vwp overstay forgot to send w2 with rfe
Sep 8th 2008, 12:35 pm
#49
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: vwp overstay forgot to send w2 with rfe
That is the date they say they received it, they say so.
The thing is that we are trying to read tea leaves on what will happen and what can happen.
The only thing that I know for sure that legally speaking you are at the mercy of the DHS, particularly ICE. And there is nothing the court of appeals can do about it. Perhaps a quick habeas may be appropriate.
You want clear simple answers, that I understand. Its just that there may not be one.
I just wrote a reply brief on a case [involving different issues] where DHS is quite eager to see that my client is not allowed to stay here and if he stays here, his stay will be as miserable as possible. Long story. But my client was in detention for 18 months and the sandbag kept swinging at my head with no particular timing or direction -- I'm still ducking and dodging to the best of my ability -- and I think I will win -- but I sure am earning my fee on this one.
Sep 8th 2008, 12:55 pm
#50
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: vwp overstay forgot to send w2 with rfe
Hi:
That is the date they say they received it, they say so.
The thing is that we are trying to read tea leaves on what will happen and what can happen.
The only thing that I know for sure that legally speaking you are at the mercy of the DHS, particularly ICE. And there is nothing the court of appeals can do about it. Perhaps a quick habeas may be appropriate.
You want clear simple answers, that I understand. Its just that there may not be one.
I just wrote a reply brief on a case [involving different issues] where DHS is quite eager to see that my client is not allowed to stay here and if he stays here, his stay will be as miserable as possible. Long story. But my client was in detention for 18 months and the sandbag kept swinging at my head with no particular timing or direction -- I'm still ducking and dodging to the best of my ability -- and I think I will win -- but I sure am earning my fee on this one.
That is the date they say they received it, they say so.
The thing is that we are trying to read tea leaves on what will happen and what can happen.
The only thing that I know for sure that legally speaking you are at the mercy of the DHS, particularly ICE. And there is nothing the court of appeals can do about it. Perhaps a quick habeas may be appropriate.
You want clear simple answers, that I understand. Its just that there may not be one.
I just wrote a reply brief on a case [involving different issues] where DHS is quite eager to see that my client is not allowed to stay here and if he stays here, his stay will be as miserable as possible. Long story. But my client was in detention for 18 months and the sandbag kept swinging at my head with no particular timing or direction -- I'm still ducking and dodging to the best of my ability -- and I think I will win -- but I sure am earning my fee on this one.
While he has no rights under the VWP, as he did get his application submitted in time, and they have acknowledged this, the problems of overstay that happened to the other folks do not seem to be likely here.
If he had missed the 90 days, I would personally be much more worried.
Do you disagree? Or see a reason to be especially worried?
Sep 8th 2008, 2:04 pm
#51
Professional Drama Queen
Joined: Dec 2007
Location: West Virginia
Posts: 1,061
Re: vwp overstay forgot to send w2 with rfe
@ LCA
I think the point being made is that regardless of date submitted and received USCIS can pretty much get as awkward as they want to, there are no guarantees with them. Now ordinarily if there is a dispute or an adverse decision made, the applicant does have the option to seek redress via the courts. However as a VWP entrant that option is not available to you, hence not only is the ball in their court, but they own it as well. That being said:
1 ) You are allowed to aos on the VWP based on marriage.
2 ) Your aos application was submitted while you were still in status
Personally imo this should go through without any major problems. Your case is a yard arm away from the Momeni case, it is also different from the other VWP removal case as they did not submit within the 90 days, whereas you did. You are also not in the 9th Circuit, where both of these other cases where.
Of course should you run foul of ICE ( i.e. come to their attention via for example a routine traffic stop and you obviously have no official status ) then as I understand it you can be held, ICE contacted and they would ( if they were of a mind) pick you up and remove you and there's not a damn thing you could do about it.
I think most on here would agree that while ICE have the power to do that, to what extent they would exercise that for someone in your circumstances is not clearly determined. Myself and others have trodden that path ( in much more precarious circumstances with long overstays before even submission) and managed to successfully aos. If it was the case that ICE was summarily removing all those on a VWP with pending aos submissions ( or indeed that USCIS was denying them the aos) they I'm fairly certain boards such as this would be fairly well informed of that fact. That does not appear to be the case, not even with people who submitted outside of the 90 days, let alone your circumstances.
