Question about the need for an I-212 after 5 years

[lopay]

I am wondering if USCIS is telling the right thing to do:
-went in 2005, were told that she needed an I-212, we assumed it was for her 1998 order of removal (her mom got scared that her youngest daughter was going to be taken away from her, so she just left instead of going to the hearing so they where ordered removed by absentia)
-hired a lawyer
-we received an appointment for July
-about 3 days before we were to leave for CDJ, the lawyer sent us the I-212 application, it was incomplete, but he said that we could answer the other question there
-once again we were turned down saying that she needs an I-212 and they can't do anything with the one we took. We find out that it was over a 2003 deportation
-contact Senator's office because my stepdaughter had not been in the US since 2000
-Senator's office gets reply back from USCIS and they explain that my oldest stepdaughter had her order of removal executed in 2003 when her younger sister was paroled into the US for medical reasons instead of when she was paroled into the US three years earlier for medical reasons also. USCIS tells us that we need to file the I-212 in conjunction with our immigrant visa in CDJ
-I send a letter to the senator's office explaining that CDJ does not accept I-212s and that according to the instructions for the I-212 I am supposed to send it in. I also explain that my stepdaughter’s order of removal should have been executed when she was paroled in 2000, not 3 years later
-USCIS comes back and says that the I-212 is normally supposed to be filed at the consulate but in my case I should send it in (bunch of crap if you ask me)
-in the same letter they say that it will take about 18 months to process the I-212
-senator's office is inquiring why the order of removal was not executed when it should have been

so we are waiting to see if the POE is going to fix her removal date. If they do so then we can get a quick appointment in CDJ and go from there.

It was after they said that it would take 18 months to process the I-212 that I figured out that by the time they get to it, the I-212 should not be needed as the instructions say that if a person has been out of the US for 5 years, they do not need one.
USCIS keeps saying that she will have to have an I-212, but I don't trust anything that they say (they have given me wrong information more than once).
So my thoughts are as stated above, if I can just apply for another appointment, by the time I get one, her five year ban will have passed. I just need to be sure that the petition doesnt get closed. If this is right, why would they want me to try to apply for an I-212 when by the time they get to it, it would not be needed?

[Laura]

Hmm... so, you are filing for your stepdaughter??? I'm confused... who is filing for who, and the person in question, was she unlawfully present in the U.S. for more than a year? If so, she needs a waiver for unlawful presence, not just the deportation. An I-212 can certainly be filed in CDJ, but typically those are filed for someone who has unlawful presence, and therefore files an I-601 for the unlawful presence in conjunction with the I-212 for deportation or an order of deportation...

If you post a little more background I think we can help you better.

[JMRJ]

Your situation is way complicated than I thought it was. I had to read it like 3 times to understand where you're coming from. (And I might still not getting it.) But anyway let's start somewhere and we'll see where it can take us.

1. The 1998 order of removal, I think what you meant was a Notice to Appear to court for removal proceedings? And your daughter in law did not appear to court?
2. Your daughter in law left in 2000 to Mexico with her biological mother?
3. The Immigration executed an Order of Removal for her on 2003 and the Immigration did not know that she already left the country in 2000?
4. July of this year she had her Immigrant Visa appointment? Is that what your saying? And they could not issue her the visa because of the illegal presence.

5. Because of her illegal presence from the U.S. she was barred to enter the United States for 5 years. In order to waive the 5 year bar you need to apply for the I-601 waiver along with the packet and evidence stating the extreme hardship you will suffer if your daughter in law is not allowed back in the U.S. And you will also file the I-212 for deportation. These are not just forms. There's a lot of things involve in I-601 and I-212 filing.
Guideline is here. (http://immigrate2us.net/forum/showthread.php?t=2395)

6. Or you could wait until the five year bar is up so you don't need the I-601 or I-212 anymore.

7. But if she left in 2000, the question is when did the 5 year bar started ticking. In 2003 which was the order of removal or 2000 of when she left the country?

