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Thread: Section 212(a)(9) Aliens Previously Removed - ???

  1. #1
    The following is a real immigration case currently in process. The case involves a US born Citizen (USC) petitioning for a K3 Visa for a Mexican alien spouse who is not exempt from neither inadmissibility nor the 3/10 bar. This case has some rather unique parts to it and to the best of my knowledge, no other case exists which is similar to this case that the USCIS (and former INS) has published for public viewing and or discussion. The petitioner poses an interesting question regarding the application of section 212(a)(9) of the ACT, in particular as relevant to their case.

    First the Facts:

    Petitioner is a US born Citizen.
    Male petitioner is VERY STABLE with no financial guideline issues of any concern.
    Female alien applicant was originally admitted to the US "LEGALLY" for the first and only time in 1999 on a K1 Visa.
    Alien had never been in the US prior to her LEGAL admittance in 1999.
    The legal US marriage between the petitioner and alien took place within the 90 day period of the alien's original admittance to the US as per the condition of the K1 which was dated on the I-94.
    Married Couple have 2 biological children as a result of their 9 year relationship and no other known children separate from their relationship (One child is already recognized as a USC); one USC daughter, 7 years old, who is currently residing with the petitioner (father) in order to have begun formal education in the states, (completed full year of the first grade in the US) and one son who is 2 1/2 staying with alien mother in Mexico (son to be issued US passport on entry to US as birth right.
    Alien has never sought or been employed in the US (NO NEED for additional income).
    The petitioner and alien as a newly married couple were unaware of the I-485 AOS time limit being another condition of the alien's K1 Visa. The K1 Visa condition to file an I-485 within 90 days of admittance is still not widely known and or understood among most, even among the AILA as discovered when this case was presented to the Seattle Chapter. The couple unknowingly and unintentionally violated the additional condition of the K1 Visa by failing to file the I-485 in time and then the alien proceeded to "illegally" remain present in the US for more than one year, seeking legal advice and researching options for a legal solution that would keep the family together in the US, avoiding any further separations and without risking alien wife's removal, or recorded violations of immigration law.
    Post 9-11 (Feb. 2002), with having found any clear and risk free legal option for adjusting alien's status to permanent resident from unlawfully present, and allowing the alien to remain in the US, the married couple voluntarily departed the US on alien's own accord (not a court provided voluntary departure) abandoning alien's unlawful status, believing after being informed by several sources that US immigration law offers little flexibility or forgiveness to an alien who has failed to continuously maintain lawful status since entry into the United States, and an alien is technically ineligible for adjustment of status while unlawfully present in the US.
    The petitioner and alien then proceeded to file an I-130 and then later an I-129F for a K3 Visa to process abroad in alien's home country (Mexico), believing this was their only safe solution to correct the alien's illegal status in order to obtain legal permanent residence for the alien to reside and live legally as any normal family in the US.
    Petitioner and daughter currently reside in the US and are separated from the alien and son, for over two years now.

    Additional Components:

    Married Couple had been "unofficially" informed by various employees of the former INS and various immigration attorneys that the alien was subject to immediate removal proceedings (possible deportation) and should the USCIS (INS) receive their I-485 while alien was "illegally present" in the US after the I-94 expiration date, removal proceedings could be the end result of the application for AOS, once the alien's unlawful presence is discovered and then of record.
    Nevertheless, without any official knowledge of the INS/USCIS of alien's status, at no time had the alien's unlawful presence resulted in any legal process nor was there ever any legal violation on record with the USCIS (INS), nor by any law-enforcing authority of the US.

    The Question:

    As per FRC 66 FR 42587 (Doc. FR 45-01) as published on August 14th 2001; the following is in regard to the LIFE ACT of 2000 in it's creation of the K-3/K-4 classification and how CFR 8 section 212 applies to a K-3 Visa applicant.

