spouse

Hi. I am currently experiencing a problem where an immigration official has denied our I-601 and I-212 waivers based on INA section 212(a)(9)(C)

The law was applied because my husband entered the USA on a visa, overstayed his visa by more than a year, then left the USA. He later attempted to return on the same visa (via a POE) but was denied admission.

This would be overstay and re-entry.

However, I am almost positive that this section is being applied incorrectly, as the section specifically states "without being admitted" (aka without inspection). My husband NEVER entered the USA without inspection. Luckily the immigration officer has agreed to hear our argument before making his decision official.

So, it would really help our argument if we could find similar cases. i.e.

1) Has anyone here has section 212(a)(9)(C) applied to their case - either correctly or incorrectly?

2) Has anyone here been in the USA unlawfully for a year or more and then re-entered the USA (in any way?)

3) Has anyone here been deported (or removed) and then re-entered the USA (in any way)?

4) Does anyone know of anyone that can answer yes to questions 1, 2, or 3?

I would appreciate all of the help that you can offer me!!!

Thank you!!!

Folinskyinla

Hi:

Have a face to face consulation with a competent immigration lawyer and have all the documents with you.

Your description of the scenario is confusing in light of your comment on the language of 212(a)(9)(C) -- you note that he HAS been refused admission in the past and you are now seeking admission.

This is something is that is best clarified in a face-to-face consultation.

spouse

Thank you for your response. It is an extremely confusing situation., which is why I think that the immigration official that reviewed our case is confused.

I have a relatively competent lawyer that I am currently working with. Her partner is actually Madeleine Albright's daughter... so I am hoping that if absolutely necessary, I can follow that route until I find someone that I can talk to... but of course I prefer to fix this sooner rather than later.

you are right, my husband was denied admission after his overstay... however the law uses the words "entered or attempted to enter without being admitted" which according to the law definitions section 101 refers to the inspection and admission process.

Although my husband was denied admission, he did not attempt to enter without being admitted. Does that make sense?

Anyway, if you hear of anyone that has had to deal with this section of the law, please let me know!

Lost2003

Hi Spouse,
Just wanted to bring your question to the first page.
Are you still in your husbands country?
Good luck.
Tonya

Folinskyinla

Hi Tonya:

What is there to answer about Spouse's question? She seems to be able to hold two conflicting thoughts at the same time and even express them in ONE SENTENCE. In fact, she did it TWICE. Note the following in her response to me:

"you are right, my husband was denied admission after his overstay... however the law uses the words "entered or attempted to enter without being admitted" which according to the law definitions section 101 refers to the inspection and admission process.

"Although my husband was denied admission, he did not attempt to enter without being admitted."

Spouse thinks just becuase the statute has pretty precise language making it applicable to her husband, it doesn't apply to her husband.

I also find it disturbing her implied suggestion that since her lawyer works with Madeline Albright's daughter, she and her husband are above the law.

There is nothing further to respond to here.

Paul Gani

"spouse" <member8699@british_expats.com> wrote in message
news:[email protected]...
    > you are right, my husband was denied admission after his overstay...
    > however the law uses the words "entered or attempted to enter without
    > being admitted" which according to the law definitions section 101
    > refers to the inspection and admission process.

Did you miss the "or" at the end of the (I) line?

Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-
(9) 12/ ALIENS PREVISOUSLY Removed.-
(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.

Paulgani

jeffreyhy

spouse,

Your statement does not make any sense at all. Indeed, attempting to enter without being admitted seems to be a clear case of having been denied admission.

Regards, JEff

spouse

Hi Lost !! Thanks for your help.

To the rest of you... I know I know I know...

This is extremely confusing. I think this is why the immigration official is confused. However, if a person attempts to seek entry without admission it means that they attempt to seek entry without inspection.

i.e. they travel over the border in some way without passing through a port of entry. At least this is how it is defined by the law.

Therefore, if a person is denied admission, it does not mean that they attempted to enter WITHOUT admission.

Perhaps if I take the words admission out, it will be somewhat more clear.

If a person is not allowed to enter the United States, it is not the same as a person who has snuck across the border (attempted to enter without inspection)

It is definitely confusing, but you all are definitely helping me to understand how it can be read in other ways.

