After Arrest

[DaveH]

A question of timing. If a person is arrested for overstay on a J1 visa, taken into custody, and later released on bond, what is the usual time frame until the first hearing? May not matter but this occured in San Diego. Person has no prior criminal history, no children, no spouses. Is from Indonesia, is not Muslem.

[kkalan]

A question of timing. If a person is arrested for overstay on a J1 visa, taken into custody, and later released on bond, what is the usual time frame until the first hearing? May not matter but this occured in San Diego. Person has no prior criminal history, no children, no spouses. Is from Indonesia, is not Muslem.

Most likely you will be seen a judge or INS will give you some time to leave.

[DaveH]

I am aware that an appearance before an immigration judge will be upcoming. Was just wondering how much time usualy lapses from when your released on bond until the first hearing date. The point was made at the bond hearing that there would be a petition for adjustment of status. I assume this hearing will be the first deportation hearing, if that helps

[kkalan]

OK normally it takes up 60 days before you see the judge first hearing will be master hearing they will tell you the charges and later Judge will ask your plea. If you planning to adjust your status judge will set a new hearing and then go from there.

[DaveH]

Its been over 60 days now. Back on may 2nd is when I bonded her out. She was charged then. Initially the calendar was set for the hearing date on June15. But that was based on her staying in CCA. Since I bonded her out they said they would notify her by mail the new date.

I called the lawyer a week or so back and asked if anything was up. She told me they haven't moved her file from CCA to the immigration court yet for calendar setting or something along those lines.

The first appearance was a couple days after she got picked up, prior to bonding. I think that one was the reading of the charge,"your here illegally", really!? didn't know that. the Gov lawyer asked to have her hearing continued. They explained they wanted to take a closer look at her case. I think it may have been to see what they could find. Probably because she had no criminal record, not even a traffic ticket. Maybe it looked too clean and it raised some suspicion. The bond hearing was done at the same time. They left it at 10K which I thought was kind of high since most of the others were a lot lower. I wonder if they base it on what they think someone may be able to come up with. if they do, it explains some things.

Anyhow, that is where we stand. Im not really sure what this next hearing even is.

[kkalan]

You can call 1800.898.7180 follow the instruction that will gives you the all info regarding future hearings. Dont wait on your attorney sometime court send them a lette for hearing and they dont forward to the clients. Thats the way I do even my attorney is pretty good and detail person.

[kkalan]

Its been over 60 days now. Back on may 2nd is when I bonded her out. She was charged then. Initially the calendar was set for the hearing date on June15. But that was based on her staying in CCA. Since I bonded her out they said they would notify her by mail the new date.

I called the lawyer a week or so back and asked if anything was up. She told me they haven't moved her file from CCA to the immigration court yet for calendar setting or something along those lines.

The first appearance was a couple days after she got picked up, prior to bonding. I think that one was the reading of the charge,"your here illegally", really!? didn't know that. the Gov lawyer asked to have her hearing continued. They explained they wanted to take a closer look at her case. I think it may have been to see what they could find. Probably because she had no criminal record, not even a traffic ticket. Maybe it looked too clean and it raised some suspicion. The bond hearing was done at the same time. They left it at 10K which I thought was kind of high since most of the others were a lot lower. I wonder if they base it on what they think someone may be able to come up with. if they do, it explains some things.

Anyhow, that is where we stand. Im not really sure what this next hearing even is.

Quick concern why she was picked up and what is the charges. 2nd wether she has a criminal or traffic record or not it does not matter for GOV if she is out of status they will try to deport her. If you want you can PM me I can provided more details. I been there and I done it. hiding something will not help you here thats why we all come here and explaine our cases so get some help from people who been to these kind a situations.

[DaveH]

The charge was j1 visa overstay. Her sponsor called it in when I had her call them for her W-2 to do her taxes. Here in San Diego they will go to peoples houses to pick them up if they have an address to go to.

