Grant of Stay of Removal For Citizen of Guatemala by ICE ERO

Our Client’s wife, a U.S. citizen, contacted us on a Friday afternoon and explained that her husband had been detained by U.S. Immigration Officials and was about to be immediately removed to Guatemala since DHS was reinstating his prior removal order. A detailed consultation with our Client’s wife revealed that our Client had first entered the U.S. without inspection in 2003, was subsequently detained and placed in removal proceedings and was ultimately granted Voluntary Departure by the Immigration Judge in 2004. However, he never left the U.S. and in 2009, was arrested and physically removed to Guatemala. In 2010, our Client re-entered the U.S. without inspection and has been residing in the U.S. since then. Most recently, our Client encountered CBP when he and his wife mistakenly crossed the Rainbow Bridge in Niagara Falls, New York and he was subsequently detained.

Besides learning about our Client’s immigration history, we talked about his family – our Client’s wife, a U.S. citizen, suffers from severe mental illnesses and is on Supplemental Security Income (SSI) as a result of these illnesses; the couple have three (3) minor U.S. citizen children and their mother is unable to care for them on her own; our Client’s mother-in-law, also a U.S. citizen, is elderly and was about to be released from a rehabilitation hospital after breaking her hip and needed assistance with household tasks. One of the most important facts we were able to gather was that when our Client was removed previously in 2009, our Client’s wife began experiencing suicidal ideations (documented in her medical records) which was in fact one of the very reasons our Client returned to the U.S. unlawfully in 2010 – not out of a desire/malicious intent to violate U.S. immigration laws, but to ensure his wife and children’s health and safety.

Given the Client’s extensive immigration history, he is ineligible for relief at this time which would allow him to obtain permanent resident status – despite being the husband and father of U.S. citizens. This is because he is currently subject to a ‘permanent bar’ which requires that he remain physically outside the U.S. for a period of at least ten (10) years before he can apply to immigrate to the U.S.

The following Monday/Tuesday, our office prepared a detailed submission to submit to ICE Enforcement & Removal Operations (ERO) outlining why our Client was deserving of a Stay of Removal (submitted on Form I-246) for a period of one (1) year. In our packet, we admitted the Client’s previous immigration violations, but highlighted the positive equities present in his case. Namely, we submitted that ICE should exercise favorable prosecutorial discretion in his case for the following reasons: our Client has a USC wife, three minor USC children, and an elderly USC mother-in-law; our Client is the primary caretaker for his disabled USC wife who suffers from severe mental illness, for the couple’s three minor USC children and for his elderly USC mother-in-law who is about to be released from a rehabilitation hospital after breaking her hip; and our Client does not fall into ICE’s civil immigration enforcement priorities (per the 2011 PD Memo).

After submitting the application packet, we followed up with ICE ERO and were ultimately informed that our Client’s Stay of Removal had been granted and he would be released in the near future. Once released, our Client can apply for an Employment Authorization Document (EAD) by submitting Form I-765 to USCIS. Upon receipt of his EAD, he will have work authorization and will also likely be able to obtain his Driver’s License. This family can now remain together while they anxiously wait and see if Comprehensive Immigration Reform, if passed, will help his case.

The Supreme Court strikes down key provision of the Defense of Marriage Act (DOMA). How will the Court's ruling change immigration rights for married same-sex couples?

Yesterday, the Supreme Court issued a landmark decision in United States v. Windsor, by holding that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. What does this mean? This decision means that under federal law, same-sex couples who are legally married (per their state’s laws) must now be treated the same as married opposite-sex couples when it comes to federal law.

While the case did not consider the constitutionality of same-sex marriage itself, this historic decision clears the way for same-sex couples to be eligible for once unattainable federal benefits. In an immigration context, same-sex marriages may now be fully recognized by the federal government, thereby giving individuals the right to sponsor their same-sex foreign national spouses to become lawful permanent residents of the United States. Prior to this decision, a U.S. Citizens or Lawful Permanent Resident could petition for their opposite-sex spouse to obtain Lawful Permanent Resident status by filing the necessary paperwork and meeting the eligibility requirements; under DOMA, this same ability was denied to same-sex couples because their marriage was not recognized under federal law. For many, DOMA forced same-sex couples to live in the shadows, separate, or leave the country, despite being in a committed and loving relationship with a U.S. citizen and/or Lawful Permanent Resident.