8. Does she have any evidence at all that she left the country in 2000?

..to be continued...

[lopay]

Ok bare with me
1- I am filing for my stepdaughter. She was under 18 when all of the above happened so she does not have any time of unlawful presence.
2-I'm not sure that you are correct that an I-212 can be filed at CDJ alone. I took one with me in July, and they told me they could not do anything with it.

my stepdaughter came to the US in the early 90's with her mom and father (who is an US Citizen). They did not EWI. The father's family did not like my stepdaughters or her mom because the father had another wife so they called immigration. The father did nothing to help them (he is not the best of people). The mother received a notice to appear. The mother had a little girl while she was in the US and the family told her that the child would be taken away from her and she would be deported back. She got scared and just left the county.

Because she did not go to the hearing, she and her daughter's were automatically ordered removed by absentia. My wife continued to use her boarder crossing card without any problem. In 2000 she was hit by a truck and in the hospital for some time. I had met her just some time before this happened. I took her oldest stepdaughter to the bridge and she was paroled into the US so she could be with her mom.

When she returned to Mexico, the port did not execute the order of removal that she had against her like they should have. I married her mom not long after that in Mexico and began trying to bring them in. Then 9/11 came.

We went in 2003 to CJD for my wife and were told to come back with more documents. In Oct of 2003, the youngest step daughter got very sick and she was paroled into the US for medical reasons. This time, the port director elected to execute the pending order of removal that both of my stepdaughters had.

In 2005 we went back to CDJ and were told that my wife was banned from the US until 2013. They say that she EWI in Aug of 2003. We don't know where this came from. She signed an affidavit for custody of her kids in the middle of the international bridge, and we think that INS saw this paper and automatically assumed that she EWI'd. After we get my oldest stepdaughter taken care of, we will fight that.

At the same appointment, my stepdaughter's were told that that they needed an I-212 waiver along with more documents. We were not told of what it was for, just that we needed one. So I hired a lawyer and got all of the needed documents. I paid the lawyer a good amount of money. I received an appointment for July 2007.

Just a few days before we were to leave for CDJ, the lawyer sends the I-212 to us and tells me that they will accept it there. We got there, the consulate said that everything looked good but we still needed the I-212 waiver and he could not do anything with the application that we had. He also told us that it was for a 2003 deportation. We were in complete disbelief.

As soon as I got home I contacted my senator's office and submitted a lot of evidence that my stepdaughter had been in México. They sent an inquiry to USCIS. USCIS replies explaining that the port director had executed the order of removal in 2003 and that it didn't matter if the girls had left the country before that. They also say that CDJ is waiting for the I-212 and tell us that the I-212 can be filed in conjunction with the immigrant visa.

I sent another letter to the senator's office explaining that CDJ doesn't accept an I-212 alone. If they did, why did they not accept it in 2007, or tell us to fill it out in 2005 so they could accept it then. I also asked why that my oldest stepdaughter's order of removal was not executed in 2000 like it should have been, and that the port director added 3 years to her time of inadmissibility because of their mistake.

So we are waiting to see if that the POE is going to correct their mistake. If they do, then I should be able to get an expedited appointment in CDJ because of service error and an I-212 should not be needed because her removal date will be in 2000.

If they don't, then my thoughts are that I should not have to file the I-212 because by the time they get to it, 5 years will have passed. Even if they were to process it really quickly, I really doubt that it could be processed and I could receive an appointment before next Oct.

So I think that if I just apply for an appointment, by the time I get one, Oct of 2008 will have passed along with the need for the I-212. My only worry is keeping the I-130 open. If it gets closed then my daughter losses protection from the child status protection act because she is now 21.

Sorry for this being so long, but it really is very complicated, and USCIS has made it even worse. I really do thank you for replying and trying to help.

[lopay]

one more thing- I really really do thank you guys for your help. I try to be as direct as I can so that I don't cause any more confusion.

