I am totally confused

[lilikoi31]

Its my first time here at the I 212 and I am really confused.
What is an EWI ? I had an expedited removal in 2001 (5 Year ban ) and came 6 weeks later back to the USA with this waiver for 3 month , had my stamp in the passport and was than deported in 2007. Was my re-entry an EWI ? I will have my interview pretty soon in Frankfurt and my lawyer is working on the 212 and 601 , does it mean when this was an EWI that I will have a life time ban ?? Please can somebody explain this to me. Thanks so much in adcance

[JennyM]

EWI - Enter Without Inspection....If you crossed with passport and it was stamped...then that is not EWI. You came back 6 weeks later with what waiver? Why were you deported in 2007? On what grounds?

[lilikoi31]

I had an expedited removal in 2001, because I came in with an B2 visa , thought it will be valid for 10 years, what was wrong...anyway for that removal I had a ban for 5 years... but I went back 6 weeks later to the US on this waiver pilot program (tourist use it for 3 month) and never departed till 2007, when I had to face my deportation. Had my wedding in 2005. So by my re-entry with this waiver for tourist (its not a visa) you fill this out at the plain, but they giving you a stamp in your passport. I never told them about my ban- nobody ask, so thats why I wonder if this is an EWI.

[lilikoi31]

I forgot to ask , when is it an EWI. Can you explain it to me please.

[emt103c]

An EWI is when you do not get inspected by immigration officials, you cross the border without stopping at Customs.

Did you apply for an I-212 or I-192 Waiver when you reentered after your expedited removal or did you just not disclose the Expedited Removal when you applied for the tourist visa?

[emt103c]

Okay, just read your post about not telling about the ban. . . this is Misrepresentation, not EWI, however, you reentered without permission to reenter because you were not supposed to reenter without filing a waiver, specifically a 212 or 192.

[emt103c]

What you have is two deportations, a 6 year overstay and Misrepresentation.

It looks like this section of the law would apply to you. You would not be elligible to file for the 601 until you've been out of the U.S. for ten years.

Does your attorney know that you have been deported twice AND reentered without permission after the first deportation?

(C) Aliens unlawfully present after previous immigration violations.-
(i) In general.-Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(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.

(ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, 14a/ 6aa/ the Secretary of Homeland Security has consented to the alien's reapplying for admission.

[matt74]

What you have is two deportations, a 6 year overstay and Misrepresentation.

It looks like this section of the law would apply to you. You would not be elligible to file for the 601 until you've been out of the U.S. for ten years.

Does your attorney know that you have been deported twice AND reentered without permission after the first deportation?

(C) Aliens unlawfully present after previous immigration violations.-
(i) In general.-Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(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.

(ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, 14a/ 6aa/ the Secretary of Homeland Security has consented to the alien's reapplying for admission.

9c applies to unlawful rentries. Here, she was admitted on a tourist visa.

[emt103c]

She was still admitted after a deportation without getting "permission to reapply."

I'm trying to find the case law I saw on this. . .she knew about the ban and reentered anyway without disclosing it.

[emt103c]

Here is a link, it talks instead about different aspects of the case but lets you know that the subject was convicted previously of illegal reentry, even though he was admitted with a visa (which was presumably obtained by Misrepresentation.)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=958755opa

Simply being present without having obtained permission from the Attorney General is illegal presence when you have a previous removal. . .doesn't matter if you were granted a visa or not.

This case involves multiple crimes; I have quoted here the specific areas of interest:

"Appellant David Andrew Henry was deported on November 9, 1988, under the name David Andrew Corelli, following his conviction in the State of Virginia for the offense of possession with intent to distribute cocaine. Appellant asserts that he provided the government with his actual name while he awaited deportation; however, his deportation paperwork bore the name David Henry Corelli also known as David Andrew Corelli. On August 21, 1992, appellant obtained a multiple entry United States visa from the United States Embassy in Kingston, Jamaica. In order to obtain the visa, it was necessary for appellant to complete several forms and answer questions, including questions regarding prior convictions. Appellant asserts that he submitted the forms as well as a Jamaican passport, which bore the name Dave Andrew St. Alban Henry, to the United States Embassy. He then underwent an interview. Pursuant to State Department policy, appellant's visa application was destroyed after one year.

On October 18, 1994, appellant was arrested, having been found in the United States in the Northern District of Georgia without first having obtained the consent of the Attorney General to reapply for admission in violation of Title 8 U.S.C. § 1326. Appellant was charged in a one count indictment with illegal reentry into the United States after deportation in violation of Title 8 U.S.C. § 1326.

