0040.shtm

milomito: In a statement made by Michael Chertoff in 2005 (the link above) - it seems that it is then that he called for an 'end' to catch and release. I do not have any info on what your lawyer said about the changes in 2002 - but the article I posted says the following:

Today, a non-Mexican illegal immigrant caught trying to enter the United States across the southwest border has an 80% chance of being released immediately because we lack the holding facilities. Therefore, it is critical that we solve the problem of detention in order to carry out an effective enforcement strategy.

Through a comprehensive approach, we are moving to end this “catch and release” style of border enforcement by reengineering our detention and removal process.

Based on the statement above - since your husband is from Peru - I am more inclined to believe that he was just caught and released. He says nothing about those that are released being issued a deportation/removal - just simply a 'release'. It is in 2005 when he really wanted to start deporting every immigrant caught at the border, knowing that in the past a majority were just released.

You can try to find out more info in regards to the situation in 2002 that your lawyer mentioned - but a consultation with another lawyer wouldn't hurt at this point if you are looking for some sort of confirmation about what the first one said.

[Shrek]

That's my take too - based on this:

http://www.americanlaw.com/unlawfulmemo5.html

DOS Cable on Unlawful Presence April 4, 1998

9)(C)(i)(I), which is aimed primarily at aliens seeking to circumvent a 9B ineligibility, follows the same rule as 9B: unlawful presence prior to 4/1/97 does not count. On the other hand, (9)(C)(i)(II), which is aimed primarily at aliens seeking to circumvent a 9A ineligibility, follows the same rule as 9A: deportations prior to 4/1/97 generally do/do count (at least for purposes of 9A2).

Then I read this which entirely confsued me:

http://www.americanlaw.com/unlawfulmemo3.html


INS Cable on Unlawful Presence March 31, 1997

For purposes of section 212(a)(9)(B), time in “unlawful presence” begins to accrue on April 1, 1997. For example, although an alien may have been in the United States illegally for one year prior to April 1, 1997, as of April 2, 1997, the same alien has accrued only one day of “unlawful presence” for purposes of section 212(a)(9)(B). For purposes of section 212(a)(9)(C), time in “unlawful presence” may accrue prior to April 1, 1997. Thus, the same alien who would only have one day of unlawful presence for purposes of section 212(a)(9)(B) on April 2, 1997, would have one year and one day of “unlawful presence” for purposes of section 212(a)(9)(C).

In addition, when measuring time spent “unlawfully present” in the United States, the time is measured cumulatively for purposes of section 212(a)(9)(C), but not for purposes of section 212(a)(9)(B). For example, an alien who was “unlawfully present” in the United States for 5 months, departed the United States, returned, and was “unlawfully present” for 2 more months would have accrued 7 months of “unlawful presence” for purposes of section 212(a)(9)(C), but not for purposes of section 212(a)(9)(B).

Maybe someone else can figure it out?

Your're right, it is very confusing. And in the actual law it doesn't mention the April 1, 1997 date, just as in the actual law 9C does not say EWI, both of these items are addressed in the Albright Memo of April 4, 1998. Unfortunatley, this is not applied universally, especially by the various DHS office's.

[~MP~]

Now I remember what the lawyer explained to us.....apparently the authority of border agents changed somewhere around 2002. Before that they didn't have authority for deportation, and just caught and sent them back. After 2002 or so, it changed and they were given the authority for deportation although they weren't doing anything different. So, even though he wasn't served papers or signed anything, it could still be a deportation / removal because the agents now have that authority. It looks the same but it has a different name. Something like that... anyone heard anything like that before?

Thanks all of you for reassuring us -a previous lawyer who we consulted had said we would need to file the 212 because of his two attempts - and then this one is saying essentially the same thing. It's very different from bb_vaz.

Thanks again!

So is this true? After 2002 the border agents have authority to deport?
But previous to 2002 they did not?

[emt103c]

So is this true? After 2002 the border agents have authority to deport?
But previous to 2002 they did not?

It was earlier than 2002, I think it came in with the INA in 1996, but I know I've read cases from 1998 and later.

[emt103c]

Found it several places but am just attaching one. . .Expedited Removal was part of INA 1996 but wasn't enacted until 1997:

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

[vivalrock]

Just so you know my lawyer showed me the stature in immigration law that indicates that if you were caught re entering the country after April 1997 you are not eligible for the waiver. Also my lawyer had a case were the guy was sure he was not caught and sure enought they had his picture on record. He got a 10 year ban.

[~MP~]

Just so you know my lawyer showed me the stature in immigration law that indicates that if you were caught re entering the country after April 1997 you are not eligible for the waiver. Also my lawyer had a case were the guy was sure he was not caught and sure enought they had his picture on record. He got a 10 year ban.


Isnt this if you successfully entered once and then left and re-entered again but was caught?