Border Immigration Lawyer Blog

Expedited Removal of Canadian Student

2010-02-25T15:54:04Z

QUESTION: I am a current Canadian citizen and had a valid student visa to enter the United States. I was recently stopped at the border and was inadmissible because of the following reasons:

During my university I was sent for voluntary training, which was not paid and was told I am not allowed. I took myself out of the voluntary training and submitted paperwork that I am not attending training anymore. After a while I crossed the border again and was followed by an immigration officer. I was going to pick up tickets I had won from the university from a fellow student training at the same center where I used to train. Upon trying to enter the U.S. at a later date I was stopped at the border and was taken inside for investigation. That is when I found out that a U.S. immigration officer had followed me on my previous visit to the U.S. and had seen that I had stopped by the training center. I was then given a notice of expedited removal and 5 year ban. My problem is that I was not working or committing anything illegal at the center; I was simply visiting a friend and picking up the tickets that I won from the university for a show in New York. Is there any way I can fight my 5 year ban? I have many relatives in the U.S. and I was planning on continuing my education at the university.

REPLY: I am sorry to hear about your unfortunate experience at the border. Without knowing more about your specific case, I cannot provide you with a case-specific analysis. I can, however, provide you with some general information, which is set forth below.

Can Form I-192 waiver applications be submitted by mail?

2010-02-22T19:16:40Z

QUESTION: I am a Canadian citizen living in the Cayman Islands. I have downloaded and completed Form I-192. Can you provide me with the address that I am to mail the application to?

REPLY: Unfortunately, there is no easy mail-in option for the Form I-192. This is because U.S. Customs and Border Protection (“CBP”) officials must take the fingerprints of all I-192 waiver applicants in-person. The filing fee is also processed by CBP officials at a port of entry or designated pre-clearance location in Canada upon filing of the Form I-192. Once the port of entry/pre-clearance location has all of the required documents, fingerprints, and fees, the complete I-192 waiver application package is forwarded to the CBP Admissibility Review Office (“ARO”), which is where all I-192s are sent for adjudication.

There is one port of entry in Sault Ste Marie, Michigan that accepts the Form I-192 and filing fee by mail, however, you must still appear in person at that port of entry to have your fingerprints taken by a CBP officer. Your I-192 waiver application package will not be forwarded to the ARO until the package is complete with the necessary fingerprint chart. I spoke with a CBP officer in Sault Ste Marie today, who explained that once your Form I-192 and filing fee are received in the mail, that port will contact you directly with instructions to appear for fingerprints.

Can I overcome a charge of fraud under INA § 212(a)(6)(C)(i)?

2010-02-19T22:48:52Z

QUESTION: My F1 visa renewal application was denied. I had a DUI in 2006 for which I paid all fines. I am pursuing my Masters Degree in California and have 6 classes left. I came to Brazil for vacation and to renew my student visa. I didn’t know DUI was considered a crime, so on the form I didn’t indicate that I was arrested. The consular officer kept asking me if I had any problem with immigration and I said no, because I really didn’t think immigration had anything to do with DUI. I really thought it was a traffic violation, especially since I had already received a visa following the incident. When the officer asked me if I had any problem with the law, I immediately told him about the DUI. Even though I admitted the DUI, the officer denied my visa application, saying that I was lying. I really wasn’t trying to do any fraud or anything. I know they know everything and would never try to lie to them. I’m going to try again next week. Is there a chance a get the visa?

REPLY: You are in a very difficult situation, as a charge of fraud from a Consular officer is very difficult to overcome. Based upon the facts you provided, however, it sounds as though your alleged “fraud” was neither willful nor material. Under the Immigration and Nationality Act (“INA”), Section 212(a)(6)(C)(i) renders inadmissible anyone who seeks to procure a visa by fraud or by willfully misrepresenting a material fact.

Expedited Removal Order Vacated

2010-02-15T22:27:26Z

Our office recently achieved success vacating an order of expedited removal and the underlying charges of inadmissibility on behalf of a client who was issued an order of expedited removal at a land border port of entry one year earlier on charges of fraud and misrepresentation [INA § 212(a)(6)(C)(i)] and as an intending immigrant [INA § 212(a)(7)(A)(i)(I)]. The order of expedited removal was vacated by the U.S. Customs and Border Protection (“CBP”) Chief Inspector of the land border port of entry where the original expedited order was issued.