. . . Following a three-day jury trial, appellant was convicted on the single count in the indictment. Appellant was sentenced to sixty-four months imprisonment, to be followed by three years supervised release. Appellant filed a timely notice of appeal. . .

. . . Appellant's alleged good faith belief that he had the Attorney General's express permission to reenter the United States is irrelevant. Accordingly, we affirm the trial court's denial of appellant's request for a jury instruction on specific intent. Turning to appellant's remaining two issues on appeal, we uphold the trial court's rulings without discussion.

Accordingly, the judgment of the district court is AFFIRMED. "

[kitkat1]

How long did you overstay on your B2? (It's normally given for six months but it depends on what was originally stamped when you entered)

How were you able to re-enter the country on the visa waiver program after your expedited removal?

Did you lie on your visa waiver information? It appears so.

I think emt103C is right, but certainly your lawyer should be able to tell you exactly what to expect.

9c applies to unlawful rentries. Here, she was admitted on a tourist visa

Where does 9c indicate that it only applies to illegal entry? It certainly appears to apply to ANYONE who accumulated more than 365 days of illegal presence, regardless of how they originally entered.

Since the OP was removed, she must have had significant illegal presence.

[lilikoi31]

Its really difficult for me to understand,
do you think I can get submitted to file 601 and 212 or not, maybe I should re-read. But it is so much better when it comes with an explanation from you, translated already drom the law language. Thank you so much.

[kitkat1]

It appears that you will NOT be eligible for a waiver for ten years.

Did you tell your lawyer the truth?

Did he tell you what you are charged with and that it is possible you will not be allowed to file any waiver?

Did you lie on your paperwork when you re-entered the US on the visa waiver program?

How long did you overstay your original tourist visa?

It appears you were deported two times, you were illegally present in the US (HOW LONG?) and you lied to US immigration (charged with misrepresentation).

[emt103c]

[QUOTE=kitkat1;100320]Where does 9c indicate that it only applies to illegal entry? QUOTE]

I think he is referring to the second provision for those previously removed, which is where she comes in. . .what he didn't mention is that even an "attempt to enter" counts as well as the fact that "illegal entry" refers to any entry post deportation, before expiration of ban, for which permission to reapply was not obtained.

[JMRJ]

May I ask, how did the inspecting officer admit you to the U.S. through the Visa Waiver Program if one of the requirements you must satisfy is that you have not been found ineligible for a U.S. visa or inadmissible for any reasons under Section 212. Aren't the IO supposed to check the database containing information of inadmissible aliens before granting VWP?

This is what your lawyer thinks, so maybe this is why he thinks you can file a waiver under 212 (a)(9)(B)(v):


"My lawyer does not mentioned my expedited removal in the 601,and I asked him why and his answer was following....As to the previous apparent immigration violations,it is really only the last one from which they count for purposes of the two waivers we are requesting....
I cannot believe that we should not mention or explain the expedited removal at all, because I think it is a violation of the immigration law..."


http://immigrate2us.net/forum/showthread.php?t=8020


But the fact that you have a couple of negative immigration issues (B2 overstay, right? How long? and an expedited removal) already prior to your Visa Waiver violation is a possible 9c and a possible waiver after 10 years.

Worst yet, if you won't disclose the whole truth during your interview, another possible misrepresentation charge which is worse than anything else.

Your lawyer might not be making the right strategy for your case... I mean, not disclosing the expedited removal ? How could this be right?

[lilikoi31]

OMG, that sounds so complicated. But thanks to all of you for your help.
Will try to get a little bit more detailed.
Entered 1996 the US with a B2 visa. I picked it up in Frankfurt and it was like a big sticker in my passwort, and valid for 10 years.
I had no idea that I have to apply every half year for extension.
In June 2000 I left the USA with my US citizen daughter and spented 1 year in Germany , went back to America in May 2001 with my B2 Visa (because I thought its not expired yet) , and had this expedited removal and 5 year ban.
Plus they kept my passport at the border. 6 weeks later I re-enterd on this visa waiver program the USA again over Canada. No questions from the officer.( but I do not remember anymore they questions on this form what we had to fill out at the border for the tourists.) .
And in 2007 I ad the deportation.
My lawyer answered the question in the DS 230 correct and honestly. I have informed him about all the details what happened at the border.
In the 601 waiver he is using the section 212(a)(9)(B)(v) like I mentioned before.
he is over years an immigration lawyer with succsess so I had no doubts when we hired him. But when I am reading here all of your opinions, it means than that I cannot submit for the 601 and 212 the next 10 years.
Did I understand it right....

