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Wednesday, November 28, 2012

Marriage Fraud and INA 212 - or 237(a)(1)(H)

Marriage fraud is more common than most folks think. Application for US Citizenship and green-card status (LPR) is a long, painful road. Marriage offers a relatively rapid acceptance into the USC/LPR ranks, and is therefore extremely tempting from a fraud persepctive.

To defeat a claim of marriage fraud, some of our clients have actually attempted to to bribe their respective former spouse to recant his/her statement to USCIS that the marriage was fraudulent. Usually, it is the sworn statement of one or the other spouse that gives rise to a fraud claim. Of course, our law firm starts singing loudly at that point and covering our ears..one can never condone such conduct (perpetuating fraud and all). However, if the original nay-sayer DID recant, you would have a legal argument…

That having been said, if you really want to fight a marriage fraud, you really need to attack the original marriage and show that the spouse currently being charged with marriage fraud was NOT committing fraud. That is a state action against the other spouse to show intent during (or at the time of) the original marriage. If you can get a judgment showing that the court found the marriage to be just and true, and that the other party is intentionally misrepresenting the situation, you can make a viable argument that marriage fraud was not operative in the instant case. This is a fun argument to make, and is based, again, on a state level trial against the spouse alleging the fraud.

You won’t be able to toss the marriage fraud via a 212 waiver (asking for discretionary grant of "leniency" based on fraud) as it was not incident to arrival:
While § 237(a)(1)(H) is a deportation waiver that requires a prior admission, it also requires that, at the time of that admission, the applicant was inadmissible due to fraud or misrepresentation. The BIA has held that the waiver is not available if the fraud or misrepresentation occurred subsequent to the admission. See, e.g., Salas-Velasquez v. INS, 34 F.3d 705, 708 (8th Cir. 1994) (former §241(f) waiver unavailable where applicant entered U.S. on a valid visitor visa and subsequently entered into a fraudulent marriage with a U.S. citizen); Matter ofConnelly, 19 I&N Dec. 156 (BIA 1984) (addressing the former § 241(f) waiver).(see http://www.ailf.org/lac/pa/lac_pa_fraudwaiver.pdf)


However, if you re-apply for admission and are denied, it is possible that a 212 might be available…but that is the instance where admittance is denied based on the fraud, you and re-open the marriage fraud allegation with the intent to retry the underlying issue (in this case, the BIA has held that when reviewing a subsequent request regarding the marriage fraud, the review must be taken anew and must be a substantial consideration, not relying solely on the determination alone of the prior finding). Generally, marriage fraud is not eligible for a 212 waiver because it was not fraud at the time of entry.

An interesting aside from this (same article):
Similarly, in certain marriage fraud cases, the retroactive validation of the applicant’s LPR status is critical. Specifically, where a non-citizen has been found to have committed prior marriage fraud, but now is in a valid marriage to a U.S. citizen or LPR, INA § 204(c) would bar approval of a visa petition filed by the second spouse. Thus the non-citizen would be barred from ever immigrating through this second, valid marriage. However, in Virk v. INS, 295 F.3d 1055, 1059 (9th Cir. 2002), the Ninth Circuit held that, where the non-citizen was admitted as an LPR based upon the fraudulent marriage, the grant of a § 237(a)(1)((H) waiver would waive the underlying fraud and the non-citizen would retain LPR status. As such, the court found that there was no need for a new visa petition by the second spouse and INA § 204(c) was inapplicable


Note, however, that the in the excerpt above, it would appear the applicant was admitted as an LPR (presumably through consular processing, for example), and as such the fraud was relied upon for entry.

Marriage fraud is generally terminal -- unless the client desires to fight the underlying cause of the fraud. The time required for this is extensive, and the expenses are not trivial. Waivers are rare, and generally, like asylum fraud, the bar is permanent. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed. This freuqently involves state court.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Tuesday, November 13, 2012

Clarification on Double EWI -- follow on to the post from June 2012

I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here.

You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court!

It usually goes like this…
Client stopped by police for driving on expired tags (or whatever)
Asked when she came to the US – she says 2001.
ICE later interviews her and she tells them she has been going back and forth across the border “for years”.
The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.”

Uh oh.


Presumption is that between the first EWI in 2001 and the last known EWI in 2003, she has accrued more than a year and…poof.

The very absence of dates gives rise to the problem, and by definition, an EWI often does not have specific dates. Defense cannot rebut the presumption and client get’s nailed.


-- In terms of DACA, though, I would be less concerned. An 821D is a form of deferred disposition – that means that the government already knows that it has the right to bar or “toss out” all the applicants; it is choosing not to enforce the rules only in so much as it promises not to pursue those people who register and are approved (selective non-application of appropriate law). As such, full disclosure is in order (lest the state say you are lying), and it should be okay (presuming EWI’s are the only problem).

