Removal for Aggravated Felony

QUESTION: My mom came to California from the South Pacific islands (Tonga) on a Visa in 1981, then later she got married to my dad, had my sister in 1983 and then eventually she got her green card. She later had 5 more children, including me. She was deported in Dec 2000. She was charged with an Aggravated Felony for stealing, forging money from her babysitting/housekeeper job in 1996 and then a caretaker job in 1998. She had a gambling addiction, but it wasn't even that much money that she took from those years, but since then she's been back in the islands living good without getting in trouble. She's a church lady and a good mom, she just was addicted to gambling that's all. She also still has a bench warrant from her probation thing and its still active till this day over here, but I don't understand why probation didn't know she was deported.  Anyway, my dad just filed for her, 1st the I-130 form, and it has been approved since a month ago. Now what else do we do? Probable get a lawyer? and file for waivers maybe? We're trying to get her back here to reunite with her family.

REPLY: Thank you for your question.  It sounds as though your mother has quite a complicated immigration history.  Given this history, it will be important to have her case reviewed by a competent immigration lawyer before taking any steps toward her return to the U.S.  While I cannot offer specific advice without learning more about the case, I have provided some general information below.

Individuals who are ordered removed from the U.S. based upon a conviction for an aggravated felony are inadmissible to the U.S. for life unless he/she obtains permission to reapply for admission to the U.S.  This application is made on Form I-212.

Most crimes involving an element of theft and fraud are deemed to be crimes involving moral turpitude (“CIMT”) under U.S. immigration law.  Individuals with CIMT convictions are also inadmissible to the U.S. for life unless they obtain a waiver of inadmissibility.

There are two (2) types of waivers available for CIMT convictions. 

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The Law Office of Sarah E. Murphy Now Open!

As of March 12, 2012, I have officially left the law firm of Serotte Reich Wilson (SRW) and have started my own law practice.  I am still located in Buffalo and provide the same legal services as when I was employed at SRW.  My new contact information is:

Law Office of Sarah E. Murphy
2316 Delaware Avenue #294
Buffalo, NY 14216
Phone: 716.464.2296

Thank you to all of my followers for your continued support!


I-601 Approved!

Notice of approval of a Form I-601 - "extreme hardship" - waiver was received in the office today!  The waiver was required in order to overcome unlawful presence.  More details to come!


I-212 Waiver Application Approved on Appeal

The AAO reversed the decision of the USCIS Detroit field office director, which denied the application for permission to reapply for admission after removal [Form I-212], and concluded that the applicant had established that a favorable exercise of discretion is warranted.   The applicant was ordered removed based upon the IJ finding that he had entered into a marriage for the purpose of obtaining immigration benefits.  While the AAO considered it a negative factor that the applicant had failed to rebut the presumption of marriage fraud, the AAO also acknowledged that the weight accorded the marriage fraud finding is reduced due to the substantial countervailing evidence presented by the applicant on appeal, including statements from numerous individuals with knowledge of the marriage.  The positive factors cited by the AAO in support of its decision include: significant family ties to the U.S.; lack of criminal record; owner of U.S. business and employer of U.S. citizens; beneficiary of approved Form I-129, H-1B nonimmigrant visa petition; length of time since alleged fraudulent marriage (10 years); and demonstration of good moral character for the past 10 years.

Read AAO Appeal Decision

More Information on I-212 Waivers



Do I need a waiver to enter the U.S.?

QUESTION: I lived in the US from August 1999 until May 2006. I initially came to US on F1 visa to do my Masters degree. By the end of 2002, due to poor grades, I was academically dismissed from the university so I became out of status. Within two weeks of academic dismissal, I was able to find an employer who filed for my H1B visa.  Although my H1B visa was approved at the beginning of 2003 (valid for 3 years), it did not come with I-94 attached.  I was instructed to go to my home country for visa stamping.  Due to workload and other personal reasons, I could never manage to go to my home country for visa stamping. When my employer laid me off in May 2006, I simply went back to my home country within a week after my termination of employment. When I was leaving the US in May 2006, the airline official at the airport took my I-94 from my F1 visa that was attached to my passport. No questions asked. I later became a Canadian citizen in May 2011.

A few questions:

(1) Am I able to cross the border into the US now with my Canadian Passport?

(2) If I cannot cross the border, what is the process that I need to follow to obtain eligibility to cross the border?

REPLY: I cannot offer you case-specific advice without learning more about your case, but have provided some information that you might find useful.

Anyone who is admitted to the U.S. as a student for the duration of status (“D/S”) does not begin to accumulate any unlawful presence in the U.S. until either USCIS or an Immigration Judge formally revokes his/her status.  In many cases, this does not happen and the individual does not accumulate “unlawful presence” under the Immigration and Nationality Act (“INA”) even though he/she remains in the U.S. after leaving school.  If, however, USCIS or a judge has terminated the student status, the individual will begin to accumulate unlawful presence beginning on the date of termination.  A period of unlawful presence that lasts between 6 months and 1 year creates a 3-year bar to re-entry.  A period of unlawful presence that lasts for more than 1 year creates a 10-year bar.  Thus, it will be critical in your case to determine when/if your F1 status was terminated/revoked by USCIS or an Immigration Judge.

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