Can we or not?

[TGarcia]

I guess this is the correct place to ask this question. Sorry if i put it in the wrong spot. Anyway, I was wondering if anyone could tell me if my husband will be able to go through the process and have to file a waiver. This is sorta long but here is the situation for us.

My husband E.W.I around March 1996 and was here until 2000 when he got a voluntary departure. We do not have any papers for this and I don't know how to get them. He went back to Mexico, but came back again E.W.I about 2 weeks later. and has been here ever since. Will the first EWI count against him since he was given a departure. Will he even be able to do anything at this point since he did have 2 E.W.I's

All of this happened prior to us getting married. We got married in January 2006.

I sent off for a FOIA and it has been a year and we still have not heard back. I've sent letters requesting where my information was, and the last letter I received from them was that they had my request and would get to it as soon as they could, because they had several people ahead of me.

I'm wanting to go ahead and file the I-130 for him. But do not want to do this if we have no possibility of even being able to get a waiver or anything. I'm so confused on the law with the ewi. I was told 2 and you are out of luck. Then I heard something about if it was before a certain date you were O.K. But what about the fact he had the voluntary departure and then came back. How does this effect us. Any suggestions? We went and talk to an immigration attorney about a year ago and they were total jerks and told us we couldn't do it and to hope for some sort of reform. I've read of people being able to that have the same situation as us pretty much so I am confused.

I use to follow this forum a while back but had lost hope and was about to give up and live in fear I guess. But with all of the immigration stuff coming back into play I am hoping that we may by a miracle have some sort of chance.

[MendozaQH]

Unfortunately, your husband will not be eligible to file the waiver. He had more than 1 year of unlawful presence when he departed (not to mention he was ordered to leave) upon which he re-entered the US illegally. This in turn will make him ineligible to file the waiver and will have to remain outside the US for 10 years before he can apply to enter legally. Sorry :(

[MendozaQH]

Here is the law where your husband became ineligible:

INA §212(a)(9)(C) provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or 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

[Laura]

Mendoza is right -- there is no waiver available for that situation. Best to not file and wait, hoping for reform, however, were something like what is being discussed right now to pass, you would not be any better off. Sorry and good luck!

[mymexicanman]

Wow, I am confused now.

My husband EWI in 2000 when they stoped him, fingerprinted him and he went back voluntary. He EWI again in 2002 and is here since. So what does that mean for us?

does anyone know?

[mmartinez]

Unfortunately, your husband will not be eligible to file the waiver. He had more than 1 year of unlawful presence when he departed (not to mention he was ordered to leave) upon which he re-entered the US illegally. This in turn will make him ineligible to file the waiver and will have to remain outside the US for 10 years before he can apply to enter legally. Sorry :(

would't he be able to file a waiver since the law became in effect in 1997..

he had unlawful presence in 1996???

so wouldn't the second one be considered like one???::innocent:

[Pinkpig]

Wow, I am confused now.

My husband EWI in 2000 when they stoped him, fingerprinted him and he went back voluntary. He EWI again in 2002 and is here since. So what does that mean for us?

does anyone know?

From Laurel's Chat June 27, 2007

Laurel: Do an FBI fingerprint check to make sure it wasn't a deportation. If it wasn't, you should not be found inadmissible under INA 212(a)(9)(C)

[Pinkpig]

I guess this is the correct place to ask this question. Sorry if i put it in the wrong spot. Anyway, I was wondering if anyone could tell me if my husband will be able to go through the process and have to file a waiver. This is sorta long but here is the situation for us.

My husband E.W.I around March 1996 and was here until 2000 when he got a voluntary departure. We do not have any papers for this and I don't know how to get them. He went back to Mexico, but came back again E.W.I about 2 weeks later. and has been here ever since. Will the first EWI count against him since he was given a departure. Will he even be able to do anything at this point since he did have 2 E.W.I's

All of this happened prior to us getting married. We got married in January 2006.

I sent off for a FOIA and it has been a year and we still have not heard back. I've sent letters requesting where my information was, and the last letter I received from them was that they had my request and would get to it as soon as they could, because they had several people ahead of me.