    According to the aforementioned amending interim rule of the LIFE ACT 2 (C) of Aug. 14th 2001; a K-3 Visa applicant may be inadmissible as per CFR 8 ACT section 212, as per subsection (a) paragraph (9) subparagraph (B). The interim rule in question is written as follows:

    "Applicants for the new K-3/K-4 classification are subject to section 212 (a) (9) (B) of the Act. LIFE did not exempt aliens applying for the new K nonimmigrant classification from the 3- and 10-year bars of section 212 (a) (9) (B) of the Act, as it did for the other new visa category, the V classification, that LIFE created at LIFE section 1102 (b)."

    When is an applicant alien for a non-immigrant (specifically a K-3 Visa applicant) inadmissible and therefore subject to actually being barred for 3/10 year ACCORDING to CFR 8 section 212(a)(9)(B) of the ACT?

    Section 212(a)(9) is written as follows:

     Section 212; GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY.

     Subsection (a); Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following "PARAGRAPHS" are ineligible to receive visas and ineligible to be admitted to the United States:

    " "PARAGRAPH" (9); ALIENS PREVIOUSLY Removed.-

    " Subparagraph (B); ALIENS UNLAWFULLY PRESENT.-

    My wife voluntarily departed the U.S. on her own accord in February of 2002 without ever having received any "notice to appear," and or without ever having had any referral made for her removal, nor having ever had any order of removal, or having never had any notice or actual commencement of any legal process, nor was there ever any legal proceedings considered as a matter of record to her unknown status by the INS/USCIS, not any record of unlawful presence was ever made and or considered by the service, IJ and or by any authority of the U.S.

    According to the USCIS as per the glossary found on their official web site online; to be removed as in past tense, would require the expulsion of an alien from the United States. This expulsion may be based on grounds of inadmissibility or deportability.

    I believe that the laws in section 212 of the ACT as all CFRs were intended to be read and applied in syntax (the specific order that they appear in). As such, it is my belief that my wife should not be considered "inadmissible," nor barred for any amount of time from entry to the U.S. to rejoin me (her husband) and our 2 children (all of us being natural U.S. Citizens). According to the law, my wife is in all technical senses and in all practical terms "admissible," and not "inadmissible," as per section 212(a)(9) where by my wife cannot be described or classified as being an alien who was "Previously Removed," as defined by the USCIS.

    By all other standards of the law, my wife is clearly admissible (otherwise admissible); however since I began my research and in discussion with others; many believe that her admissibility will not be clear to the CO, during the interview, and most certainly the CO will adjudicate my wife as inadmissible and barred for 10 years. This will force my family to remain separated, while we await a waiver which at the US Consulate in CJ Mexico, the I-601 will need to be forwarded to their district director (which will be someone new starting 3 days after our interview as the post is currently vacant). CJ waivers have a track record of being district with a HIGH approval rating. However in my experience, CJ takes MUCH longer than they report as approximate time tables for anything currently 3-4 months I've heard with 9 months being reported - which could easily mean a year or more!

    I am looking, once and for all, for some finality to our case with no more delays to my family's reunion here in the US, and be able to conclude our efforts in rectifying our past misunderstandings of the many complex immigration laws. To conclude this, I must be able to quickly and clearly provide undeniable and logical evidence to the Consular Officer that my wife IS NOT considered to be "inadmissible," AS PER the written laws of section 212(a)(9) leaving absolutely no doubts in the mind of the CO that my wife is excludible from the 3/10 year bar. This conclusion would finally reunite our family and we could at last, file a "timely" I-485 AOS, which is already prepared to be filed this time as we NOW ARE CLEAR ON THIS.

    First, can anyone point to any BIA decision, Administrative decision, and or any official "MEMO" on record that offers definitive proof of section 212(a)(9) applicability to our case with a similar case in which there were no other immigration or legal violations involved nor considered???

    If not, what do I do?

    - besides present the CO with a copy of section 212(a)(9) and explain my position which even if it is found to be logical to the CO, without evidence, any effort may be rendered useless and section 212(a)(9) will keep our family separated for even longer than the years apart already spent on our own decision to rectify the once seemingly simple mistake.