I just wanted to make sure that you guys know what parole is. In 2000 I took my stepdaughter to the POE so that she could be with her mom. They called Washington to get special permission for her to enter the US on parole. Parole is not the same as being admitted. No matter what a person's status is, a person can be paroled into the US for very special reasons. It has to be approved by the Attorney General. We the purpose of the parole is finished, the person returns to their country and back to the status that they were before. You had asked if we had any evidence that she left the US in 2000 so I am explaining that USCIS knows about this because they are the ones that let her into the US. The reply back from USCIS showed that they really don't care what happened before Oct of 2003. They said that in the letter. And to be sure that I was clear before, she left in 1998 with her mom.

Thank you sooooo much for your help.

[Laura]

Lopay - your situation is really complicated... Probably beyond what most of us have ever had to deal with.

It seems strange that CDJ wouldn't accept your I-212. As far as your I-130 question, they never expire. I think you want to call USCIS or the NVC periodically to make sure it stays open. I hope someone else will comment on that.

As far as other suggestions, I know you have an attorney, but I would highly recommend you consult with Laurel Scott, who is VERY experienced with waivers, and might have some insight for you in addition to what your attorney is offering, on why CDJ wouldn't take the I-212, etc.

She does not do free consults, but I think talking to her for an hour would be well worth the $125, or, start attending her free chats at her site, visacentral.net, Wednesdays at 11:00 am central time, and ask questions. You want to get there in the first half hour to make sure she gets to your question. I normally offer to ask questions for people because I am always in the chat, but this is too complex for me to get my head around right now. :)

Good luck!

[emt103c]

Wait, the man who is the U.S. citizen is your stepdaughter's biological father? Was he a U.S. citizen when she was born?

[Laura]

good question!

[lopay]

where am I supposed to call to keep it open? I think I will talk with Laurel Scott, but I think I would need to send in letter showing everything that has happened. Why do you say that CDJ should have accepted the I-212? The senator's office sent them an inquiry and they responded saying that I was supposed to send it to San Antonio? The instructions for the I-212 state that:
“If you are abroad and intend to apply for an immigrant visa, submit the application to the District Director or Field Office Director of U.S. Immigration and Citizenship Services (USCIS) of the district where your removal or deportation proceedings were held,….”.

I am not saying you are wrong, maybe you know something that we don't about the I-212s. The government has messed up time and time again and maybe this is another mistake on their part? If I had a lot more money, I would have sued the government over all this, but I don't so.....

And the lawyer is a complete idiot. I have tried to contact him but he will not call me back, so I plan to file a grievance with the Texas Bar Association. When I did talk to him right after I got back, he told me that he would file the waivers, but charge me 750 each, never even admitting that he made a mistake.

Has anyone else file an I-212 alone at CDJ?

And thank you for your help. It is a very complicated case, and by time it is done, I am sure it will get more complicated.

[lopay]

Oh yea, my stepdaughter is a USC by birth, however we can not prove it. She was able to get her dad to go to the consulate with her, but they wanted proof of where he lived 30 years ago. And when I say proof, they want something that has his address on it. He took with him his Social Security statement. It had the amount of money he had made for the past 40 or so years, but not the addresses. They told him that he would have to have more proof of residency. I called the IRS, SSA, and even some of his former employers, and they all were amazed that I wanted something from 30 years ago. The lady at the IRS was amazed because she really doubted that any government agency would have anything from that long ago. We tried that route, but it will never happen because of what they want him to prove, the impossible.

[emt103c]

School records are sufficient or job records...they cannot stop you you MUST contact one of the attorneys either Laurel Scott or Heather Poole. This is unreal, and they CANNOT do it.

You cannot deport a citizen, what did your Senator say about the denial of her citizenship??

[emt103c]

I Am So Angry


What year was she born??