Bottom line, what's done is done. FWIW imo you have done all you possibly could to stay within the regulations and if your aos is denied it would be for reasons other than your VWP status at the time of your submission.
I think the point being made is that regardless of date submitted and received USCIS can pretty much get as awkward as they want to, there are no guarantees with them. Now ordinarily if there is a dispute or an adverse decision made, the applicant does have the option to seek redress via the courts. However as a VWP entrant that option is not available to you, hence not only is the ball in their court, but they own it as well. That being said:
1 ) You are allowed to aos on the VWP based on marriage.
2 ) Your aos application was submitted while you were still in status
Personally imo this should go through without any major problems. Your case is a yard arm away from the Momeni case, it is also different from the other VWP removal case as they did not submit within the 90 days, whereas you did. You are also not in the 9th Circuit, where both of these other cases where.
Of course should you run foul of ICE ( i.e. come to their attention via for example a routine traffic stop and you obviously have no official status ) then as I understand it you can be held, ICE contacted and they would ( if they were of a mind) pick you up and remove you and there's not a damn thing you could do about it.
I think most on here would agree that while ICE have the power to do that, to what extent they would exercise that for someone in your circumstances is not clearly determined. Myself and others have trodden that path ( in much more precarious circumstances with long overstays before even submission) and managed to successfully aos. If it was the case that ICE was summarily removing all those on a VWP with pending aos submissions ( or indeed that USCIS was denying them the aos) they I'm fairly certain boards such as this would be fairly well informed of that fact. That does not appear to be the case, not even with people who submitted outside of the 90 days, let alone your circumstances.
Bottom line, what's done is done. FWIW imo you have done all you possibly could to stay within the regulations and if your aos is denied it would be for reasons other than your VWP status at the time of your submission.
Last edited by Songbird; Sep 8th 2008 at 2:34 pm.
Sep 8th 2008, 3:25 pm
#52
Forum Regular
Joined: Aug 2008
Posts: 50
Re: vwp overstay forgot to send w2 with rfe
@ LCA
I think the point being made is that regardless of date submitted and received USCIS can pretty much get as awkward as they want to, there are no guarantees with them. Now ordinarily if there is a dispute or an adverse decision made, the applicant does have the option to seek redress via the courts. However as a VWP entrant that option is not available to you, hence not only is the ball in their court, but they own it as well. That being said:
1 ) You are allowed to aos on the VWP based on marriage.
2 ) Your aos application was submitted while you were still in status
Personally imo this should go through without any major problems. Your case is a yard arm away from the Momeni case, it is also different from the other VWP removal case as they did not submit within the 90 days, whereas you did. You are also not in the 9th Circuit, where both of these other cases where.
Of course should you run foul of ICE ( i.e. come to their attention via for example a routine traffic stop and you obviously have no official status ) then as I understand it you can be held, ICE contacted and they would ( if they were of a mind) pick you up and remove you and there's not a damn thing you could do about it.
I think most on here would agree that while ICE have the power to do that, to what extent they would exercise that for someone in your circumstances is not clearly determined. Myself and others have trodden that path ( in much more precarious circumstances with long overstays before even submission) and managed to successfully aos. If it was the case that ICE was summarily removing all those on a VWP with pending aos submissions ( or indeed that USCIS was denying them the aos) they I'm fairly certain boards such as this would be fairly well informed of that fact. That does not appear to be the case, not even with people who submitted outside of the 90 days, let alone your circumstances.
Bottom line, what's done is done. FWIW imo you have done all you possibly could to stay within the regulations and if your aos is denied it would be for reasons other than your VWP status at the time of your submission.
I think the point being made is that regardless of date submitted and received USCIS can pretty much get as awkward as they want to, there are no guarantees with them. Now ordinarily if there is a dispute or an adverse decision made, the applicant does have the option to seek redress via the courts. However as a VWP entrant that option is not available to you, hence not only is the ball in their court, but they own it as well. That being said:
1 ) You are allowed to aos on the VWP based on marriage.