Finally, NO just because I work with a lawyer that is partners with Madeleine Albrights daughter I do not think that I am above the law... HOWEVER, it does make me more confident that my interpretation of the memorandum written by M.A. is correct.

UNDERSTANDING THE LAW IS NOT BEING ABOVE THE LAW!

Paul Gani... nope I haven't missed it, and my husband has never attempted to enter after being deported. Also, there are three parts to the law itself (as opposed to what is shown on the uscis.gov website.) This prevents it from covering the exact same people that are covered by 212(a)(9)(B)(i)(II).

(a) Classes of Aliens Ineligible for Visas or Admission.-

(9) 12/ ALIENS PREVISOUSLY Removed.-

(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.

supernav

I ain't now lawyer, but it says in clear english:

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

Notice the "or" part. Whatever follows the "or" part is irrelevent, since he's already satisfied the 1st part of that condition.

I guess you could just hope for your husband's best friend Mr. Bush to change the laws. Since he's already raised every illegal's hopes up 9000% recently.

-= nav =-

Paul Gani

"spouse" <member8699@british_expats.com> wrote in message
news:[email protected]...
    > Gani... nope I haven't missed it, and my husband has never attempted to
    > enter after being deported. Also, there are three parts to the law
    > itself (as opposed to what is shown on the uscis.gov website.) This
    > prevents it from covering the exact same people that are covered by
    > 212(a)(9)(B)(i)(II).

Your posts are very confusing. You claim in both your "subject:" field and
original post to be denied under 212(a)(9)(C), but now you are referring to
being denied under 212(a)(9)(B)(i)(II) instead?

Note, the 3/10 year overstay bars do not require any attempted reentry. The
bars activate upon the initial departure from the U.S.

Paulgani

Folinskyinla

Paul:

She did say "C" and not "B" -- please reread it.

Folinskyinla

Hi:

You may have to restate your facts. Go to your orignal posting. It was YOU who stated:

"The law was applied because my husband entered the USA on a visa, overstayed his visa by more than a year, then left the USA. He later attempted to return on the same visa (via a POE) but was denied admission."

Also, you make reference to Section 101. I happen to agree that the defintions in 101(a) are important. In particular, take a look at the defintion of "admission" and "admitted" found at 101(a)(13).

After reading that section, please let me know what sub-section in 101(a) trumps that? BTW, (a)(13) was completely amended in the 1996 legislation replacing the prior term "entry." By the way, the 1996 legislation amended section 235(a)(1) to treat aliens who entered without inspection as "arriving aliens" even after they are in the United States. I don't recall the cite [not "codified" in the Act], but the Attorney General was given the authority whether or not to treat "EWI's" as "arriving aliens." That would be such a legal quagmire that the AG has stayed out of it for now.

spouse

Ok. Let me try to explain again. Thanks for making my mind work.

First the facts:

My husband overstayed a multiple entry tourist visa by more than a year.
Therefore - 212(a)(9)(B)(i)(II) applies

212(a)(9)(B)(i)(II) reads

"(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible."

My husband attempted to re-enter the United States, using the same multiple entry tourist visa. He was found inadmissible in accordance with section 212(a)(7)(A)(i)(I) and was removed.

212(a)(7)(A)(i)(I) reads

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a),

This section was applied because his multiple entry visa was rendered invalid by the overstay.

Ok. WE AGREE WITH THESE LAWS AND THE APPLICATION OF THESE LAWS!!

The first law makes him inadmissible for 10 years and the second makes him inadmissible for 5 years. The sentences run concurrently (at the same time).

However, both of these laws have waivers available, according to USC spousal harship... (see the I-601 and I-212 waivers - respectively)

Now, here is the situation at the moment. One immigration official has said that my husband is inadmissible according to 212(a)(9)(C)(i)(I)

Which reads...

"(i) In general.-any alien who-

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

and who enters or attempts to reenter the United States without being admitted is inadmissible"

No waiver is available for this section.

However, I argue that this section does not apply, because the phrase "without being admitted" does not apply.

