SRW Successfully Able to Overcome Client's Inadmissibility under a Security-Related Ground with CBP

Our Client, a citizen of Canada and national of Iran, was found inadmissible under INA § 212(a)(3)(A)(ii) [security related ground] in January 2003 for failure to register her departures from the United States under the National Security Entry Exit Registration System (“NSEERS”).

In 2002, at age 17, our Client began traveling to the U.S. by herself to visit her then-boyfriend. She was properly registered for the National Security Entry Exit Registration System (NSEERS) by CBP because she was born in Iran. Unfortunately, our Client did not properly understand all of the parameters of the NSEERS program and unknowingly, violated its provisions by failing to register her departures from the U.S. and surrender her I-94’s. In fact, our Client understood that she was required to keep her I-94’s in her passport.

In January 2003, during pre-flight inspection at the Montreal Airport, CBP refused our Client admission under INA § 212(a)(3)(A)(ii), alleging that she was inadmissible for having violated the provisions of the NSEERS program. INA § 212(a)(3)(A)(ii) provides that:

Any alien who a consular officer of the Attorney General knows, or has reasonable grounds to believe, seeks to enter the United States to engage solely, principally, or incidentally in any unlawful activity is inadmissible.

Our Client was found inadmissible under INA § 212(a)(3)(A)(ii) for failing to register her departures from the United States as required under the NSEERS program. Her failure to register her departures in turn created a presumption of inadmissibility pursuant to 8 C.F.R. 264.1(f)(8)(ii), which states:

Any nonimmigrant alien subject to special registration who fails, without good cause, to be examined by an inspecting officer at the time of his or her departure and to have his or her departure recorded by the inspecting officer shall thereafter be presumed to be inadmissible under, but not limited to, section 212(a)(3)(A)(ii) of the Act (8 U.S.C. 1182(a)(3)(A)(ii)), as an alien whom the Secretary of Homeland Security has reasonable grounds to believe, based on the alien’s past failure to confirm with the requirements for special registration, seeks to enter the United States to engage in unlawful activity.

However, 8 C.F.R. § 264.1(f)(8)(iii) also specifies:

An alien may overcome the presumption of inadmissibility set out in paragraph (f)(8)(ii) by making a showing that he or she satisfies conditions set by the Secretary of Homeland Security and the Secretary of State. If a consular officer, in adjudicating a new visa application by an alien that previously failed to register his or her departure from the United States, finds good cause existed for the alien’s failure to register departure or that the alien is not inadmissible under section 212(a)(3)(A)(ii) of the Act, the inspecting officer at the port-of-entry, while not bound by the consular officer’s decision, will consider this finding as a significantly favorable factor in determining whether the alien is admissible.

In particular, pursuant to DHS policy, the foreign national must prove that his or her failure to comply with the NSEERS registration requirement was not willful. In an April 16, 2012 memorandum released by the Department of Homeland Security (“DHS”) entitled Department of Homeland Security Guidance on Treatment of Individuals Previously Subject to the Reporting and Registration Requirements of the National Security Entry and Exit Registration System, DHS clarified its policy on treatment of individuals who were previously subject to, but failed to comply with, NSEERS requirements.

In pertinent part, the memorandum states that noncompliance with NSEERS requirements, in and of itself, is not a sufficient basis for a finding of inadmissibility. Specifically, the memorandum states that negative immigration consequences may apply* only* where DHS personnel have determined, based on the totality of the evidence, that a foreign national’s NSEERS violation was willful.

Pursuant to the April 16, 2012 DHS memorandum, a “‘willful’ noncompliance will be that which was deliberate, voluntary, or intentional as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable.” Furthermore, the burden rests on the foreign national to establish that his or her failure to comply with an NSEERS requirement was not willful and not based on personal inconvenience or fear or adverse immigration consequences.

Relying on the applicable regulations and DHS memo, we argued that our Client’s noncompliance with the NSEERS program was unintentional and not willful. We assisted our Client in preparing a personal statement detailing her understanding of the NSEERS program, why she failed to register her departures and surrender her I-94’s, and how she never properly understood the complete parameters of the NSEERS program and thought she was properly complying with the NSEERS program. We also explained to CBP in our submission that our Client had no criminal record, had no reason to avoid registering her departures and was engaging in permissible visitor activities.

After several months of advocacy with CBP, we accompanied our Client to our local Port of Entry to present her for an interview. A few months later, most recently, we were invited to present our Client for admission and inspection in B-2 status. She was successfully admitted and her records in CBP’s database have been updated. Our Client is no longer inadmissible to the U.S. under INA §212(a)(3)(A)(ii) and will be able to now enter the U.S. in the future – whether as an immigrant or as a non-immigrant. This is an extremely major victory for both our Client and our firm – especially given the seriousness of her charge of inadmissibility under a security-related ground and the fact that there is no waiver available to waive this ground of inadmissibility.

Importance of Unique Strategy Solutions

With all the recent changes over the past year in U.S. immigration law, it is more important than ever that individuals with U.S. immigration concerns minimally consult with an experienced immigration attorney to ensure that they are properly aware of what their current immigration situation is.