2 ) Your aos application was submitted while you were still in status
Personally imo this should go through without any major problems. Your case is a yard arm away from the Momeni case, it is also different from the other VWP removal case as they did not submit within the 90 days, whereas you did. You are also not in the 9th Circuit, where both of these other cases where.
Of course should you run foul of ICE ( i.e. come to their attention via for example a routine traffic stop and you obviously have no official status ) then as I understand it you can be held, ICE contacted and they would ( if they were of a mind) pick you up and remove you and there's not a damn thing you could do about it.
I think most on here would agree that while ICE have the power to do that, to what extent they would exercise that for someone in your circumstances is not clearly determined. Myself and others have trodden that path ( in much more precarious circumstances with long overstays before even submission) and managed to successfully aos. If it was the case that ICE was summarily removing all those on a VWP with pending aos submissions ( or indeed that USCIS was denying them the aos) they I'm fairly certain boards such as this would be fairly well informed of that fact. That does not appear to be the case, not even with people who submitted outside of the 90 days, let alone your circumstances.
Bottom line, what's done is done. FWIW imo you have done all you possibly could to stay within the regulations and if your aos is denied it would be for reasons other than your VWP status at the time of your submission.
I noticed in the KAMBIZ MOMENI case plus the plaintif's explanatory post, a regulation/rule was allegedly applied retroactively.
Constitution: Article one: Section 9: Limits on Congress: No bill of attainder or ex post facto Law shall be passed. Does that mean the BCIS/ICE violated the Constitution?
Unfortunately: 1- VISA recipients are not citizens so don't enjoy the rights of citizens, 2- are being adjudicated under administrative regulations which can change as fast as their agency can write them, since the agency can operate under their own internal rules. 3- They can search their databases until they find aother "name match" to my name and stall the application. 4- "lose my papers" and on and on.
I work for a (NOT law enforcement Federal Agency-ssa.) and we have a Byzantine network of internal regulations. I've been here 10+ years and still don't know them all, but when I need something done, I just ask and the administrative whizzes tell me what rules I can apply and it's done. They have a 'rule' for everything and two exceptions for every rule. What I see happening with BCIS/ICE is similar. ssa deals with citizens who have rights, while BCIS is their own master. (And what's really irritating is they don't care if I work for the Feds, and haven't cut me any slack for sure.)
Additional point at our agency: if a claimant gets rough with one of our examiners, the examiner tells the case manager, who tells the supervisor, who shows it to me (consultant), and the lawyers, and conclusions are drawn, and it's all legal and proper. So, I try to be VERY nice to the BCIS people, even on the phone on a bad day at work. Anyone at any level can make a lot of trouble for me. I know it's not right but I accept the position I'm in.. G_D grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.
I am very frustrated with the entire process, but patient. e.tov
Sep 8th 2008, 5:00 pm
#53
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: vwp overstay forgot to send w2 with rfe
Not to disagree with you (of course) - but to not give the guy a heart attack...
While he has no rights under the VWP, as he did get his application submitted in time, and they have acknowledged this, the problems of overstay that happened to the other folks do not seem to be likely here.
If he had missed the 90 days, I would personally be much more worried.
Do you disagree? Or see a reason to be especially worried?
While he has no rights under the VWP, as he did get his application submitted in time, and they have acknowledged this, the problems of overstay that happened to the other folks do not seem to be likely here.
If he had missed the 90 days, I would personally be much more worried.
Do you disagree? Or see a reason to be especially worried?
It is a reasonable inference from Momeni that it is better to file within the 90 day period. However, that said, I could argue that the statement is what us legal types call "obiter dicta". Personally, I tend to think that Freeman v. Gonazales was kind of flaky in the reasoning, was subject to severe criticism from other districts and the court is trying like all get-up to back-pedal from that case. [An "en banc" court is required to expressly overrule a published case, but three-judge panels chip at the edges all the time].
However, what got me is that Sacramento DHS took Momeni to heart on a type of case that really was not the target of the cases reasoning. The case is scary.
I don't want to give LvCoAl a heart attack. I really think he should have a competent lawyer at his side as an insurance policy by providing the ability to dodge any sandbags that come swinging his way. J Craig Fong, Eileen Chun and I often tell our clients that our goal is to have an interview so smooth and so successful that you wonder why the hell you hired us!