  2. #2
    The following is a real immigration case currently in process. The case involves a US born Citizen (USC) petitioning for a K3 Visa for a Mexican alien spouse who is not exempt from neither inadmissibility nor the 3/10 bar. This case has some rather unique parts to it and to the best of my knowledge, no other case exists which is similar to this case that the USCIS (and former INS) has published for public viewing and or discussion. The petitioner poses an interesting question regarding the application of section 212(a)(9) of the ACT, in particular as relevant to their case.

    First the Facts:

    Petitioner is a US born Citizen.
    Male petitioner is VERY STABLE with no financial guideline issues of any concern.
    Female alien applicant was originally admitted to the US "LEGALLY" for the first and only time in 1999 on a K1 Visa.
    Alien had never been in the US prior to her LEGAL admittance in 1999.
    The legal US marriage between the petitioner and alien took place within the 90 day period of the alien's original admittance to the US as per the condition of the K1 which was dated on the I-94.
    Married Couple have 2 biological children as a result of their 9 year relationship and no other known children separate from their relationship (One child is already recognized as a USC); one USC daughter, 7 years old, who is currently residing with the petitioner (father) in order to have begun formal education in the states, (completed full year of the first grade in the US) and one son who is 2 1/2 staying with alien mother in Mexico (son to be issued US passport on entry to US as birth right.
    Alien has never sought or been employed in the US (NO NEED for additional income).
    The petitioner and alien as a newly married couple were unaware of the I-485 AOS time limit being another condition of the alien's K1 Visa. The K1 Visa condition to file an I-485 within 90 days of admittance is still not widely known and or understood among most, even among the AILA as discovered when this case was presented to the Seattle Chapter. The couple unknowingly and unintentionally violated the additional condition of the K1 Visa by failing to file the I-485 in time and then the alien proceeded to "illegally" remain present in the US for more than one year, seeking legal advice and researching options for a legal solution that would keep the family together in the US, avoiding any further separations and without risking alien wife's removal, or recorded violations of immigration law.
    Post 9-11 (Feb. 2002), with having found any clear and risk free legal option for adjusting alien's status to permanent resident from unlawfully present, and allowing the alien to remain in the US, the married couple voluntarily departed the US on alien's own accord (not a court provided voluntary departure) abandoning alien's unlawful status, believing after being informed by several sources that US immigration law offers little flexibility or forgiveness to an alien who has failed to continuously maintain lawful status since entry into the United States, and an alien is technically ineligible for adjustment of status while unlawfully present in the US.
    The petitioner and alien then proceeded to file an I-130 and then later an I-129F for a K3 Visa to process abroad in alien's home country (Mexico), believing this was their only safe solution to correct the alien's illegal status in order to obtain legal permanent residence for the alien to reside and live legally as any normal family in the US.
    Petitioner and daughter currently reside in the US and are separated from the alien and son, for over two years now.

    Additional Components:

    Married Couple had been "unofficially" informed by various employees of the former INS and various immigration attorneys that the alien was subject to immediate removal proceedings (possible deportation) and should the USCIS (INS) receive their I-485 while alien was "illegally present" in the US after the I-94 expiration date, removal proceedings could be the end result of the application for AOS, once the alien's unlawful presence is discovered and then of record.
    Nevertheless, without any official knowledge of the INS/USCIS of alien's status, at no time had the alien's unlawful presence resulted in any legal process nor was there ever any legal violation on record with the USCIS (INS), nor by any law-enforcing authority of the US.

    The Question:

    As per FRC 66 FR 42587 (Doc. FR 45-01) as published on August 14th 2001; the following is in regard to the LIFE ACT of 2000 in it's creation of the K-3/K-4 classification and how CFR 8 section 212 applies to a K-3 Visa applicant.