[lopay]

her dad never went to school in the US. He is about 70, so when he was a kid, no one made him go to school. As I stated before, he, nor his family, are of any character. Her dad never did anything to help them. We were amazed that he even made the effort to go to the consulate. This happened just after July of this year. He could have helped her when she was born, but, for lack of better words, her mom was nothing more than a concubine to him. And by law, you can't claim to be a citizen in a case until you can prove it. No one keeps any kind of records from 30 years ago, so.....
I just hope that the POE changes her removal date to 2000 like it should have been. Then we can get another appointment, and the I-212 should not be needed- right? But if they don't it will not surprise me at all.

[lopay]

and we haven't heard from the guy in a couple of months. The one daughter that is a USC get money from social security every month, and she lent him some, and we haven't heard from him since and we can’t get in touch with him so……

[lopay]

she was born in 86, so he would have to prove at least ten years of residency here in the states, 5 after the age of 14. That means that we have to have part of it from at least before 1976.

[Laura]

This is crazy.. this sounds like a good Heather Poole case as well. Laurel too, but I know Heather specializes in some sorts of human rights stuff and this sounds up her alley... I would consult with both those two asap. You shouldn't have to do any of this!

[emt103c]

He is only required to prove he's lived there for a certain number of years AFTER the age of 14!

If he's 70 and was a citizen when she was born, it is obvious that he has done this. The records would not have to be 30 years old. I don't understand.

http://travel.state.gov/law/info/info_609.html

[Laura]

Heather Poole (http://www.humanrightsattorney.com/)

Laurel Scott (http://visacentral.net)

[lopay]

But even if a lawyer was to be able to help us with her citizenship, we would still have to have her dad around to go with her. Its what they told her when she went.

[JMRJ]

So, the bottom line is: She is a U.S. citizen? There are a lot of miscommunication and ignorance by the law involve. The broken pieces has to be put together. You need Heather or Laurel.

This is a complete disaster. Totally unjust! My tears can't stop running. I'm so angry!

I admire your courage and persistence for your stepdaughter.

[lopay]

the law that applies to her states that because she was born abroad and out of wedlock, the USC parent had to have physically lived in the US for at least ten years, 5 of which were after the age of 14 before the birth of the child. The law changed in Nov of 1986 (I think) because it was really hard on people. Now the USC parent has to have lived in the US 5 years, 2 of which were after the age of 14, before the birth of the child. But you still have to prove it. My guess is that they say he could have lived in the Mexico and crossed the boarder everyday.

http://www.state.gov/documents/organization/86757.pdf

There is actually a part in that instructs the consulates to calculate the time that the parent was in the US if he/she did live abroad and cross the boarder to work. Amazing.

[lopay]

Thank you guys soooo much. Yea, she is a USC, but can not prove it, and according to law, if you can't prove it, you have no right not claim it. I agree with that part of the law, but making someone find documents that they know are impossible to find seems like they are implanting what they want to be law through regulation.

[JMRJ]

Don't give up for her. You are her only hope.

[lopay]

I still need to know where I can call to keep my I-130 open? And just another quick question: Should I have had to pay the fee for filing the I-130 everytime I went to the consulate? The senator said that my petition was never denied. I have always thought that simply applying for an appointment would keep the petition open, but now that I think back on it, I don't know if it was kept open or if I just refiled it each time I went.

[emt103c]

All ten can be after the age of 14, just 5 MUST be after the age of 14...

your I-130 stays open as long as you are still corresponding with the consulate, and there is no new fee for filing an I-130 once it is approved.

Since he is so old, you MUST either get a legal DNA test or a sworn statement from him notarized accepting paternity, so that if he disappears (or God forbid) dies you still have the proof you need.

This is crazy...there has to be proof of his living in the U.S. even if you have to get his W-2 forms or if he's on Social Security...they don't have to be 30 years old. Also, the attorney would be able to help you to find legal manners in which to compel the offices to give you the documents you need.