[gaby]

I suggest you to post your question to Laurel chat, will be this coming wednesday at 11 am., central time.
But in really you never EWI to the States right only overstay your visa.
Good luck

[kitkat1]

A B2 visa itself is valid for ten years like a passport or a drivers license has a "valid to"date and then you have to get it renewed. That doesn't mean you can stay in the US for ten years. You can only stay as long as the period of time that they give you upon entry - B2s usually get six months.

Well I"m sure you know all of that now . . .

[lilikoi31]

reg. the lawyer... in the 601 and 212 he is requesting a waiver of 10 year ban under section 212(a)(9)(B)(v) ....Would like to know what exacly that means)....and consent to reapply for admission to section 212(a)(9)(A)(iii).
Is there any hope to get submitted for this waivers.I really wanna be sure before I call him.

[kitkat1]

The part that you don't seem to understand is this:

1. There is a 10 year ban due to the overstay.

2. There are other bans due to the deportation.

3. There is a lifetime ban due to re-entry after a previous violation. In these cases, you may have the option to submit a waiver in ten years.

That means, you will not be able to submit a waiver requesting that the 10 year is waived.

It means, you will need to wait for ten years before you have the option to submit a waiver to forgive the illegal presence, misrepresentation and deportations.

[matt74]

9c applies to illegal reentries. The case that is cited by the poster does not even deal with this section of law. Attempts to reenter without being admitted or paroled (EWI) or entering ewi are what trigger the permanent bar. You have to read the whole sentence in this section.

[matt74]

Just a couple more points. I'm just trying to be helpful here and I think it is great that you are all working to be as informed as possible about the law.

With regard to the aforementioned case law, please note what the actual issue and holding in the care are. The issue is regarding the defendant's "mens rea" or mental state which is a component of criminal statues. I understand where you are coming from given there is dicta about what is a lawful entry, but understand that not every part of a published case is binding. Also, you must consider that this case appears to be based on law prior to the permanent bar coming into play. Finally, you have to consider whether this court's decisions are binding on the consulate. From what I have found this week, those situations appear to be very limited.

Given the INA's ambiguous and circular definition of "admission," there are arguments that can be made that someone who enters based on misrepresentation or fraud has not been admitted. Some local offices for example do not want to let people adjust who entered with fake documents on the argument that they were never truly inspected. However, there is case law to support that this situation is still an admission. I personally know that my own local office does not currently take the position that someone who has reentered with their own valid passport or visa has triggered the permanent bar. This is how many people are able to file waivers in country. The consensus on the AILA discussion boards appears to be that the permanent bar applies to EWI. I think there are strong arguments in this woman's favor given that she presented herself for inspection with her own valid passport and that her removal order stated she overstayed her period of authorized stay.

Nonetheless, if she were still in the states, she would want to be certain that their consulate abroad takes this position prior to leaving and potentially never being able to come back. However, this particular person is already out of the country. If she doesn't have any other options and is already outside of the country, why tell her to give up now?

[JMRJ]

Given the INA's ambiguous and circular definition of "admission," there are arguments that can be made that someone who enters based on misrepresentation or fraud has not been admitted. Some local offices for example do not want to let people adjust who entered with fake documents on the argument that they were never truly inspected. However, there is case law to support that this situation is still an admission.

This is what I've been confused about for a long time. If misrep was involved upon entry to the U.S. or not having the required documents and was given an expedited removal, was it considered an illegal entry or was she truly inspected? That's why I mentioned a possible 9C. But it is still considered an admission especially that she used a valid passport to reenter so, it is definitely worth to pursue the application.

On a side note, she will need to disclose the expedited removal and the overstay prior to the VWP overstay at the very first opportunity on her immigration process. The consulate has the records anyway.

Huh...fixed.. Thanks, matt.

[emt103c]

Point taken Matt74.

It just seems like a real stretch to refer to this as a legal entry. She knew she had the ban, and she still entered. She even came in through Canada thinking it would be easier. We're not talking about a simple VWP violation, she has now been deported twice.

This is was fraud. There were so many violations of the law here.

Not even to mention that the intent was obviously to immigrate since she stayed six years after being admitted on the fraudulently obtained 90 day visa.

[kitkat1]

I also think an important point is how poorly informed many laywers are - no offense Matt but we all know it's true. So part of the issue is the OP not being well-informed to begin with and probably not providing her lawyer will all the appropriate info. The second part is whether or not her lawyer knows enough about the law as well as her situation to guide her correctly and approriately.