    According to the aforementioned amending interim rule of the LIFE ACT 2 (C) of Aug. 14th 2001; a K-3 Visa applicant may be inadmissible as per CFR 8 ACT section 212, as per subsection (a) paragraph (9) subparagraph (B). The interim rule in question is written as follows:

    "Applicants for the new K-3/K-4 classification are subject to section 212 (a) (9) (B) of the Act. LIFE did not exempt aliens applying for the new K nonimmigrant classification from the 3- and 10-year bars of section 212 (a) (9) (B) of the Act, as it did for the other new visa category, the V classification, that LIFE created at LIFE section 1102 (b)."

    When is an applicant alien for a non-immigrant (specifically a K-3 Visa applicant) inadmissible and therefore subject to actually being barred for 3/10 year ACCORDING to CFR 8 section 212(a)(9)(B) of the ACT?

    Section 212(a)(9) is written as follows:

     Section 212; GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY.

     Subsection (a); Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following "PARAGRAPHS" are ineligible to receive visas and ineligible to be admitted to the United States:

    " "PARAGRAPH" (9); ALIENS PREVIOUSLY Removed.-

    " Subparagraph (B); ALIENS UNLAWFULLY PRESENT.-

    My wife voluntarily departed the U.S. on her own accord in February of 2002 without ever having received any "notice to appear," and or without ever having had any referral made for her removal, nor having ever had any order of removal, or having never had any notice or actual commencement of any legal process, nor was there ever any legal proceedings considered as a matter of record to her unknown status by the INS/USCIS, not any record of unlawful presence was ever made and or considered by the service, IJ and or by any authority of the U.S.

    According to the USCIS as per the glossary found on their official web site online; to be removed as in past tense, would require the expulsion of an alien from the United States. This expulsion may be based on grounds of inadmissibility or deportability.

    I believe that the laws in section 212 of the ACT as all CFRs were intended to be read and applied in syntax (the specific order that they appear in). As such, it is my belief that my wife should not be considered "inadmissible," nor barred for any amount of time from entry to the U.S. to rejoin me (her husband) and our 2 children (all of us being natural U.S. Citizens). According to the law, my wife is in all technical senses and in all practical terms "admissible," and not "inadmissible," as per section 212(a)(9) where by my wife cannot be described or classified as being an alien who was "Previously Removed," as defined by the USCIS.

    By all other standards of the law, my wife is clearly admissible (otherwise admissible); however since I began my research and in discussion with others; many believe that her admissibility will not be clear to the CO, during the interview, and most certainly the CO will adjudicate my wife as inadmissible and barred for 10 years. This will force my family to remain separated, while we await a waiver which at the US Consulate in CJ Mexico, the I-601 will need to be forwarded to their district director (which will be someone new starting 3 days after our interview as the post is currently vacant). CJ waivers have a track record of being district with a HIGH approval rating. However in my experience, CJ takes MUCH longer than they report as approximate time tables for anything currently 3-4 months I've heard with 9 months being reported - which could easily mean a year or more!

    I am looking, once and for all, for some finality to our case with no more delays to my family's reunion here in the US, and be able to conclude our efforts in rectifying our past misunderstandings of the many complex immigration laws. To conclude this, I must be able to quickly and clearly provide undeniable and logical evidence to the Consular Officer that my wife IS NOT considered to be "inadmissible," AS PER the written laws of section 212(a)(9) leaving absolutely no doubts in the mind of the CO that my wife is excludible from the 3/10 year bar. This conclusion would finally reunite our family and we could at last, file a "timely" I-485 AOS, which is already prepared to be filed this time as we NOW ARE CLEAR ON THIS.

    First, can anyone point to any BIA decision, Administrative decision, and or any official "MEMO" on record that offers definitive proof of section 212(a)(9) applicability to our case with a similar case in which there were no other immigration or legal violations involved nor considered???

    If not, what do I do?

    - besides present the CO with a copy of section 212(a)(9) and explain my position which even if it is found to be logical to the CO, without evidence, any effort may be rendered useless and section 212(a)(9) will keep our family separated for even longer than the years apart already spent on our own decision to rectify the once seemingly simple mistake.