With the issuance of the Prosecutorial Discretion Morton Memo, combined with the EOIR Memo released by Chief Immigration Judge Brian M. O’Leary on March 7, 2013, foreign nationals in removal proceedings who do not meet the agency’s civil enforcement priorities may be eligible to have their removal proceedings administratively closed or seek other avenues of discretion. With the Supreme Court's decision striking down DOMA, U.S. citizens/Lawful Permanent Residents in same-sex marriages can now apply for immigration benefits for their foreign national spouses. Earlier this year, many foreign nationals who were unable to adjust their status from with the U.S., despite being an immediate relative of a U.S. citizen, and who were leery of proceeding with consular processing were able to benefit from the implementation of the provisional hardship waiver (I-601A) process. Most recently, with hopes of Comprehensive Immigration Reform being passed, foreign nationals who may otherwise be unable to find a way to legitimize their status may be provided a path to documented status in the U.S.

In this ever changing field, it is essential that individuals seek qualified legal representation – if nothing else than to understand their current situation. An experienced attorney will not only be able to thoroughly analyze your case and explain your current legal situation and options, but will also be able to recommend any strategic options that may help you achieve your short-term and/or long-term goals.

In recent months, when we receieved a denial decision from the Immigration Judge on our Client's non-LPR Cancellation of Removal application, not only did we file an appellate brief, but we also successfully advocated to have the client's case administratively closed with the Board of Immigration Appeals (BIA) after filing a Joint Motion to Administrative Close with the BIA. When a client came to us after having been detained by ICE and placed into removal proceedings for having overstayed their visitor status, we successfully advocated for ICE to decline to move forward with removal proceedings because the client was in a serious relationship with a U.S. citizen, the couple had already been discussing marriage plans and the client was eligible to adjust their status under INA 245 with U.S. Citizenship & Immigration Services. For a current client, who was anticipating having to spend a significant amount of time overseas while their immigrant waiver was pending, we were able to have their removal proceedings administratively closed so that they could pursue a provisional hardship waiver with USCIS.

The above, and some of our success stories, highlight how our unique expertise has served our clients extraordinarily well.

If you would like to discuss your immigration concerns with SRW Border Lawyers, please contact us to schedule a consultation.

I was denied entry into the U.S. due to a criminal conviction. I applied for a waiver, but it was only valid for one (1) year. Since I am 76-years-old, is there a more permanent solution?

Question:

Dear SRW Border Lawyers,

I am a Canadian citizen, and I live in Manitoba, Canada. In 1982, I made the terrible mistake of removing 5 rotary tables (each valued at approximated $50,000) from my business. The reason I took the tables, although well intentioned, in retrospect, was foolish. My company had fallen on hard times and it was eventually taken over by a bank. As a result of the take over, I had to fire all of my employees, which was incredibly difficult to do, but it was my only choice. I discussed with my employees how I could compensate them for some lost holiday pay, which the bank was unwilling to pay. As a result, I decided that I would take 5 rotary tables from the shop, sell them, and pay the employees with the proceeds. The rotary tables were sold to a company in California. Following the purchase of the tables, an employee told the police of the transaction and I was arrested and charged with theft. At my trial, I was prepared to plead not guilty, but my lawyer advised me to plead guilty as charged. I was convicted and ordered to serve 15 months in jail. I served half of my sentence in jail before being paroled for the remainder of the time. I know that taking the tables was wrong, but I did it to support my employees and their families. I have since restarted my business and it is financially sound and successful.

Three years ago, I tried to enter the United States, as I had done many times before, to attend an industry trade show. My line of work requires that I travel to the United States to inspect possible equipment before I purchase anything. At the border, the officer questioned me about the conviction. The officer informed me that due to my criminal conviction in 1986, I can no longer enter the United States without first obtaining a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. I couldn’t believe after such a long period time of going back and forth across the border that I was now being denied entry! Beyond the 1986 conviction, I have no other criminal record whatsoever!

Several months after my denial, I applied for the waiver and was later approved for one (1) year. The waiver has since expired. Because I am advanced in age, is there a more permanent solution to my problem? I do not want to continue to apply for waivers, especially if I am going to be issued waivers that only last for one (1) year at a time.

Answer:

Thank you for your question.

We are hearing more and more cases of individuals who are being denied entry into the United States after years of unfettered access. The denials are often based on a single conviction that occurred over 20 years ago. One reason for these types of denials is the fact that local law enforcement agencies are now able to access records that they were previously unable to.

As you already know, certain criminal convictions can prevent you from entering the United States, unless you first acquire a nonimmigrant waiver. Based on the date of conviction, type of conviction and circumstances surrounding the conviction, we sometimes recommend that a client consult with an experienced criminal attorney to review his or her criminal history to determine if there were any legal or technical defects in the underlying criminal proceedings. If so, it may be prudent to discuss attempting to vacate his or her previous criminal conviction. Current legal precedent states that a vacated conviction will no longer count for U.S. immigration purposes if the conviction was vacated because of some type of legal or technical defect during the criminal proceeding (e.g. ineffective assistance of counsel). A vacated conviction solely to circumvent the immigration consequences of the conviction will be insufficient to remove the immigration consequences.

In order to determine your best strategy moving forward and provide you with a thorough professional analysis, we would recommend that you schedule a consultation with our office. Should our review determine that continuing to file for your waiver is your only option – there is one glimmer of hope. While the Admissibility Review Office (ARO), the office which adjudicates these waiver applications worldwide, initially grants the waiver for a period of one (1) year, subsequent waivers can be approved for up to a five (5) year period, thereby easing the burden with reapplying. Thus, we can discuss with you potential methods to request that your next waiver be approved for a longer period of time.

We look forward to speaking with you and assisting you with your U.S. immigration matters.

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.