The week before that we drove to San Antonio and back with no questions asked. There are about 10 checkpoints to go through. Granted, they never asked her anything. They would only talk to me and even then most of the times they never said a word. I had no clue at that point about the problem. After reading her papers I could see why she was confused. The dates on the different forms didn't match very well. The funny thing was I proposed to her while we were on that trip. On the way back we talked about her status and she wasn't sure where she stood. I told her to call immigration or get an attorney to get it fixed. I figured it would be a simple process. After we got back she called an attorney but within two days of returning from the trip they came and got her.

Prior to that she had a normal job with a normal paycheck. The current job was not the original sponsor. Nothing looked like it was under the table, which it wasn't. I just assumed at the time that all must be ok. Ignorance was bliss.

[meesh]

Dave-

I'm sorry you're going through this. I would assume she would be given voluntary departure, but I don't know this for sure. It would be nice if she could adjust status in the United States, since she is now engaged to you. At the hearing, I would mention that she is in a relationship with a US citizen. If she has to leave the U.S., it looks like she would go through Jakarta, Indonesia to adjust status. Unfortunately, she would be subject to a 3 or 10 year bar after departure, depending on the amount of illegal presence she has accumulated. It sounds like would be eligible for the I-601 waiver. It might be necessary to file the I-212, as well. Since she's your fiance, you can start the adjustment of status process by filing the I-129 (f). I hope you find out about the hearing soon. You should attend Laurel's chat (Immigration Attorney) tomorrow at 11 am Central. She specializes in waivers. The website is visacentral.net. Take care....

[IBMMuseum]

...I figured it would be a simple process...
We all did, at the very beginning...

[DaveH]

I have educated myself quite a bit since my initial realization that we're not in Kansas anymore. According to the normal overstay process she would be subject to a 10 year ban. But wait, thats not all, behind door # 3 is an additional 2 yr return home requirement that was specified on the J1. But not all is lost.

I hired an attorney who seems to think the case isn't such a big deal.
She did talk about voluntary departure and the two year return rule during the initial consultation. Basically asked if I could wait the two years. I thought about that for a few moments but I came up with an alternative plan. Not that it matters anymore. It was to live in Mexico for the two years.

The two year return rule I took care of on my own. After doing some research I found out one of the waivers you can get is from the home country. In a nutshell if they say its ok not to come back your free to stay. I had her call D.C. to talk to the consler and they gave the green light for it. Once I did that and found out about the ban rule I called the lawyer and asked about it. She told me not to worry, that I was getting all worked up over nothing. Nothing!? I hope she has one big rabbit to pull out of her hat.
I am a little dissapointed with the attorney who hasn't made it a point to talk to us since the bond hearing except for the couple times I called her.

Something I found out, again on my own, was her I-94 was stamped D/S (duration of stay). I discovered there is a good chance the ban won't apply since it did not have a specific date, or so I was told. Wishful thinking?

There is one catch to all of this. The good lawyer did point this out and so did the consler in D.C. In order to get the waiver for the 2 year rule and overstay we have to be married. Although I did propose 2 days prior to her arrest I don't like the idea of being pressured. Worse, what if they still say no.

There are a couple things that would probably make an immigration judge suspicous. If I were the judge it would me. Or maybe Im being too much the devils advocate. One is our ages. Im 17 years older than her. That Im kinda well off. She was single when arrested and married by the time she has the deportation hearing. Need I say what it looks like? About the only thing in our favor that doesn't make it look staged is that wev'e been living together for a few months before she got taken. Even though everything is on the up and up it just looks fishy.

I'm thankful for the info on some of the forms listed. I knew about the 601 but not the other two. Maybe the lawyer has it all figured out but just forgot to tell the troops of the master plan. We'll see.

[DaveH]

KKalan, thanks for the phone number. I assumed I would need her case # and so forth which I have on the bond papers. I took a look at them and it reminded me of one bit of humor in all this.

When I paid the bond they gave me the paper work and told me I could pick her up at the federal building around 10 that evening. On the paperwork it had written on it. "Bond conditioned upon delivery of an alien". Now picture this. Here I am standing in front of the federal building at 10 Pm holding these very offical documents with that written on it. It didn't specify what type of alien, it just said alien. Think of the fun you could have if someone were to stop and ask what your doing there.