What comes to mind here, and the source of my concern, is the I2us member who was well on his way to having an approved 601 waiver for his fiance's illegal presence in the US. But then his lawyer decided that the waiver would never be approved because they lawyer believed, incorrectly, that a waiver for a fiance was not an option. (Ignoring the fact that the consulate told the non-USC fiance that she WAS eligible and they DID accept the waiver). The poor guy took his advice, married his fiance, and when the waiver was approved shortly thereafter, his original petition was no longer valid and they had to start all over from the very beginning. The lawyer's incomprehensible error had a direct and deeply negative impact on several lives.

So I think what you're seeing here is people trying to get the facts and trying to ensure that the OP AND her lawyer are actually taking the correct route.

[JMRJ]

I also think an important point is how poorly informed many laywers are - no offense Matt but we all know it's true. So part of the issue is the OP not being well-informed to begin with and probably not providing her lawyer will all the appropriate info. The second part is whether or not her lawyer knows enough about the law as well as her situation to guide her correctly and approriately.

What comes to mind here, and the source of my concern, is the I2us member who was well on his way to having an approved 601 waiver for his fiance's illegal presence in the US. But then his lawyer decided that the waiver would never be approved because they lawyer believed, incorrectly, that a waiver for a fiance was not an option. (Ignoring the fact that the consulate told the non-USC fiance that she WAS eligible and they DID accept the waiver). The poor guy took his advice, married his fiance, and when the waiver was approved shortly thereafter, his original petition was no longer valid and they had to start all over from the very beginning. The lawyer's incomprehensible error had a direct and deeply negative impact on several lives.

So I think what you're seeing here is people trying to get the facts and trying to ensure that the OP AND her lawyer are actually taking the correct route.

Exactly. I for one, paid a consultation for a lawyer who told me that the only option my husband has is to wait for an amnesty to come. So, what I did was buying newspapers everyday to see if there was a news for any amnesty until finally my husband got pickep up by ICE. If I only found this site a little earlier, my husband is with me now. My life turned out the way it should not be because of that dumb 15 minute-consulation.

[JMRJ]

Point taken Matt74.

It just seems like a real stretch to refer to this as a legal entry. She knew she had the ban, and she still entered. She even came in through Canada thinking it would be easier. We're not talking about a simple VWP violation, she has now been deported twice.

This is was fraud. There were so many violations of the law here.

Not even to mention that the intent was obviously to immigrate since she stayed six years after being admitted on the fraudulently obtained 90 day visa.
emt, I believe she will still be allowed to turn in her waiver because if she was in fact, admitted, there is no finding of 9C. But, she will need to prepare a VERY, VERY STRONG Hardship Packet in order to overcome her multiple immigration violations.

[lilikoi31]

I just talked to my lawyer.
I put all my knowledge together what I earned from all of you... but he still does not see a life time ban and he still thinks that I can submit my waivers. He has told me several times how importent the point is, that I always was inspected and admitted, had a stamp in my own passport.
He also has told me, only if you have a life time bar than you may can submit for the waivers after 10 years. It make no sense when you have a 10 year bar that you file after 10 years for the waivers. Thats the waivers for, to waive the ban.
So I still dont know...I think I must wait until my interview appointment.
But I am honest, after all this reading here from all of you, I am not so sure anymore, if this will work. I am very thankful for all of your opinions. I wish I could also ask Laura Scott, but I am working.

[emt103c]

I just talked to my lawyer.
I put all my knowledge together what I earned from all of you... but he still does not see a life time ban and he still thinks that I can submit my waivers. He has told me several times how importent the point is, that I always was inspected and admitted, had a stamp in my own passport.
He also has told me, only if you have a life time bar than you may can submit for the waivers after 10 years. It make no sense when you have a 10 year bar that you file after 10 years for the waivers. Thats the waivers for, to waive the ban.
So I still dont know...I think I must wait until my interview appointment.
But I am honest, after all this reading here from all of you, I am not so sure anymore, if this will work. I am very thankful for all of your opinions. I wish I could also ask Laura Scott, but I am working.

Lilikoi-- Matt74 is also an attorney, from his signature line, and he feels like you can make a case to be able to submit the waivers. He shares the opinion with your attorney that since you were inspected you will be able to submit the waivers.

Follow the advice of JMRJ, since you are preparing the waivers, make them VERY STRONG. The more immigration violations you have the more you have to prove in your waiver. Make sure to prove your case well.

Hopefully someone who gets to go to the chat will try to bring your case up. . .I'm at work at that time as well.