Improvident Fraud Finding Vacated By U.S. Customs & Border Protection

Several years ago, our Client, a national of Iran and now a Canadian citizen, was in Canada to pursue his graduate studies. At that time, his parents were U.S. lawful permanent residents and resided in California. While in Canada during this time, our Client made a conscious effort to maintain a valid B-1/B-2 visa so that he could visit his parents during vacations, as his school schedule allowed.

About six years ago, as he was preparing his Master’s Thesis, he planned to visit his parents and applied for a new B-1/B-2 visa accordingly. However, because of unanticipated issues with his Master’s Thesis, which cut into his vacation time, he decided to change his vacation plans and instead of travel to visit his parents, he would visit New York City (he had never been) as well as some universities on the east coast in contemplation of pursuing his PhD.

When he applied for admission at a border Port of Entry, with his valid visitors (B1/B2) visa, he was pulled over into secondary inspection and questioned extensively about the purpose of his trip and the discrepancy in what he had told the Consular Officer when he obtained his B-1/B-2 visa [to visit his parents] and what his stated purpose of entry was at the time of applying for admission [to visit New York City and schools].

Our Client truthfully answered all questions asked of him by CBP. He explained the initial plans, the delays with his thesis and his desire to make the most of his few days off by visiting New York City and various universities. However, when CBP searched his vehicle and found a number of his resumes, they questioned whether his true purpose was to really enter the U.S. and seek employment. CBP Officers alleged that our Client had lied during his interview regarding the reasons he was seeking his B-1/B-2 visa. At the end of his secondary inspection, CBP cancelled our Client’s B-1/B-2 visa and permitted him to withdraw his application for admission, but nonetheless made a notation in CBP records regarding a finding of fraud under INA §212(a)(6)(c)(i). Thus, in order to re-enter the U.S. in the future, our Client would require a waiver (either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(i), depending on his intent).

After our initial consultation with the Client, we recommended that we file a Freedom of Information Act (FOIA) on his behalf with the Dept. of Homeland Security to obtain a complete copy of his file since it had been six years since this incident and we wanted to make sure that we had all the appropriate records from his file. Once we had the FOIA Response, we would determine the appropriate strategy and consult and review our strategy with the Client. After receiving and reviewing the FOIA Response, we came to the conclusion that the fraud charge against our Client was not legally substantiated. As such, we recommended that we file a motion with CBP to correct our Client’s records and remove any reference to the fraudulent finding since such finding was made erroneously. Our Client agreed and we submitted an extremely thorough and comprehensive submission to CBP, including affidavits from our Client’s parents, proof of airline tickets and email’s between our Client and Student Advisors at various PhD programs, etc.

After reviewing our submission, CBP Officers scheduled a follow-up interview with our Client. We appeared with our Client at the Port of Entry and after his interview, he was inspected and admitted as a visitor to the U.S. – without the need for a waiver. Our Client will no longer face a lifetime bar to the U.S. as a result of the previous incident six years ago.

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.