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Hanbal, please help with Q on voluntary depart.

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  • Hanbal, please help with Q on voluntary depart.

    I'm currently in AOS but there's a chance that my case may get denied because of a CIMT record 7 years ago, which renders me deportable but not inadmissible. Anyway, if my AOS case is declined and I get voluntary departure (that is, never in remove proceedings), would I be subject to the 10 year ban to apply for visa again? Thanks a lot for any comments.

  • #2
    While you're waiting for Hanbal to reply, I was wondering what kind of CIMT you have? It's rare to come across a CIMT that would render you deportable but not inadmissible. Does your CIMT qualify for the petty offense exception? If you only have CIMT's on your record, then a 212(h) waiver may be an option.

    - rrv


    • #3
      The only crime I can think about that would make you "deportable", but not "inadmissiable" is a misdemeanor, non-trafficking firearms offense.

      It would be a CIMT, if there was "use/ or intent to use" (then it wouldn't be "inadmissiable" anymore, because it would become a felony) or if the crime was committed during the first five years of entry into the U.S.

      For AOS, an alien must be also eligible for naturalization; an LPR with a firearms conviction is usually not.

      Depending on the circumstances of your conviction, there may be a relief available (especially since it's 7 yrs. old and pre-1996 law changes). You may have the oportunity to apply for I-212 and AOS (for a fresh start) if that proprosal is passed, possibly in October, but it will be in effect for only 180 days. I can't find the specific information at this time but will if you remind me.


      • #4
        It's a fraud related misdemeanor charge. Since the maximum possible imprisonment is one year and I wasn't sentenced to any jail time, and it's within 5 years of my entry into the US, it's deportable under 237(a)(2)(A)(i), but not inadmissible because the max possible imprisonment is NOT more than a year. In other words, it falls under petty offense exception for admissibility purpose.

        BTW, my AOS is from non-immigrant to PR.


        • #5
          Hanbal, you mentioned an I-212 proposal a few days ago. Could you give a bit more details on what it's about? Is it the S. 955
          Support Immigrant Fairness Restoration Act of 2001: Introduced by Senators Edward Kennedy (D-MA) and Bob Graham (D-FL), or is it another bill being considered?

          Thanks a lot.


          • #6
            I saw a note about a 180 day INS acceptance proposal for amnesty for LPR's with pre-1996 convictions. Where LPRs pleaded "nole" or "guilty" to a charge that made them safe from removal before the immigration law changes in 1996. Since IRARA is retrospective (meaning it's applied to closed cases with no regard then they were decided; a day or 18 yrs. or 180 yrs before the passing of the new rules. It really messed up many things... (in my opinion unconstitional).

            This rule has been proposed, because many LPRs with old convictions are overburdening the state courts with re-opening cases, making the state convictions unlawfull since the immigration law changes made their "informed consent" to a "guilty" or "nole" plea "uninformed".

            I don't think the "fairness" Bill has been passed entirely so far, but many parts of it have been implemented and applied quitly by the INS (even if it is temporarily). After Mr. Ziglar's leaving the office, things may change, though!