Complicated Situation-Help!

[sunnysol]

Please help me to understand my husband's complicated situation so that I know if he is eligible to file the waivers before the 10 year bar is completed.

1. 1993 enters through JFk and claims political asylum
2. 1994 deportation ordered in absentia--he did not receive notification of hearing.
3. 1994 leaves back to his country and re-enters 6 months later through mexico EWI
4. 1996 marries under a different name and files for AOS pays a fine and receives his greencard in 2001.
5. 2004 Anonymous caller reports the way that he entered the US and he receives a notice to appear and is arrested and released on his own recognizance (1 month before our baby is born).
6. 2004 we file I-130
7. 2006 receive I-130
8. 2007 IJ refuses to grant I-601 and I-212 and orders a final order of deportation under the code: INA 212(a)(6)(C) (i)
9. 2007 Currently under appeal with BIA

Our attorney does not think that we are eligible to file for re-entry until the 10 year bar has been served. Please help me someone. We have a 2 and 3 year old child. My husband does not have a criminal record. Has been here for nearly 14 years and has always paid taxes. I am so, so scared. I feel that the clock is ticking. I have prepared a HSL with the help of this website. Even though our attorney doesn't think that he is eligible, I still feel that we should go through with the immigrant visa interview and submit the waivers. Do you think that because what he did happened before 1996 IRA that it will change the way our hardship is viewed, or even allow him to file for these waivers based on the code of his current deportation order?

Thanks!

[lgatica06]

Someone will come along and correct me if I am wrong but to my understanding any entries and exits before 1997 do not count. The thing that concerns me is he married under a different name and recieved a GC under that name. I am not sure if that is misrep of some sorts or not. I would diffintely consult with Laurel or at least attend her chat on Wednesday at 11 central to ask her for sure. Best of luck to you and your family.

[JMRJ]

Fraud or Misrepresentation
Under INA §212(a)(6)(C)(i), an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under the INA is excludable. The determination of materiality is a fact which would make an alien excludable or shut off a line of inquiry which may have resulted in exclusion.

A more restrictive immigrant waiver is authorized under the new INA §212(i)(1) in the case of an immigrant who is the spouse, son or daughter or a United States citizen or of an immigrant lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of of such an alien. According to the new INA §212(i)(2), no court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under INA §212(i)(1).

Under the new INA §212(a)(6)(C)(ii), any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other Federal or State law is excludable. [This provision is applicable to representations made on or after September 30, 1996.] The immigrant waiver described above does not apply to this ground.



Please somebody correct me if I'm wrong because:
only one thing occured to me while reading this. You can apply for a waiver of inadmissibility under INA 212 (i)(1).If he claimed to be a US citizen, INA 212 (a)(6)(C)(ii),then it's a diff. story. Misrep is an adverse factor for the waiver and it's hard to overcome but not impossible. You need a really good lawyer.

SS, See Matter of Cervantes, I'll let the web do more talking:
http://www.nilc.org/immlawpolicy/removcrim/removcrim017.htm

[cindy101]

I have to agree w/ JMRJ.. I think the most troubling part of your case to overcome will be line item #4.

However, they will look @ his whole history and will count line items #2 & #3 against him as well.

212 (a)(6)(C)(i) (F/M) carries a life time ban... that can be overcome w/ an immediate relative visa petition and the I-601 waiver. (The same boat my hubby is in)

Because your husband has a deportation order and not voluntary departure you have to file the 212 waiver in addition.

I would definitely seek a 2nd opinion/consult from one of the immigration attorneys recommended on the site- a tough case, but I'm sure if well presented possible to overcome.

[blueblue]

I wonder why he would apply for the green card under a different name? It appears he adjusted under 245i, if he had used his right name, I don't believe it would have mattered how he had previously entered and he would just be an LPR on his way to citizenship by now. That is very unfortunate. I expect he was scared to give his right name, but by not doing so he created so many more problems.

No matter, assuming the 2nd deportation order was because of the misrep, it appears if he leaves and files the I601 outside the U.S. he is subject to the lesser hardship standard of extreme hardship rather than the higher extremely unusual hardship standard for cancellation of removal.

Lots of people have gotten waivers for misrep. But as other posters have said, you should involve an attorney. He will likely want to explain why he used another name, ignorance and fear hopefully rather than trying to hide something else in his background. How this is presented in the waiver will be important.

[MendozaQH]

I wonder why he would apply for the green card under a different name? It appears he adjusted under 245i, if he had used his right name, I don't believe it would have mattered how he had previously entered and he would just be an LPR on his way to citizenship by now. That is very unfortunate. I expect he was scared to give his right name, but by not doing so he created so many more problems.


I am not positive on this, but I don't think you can adjust under 245i with a deportation order...

What I don't understand is how they didn't catch it! Don't you need birth certificates and don't they take finger prints??? My guess, he was lucky!

He will have an easier time priving hardship outside the country since the in-country (under cancellation of removal, right?), requires exceptional and extreme hardship whereas outside the country requires extreme hardship (though this would vary depending on the country you are adjudicating in.....)

[mendozaidaho]

I am thinking the EWI after being deported may create a problem in qualifying for the I-601 waiver? Not 100% though.

[y14gemini]

IRA pre 1996 only applies to crimes, not deportations

[MendozaQH]

I am thinking the EWI after being deported may create a problem in qualifying for the I-601 waiver? Not 100% though.