The father may not be extraordinarily helpful, but until you prove her citizenship, nothing will be permanent. Even if you keep fighting over this I-130 or even if you file the 212--they have the right to deny it. But NOT if she's a citizen.

[JMRJ]

Don't worry about who to call to keep the case open right now. It is still open until July of 2008.What will really help right now is to do a consult in any of the two lawyers listed to see what actions are need to be taken by then. And see how her case will progress. That incompetent lawyer you hired was a total waste of time, money and effort. Grrrrrrrr..........

The approved I-130 means the visa number is already available to her and the visa interview in CDJ is a matter of determining her eligibility factors for the visa benefit. But in reality she is not an immigrant visa beneficiary because she is U.S. Citizen.

[lopay]

the residency has to be in the US before the birth of the child. That's why I say records from 30 years ago. The time can be from any point in his life, just as long as it was before her birth. He could prove say 5 from his twenties then 5 from his thirties. The time doesn't have to be successive. The IRS doesn't keep anything past 7 years. The consulate gave her a letter saying what all they would accept as proof of residency: school records, church records, boarder crossing records, pay stubs as long as they have the address on them, social security statement (but not really because it doesn't have any addresses on it), Military records, Taxes, or any government record that has his address like police records, DMV, IDs. None of the above can be found. None of his old employers have anything. IRS doesn't have records older than 7-10 years, social security has all the years he worked and the amount that he made, but not his addresses. Texas DMV doesn't keep records older than 16 years ( I think it's 16). Who can actually prove where they lived that long ago? He just has to come up with 10 years before her birth.

I guess it would be odd that a USC has to apply for an immigrant visa, but she is not a USC to the state department because she cannot prove it. Look up the instructions for applying for a passport, they say the same thing.

Thank you sooo much for what you all are doing

[lopay]

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces

INA sec 301 (g)

the law changed in Nov of 1986

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

[lopay]

I am confused about why I have had to pay the filing fee for the I-130 every time I have gone to the consulate. It was my understand standing that once the I-130 was approved, it was good indefinitely but every time I have gone, I have had to pay the filing fee. As far as I understand we have never been denied, only ask to come back with more information. And I thought that before you could receive an appointment, you had to have the I-130 approved. This may be really simply and I'm just looking at it the wrong way, but does anyone know the answer?

[emt103c]

If you're paying every time, you're getting ripped off....unless what you are paying is actually the visa fee, and then keep getting denied...

[lopay]

ok, now I am really confused. The senator's office said that we had not been denied. If we had been denied then, we would have to file an appeal to do anything right? And also, right now my step daughter is 21, so we are relying on the Child Status Protection Act because her petition was filed before she was 21.
So I was not supposed to pay the fees for the I-130 each time? In 2005 I was given a paper that gives the reasons why she could not be given an immigrant visa. It has three places checked:
Section 212(a)(9)(A)(i) which prohibits...............
Other: "you need to file the I-212 waivers for each applicant"
Please contact our Visa Information Center to request a new appointment when you have ALL documents requested by the officer

The paper from July 07 is checked under the following:
Section 212(a)(9)(A)(i) .....................
You are eligible to apply for an waiver as the child of a US Citizen
(the second was in Spanish so it's paraphrased)

So I don't understand what would be considered denied. Both appointments ended the same way, with them telling me I needed something else. But if it was denied, then how could we benefit from the CSPA?

[emt103c]

She's a citizen...that's the battle you should be able to win....the govt doesn't feel it owes anybody but citizens (and rarely us anyway) anything

[lopay]

I really do wish that her dad was a man of any character. I can't fight his battle and he is not going to. We haven't heard from him in a couple on months. He either changed his phone or didn't pay his bill. For all we know he could have passes away, the family would not tell us if it happened. It was a complete miracle that he even went to the consulate with his daughter. He could have reported it to the consulate when she was born, he could have applied at any time for her in her life, he could have gone to the hearing in 98 to keep his daughters and her mother in the US. He could have stood up at anytime in my stepdaughter's life and helped her. But he hasn't.