Sep 8th 2008, 5:04 pm
#54
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: vwp overstay forgot to send w2 with rfe
I noticed in the KAMBIZ MOMENI case plus the plaintif's explanatory post, a regulation/rule was allegedly applied retroactively.
Constitution: Article one: Section 9: Limits on Congress: No bill of attainder or ex post facto Law shall be passed. Does that mean the BCIS/ICE violated the Constitution?
Constitution: Article one: Section 9: Limits on Congress: No bill of attainder or ex post facto Law shall be passed. Does that mean the BCIS/ICE violated the Constitution?
You have me puzzled. You note the retroactivity. For some reason, you note the prohibition against ex post facto criminal laws. And then you ask a question about a constitutional violation.
There is a due process argument against retroactivity -- but it is limited. I don't think that other unrelated provisions of the Constitution affect things as you seem to suggest.
Sep 8th 2008, 11:05 pm
#55
Forum Regular
Joined: Aug 2008
Posts: 50
Re: vwp overstay forgot to send w2 with rfe
Hi:
You have me puzzled. You note the retroactivity. For some reason, you note the prohibition against ex post facto criminal laws. And then you ask a question about a constitutional violation.
There is a due process argument against retroactivity -- but it is limited. I don't think that other unrelated provisions of the Constitution affect things as you seem to suggest.
You have me puzzled. You note the retroactivity. For some reason, you note the prohibition against ex post facto criminal laws. And then you ask a question about a constitutional violation.
There is a due process argument against retroactivity -- but it is limited. I don't think that other unrelated provisions of the Constitution affect things as you seem to suggest.
Maybe that explains the post a little better? Of course the lawyers are in charge of legal matters! What would we do without them? :-)
Sep 9th 2008, 5:04 am
#56
Hydey
Joined: Jul 2008
Location: London, England.
Posts: 228
Re: vwp overstay forgot to send w2 with rfe
Hi:
It is a reasonable inference from Momeni that it is better to file within the 90 day period. However, that said, I could argue that the statement is what us legal types call "obiter dicta". Personally, I tend to think that Freeman v. Gonazales was kind of flaky in the reasoning, was subject to severe criticism from other districts and the court is trying like all get-up to back-pedal from that case. [An "en banc" court is required to expressly overrule a published case, but three-judge panels chip at the edges all the time].
However, what got me is that Sacramento DHS took Momeni to heart on a type of case that really was not the target of the cases reasoning. The case is scary.
I don't want to give LvCoAl a heart attack. I really think he should have a competent lawyer at his side as an insurance policy by providing the ability to dodge any sandbags that come swinging his way. J Craig Fong, Eileen Chun and I often tell our clients that our goal is to have an interview so smooth and so successful that you wonder why the hell you hired us!
It is a reasonable inference from Momeni that it is better to file within the 90 day period. However, that said, I could argue that the statement is what us legal types call "obiter dicta". Personally, I tend to think that Freeman v. Gonazales was kind of flaky in the reasoning, was subject to severe criticism from other districts and the court is trying like all get-up to back-pedal from that case. [An "en banc" court is required to expressly overrule a published case, but three-judge panels chip at the edges all the time].
However, what got me is that Sacramento DHS took Momeni to heart on a type of case that really was not the target of the cases reasoning. The case is scary.
I don't want to give LvCoAl a heart attack. I really think he should have a competent lawyer at his side as an insurance policy by providing the ability to dodge any sandbags that come swinging his way. J Craig Fong, Eileen Chun and I often tell our clients that our goal is to have an interview so smooth and so successful that you wonder why the hell you hired us!
Sep 9th 2008, 5:08 am
#57
Concierge
Joined: Apr 2001
Posts: 46,474
Re: vwp overstay forgot to send w2 with rfe
FWIW, it has not been named BCIS for several years.
It's current incarnation is USCIS.
It's current incarnation is USCIS.
Sep 9th 2008, 11:15 am
#59
The Missus
Joined: Sep 2002
Location: Northwest of Chicago
Posts: 6,239
Re: vwp overstay forgot to send w2 with rfe
