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Thread: INA Section concerning Visa Overstay...

  1. #1
    Dear folks,

    I am currently in process of submitting my security clearance application for flight school in the U.S. Army. One section of the said application deals with your background up to 7 years and all legal infractions are required to be disclosed.

    In 2001, I was held briefly for a visa overstay which I subsequently fixed by gaining permanent resident status and currently I am a USC. Even though this infraction is not required to be disclosed for a secret clearance as it is not within the time frame in question, I am going to disclose it in the remarks section since my fingerprints will reveal that I was brought in by USINS. I mentioned this incident to the civilian security office personnel at our location and she asked me "what kind of crime was it, misdemeanor, felony?" I told them that it was NEITHER, it was a civil offense, however she insisted that it is a criminal offense. I didn't want to argue back since they are going to take care of my application while I was positive that they were wrong.

    I would like to cite the Immigration Nationality Act section or any other legal document that explicitly expounds overstay visas are NOT criminal offenses in my application. So far I could NOT find any, could you help me finding it please?
    SEMPER VIPER / Army Strong!

  2. #2
    Dear folks,

    I am currently in process of submitting my security clearance application for flight school in the U.S. Army. One section of the said application deals with your background up to 7 years and all legal infractions are required to be disclosed.

    In 2001, I was held briefly for a visa overstay which I subsequently fixed by gaining permanent resident status and currently I am a USC. Even though this infraction is not required to be disclosed for a secret clearance as it is not within the time frame in question, I am going to disclose it in the remarks section since my fingerprints will reveal that I was brought in by USINS. I mentioned this incident to the civilian security office personnel at our location and she asked me "what kind of crime was it, misdemeanor, felony?" I told them that it was NEITHER, it was a civil offense, however she insisted that it is a criminal offense. I didn't want to argue back since they are going to take care of my application while I was positive that they were wrong.

    I would like to cite the Immigration Nationality Act section or any other legal document that explicitly expounds overstay visas are NOT criminal offenses in my application. So far I could NOT find any, could you help me finding it please?
    SEMPER VIPER / Army Strong!

  3. #3
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by davdah:
    One point worth mentioning is the fact that immigration falls under administrative law and not criminal. </div></BLOCKQUOTE>

    Thanks davdah, I'd like to substantiate the claim on paper though, I don't know what kind of people I am dealing with here.
    SEMPER VIPER / Army Strong!

  4. #4
    Hey Bushmaster, try this. I posted it in another thread:

    http://www.cairco.org/legal/legal.html

    "Under the Act, "illegal alien" may mean an alien who has illegally entered the country, which is a criminal offense under 1325, or an alien who legally entered but is illegally present in the United States, which may be only a civil violation."

    Thus, a definite legal distinction exists between a) evidence that a person is in the U.S. illegally, which may not have been caused by illegal entry - which is a civil violation, 2) evidence that the person has entered the U.S. illegally, which is a criminal violation"
    "What you see in the photograph isn't what you saw at the time. The real skill of photography is organized visual lying."

  5. #5
    You were not arrested for a crime, but you did commit a criminal offense. It is a crime to comit fraud at entry to the U.S. You lied to the legacy INS Immigration Inspector at a Port-of-Entry about your intentions or you entered without inspection. Both can be charged as either misdemeanors or felonies.

    See 8 USC 1325(a) and 18 USC 1001.

  6. #6
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by federale86:
    You were not arrested for a crime, but you did commit a criminal offense. It is a crime to comit fraud at entry to the U.S. You lied to the legacy INS Immigration Inspector at a Port-of-Entry about your intentions or you entered without inspection. Both can be charged as either misdemeanors or felonies.

    See 8 USC 1325(a) and 18 USC 1001. </div></BLOCKQUOTE>

    Thanks for your response, but no, I did enter the United States at a place designated by immigration officers, I did NOT elude examination or inspection by immigration officers, nor I obtained entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact. Section 1325 doesn't apply to me, hence I wasn't tried, charged and sentenced for it.