  3. #3
    sedwards1972:

    Majority of the DOS and USICS employees are not much qualified in the line of Immigration Laws of the United States. Even though you must be working for US Agencies for long time but they only do the Clerical Jobs.
    To under stand the law one has to read all the section of the laws link with another section of the law as well as the Foreign Affairs Manual, which governs the Consular Section, I am sure that many of the employees still do not refer to INA, CFR, so on.
    Once you are apponinted as CO, they think they have a right to grant or denial of any applicant.
    See for example: sec 214(b) Co refuse the visa applicant under this section of the law good for nothing.
    When she received her K-1 visa, did she received any instruction to that effect, from the Consular Section, what is the next step, after she get married within 90 day of her arrival in to the United States.
    In Fam they have complete instructions to be hand out to the applicants, and explain the next step.
    What I think they havemade the isse of of this case and they are taking advantage out of this law which is also not clear in it sence.
    Whe you can adjudicate the case of Citizenship for unawareness this is also come in the same line in my opinion.
    I think you should seek the assistance from one of the best law firm I will suggest that you talk to Shutermann a law firm at LA, CA.
    Best of luck.

  4. #4
    sedwards,

    Reading "9 FAM 40.92 Notes" might lend insight into consular interpretation of "Unlawful Presence" as it applies to inadmissibility.
    The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.

  5. #5
    Section 212:

    " ... (9) ALIENS PREVISOUSLY Removed.- ... " Does NOT apply to the whole Section (9), only to sub-paragraph (A):

    " ... (A) Certain aliens previously removed.- ... "


    As you noticed the sub-paragraph (B) is also capitalized:

    " ... (B) ALIENS UNLAWFULLY PRESENT.- ... " THIS is the sub-paragraph that applies to aliens who where unlawfully present for 6 months to over a year. THIS is the sub-paragraph that applies to your wife after she departed the U.S. on her own without any CIS involvement. " ... ALIENS PREVISOUSLY Removed.- ... " does NOT apply to your wife's situation.

    The law is quite clear - You overstay authorized stay for over 1 year - You become inadmissible for 10 years upon leaving the country. ("removed", departed on your own - does NOT matter) Period. Don't try to read into the law too much. Your wife IS inadmissible for 10 years due to her overstay for over 1 year and leaving the country unless a Waiver of Inadmissibility (form I-601) is approved on her behalf.

    Cheers.

  6. #6
    Facts:
    A K-1 does not have to file an I-485 within 90 days. The K-1 has to marry the USC petitioner within 90 days of entry to the US. See 8 CFR 245.1(c)(6). An alien relative (I-130) petition and a new medical exam are required if AOS is not filed within one year. Point out the regs if you disagree.

    Additional Components:
    If it wasn't in writing, it never happened.

    The Question:
    Your reading of 212(a)(9) is wrong. You have to go back and read the original law, Pub. L. 104-208 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, where the full title of this section is:
    SEC. 301. TREATING PERSONS PRESENT IN THE UNITED STATES WITHOUT AUTHORIZATION AS NOT ADMITTED.
    (b) INADMISSIBILITY OF ALIENS PREVIOUSLY REMOVED AND UNLAWFULLY PRESENT.-
    (B) ALIENS UNLAWFULLY PRESENT.-

    Your wife's NIV status ended 90 days after her admission. Unlawful presence began to accrue after that point. Your wife departed the US with more than one year of unlawful presence. INA212(a)(9)(B)(II) applies- 10 year bar to admission. Wait 10 years or file an I-601 waiver to overcome the bar. Read Matter of Anderson 16 I&N 596 (BIA 1978) and Matter of Cervantes-Gonza***, Int. Dec. 3380 (BIA 1999) for factors of extreme hardship.

  7. #7
    I am glad to get these replies so as I can look into them to hopefully find something more useful than what I have. Also, no offence, however I will look deep into the laws as it was our confusion of these laws that has led to our current situation. I also know that the law is what will be on that offer's mind during the interview, and if the officer elects not to apply their own discretion in the interest of family unity and consider our efforts and sacrifices already made, then I must be prepared to challange an unfavorable decision enought to force them to request immediate review by their chief officer; to have something legal and significant to our situation that could give the officer legal discrecionary latitude to our favor. Anyway, even if futile - I am not going to go down to this LONG awaited interview to just lay down.