I'm wanting to go ahead and file the I-130 for him. But do not want to do this if we have no possibility of even being able to get a waiver or anything. I'm so confused on the law with the ewi. I was told 2 and you are out of luck. Then I heard something about if it was before a certain date you were O.K. But what about the fact he had the voluntary departure and then came back. How does this effect us. Any suggestions? We went and talk to an immigration attorney about a year ago and they were total jerks and told us we couldn't do it and to hope for some sort of reform. I've read of people being able to that have the same situation as us pretty much so I am confused.

I use to follow this forum a while back but had lost hope and was about to give up and live in fear I guess. But with all of the immigration stuff coming back into play I am hoping that we may by a miracle have some sort of chance.

From Laurel's chat June 27, 2007:

My husband E.W.I around March 1996 and was here until 2000 when he got a voluntary departure. We do not have any papers for this and I don't know how to get them. He went back to Mexico, but came back again E.W.I about 2 weeks later. and has been here ever since. Will the first EWI count against him since he was given a departure. Will he even be able to do anything at this point since he did have 2 E.W.I's

Laurel: He was unlawfully present more than a year, left and returned EWI. He is ineligible for a waiver under INA 212(a)(9)(C).

a different scenario:

EWI's prior to April 1997 do not count towards INA 212(a)(9)(C) right? So if my husband was here April 1995 - Aug 1996 the re-entered in 1999 and has been here since he will qualify for the waiver?

Laurel: Unlawful presence prior to April 1997 doesn't count toward the ban as INA 212(a)(9)(C) is interpreted by the consulate in Juarez. With the facts you described above, he should not be found inadmissible under 9C.

further explanation:

Laurel if he entered the first time in 1995 and stayed here til last week, does that count as an entry or in case he comes back ewi

Laurel: Its not about the date of prior entry or even the manner of prior entry. Its how long he's been unlawfully present before leaving and coming back EWI.

[TGarcia]

So if I am understanding this right anything as far as entering BEFORE April 1997 is not counted. So his first entry would not be counted??? And just the one where he came back again in 2000. I'm confused on this.

[TGarcia]

O.K. what I read about Laurel saying that it is not about the date or manner of prior entry, it's all about how long he was present. How are they going to know for sure when he actually came in the first time unless it is stated somewhere? I thought he was O.K. as long as it was before the April 1997 date.

[mymexicanman]

Good question, how do they know how long has he been here ? Its not stated anywhere unless in the time being here his name showed up somewhere like in court I guess .....

[MendozaQH]

First of all, it is not the date of entry that has to be before April 1, 1997, it is the unlawful presence. Starting April 1, 1997 until he leaves is counted (not the 1 year inbetween 1996-1997). So, TGargia, your husband had about 3 years unlawful presence. Once he left in 2000, the 10 year ban started at which point he was still eligible for the waiver. Once he re-entered, he voided his eligibility by defying the 10 year ban. The fact that he was ordered removed (don't think it makes a difference whether it was voluntary or not), the 10 year ban started.

mymexicanman, your case is different in that your spouse did not actually have unlawful presence prior to his succesful entry into the US. If it was only a catch and release (like Laurel said, do a check to know), it is not considered unlawful presence. However, if he was formally deported, then once he was removed from the US, he too would have a 10 year ban (even if the time was less than 1 year) because when someone is deported, this starts the ban. Do a FBI check to be certain it was not a deportation and if it wasn't, your husband is eligible for the waiver.

[mymexicanman]

Thank you so much.
I am on the FBI check right now. I have to get the fingerprint card in order to get my background check. I am scared to walk into the Law Enforcement where they mak fingerprints. I dont want them to take him.

Anyway, just curiouse here, how does anyone know where or how long someon is ?

[TGarcia]

So since he got the voluntary departure in 2000 HOW or does it show up that he was here for say those 3 years. And if it has to be atleast a 1 year illegal entry couldn't someone just say they came in, left after say 3 months, came back, and left again as long as it wasn't equal to a year. What I'm getting at is HOW do they know when and HOW LONG he was here prior to when he got the voluntary departure? I thought that ANY entry that was prior to April 1997 was not counted against you. I apparently read wrong somewhere. I can't remember where i saw that. But if what you are saying is the case then I guess I just need to know is there any way of them knowing just how long after 1997 he was here. I don't think he has any type of paper trail.