Over the ensuing weeks/months, federal agencies that deal with immigration related issues, including the Dept. of Homeland Security (it’s sub-agencies include United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE)) and the Dept. of Justice, will likely begin implementing new policies affecting the immigration rights of same-sex couples. The impact and timing of such policies are unknown at this time, but please stay tuned to our blog for the latest updates.

If you have any questions regarding how the Supreme Court’s decision may affect you or your partner’s immigration status, please feel free to give us a call at our office to set up a consultation to speak with us.

In 2010, I was admitted to the United States. In 2012, I was denied entry due to a 1985 criminal conviction. Can you tell me whether I am truly inadmissible to the U.S.?

Question:

In 1985, I was convicted of attempted theft in Canada (I broke a car window). I am a Canadian citizen and currently live in Vancouver, Canada. Last May, I tried to enter the United States, but was denied entry because of my 1985 conviction. I have no other criminal record. Interestingly, two years ago when I tried to cross the border, I was sent to secondary inspection, detained and questioned for 2 hours, but allowed to enter. During my detention, Customs and Border Protection (CBP) managed to damage my classic car that I was traveling in a the time. I filed a claim against them, but it was eventually settled out of court. Last August, my criminal record was completely expunged. CBP claims they can still hold my previous criminal conviction against me. I only cross the border for car shows, charity fund raising events, and to visit friends. Outside of my 1985 conviction, I have never had any other legal issues. Can you provide me with any input as to whether I am admissible to the United States, I can't seem get a consistent answer from CBP?

Answer:

Thank you for contacting the SRW Border team with your question. You are certainly not the first person to receive inconsistent answers from Customs and Border Protection (CBP). As I recently told a client, CBP officers may be professional and at times helpful, however, in reality, officers should never be your only source of guidance regarding your immigration matters.

We receive many questions relating to previous criminal convictions and their ramifications on admissibility. While each case we receive is different, our initial approach is always the same: through our consultation process, thoroughly review the case and then discuss the case in detail with the client and determine the best strategy moving forward depending on our clients goals.

I imagine that the claim you filed against CBP may have resulted in some ill will; however, CBP cannot use that as a ground for denying your admission into the United States. As far as your conviction is concerned, we would like to review your complete court record to determine: (1) if the conviction makes you inadmissible to the United States for immigration purposes, and (2) how the current disposition of the conviction affects your admissibility. Even though your conviction is from 1985, was your sole conviction and it has been expunged, if it indeed is an ‘conviction’ as defined under the Immigration & Nationality Act, it could very well mean that you are inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). However, as mentioned above, we would need to determine whether you do indeed have a ‘conviction’ for immigration purposes, whether it falls under any of the enumerated exceptions, etc. In the event that your court records do not provide enough information, we will likely ask that you request your RCMP. It may even be beneficial to make a Freedom of Information Act (FOIA) request to obtain your complete CBP record.

Once we understand the disposition of your conviction and how it affects your admissibility, we will likely have one of two choices: (1) if our research determines that you are indeed inadmissible to the U.S. because of your criminal conviction, help you prepare a nonimmigrant waiver application packet (Form I-192) for submission to the Admissibility Review Office; or (2) if our research indicates that you are not inadmissible, we can provide a service called a “controlled admission.” A controlled admission typically includes the following: (1) a comprehensive professional analysis of the client's U.S. immigration issue(s); (2) preparation and submission of a detailed packet outlining the reasons why you are admissible to U.S. Customs & Border Protection (CBP) at a local Port of Entry; and (3) attorney accompaniment to the local Port of Entry for your admission.

For more information about your case, we encourage you to contact our office and schedule a consultation to speak with the SRW Border team and receive a thorough professional analysis of your case. We look forward to hearing from you.

