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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.


Sean R. Hanover, Esq
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