Can you please tell me or direct me to where the law is for EWI. I'd like to re-read it and see if I can better understand this.

[MendozaQH]

First of all, for any order of removal, voluntary departure or where they put you on the plane and take you themselves, results in a 10 year ban, reguardless of how long he was here. Again, they do not need to know how long he was here, he was given the bar when they ordered him to leave.

It is not the EWI that results int he bar, it is the unlawful presence. So you are saying that his EWI was in 1996. That means that any unlawful presence after 1997 is what counts, not before. The issue is that once the bar was started (triggered by your husbands departure of volunatary departure), he EWI'ed again, basically defying the bar. This is why he is ineligible.

A list of ineligibilities can be found at:
http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html

You husband falls under 212(9)c(ii):
(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

[mymexicanman]

Mendoza,

you just said any order of removal or departure....

Sorry but if someone gets caught and fingerprinted like my husband and many others and then being released that doesnt mean removed or whatever. At least thats what I have seen on here (the old I2US). Voluntary departure mostly means getting caught and released doesnt it ?

When I read the following that u sent b4 then I understand that anyone that has been ORDERED removal AND reenter is inadmissible.

You husband falls under 212(9)c(ii):
(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

So, my husband has been caught and released (voluntary departure) but has not been removed, deported or anything else and in fact reentered means that he has entered only 1 time in the eyes of the USCIS ????



Now I am really confused... cause I know for a fact that lots of people have been entering several times b4 they actualy stayed due to prior voluntary departure.

[Luckysprite]

mymexicanman - There is a difference between a 'catch and release' and a voluntary departure. They are not considered the same things. I may be wrong - but voluntary departure is an option given to some when they are detained, usually papers are signed and it is still considered to be 'ordered removed'.

Catch and release occurs along the border and is not considered to be the same as VD or deportation in MOST cases. Fingerprints and or photgraphs usually taken though. There are still some cases where a catch and release is a formal deportation - and that is where the FBI and FOIA checks would tell you in which case your husband falls.

[MendozaQH]

mymexicanman, "catch and release" is different from an order of removal. Also note that 212(9)c(ii) says under section 235(b)(1), section 240, or any other provision of law.

Basically, catch and release I don't think is viewed as a removal, but rather as a prevention of entry, but they finger print to know who has attempted to enter. In some cases the peron actually enters the US soil, but is still considered a catch and release since it is near the border so that they don't have to waste money on the proceedings. There would have to be a lot of money going into this if they considered every catch and release a removal.

With volunatary departure, the person is being ordered removed, generally by a judge. They are given the opportunity to leave on their own, and if they do not, then the will be removed by force and will be considered deported. If your husband did not stand before a judge and be ordered removed, most likely it is a catch and release, but do the FBI check to make sure.

[Luckysprite]

And as a side note - there are other places that you can get fingerprints done at other than a police station. My husband has his done through a security company. (they provide security guards, do backgroundchecks on people, etc.) Look into it and call around if you are uncomfortable going to the police station. We paid like $25 to get them done.

[Luckysprite]

Mendoza - we are on the same page!! :)

[MendozaQH]

Mendoza - we are on the same page!! :)

Yeah, I think we were typing at the same time and this new setup doesn't tell you when someone else already responded. Good thing we basically said the same thing right? LOL

[Luckysprite]

Makes me feel 'smarter'!! ji ji ji - I am getting the hang of this - thanks so much in part to you - and all the knowledge you have and share!!! I know I have said it to you before in the Juarez forum - thanks! :)

[MendozaQH]

Makes me feel 'smarter'!! ji ji ji - I am getting the hang of this - thanks so much in part to you - and all the knowledge you have and share!!! I know I have said it to you before in the Juarez forum - thanks! :)

As long as everyone goes into this as best prepared as possible I am happy!! Immigration is a long and hard journey and the more you know, the better off you are!! :)

[mymexicanman]

Thanks so much. Fili my esposo got stopped and fingerprinted and he remembers signing something but dont know what it was. He was NEVER in front of a judge abut this.

I know I also can go to UPS in order to make fingerprints.

I do have another problem though. Would u and mandoza maybe take a look what I have posted about me being a LPR since 93. Its posted in the marriage based forum.

Thanks

MMM