I was convicted of 2 minor drug charges (possession) in Canada, but the convictions were pardoned in 1994. Do you think my case is likely to be approved for an I-192?

Question:

I have a situation that requires a nonimmigrant waiver. I am a Canadian citizen and currently live in Montreal, Quebec. Twenty-five years ago I was convicted for 2 minor drug charges (possession), but the convictions pardoned in 1994. I am seeking help with preparing a Form I-192 waiver and found your website on the Internet. Do you think my case is likely to be approved?

Can you tell me if, when depositing the waiver package at Port of Entry, Customs and Border Protection officers inquire about the facts of my previous convictions or do they simply verifying that the waiver is complete? I do find this whole thing intimidating.

At this point in time, I am collecting documents (RCMP, court documents-indictment-conviction-minutes of trial). If I chose to move forward with your assistance, the documents that I would be providing will be mostly in French. I hope this is not a problem.

Finally, since my record is sealed, it is not visible to law enforcement in Canada. My question is what will happen to my waiver application when it is submitted to the Admissibility Review Office? Will the information in the application be disseminated to other jurisdictional systems? I am concerned that a possible background check may reveal my previous conviction and jeopardize my job or future promotions.

Answer:

Thank you for contacting SRW Border Lawyers. As you are likely aware, Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, whether it be as a visitor for pleasure, business visitor or under a non-immigrant employment category (TN, L-1, etc.) must first apply for a nonimmigrant waiver (Form I-192). Due to your two (2) previous minor drug convictions, you are most likely inadmissible to the United States INA §212(a)(2)(A)(i)(II) and require a nonimmigrant waiver under INA §212(d)(3).

Our Services

Since the facts and circumstances of each waiver case is different, SRW Border Lawyers makes it a practice to first review each case in detail before confirming that a waiver is necessary. For example, we would want to know how old you were at the time of these convictions and how these proceedings were handled – and confirm whether you truly have a ‘conviction’ for immigration purposes. A consultation provides us the best opportunity to review each aspect of a case and address any issues or concerns you may have. Once we confirm that a waiver is necessary, we will assist you with collecting all necessary documents, complete all forms, and prepare a detailed legal brief outlining your eligibility for the nonimmigrant waiver under precedent case law.

Our firm has prepared numerous nonimmigrant waivers for clients throughout Canada, and each case brought with it a different set of facts and varying degrees of complexity and seriousness. While we never guarantee that a waiver application will be approved, we never take a case that we believe has little or no chance of succeeding.

Based on the information you provided in your email, there appear to be a number of favorable factors in a prospective nonimmigrant waiver application on your behalf. Your convictions, presumably the only ones you have, were from almost twenty-five years ago and you have not shown a history of recidivism. Other factors we would want to stress is how you have been a productive and respected member of society. Additionally, were you granted a pardon or was your case just sealed? If granted a pardon, we would want to highlight the favorable treatment you have received from your own government. As far as your French documents, generally, they would need to be translated before being submitted with your nonimmigrant waiver application. We sometimes obtain fee quotes for our clients from our third party vendor and let our clients choose how to proceed regarding the translations.

Submitting A Waiver Application at a Port of Entry

Submitting your waiver application at a port of entry is limited to paying the appropriate government fee and submitting your application. This is not a time where Customs and Border Protection officers address the merits of your waiver or question you about your previous convictions.

Admissibility Review Office (“ARO”)

The extent of the Admissibility Review Office’s (ARO) information dissemination is unknown. Once a waiver is filed, the agency provides little insight on the process other than providing (often incorrect) timetables for adjudication. In recent years, there has been a trend toward consolidating data among law enforcement agencies throughout Canada and the United States; however, we have yet to encounter an issue similar to the one you describe in your question.

Please continue to collect the documents that you outlined in your email (i.e., RCMP, court documents, certificate of disposition, minutes of trial). In the meantime, if you have any additional questions or concerns, or would like to set up a consultation to speak with us to discuss the specifics of your case, please call our office. We look forward to speaking with you.