Our client, a native of India and citizen of Canada, was applying for admission at the land border port of entry for the purpose of attending a family event in the United States. Although not a native of Canada, our client has lived in that country for nearly 15 years. Significantly, our client has never lived in the United States for any period of time. Rather, he has been consistently employed in Canada and also runs his own Canadian-based business.

How do I prove I did not commit a willful misrepresentation?

2010-02-06T20:18:43Z

QUESTION: I received a non-immigrant visa 1.5 years after my father filed a Form I-130 on my behalf. I didn't know that he filed the I-130 and didn't mention it in DS-156. Will I be found ineligible at the immigrant visa interview? How do I prove that it was not willful misrepresentation?

REPLY: There is a chance that you could be found to have committed a misrepresentation at your immigrant visa interview. In order to avoid a charge of inadmissibility due to this misrepresentation pursuant to INA Section 212(a)(6)(C)(i) [which carries a lifetime bar to admission to the U.S.], you must prove to the satisfaction of the Consular officer that you did not know about your father’s filing Form I-130 at the time of your nonimmigrant visa application and interview.

It is extremely difficult to overcome a charge of inadmissibility that is lodged by a Consular officer, as their actions are for the most part unreviewable. For this reason, you will want to have extensive proof and supporting documentation prepared in advance of your interview to show the Consular officer that you really did not know about the pending I-130 during the nonimmigrant visa process. With a well-prepared package, you should be able to avoid any negative charges.

What types of reasons for seeking entry to the U.S. will support a Form I-192 waiver application?

2010-01-28T16:56:59Z

QUESTION: I am in the process of applying for my renewal application for I-192. I was convicted of assault when I was 18 years old (16 years ago). I was approved for my first waiver 5 years ago and it is up for renewal - I was told to write a statement regarding the purpose of my intended activities in the US and anything else that might help the approval. My mother lives in the US but I don't feel that just that point is substantial enough to have my renewal approved. Is there anything that the CBP look for that helps advance the approval process and strengthen my request or is my mother substantial enough to have it approved?

REPLY: Nonimmigrant waivers pursuant to INA § 212(d)(3) [which Canadian citizens apply for by submitting Form I-192] are adjudicated based upon a legal standard set forth by the Board of Immigration Appeals (“BIA”) in a landmark case known as Matter of Hranka. In that case, the BIA set forth three (3) factors that must be considered when adjudicating these nonimmigrant waiver applications [I-192]. These factors are:

Has my conviction been properly classified as a crime involving moral turpitude?

2010-01-18T17:43:26Z

QUESTION: In 2000 I was convicted by U.S. federal court of 1 count of "false statement" to a U.S. Customs officer and was fined $500 USD.

The false statement was in regard to a car I sold in the U.S. Upon entering the U.S., I said that my purpose for entering was pleasure and in reality I entered to sell my car in the U.S.

The car was a U.S. made model and no taxes or duty were imposed if I were to declare it. By not declaring, I saved 30 days needed for the car to clear "Registered Importer." No money was lost by the U.S government. All I gained by failing to declare was time.

From 2000 to 2007 I entered the U.S. frequently after declaring the $500 fine by the U.S federal court. At one point my file was reviewed by a supervisor that determined that it is not a crime of moral turpitude.

In 2007, I was denied entry for the same offense. The officers determined that the offense was a crime of moral turpitude. I was told to get a waiver. I did apply for a waiver and was granted a 1 year waiver. Upon my second application for the waiver in December 2009 I came across some information online that suggests my offense does not involve moral turpitude. The information I found was issued by the U.S. Department of State in its Foreign Affairs Manual, which stated that violations of laws which are regulatory in character and which do not involve the element of fraud, including “false statements”, are not crimes of moral turpitude.

My second waiver application is pending and in my opinion I should not require a waiver since my online research indicates that mine is not a crime involving moral turpitude. What is your legal opinion? What should I do if you agree with me?

REPLY: You are in an unfortunate situation that involves one of the more complicated areas of the immigration law – the definition of “crime involving moral turpitude” (“CIMT”). Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”) provides that anyone who has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime, is inadmissible to the United States. The term “crime involving moral turpitude” is not defined anywhere in the INA. Rather, the term has been defined by a series of decisions issued by the Board of Immigration Appeals and the federal courts. As you noted above, the Department of State has also issued guidance to its employees regarding the definition of a CIMT in the Foreign Affairs Manual.

Can U.S. Customs and Border Protection Charge Me With Additional Grounds of Inadmissibility When Adjudicating My I-192 Waiver?

2010-01-15T23:29:03Z

QUESTION: I entered the U.S. as a visitor in 1997 and then overstayed my authorized period of stay for 3 years. I then departed the U.S. and applied for another visitor visa in 2003 at a U.S. Consulate abroad. The Consulate approved my visa application and I traveled to the U.S. with no problems until 2004 when I was told that I was inadmissible for a period of 10 years due to my previous overstay. I was told that I was inadmissible for a period of 10 years under INA Section 212(a)(9)(B)(i)(II) for unlawful presence and that I needed to obtain a waiver. Since I had become a U.S. citizen, I was told to apply for the waiver by filing Form I-192 with Customs and Border Protection officials. I filed Form I-192 on my own, without a lawyer, and it was approved. The waiver, however, says that I am inadmissible under INA Section 212(a)(6)(C)(i) as well as 212(a)(9)(B)(i)(II). I later learned that Section 212(a)(6)(C)(i) is a lifetime bar for fraud. Can Customs and Border Protection officials bar me for life even though a fraud charge even though this has never come up before?

REPLY: In short, yes, U.S. Customs and Border Protection (“CBP”) officials can charge you as inadmissible at any time so long as there are sufficient facts to support the charge.

You are definitely in a difficult U.S. immigration situation. While I cannot provide you with a complete professional analysis without more research and investigation into your particular case, I have provided you with my preliminary analysis based upon the information you provided below.

Can a Waiver be Obtained for a False Claim to U.S. Citizenship?

2010-01-11T23:36:10Z

QUESTION: I was charged with false claim to U.S. citizenship almost 6 years ago. Is it possible to get a nonimmigrant waiver of this ground of inadmissibility?

REPLY: You can certainly apply for a nonimmigrant waiver to the U.S. pursuant to INA § 212(d)(3). This section of law will waive inadmissibility under INA § 212(a)(6)(C)(ii) for a false claim to U.S. citizenship. Whether you have a strong case for a nonimmigrant waiver under § 212(d)(3), however, is a different inquiry altogether.

Must a Canadian Citizen Submit Form I-192 and Form I-212 Simultaneously?

2010-01-09T21:59:10Z

QUESTION: I am a Canadian citizen and require 2 waivers to enter the United States – Form I-192 and Form I-212. If I submit both forms to waive both the 5-year ban and to waive the fraud/misrepresentation charge under INA Section 212(a)(6)(C)(i), can both forms be submitted together? If so, can they be submitted together in one envelope and with only one fee? Is this considered to be one application process, meaning that if my I-212 gets approved then my I-192 will also automatically be approved too?

REPLY: Since the creation of the Department of Homeland Security (“DHS”), there has been some confusion regarding the filing of Forms I-212, Application for Permission to Reapply for Admission Into the United States After Deportation of Removal, especially when a Form I-212 is being filed simultaneously with a Form I-192 by a Canadian citizen. Although U.S. Citizenship and Immigration Services (“USCIS”) retains jurisdiction to adjudicate Forms I-212 in certain situations (such as when a Canadian has been subject to an order of expedited removal on grounds of INA § 212(a)(7)(A) only), a Form I-212 that is being filed simultaneously with a Form I-192 is adjudicated by U.S. Customs and Border Protection (“CBP”) officials. This means that both Forms I-212 & I-192 can be filed together at any U.S. port of entry (click here to view a list of CBP ports of entry where Forms I-192 & I-212 are accepted). Our office recently confirmed this information with CBP officials at the Port of Buffalo.