R we eligible 4 the 212? Have appt. Oct. 9!!!

[heaven]

My husband lived in US for 7 years (crossed through the desert) EWI. He applied for asylum. He was supposed to go to court, but his car broke down and he didn't make it. According to the courts, that means that he was automatically deport if he missed his court date. We didn't know.

He went back to Mexico a year later. We didn't know the laws and I tried to drive him back with me across the El Paso border. They asked for entry documents from him and I handed them our marriage license. They processed him for about six hours that day, asked questions, got fingerprints and gave him a paper saying that HE "withdrew his application to cross". They let me drive him back into Mexico when they were done.

Then he tried to drive across again a couple of weeks ago. He told the officers in San Diego (at the San Ysidro border) that he had made a wrong turn and got caught in the line and asked that they just let him turn around and go back home. The took his name and fingerprints again and let him go.

So here's my situation: He live in us without papers for 7 years and overstayed his deportation for over a year so I know that we need to file the I-601 for illegal presence. BUT are we eligible for the 212 even if he attempted to cross twice?
Please help...

[Laura]

Yikes... Can you give the dates he entered and left and re-entered the U.S.? That matters. Also, since he wasn't actually removed, I don't think he needs an I-212... can someone else clarify?

However...

"Section 212(a)(9)(C)(i)(II) of the Act renders inadmissible those aliens who have been ordered removed under sections 235(b)(1) or 240 of the Act, or any other provision of law, and who enter or attempt to reenter the United States without being admitted. These aliens are also permanently inadmissible, but may seek consent to reapply for admission from the Attorney General after they have been outside of the United States for 10 years."

So, IF he was unlawfully present in the U.S. for more than 365 days AFTER his 18th birthday AND after April 1, 1997 then left the U.S., then attempted or re-entered illegally, there is no I-601 waiver (which is critical) for 10 years.

Now, I'm not sure if the fact that he was not actually re-admitted and that the attempted entry in El Paso was considered a "withdrawn application" will save him here or not... No matter what, do not let him attempt this again. You might have the possibility of a waiver still, but if he attempts to re-enter and makes it or is caught and it is classified that way he will certainly not be able to apply for the waiver until he is out of the U.S. for 10 years.

I hope someone else chimes in.

[Pinkpig]

"Section 212(a)(9)(C)(i)(II) of the Act renders inadmissible those aliens who have been ordered removed under sections 235(b)(1) or 240 of the Act, or any other provision of law, and who enter or attempt to reenter the United States without being admitted. These aliens are also permanently inadmissible, but may seek consent to reapply for admission from the Attorney General after they have been outside of the United States for 10 years."

I agree with Laurafern11. There may be some mitagating circumstances but I do not know what they might be.

I would definitely run this by Laurel Scott before you go to your appt.

[heaven]

He entered in Feb. 1999. Deported for not attending court hearing for Asylum in February or March of 2005. We married Oct. 2005. Filed I-130 January of 2006. Stayed until May 2006 and went back to Mexico. We attempted the El Paso border at the end of May 2006. He attempted again at the San Diego border this month. Both times, he didn't claim USC. He told them that he was not legal.

[Laura]

Heaven, the problem is that if those attempts are actually considered attempts for the purpose of 9(c), he may have a lifetime bar and not be eligible for the waiver for 10 years. That is why you should really clarify this with an attorney before you go to the interview. Since he is already in Mexico, you should go to the interview regardless though, because you have nothing to lose.

[heaven]

It turns out that he was never deported. The guy at the I-130 appt. told me that he was and my husband wasn't sure because his attorney was a flake. His attempts to re-enter were not considered at the CDJ appt. They didn't mention anything and told him that he could just file a 601 only. Crazy