How can someone return to the U.S. after making a false claim to U.S. citizenship?

QUESTION: My brother is a U.S. citizen.  He is married and lives in Texas.  His wife lives in Mexico.  Eight years ago his wife presented herself as a U.S. citizen.  She was caught and given an expedited removal and five year bar. She has stayed in Mexico for the past eight years and has two children with my brother.vShe graduated from college in Mexico as a surgical techncian. I want to know if there is any way she can obtain any kind of visa so she can bring my niece and nephew to visit their father, aunt, and granddparents in the U.S.  Thank you so much.

REPLY: Thank you for your message.  While I cannot provide you with case-specific advice without first reviewing the details of your case, I can provide you with some general information that might be helpful.

Individuals who are charged with making a false claim to U.S. citizenship are inadmissible for life under INA 212(a)(6)(C)(ii).  An immigrant waiver is only available in certain cases when the individual reasonably believed that s/he was a U.S. citizen.  There is a nonimmigrant waiver available that can be applied for in connection with a nonimmigrant visa.  Anyone who has been subject to an order of expedited removal must also obtain permission to reapply for admission to the U.S. within the five-year period following the date of the expedited removal.  This application is made on Form I-212

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Processing Delays at the CBP Admissibility Review Office

On March 29, 2012, the CBP Admissibility Review Office (ARO) advised the American Immigration Lawyers Association ("AILA") that it is taking at least 120 days to adjudicate nonimmigrant waivers of inadmissibility [Forms I-192; INA 212(d)(3) waivers]. Accordingly, in the event that a nonimmigrant waiver of inadmissibility is required, the application should be filed as soon as possible in advance of intended travel, but no later than 120 days prior to the expected travel date.

Based on my experience with the ARO and processing times for nonimmigrant waivers, I always recommend filing the waiver application six (6) months in advance of the intended travel date.  While the ARO aims to adjudicate all waiver applications within 120 days, this is not always the case. 

Read the AILA Practice Alert


Lawsuit filed against U.S. Border Patrol

The lawsuit challenges the practice of local police calling Border Patrol to act as interpreters in routine matters.

Read article


New Report on Immigration Enforcement on U.S.-Canada Border

The University of Washington Center for Human Rights and OneAmerica (an anti-racial profiling organization) have released a report after one year of research conducted along the State of Washington's border with Canada. The report highlights three (3) patters of abuse discovered during the research: (1) U.S. Border Patrol's use of racial profiling; (2) the dangerous fusion of collaboration between U.S. Customs and Border Protection ("CBP") and local law enforcement and other agencies; and (3) creation of a climate of fear and unsafe communities along the northern border.

Read the Report


Are there U.S. immigration consequences for a withdrawn criminal charge?

QUESTION: Four years ago, I received an absolute discharge in Ontario.  I have crossed into the US numerous times since then with no problems, except being stopped and questioned once but ultimately being allowed to continue.  Recently, I was arrested for "possession of a controlled substance," however, those charges are in the process of being withdrawn.  Am I still eligible to travel to the United States once these charges are withdrawn?  I have never been "convicted" of a crime.  Please let me know.

REPLY: Thank you for your question.  I cannot provide you with case-specific legal advice without first reviewing the documentation about the criminal matter, however, I have provided you with some information that should help you.

Criminal charges that have been withdrawn should not matter for U.S. immigration purposes.  Only “convictions” as that term is defined under the U.S. Immigration and Nationality Act (INA) § 101(a)(48)(A), which states: 

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— 

  1. a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
  2. the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Since withdrawn charges do not involve any finding of guilt, they are not “convictions” for immigration purposes and cannot be used to render you inadmissible to the U.S. 

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation