5-year ban or not? Abandoned AOS + VWP return
 

your situation is very exactly the same as mine, I was married to a USC in 1998 on B1/B2 tourist visa and went through all the same process you did and left in early 2000 before my the final processing of my green card. Last year I went to Hawaii on holiday (i'm from Australia) and just naively thought I would be ok under the VWP (clueless I know) bad decison!! On arrival to Honolulu I was detained by CBP and detained for 6 hours!! All due to the fact that I had been deemed on overstay from the time my marriage broke down and I left the US...any how all of this was v.stressful as you can imagine as they were going to send me back on the next flight..Luckily the port director very kindly "paroled" me into Hawaii for the duration of my holiday (12 days) I was VERY lucky in hindsight as they can only use this at there discretion and you are only valid for it to happen one time!!! Since I've been home I've been to the US consulate in Sydney to apply for a visa but I now have a 5 year re entry ban against returning to the US!! and whilst the US consulate has not denied me a visa I have had to apply for my "A" (alien) file through the FOIA website so they can asess the situation for the ban!! very frustrating as the file can take up to 12 months to be sent!! any how the long and short of this saga is that I'm still trying to get all this sorted so I would strongly reccommend trying to get a B1/B2 visa before travelling and in no way be as dumb as I was and just rock up and expect it all to be fine becuase as you can see in my case it was a bloody nightmare!! the things that come back to bite you in the bum!!!

Re: what is my status in the us?
 

Some of what you describe doesn't make sense. Did they order you removed and then parole you in? Where did the 5 yr bar come from? What forms did they give you? Was there an I-296, an I-867?

Re: what is my status in the us?
 

Really? Why? It doesn't seem related to any general overstay - which usually carries either a 3-year or 10-year ban.

Ian

Re: what is my status in the us?
 

So, not the same at all then. The OP had her green card for over a year before she left.

Re: what is my status in the us?
 

Yeh I'm assuming they ordered me removed then paroled me in because in the back of my passport they have written 8CFR217 (4) (A) 1 which I now Know is an part of immigration regulations that deem me inadmissable. The biggest pain in the a**se for me is that the CBP didn't given me any paperwork regarding the detention as that's what they asked for at the US Consulate here in Sydney.... I'm not sure what documents I signed I dont actually remeber sigining any thing but then again I was exhausted after a 10 hour flight and a further 6 hour detention at that stage I would have signed a deal with the devil!!! I dont mean to hijack the orginal post but maybe my ban does'nt relate to an overstay after all???

Re: what is my status in the us?
 

OP also says she came on the VWP and rosiemay had a B visa, so different again.

rosiemay, would you like your posts split off to your own thread? :)

Re: what is my status in the us?
 

You have no 5 year bar. Section 217 refers to the Visa Waiver Program. You were refused under the VWP and paroled to visit and then depart. That was nice of them.

If you had been ordered removed with a 5 year bar per 235(b) then they would not normally have been able to parole you that quickly. You would have been served a removal order.

Re: what is my status in the us?
 

OK then now I'm offically confused because when I went to apply for my B1/B2 Visa at the US Consulate in Sydney advised me that I had a 5 year ban from re entering the US and wouldn't be able to re enter again until after May 10th 2013 which is 5 years to the date that I arrived in Honolulu last year and encounted all the drama!! Urghhhh... Yeh I totally agree the CPB officer was unbelivably kind and generous to "parole" me in for my holiday considering how dumb I'd been!! but onto what you said in the last post if I dont have a 5 year ban against then why is it such a hassle fro me to get approved for my B1/B2 visa?? I'm definitley not looking at living in the US again and have very strong ties here!

Re: what is my status in the us?
 

Yes that would probaly be better to split off to my own thread!! but being a newbie to all this how do I go about that?? thx...

Re: what is my status in the us?
 

Done. :)

Thread split from http://britishexpats.com/forum/showthread.php?p=8030801

Re: what is my status in the us?
 

You may want to contact the embassy/consulate and provide copies of the notation in your passport. Point out that you were visa waiver refused under section 217 and not ordered removed under section 235 therefore there is no 5 year bar.

You could even mention Matter of KANAGASUNDRAM:

http://www.usdoj.gov/eoir/vll/intdec/vol22/3407.pdf

It essentially states that VWP applicants are not subject to Expedited Removal. Expedited Removal is what carries the 5yr bar.

You can also mention this:

8 CFR § 217.4 Inadmissibility and deportability.

(a) Determinations of inadmissibility. (1) An alien who applies for admission under the provisions of section 217 of the Act, who is determined by an immigration officer not to be eligible for admission under that section or to be inadmissible to the United States under one or more of the grounds of inadmissibility listed in section 212 of the Act (other than for lack of a visa), or who is in possession of and presents fraudulent or counterfeit travel documents, will be refused admission into the United States and removed. Such refusal and removal shall be made at the level of the port director or officer-in-charge, or an officer acting in that capacity, and shall be effected without referral of the alien to an immigration judge for further inquiry, examination, or hearing, except that an alien who presents himself or herself as an applicant for admission under section 217 of the Act, who applies for asylum in the United States must be issued a Form I–863, Notice of Referral to Immigration Judge, for a proceeding in accordance with §208.2(b)(1) and (2) of this chapter.

(2) The removal of an alien under this section may be deferred if the alien is paroled into the custody of a Federal, State, or local law enforcement agency for criminal prosecution or punishment. This section in no way diminishes the discretionary authority of the Attorney General enumerated in section 212(d) of the Act.

(3) Refusal of admission under paragraph (a)(1) of this section shall not constitute removal for purposes of the Act.

Sydney may not know what they're doing.

Re: 5-year ban or not? Abandoned AOS + VWP return
 

Hi:

I've read your thread and I can't make any sense of it. They said 5 year ban -- five years from when? You don't give any facts to determine the beginning of the five year period.

HHW POE is notoriously nuts -- many people will fly to SFO or LAX and on to Hawaii rather than fly directly to avoid the POE at HHW.

Re: what is my status in the us?
 

thanks :)

Re: what is my status in the us?
 

ok thamks that's really good to know as the CO definitley did say I had a 5 year ban against me and that's why I needed to get my A file via FOIA ..URGHHH...So therotecially if I dont have this 5 year ban against me then I should just be able to get the B1/B2 visa and enter to the US again?? I've read on some posts that the CBP can still deny entry even if a visa is issued..under what sort of circumstances would they do that??

Re: 5-year ban or not? Abandoned AOS + VWP return
 

apparently the 5 year ban started from the time I tried to re-enter the US which was May 8th 2008, I'm just going on what the CO told me in Sydney...the orignal post above probaly does sound a bit vauge as it was orginally a response to another post and I didn't go into all the detail....I take what your saying about HHW but when your flying fropm Australia to go to LA or SF and then back track is a major pain in the ar**e, it's bad enough sitting on a plane for 10 hours let alone adding addtional flying time on top of that!!