He EWI prior to April 1997, so it will not count against him. If he haEWI after April 1997 following a deportation, then it would be 9c, but EWI before April 1997 and after a deportation should make it 9b.

[Pinkpig]

This case is tricky because it involves the old immigration laws and the new ones, misrepresentation, deportation, EWI, asylum, legal entry, AOS, LPR, 245i...pretty much everything that it could possibly involve.

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

Aliens Unlawfully Present After Previous Immigration Violations

The current INA §212(a)(9)(C) provides that aliens who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.


As I understand it the current law says that if you were deported at any time for any reason under any circumstances (except for under the age of 18 there is some question) and then you EWI it is the lifetime ban, with a waiver available after you have been out of the country for 10 years. Because your husband did adjust under 245i back in 1996, the EWI after the previous deportation was apparently waived and he was granted LPR status and received his greencard.

But now since he was still a LPR and they found out that he lied on his previous AOS he is being charged with misrepresentation and being deported because of that. If he had become a citizen after his green card came in 2001, I don't think this would have happened (at the very least he would have been a USC and would have more rights than a LPR).

The current charge that you cited is misrepresentation and it is a lifetime ban but it is waivable.

Quoting 8 USC 1182(a)(6)(C) - Misrepresentation
--------------------------------------------------------------------------------

(i) In general

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.

Because your case is so complicated it is impossible for me to decipher it all. I am just giving you my opinion and we know what that is worth.

I am guessing that in 1996 your husband used a false name to apply under 245i because he knew if the deportation showed up he would not be eligible to adjust. This could be a wrong assumption on my part as I see someone else posted that deportation did not count under 245i. I do not know that. What other reason could he have for changing his name.?

So he adjusted under 245i with the fine and got his green card. Now because he was still a LPR and not a citizen, and DOS found out about the misrepresentation for the immigration benefit they have charged him with misrepresentation, and are deporting him again. You are vulnerable for misrepresentation on an immigrant benefit until you become a citizen and then the circumstances change.

So your dilemena will be if you are allowed to file for the waiver on the misrepresentation charge are you also going to state that you had the previous charges under the old name. You will be required to tell them all of your prior names and entries into the US and deportation orders and such if you can file this time.


IMHO: you need the best lawyer that you can find. With your lawyer telling you he is not sure of your situation it does not instill confidence in his ability.

The very best of luck to you!!

[Flower]

So, misrepresentation its a lifitime barn?

[cindy101]

Flower...

Yes, fraud/misrep is a lifetime ban, but waivable by I-601 w/ evidence of extreme hardship.

[sunnysol]

Thanks everyone for your help. We have been battling this for the past 4 years and I know that our time together in the US is limited because our case is on appeal with the BIA.
Our attorney has done a good job up to this point, however, I question her in that she says we can't apply for re-entry until after the 10 year bar has been served.
Regardless of this advice, we just filed the G28 and I894 and will await an appointment with the consulate in Accra. Hopefully, that will coincide with the decision with the BIA and he won't have to be in Ghana too long before he has an appointment.

We have a 2 and 3 year old and have been married for nearly 7 years--I never thought this would happen to us. I am in frequent contact with my Senators and I have been working very hard to prove extreme hardship.

Do you guys think that my husband should include an apology letter with the waiver packet?

I am so, so scared. Right now it is damage control and we are trying to just gather as much information as we can--

By the way, my senator told me they have a new chief officer--a woman, but the state dept. wouldn't release her name. I was very worried that his case would sit on a desk before being forwarded to Rome for adjudication.

When he goes to the interview, will the interviewer tell him right then and there if he is eligible for filing the I601 and I212, or will they take it and then write a letter. I was concerned about Loslagos' post--it sounded like that is what happened to him.

I really appreciate everyone's comments. This site has been a major source of comfort since I discovered it in July. THANK YOU!

[cindy101]

I would definitely have him write an apology letter...

Sometimes you can turn in the I-601 & I-212 waivers right @ the appointment, so I would have them ready for him to submit. Sometimes they give you the letter w/ the inelligibilities and ask you to come back an file the waivers.

The faster you can push your paperwork through, the less waiting & waiting & waiting.

Good luck!!!! Hang in there...

[y14gemini]

Hi SunnySol,

I understand exactly what you are going through, there is so much to say, when you get a chance anad some time read the threads for I-601 Honduras. (I know you are not going through Honduras). There is some excellent info in there. (I am sure there is even more info out there on other threads but since my husband is from there I tend to stick to that thread). But to answer some questions...Yes you can turn the waivers in there (at least in Honduras they allowed it) when you have the interview. They will also tell you why your husband is unable to get a visa. Just take some advice spend as much time as you can with your husband and kids before he leaves. At least you have that opportunity, I did not! It is a scary feeling and I know how you feel. Just hang in there and NEVER give up no matter how hard it gets or seems!

[sunnysol]

Thanks Y14gemini--We are spending every minute we can together, unfortunately, the gloom and worry are always in our hearts--we're just trying to be as normal as possible for our two little ones.

In my heart I just don't think it is fair to separate our kids from their father for 10 years. However, I also don't think that I can justify giving up my stable income, home, medical ins., etc. to go and live in an unstable country where I may not even be able to find a job==I obviously would not move there if I couldn't get a good job that would allow me to educate our kids in a comparable school setting. At this point in our lives its all about them.

The waiting is bittersweet. Thanks again everyone for the support! I know that everyone on this site truly understands how everyone else is feeling.

sol