Section 101(a)(13)(A) reads

"The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States AFTER INSPECTION AND AUTHORIZATION BY AN IMMIGRATION OFFICER"

Additionally a DOS Cable written by Madeleine Albright reads

"35. INA 212(a)(9)(C)(i)(I) renders permanently inadmissible any alien who was unlawfully present in the U.S. for more than a year in the aggregate, and who subsequently entered or attempted to enter the U.S., WITHOUT INSPECTION. This provision primarily affects aliens who attempt to circumvent an ineligibility under 9B by SLIPPING ACROSS THE BORDER ILLEGALLY"

Now when reading these you must remember that my husband attempted to enter the USA through an Airport/Port-of-entry. He passed through inspection, and it was there that he was not authorized to enter the United States. Therefore, he did not attempt to avoid inspection or authorization (just because authorization was not given, does not mean that he attempted to avoid it!)

His intention in entering was to talk to a lawyer/immigration officials to find out how to right past wrongs (if he had known he was ineligible under 212(a)(9)(B) we would have married under 2451 (amnesty) and he would never have had to leave... in fact he would be getting information on how to become a citizen right now!!)

The law 212(a)(9)(C) was written for aliens who blatently disregard the US law and enter or attempt to enter by "slipping across the border illegally." i.e. These are people who know they committed an illegal act previously, but knowingly commit another illegal act.

My husband knowingly commited an illegal act (overstaying his visa) but intended to remedy this action with a legal entrance... this is ignorance, and at worst stupidity... but it is not malicious, and is not the same thing as disregarding the law on two occasions.

Therefore, 212(a)(9)(C) does not apply.

However, as you have all seen and mentioned the wording is not particularly clear, and my husbands case appears to be an anomally (something that may never have happened before). Therefore, depending on the time and effort the immigration official puts into understanding the law, we may be denied permission to apply for the waivers, based on a law that is not correctly applied.

I am posting here in order to see if there is any type of information that can be gathered that would help me to argue my case, and present the evidence in a clearer fashion.

Does this make sense now?

Oh and supernav - my husband is no longer illegal (he is in his own country, where he is a CITIZEN), Bush's legislation will most likely not pass through congress - it was primarily a political move to strengthen ties with Mexico (in my opinion), and (from my understanding) it DOES NOT apply to my husband in any way shape and/or form. However, if you would like to explain how it would apply to my husband I would be very happy to hear your arguments.

My husband is more preoccupied with politics in his own country right now (for some reason they talk about their politics more than ours... strange, aye?) And as for my opinion on Bush... well, that is better discussed elsewhere!

spouse

One more thing that may help to clarify... my husband is not, was not, and (most likely) never will be an EWI.

And that... that is the crux of my argument. From everything I have read - 212(a)(9)(C) applies to EWI's.

Folinskyinla

Hi:

Now you make sense. As an aside, this disucssion has helped expand MY knowledge -- and from that POV, it is appreciated.

I have not experienced this section in of law in my practice, but your posting reminds me that this HAS been a topic of frequent discussion on the private lawyer to lawyer discussion boards and at past AILA conferences.

You are correct to focus on the phrase "who enters or attempts to reenter the United States without being admitted is inadmissible." However, that phrase is ambiguous IMHO. It depends on how you parse the phrase.

One possible interpretation is that 1) you tried to be admitted and 2) you were not admitted. If parsed that way, your husband falls under that rubric.

The second possible interpretation is the one you advocate -- an attempt to evade admission.

You earlier mentioned a memo from your lawyers. I submitted a brief to the 9th Circuit last week -- involving an issued of first impression on 237(a)(6) for unlawful voting -- so the principles of statutory construction are fresh on my mind.

A primary case on this is John Lennon v INS from the 2nd Cir. in 1975 [principles recently reaffirmed by the Supremes in St. Cyr case]. That case should be mentioned prominently in any discussion.

You may have a lawsuit on your hands. However, that may be difficult if the "immigration official" is with the Department of State -- Colin is generally immune from suit.

Good luck.

PS to OTHERS -- this is tangentially related to the "ten foot pole" questions -- I keep saying that playing with fire can get you burned. Spouse's hubby played with fire [without knowing it] and has been burned badly. Please learn from his plight.