I can't go in his place. I can't contact a senator asking them to help him. He has to at least act like he cares. But he doesn't. Before he browed the money from his youngest daughter, he was coming around and visiting every now and then, but he hasn't even called since then. He has never done anything for his own daughters, and to get him to try to figure where all he has worked and lived, then to start writing places to see if anyone has any information is something that I honestly don't believe will ever happen. It's a shame too, because the stepdaughter that I am fighting for, she has a love for him that surpasses anything that I have ever seen. She is 21, and knows the kind of man he is, but she doesn't care. She still loves him in ways I will never understand.

So I do agree with you that her citizenship would be better, however I can't do anything about it, especially now that he is no where to be found. I was really surprised that the consulate didn't ask for a DNA test because of the fact that her mom was his woman that he had on the side in Mexico. The consulate would have every right to ask for a DNA test because the law requires that a blood relationship exist. And it I would understand why a consulate would look at us and wonder why I was going in the dad’s place, and they would have every right to doubt it. The consulate asked us in CDJ why I was petitioning for her instead of her father. What do you say? He is a worthless human? I would agree but it still doesn’t change anything.

[lopay]

If her father happens to show up again. I will offer him all the help that I can give him. I will tell him where to call to get the senator's help, I will call his old employers, and request what I can. But if he doesn't what can I do?

[JMRJ]

You are really doing your best to help your stepdaughter. Her story is very sad. But you can't do it alone. This very complex situation is way beyond our rating to figure out the precise assessment. You need a professional legal counsel because there are many puzzles that have to be connected together.

A careful evaluation from a competent lawyer will result in a more advantage gain.

Have you tried contacting the 2 lawyers that laurafern provided?

Another thing. Exhaust all the possibilities to get a hold of the biological father. Don't get caught of thinking "at least he acts like he cares" kind of thing. If you ever encounter the father, tell him that his daughter already suffered enough and at least he could give her the most priceless gift of all - her right to be where she belongs.

Goodluck!

[Laura]

I agree with JMRJ - this is really complicated. Considering Laurel's current level of busy-ness (way high!) I would suggest talking to Heather Poole. Please keep us updated, it's a fascination, but I wouldn't trust any of us to advise you on this.

[emt103c]

The advice they're giving is good. The attorney can help in securing what is your stepdaughters RIGHT. I put that in caps because it is her right, she is one that is born into it.

As self-righteous and entitled as the anti-immigrant activists are in this country EVERY person who is legally entitled should get their citizenship. She (and you) should not be being put through this. The attorney can help you find the information. That senator is as much her's as yours she is a citizen, they just have to have the information to prove it is so.

This is not your fault. We all know that, we are just indignant with the system that is preventing her from her rights. She may be the only person who can talk her biological father into it. But you do need proof if you find him again, so that if he disappears after that, you will not be left in the dark.

[lopay]

thanks, if the father shows up, I'll keep him hostage until we can get one of the lawyer's help :). Just joking, right now I am going to wait until the POE responds to the senator's inquiry about my stepdaughter's date of removal. If they do what is right, and change the removal date, we will get an expietiated appointment due to service error, and she should be home free. At the last appoinment, the immigration officer told us that everything was good and the only thing we need is the waiver.

If the POE doesn't do what they should, then I will contact the lawyer to be sure that our plan is a good one.

[lopay]

well, I managed to confuse Laura. She never answered my question about waiting going ahead and applying for an appointment, but she did say this:
"Laurel: So, she had already departed again before they executed the deportation order in 2003? Well, then I would fight it and say her ban started when she departed previously and its nearly up."

Actually her ban will be up if they change it. So now we wait. I didn’t mention anything about the father because there is not a lot of time and that would really get confusing. So for now, I am going to wait and see what happens with the Senator's inquiry.