Stopped by CBP - Deferred Inspection

Deferred Inspection with CBP

In this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance).

Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings.

Waivers and Adjustment of Status for Refugee/Asylee Cases

A Clever Waiver for Humanitarian Refugees and those holding Asylum

Adjustment of status for individuals granted asylum or refugee status can be tricky. Because they have no sponsor in the US, they have no easy means of converting from "legally here" to "lawful permanent resident" or LPR. In the code there exists a provision for just this case -- INA 209. Under INA 209, any refugee admitted under the 50,000 person cap as a humanitarian refugee pursuant to INA 207, and any individual granted asylum under INA 208, may apply for LPR status after 1 year (See, INA 207(a) & (c), INA 208(d)(3), and INA 209(a) & (b)).

However, what if the individual applying for adjustment has a criminal history? Typically a 212 or 601 waiver would address these problems in an I-130/I-485 context (including removal proceedings) -- however, that cannot be done when the refugee or asylum holder cannot return to his/her home country to await adjudication of the waiver. Grid lock.

The resolution is found in INA 209(c). The code specifically permits the waiver of criminal conduct for asylee/refugee applicants -- with a few provisions. In 2005, USCIS issues guidance on the application of 209(c). An excerpt dealing with what may, and may not be waived is included here:

Section 209(c) of the Act prohibits the Secretary from waiving the following grounds of inadmissibility:

• Section 212(a)(2)(C) of the Act relating to drug trafficking;
• Section 212(a)(3)(A) of the Act relating to security grounds;
• Section 212(a)(3)(B) of the Act relating to terrorist activities;
• Section 212(a)(3)(C) of the Act relating to foreign policy considerations; and
• Section 212(a)(3)(E) of the Act relating to Nazi persecution and genocide.

The Secretary may waive any other ground of inadmissibility under section 212(a) of the Act for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (Interoffice Memo, Aytes, HQPRD 70/23.10, 31 Oct 2005)

While there are provisions that allow USCIS to enter a waiver sue sponte when reviewing an I-485 for refugees/asylees, this counselor strongly recommends that an I-602 always be included with any filing where a waiver is required. The 602 form requests USCIS waive any precluding events or history. The more serious the crime, the more information must be provided to prove the "equities" of the case -- the balance in favor of granting the waiver vs. the seriousness of the crime warranting denial. Writing the waiver brief to accompany the 602, and providing all relevant information and supporting document, is critical. Be sure to speak with a competent attorney who has experience writing 601 or 212 waivers -- much of the content will be similar. The advantage to a 602 waiver, however, is that the presumption is in favor of the immigrant for all but the most serious offenses.

More information on the application of 209(c) can be found in the case Matter of Jean, 23 I&N Dec 373 (AG 2002). This case is interesting in its own right -- the Attorney General took a direct interest in the 209(c) case after BIA applied too liberal a standard in granting 209(c) waivers. Any immigrant convicted of particularly serious crimes, or those involving violence or weapons, should read this case very carefully. Would you like help adjusting your status from asylee/refugee to lawful, permanent resident? Do you have a criminal history that might prevent you from adjusting? Talk to us! We have years of experience working with folks just like you. We can help! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

CBP and LPR -- what happens at a "deferred inspection"

Interesting case recently. A client called us with a not-to-uncommon problem. On the way back from visiting an ailing relative in Costa Rica, the family was stopped at Dulles International Airport (a la Virginia). The dreaded hand gesture was made by an immigration border officer to "go to line B". Deferred inspection is in your future.

When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection.

So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!?

So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among others). That notwithstanding, remember that CBP can review ANY crime convicted at ANY time. However, the crime MUST have resulted in a conviction.

When speaking of crimes, it is important to remember that any crime that has a detention or deferred sentence (suspended sentence) of 12 months or more is considered an aggravated felony, and constitutes inadmissibility on its face. That's bad.

Certain crimes can be waived under the petty exception for CIMT's. Remember that time when you were busted for shoplifting and served 30 days in the brig? Likely, a single offense can be ignored and you will not be found inadmissible.

When you go for your interview, bring a lawyer, and if you can afford one, bring a book. Whoops -- that was backwards, but I'm biased. You will be waiting for quite some time. While you are obligated to be on time for your 11AM deferred inspection, CBP will often stall and you won't be seen until 2pm! Or later. Can you sense my frustration? Baah.

Why do you need a lawyer? Well, a lawyer cannot change the law. If you have an aggravated felony, or you have been smuggling little children into the country, there is nothing the attorney nor the CBP officer can do -- our hands are tied, and the law says you will be found inadmissible. However, an attorney can make a good argument to NOT HAVE YOU DETAINED. CBP will contact ICE once they determine you are inadmissible. It is up to ICE -- not CBP -- whether you shall be detained (sent to jail while you wait for your immigration trial). NOTE -- that an aggravated felony cannot be bonded out. So, having your attorney get CBP to argue that you should NOT be detained (when speaking to ICE) is worth its weight in gold. CBP can make a good argument to have ICE just ignore you. You do NOT want to be detained. While this does not always work, it can ONLY work when you have an attorney.

When you leave (non-detained), you will have a court date from your Notice to Appear (NTA)and you should meet with your attorney to plan your case (see my posting on what to expect at your first immigration court hearing). If you are detained, you will be taken to an immigration detention center and "booked" directly from the deferred inspection meeting. You will then be given your NTA while detained, and need to get in touch with your attorney, who will need to come and meet you at the detention center. Do you need help with a CBP or deferred inspection? You came to the right place! We have considerable experience helping walk clients through tough situations. We'll walk through each step and help you get the best possible results.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.