Outside the context of DACA, always presume a double EWI is terminal to almost all forms of relief (except asylum based) unless there is definitive proof it is not (catch and release; multiple EWI’s in a single day, or other bizarre non-normative operations).

It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Saturday, November 10, 2012

CBP Code Stamps (Codes found in passports -- immigration law)

From time to time, we get requests to dechiper scrawl found on I-94 forms, passports, or even handwritten notes on visa pages. I am including in this brief post the codes that are often associated with those scribbles, and what they mean:

(As a footnote, credit is due to Mr. Robert Rone, an attorney in Mobile, Alabama, and Ms. Meighan L. Vargas, another attorney specializing in immigration law. While they did not come up with the codes (obviously!), they did format them in these nice tables I am displaying here.)

CBP is an abbreviation for "customs and border patrol", and it refers to the officers that inspect incoming aliens upon arrival in the US. From the CBP website:

After the successful completion of processing the applicant, a CBP officer stamps the applicant’s CBP Form I-94, Arrival and Departure Records, and the passport. The CBP Declaration, used at air and sea ports of entry, may also be stamped by the CBP officer. The CBP officer retains the arrival portion of the CBP Form I-94 and returns the departure portion of the CBP Form I-94 and passport to the applicant.


However, the following notations can be found anywhere in the a passport or visa form. They are not limited to an I-94 specifically.

Immigration Status

CARES Code

I-94 Codes

I-551 Codes

Other

Cuban/Haitian Entrant

11

212(d)(5) or paroled or C/H Entrant and from Cuba or Haiti or I-551 stamp and CU6 or CH6

CU6 or CU7, CH6

Unexpired and expired 1-551 stamp in foreign passport

Deportation Withheld

15

106 or 243(h) or 241(b)(3)

NA

INS Form I-688B annotated 274a.12(a)(10); INS Form I-766, annotated A10; order from an immigration judge showing deportation withheld under 243(h) or removal withheld under 241(b)(3)

Battered Alien

16

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

I-551 stamp in foreign passport with one of the preceding codes; or

IMPORTANT: Applicant has filed an I-130 or I-360 petition as a battered alien.

INS Form - 797 is documentation of approval of an I-130 application.



Immigration Status

CARES Code

I-94 Codes

I-551 Codes

Other

Cuban/Haitian Entrant

11

212(d)(5) or paroled or C/H Entrant and from Cuba or Haiti or I-551 stamp and CU6 or CH6

CU6 or CU7, CH6

Unexpired and expired 1-551 stamp in foreign passport

Deportation Withheld

15

106 or 243(h) or 241(b)(3)

NA

INS Form I-688B annotated 274a.12(a)(10); INS Form I-766, annotated A10; order from an immigration judge showing deportation withheld under 243(h) or removal withheld under 241(b)(3)

Battered Alien

16

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

I-551 stamp in foreign passport with one of the preceding codes; or

IMPORTANT: Applicant has filed an I-130 or I-360 petition as a battered alien.

INS Form - 797 is documentation of approval of an I-130 application.

Amerasian

17

AM1, AM2, or AM3

AM 6, AM7, or AM8

I-551 stamp in foreign passport with one of the preceding codes

Foreign born Native American

18

S13

S13

I-551 stamp in foreign passport with S13 tribal membership card from federally recognized tribe.

Trafficking Victim

19

T-2, T-3, T-4 and T-5 known as "Derivative T" visas are not currently available in the SAVE system.

 

Call the toll-free trafficking verification line at 1-866-401-5510 to notify ORR of the benefits for which the individual has applied.

 

Health and Human Service Office of Refugee Resettlement Certification Letter



Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

I-94 and -Humanitarian- Notation in Immigration Law

I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked.

First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers) the nature of your entry, whether you are being watched or tracked, if you are permitted multiple entry/re-entry on the same I-94, etc.). In the instant case, the question is: what does the indication "indefinite" mean on the I-94? It means that instead of a 6-mos or other time window for this arriving alien, CBP granted "parole" to remain in the country without ever having to depart. This is in effect a pseudo-deferral, allowing the immigrant to remain in the country, but providing no benefits (work permit, for example). It is an excellent defense to a removal charge (assuming no criminal charges), but does little to provide a future for the immigrant.

In this instance, the proper next step would be application for asylum. Asylum is, defacto, a request for humanitarian/refugee relief. It means that you have a credible, meaningful fear of returning from where-ever you came from. More importantly, because CBP already paroled you in under humanitarian grounds, the credible fear determination is all but automatic. I don't know the specifics of your case, but one can imagine it must be compelling, as CBP paroles are not that common.

Once you apply for asylum, and you have established your credible fear during that process, you are eligible for EAD (employment authorization documents). This in turn allows you to work legally in the US.

The trick here is to ensure your asylum application process is done properly and timely, so you do not lose out on the potential benefit of a CBP humanitarian parole.

Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723