    I went through removal proceedings from 2001 to 2003, removal proceedings are civil proceedings, where people are charged with immigration violations. The one possible penalty for these violations is being sent back, assuming the individual is NOT eligible for relief from removal and all appeals have been exhausted. An Immigration Judge cannot sentence one to prison! I am sure I would have been charged accordingly if those sections of the USC were violated before I was found eligible for and given relief from removal. INS never argued intentions either.
    SEMPER VIPER / Army Strong!

  7. #7
    If you applied for admission and were admitted then you made false statements to an Immigration Inspector. You committed the crime, whether or not you were charged. Most crimes uncovered by the legacy INS or ICE/CBP are not criminally prosecuted, but removal proceedings are used instead. However, the crime was committed, like it or not. US Attorney's Offices have wide lattitude not to charge crimes.

  8. #8
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by federale86:
    If you applied for admission and were admitted then you made false statements to an Immigration Inspector. </div></BLOCKQUOTE>

    Provided IF I admittedly had the intention to stay out of status in the United States, which I didn't. Could you prove that I did? That is the section you have suggested requires. So, to wrap it up again, I didn't make any false statements to any federal officer which I tried to make clear in my previous post, don't know how you missed that. Who carries the burden of proof? There are so many immigrants fall out of status due to different reasons. The agency knows this. Removal proceedings are not handled by the agency but a different office of the DOJ. And yet again, INA has provisions regarding the relief that one can obtain from these proceedings, provided there are no criminal issues or background.

    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content"> You committed the crime, whether or not you were charged. Most crimes uncovered by the legacy INS or ICE/CBP are not criminally prosecuted, but removal proceedings are used instead. However, the crime was committed, like it or not. US Attorney's Offices have wide lattitude not to charge crimes. </div></BLOCKQUOTE>

    It seems like you are of the opinion that all immigration violations are crimes, however, there are no statutes in INA that say specific actions that are not crimes, INA statutes outline specific actions that ARE crimes. You simply trying to fit this mentioned case to a certain statute, in doing so, you are accusing the agency and EOIR not doing their job properly. If you could please show the proper statute outlining this as a crime, it would help, but all I am seeing is shooting in the dark with an anti-immigrant attitude (considering your web-wide posts. Thanks for your contribution. That will be all. My application has been submitted.
    SEMPER VIPER / Army Strong!

  9. #9
    Bushmaster Appears To Be an individual Of Morals, Values, Ethics, Goodness! These Complications Should Be removed Within USA! Serves Within Our Armed Forces, Gave Up citizenship Afar To serve This Country!

    I Am Not LAW! I Am Right and Wrong!!!
    USC and Legal, Honest Immigrant Alike Must Fight Against Those That Deceive and Disrupt A Place Of Desirability! All Are Victims of Fraud, Both USC and Honest Immigrant Alike! The bad can and does make it more difficult for the good! Be careful who y

  10. #10
    Sec. 237 1/


    (a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

    (C) Violated nonimmigrant status or condition of entry.-



    (1) Inadmissible at time of entry or of adjustment of status or violates status.-



    (i) Nonimmigrant status violators.-Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248 , or to comply with the conditions of any such status, is deportable.



    TITLE 8 &gt; CHAPTER 12 &gt; SUBCHAPTER II &gt; Part IV &gt; 1227Prev | Next 1227. Deportable aliens
    How Current is This? (a) Classes of deportable aliens
    Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
    (1) Inadmissible at time of entry or of adjustment of status or violates status
    (A) Inadmissible aliens
    Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.
    (B) Present in violation of law
    Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201 (i) of this title, is deportable.
    (C) Violated nonimmigrant status or condition of entry
    (i) Nonimmigrant status violators Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 1258 of this title, or to comply with the conditions of any such status, is deportable.
    (ii) Violators of conditions of entry Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 1182 (g) of this title is deportable.

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