[Pinkpig]

I have educated myself quite a bit since my initial realization that we're not in Kansas anymore. According to the normal overstay process she would be subject to a 10 year ban. But wait, thats not all, behind door # 3 is an additional 2 yr return home requirement that was specified on the J1. But not all is lost.

Something I found out, again on my own, was her I-94 was stamped D/S (duration of stay). I discovered there is a good chance the ban won't apply since it did not have a specific date, or so I was told. Wishful thinking?

There is one catch to all of this. The good lawyer did point this out and so did the consler in D.C. In order to get the waiver for the 2 year rule and overstay we have to be married. Although I did propose 2 days prior to her arrest I don't like the idea of being pressured. Worse, what if they still say no.

I'm thankful for the info on some of the forms listed. I knew about the 601 but not the other two. Maybe the lawyer has it all figured out but just forgot to tell the troops of the master plan. We'll see.

I have a couple of excerpts for you but you probably want to read this entire thing if you have not already.

Good luck

http://immigrate2us.net/forum/showthread.php?t=130

30. Overstays/Status Violators: Like
INA 222(g) ("222(g)"), 9B applies to certain
aliens who remain in the U.S. beyond "the
period of stay authorized by the Attorney
General." As with 222(g), the interpretation
of this language can be quite
complicated. In general, the term "period of
stay authorized by the Attorney General" for
purposes of 222(g) and 9B will be
interpreted similarly. In Ref D, Department
sent guidance on recent revisions to the
interpretation of 222g, which were
prompted by the agreement of INS and the
department to conform the interpretation of
222(g) to the guidance on 9B. Without
repeating that Septel or all the prior 222(g)
guidance, Department would like to point out
the following key points as they relate
to the interpretation of unlawful presence
for 9B purposes in cases where voluntary
departure is not granted. (See Para. 31 for
the effect of a grant of voluntary
departure.):


A . Duration of Status Cases: Although
most nonimmigrants are admitted for a
specified period of time, students, exchange
visitors, information media representatives
("I" visa holders), and holders of certain
diplomatic visas are usually admitted for
"duration of status" (D/S). An alien admitted
for "duration of status" will begin to accrue
unlawful presence only if either:


* an Immigration Judge (IJ) finds the alien
has violated status and is
excludable/deportable/removable, or


* the INS, in the course of adjudicating an
application for a benefit (e.g., extension of
stay or change or adjustment of status),
determines that a status violation has
occurred.

B. Aliens Admitted Until a Date
Certain: In general, an alien admitted
until a specified date will begin to accrue
unlawful
presence either:


* when the date on the I-94 (or any
extension) has passed, or


* if INS or an IJ makes a finding of a status
violation, whichever comes first.

Your case can get very complicated...My advice is to make sure your attorney is on top of everything and has experience and knows exactly what they are doing as well as get yourself educated on the entire process.

[DaveH]

The above is what I found in the past about the D/S stamp. It seems to offer some hope since its not an automatic application of the ban.

Although I have read various cases and so forth its difficult to understand the mindset of the system. The laws are written but how they are applied or which are typically used is the tough question. In this instance is it standard practice to find people are subject assuming they did stay longer than they were supposed to? Or is it one of those reserved for a judge to use when they want to be rid of someone. As an option, perhaps a way to maximize a sentence so to speak. Like a criminal can get 5 to 10. A person here could get 2 to 12, 2 for the return rule and an additional 10 for the ban. What would be the exasperating or mitigating factors?

All cases are different especially since the cases usually involve 2 people. I guess I was curious if anyone knew if certain rules always apply or are subject to the whims of whomever is wearing the black robe. What would sway the whims? Are they concerned about the immigrant becoming a public charge? How helpful is it if the person would obviously not be. And does it help if a person has no criminal history, does it matter much? How closely do they look at the sponsor? Are there any known 'red flags'?

Although I hired an immigration specialist I know an attorney will be obliged to do what is in their own best interest first. I assume they will keep mum even if they know your situation is hopeless. At least long enough to get their retainer.

[DaveH]

called th 800 number to see the status. All they had was her name. Everything else came up empty. No hearing date, no status, just said pending. Maybe they will forget about her :D