    I was going to look to see when the revision was done Section 301, but I didn't go much further than thinking it for two reasons.

    One - as per the waiver I-601 - 301 isn't a reason for inadmissibility that is listed. Second - Again I must question the syntax of the law, and part (b) falls under SEC. 301. which reads TREATING PERSONS PRESENT IN THE UNITED STATES WITHOUT AUTHORIZATION AS NOT ADMITTED. She is no longer in the US. Also, the revision is for PROCEDURES FOR REMOVAL OF ALIENS. Again she isn't in the US. And lastly, the "unlawfully present" can be read as the alien being "BOTH" PREVIOUSLY REMOVED AND UNLAWFULLY PRESENT. Back to the beginning, she wasn't removed.

    In studing these laws - I have found SO MANY different interpretations, and in most - the interpreter is looking deeply into the laws to reinforce their position. Which, I have also seen, reinterpretations on many of the same laws - which would seem to reason, that my interpretation could be accurate, if not now, at some point. Anyway, if you guys could give me more feedback on my above comments regarding 301, I'de appeciate it, and meanwhile, I'll begin to look into some of the above suggestions.

    (1) IN GENERAL.-Section 212(a) (8 U.S.C. 1182(a)) is amended by redesignating paragraph (9) as paragraph (10) and by inserting after paragraph (8) the following new paragraph:


    "(9) ALIENS PREVIOUSLY REMOVED.-

  8. #8
    Another, thing - has anyone else noticed how effective the USCIS (US immigration) at SLOWING DOWN the LEGAL immigration process, and the flow (most commonly known as the "backlog") of LEGAL immigrats; however the very same USCIS "****s" at SLOWING DOWN the ILLEGAL immigration process, and the FLOW of ILLEGAL immigrants over our porous borders???

    Maybe, I'm the only one to have noticed this as well.

  9. #9
    A K-1 does not have to file an I-485 within 90 days. The K-1 has to marry the USC petitioner within 90 days of entry to the US. See 8 CFR 245.1(c)(6). An alien relative (I-130) petition and a new medical exam are required if AOS is not filed within one year. Point out the regs if you disagree.

    This is what started it all. I have NEVER found ANY diffinitive proof one way or another - that is why we left, as we could only find regs on the I-94. There are many references to the K-1 90 days conditions, within the many different sections of immigration law. Everywhere there is a reference it usally tags the "then can file for an adjustment of status after - Must marry petitioner within 90 days.

    So if it is true, that we could have remained in the US as the some have said all along, then she wasn't "unlawfully present." This an example of the many ambigious parts of the law that in great part has caused so much of our confustion. I get one opinion to the next - many different ones. Even among the USCIS, and in the end we made a decision to do what seemed most logical to us - with the least amount of risk of getting into even deeper trouble. We have attempted to rectify this on our own accord. I guess the USCIS would have felt better if they could have made the decision to punish us verse us doing it on our own. Also, WHO did we hurt - besides us??? I paid over $17,000 in Federal Taxes last year alone. My wife has always been on my tax returns - So really - while some of her extended family members come and go over our borders with no checks or processes endured, taking advantage of our medical, educational and other services that I pay for - My wife, kids and I are in a "forever" line because we didn't know what to do when we first discovered there to have been a missed timeline, that STILL, many today aren't so sure of its actual importance anyway.

  10. #10
    sedwards,

    The reality is that although there is no legal requirement to file AOS within a specified amount of time, most going through immigration can readily see that to depart the USA prior to doing so, acquiring permanent status and after accruing "out of status" time beyond 180 days would incur a bar.

    Either you were misinformed by a former attorney, immigration workers, or you misunderstood the regulations as you read them. Short of engaging a really skilled immigration expert to fashion a hardship case, I sense challenging the law as it is written, you may be crying over spilled milk,
    The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.

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