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Thread: reentry after deportation/removal, lifetime ban or not? help?

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    reentry after deportation/removal, lifetime ban or not? help?

    I'm kinda confused and hope someone can clarify this.

    If a person is deported/removed, then reenters without inspection, is that not a life time ban?

    212 a 9

    C) Aliens unlawfully present after previous immigration violations.-


    (i) In general.-Any alien who-


    (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or


    (II) has been ordered removed under section 235(b)(1) , section 240 , or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

    I understand c i I and c i II to be independent of each other because of the "or".

    "or any other provision of law": doesn't that basically mean that they don't care why you were deported/removed, only that you were deported/removed?

    So it was my understanding that part one deals with people who EWI more than once. Aggregate period of time meaning the total time her in the states from more than EWI.

    When I say EWI, I don't mean a catch and release, I mean a successful entry without getting caught. I guess an example of this would be someone who EWI'd for 6 months, went back to their home for 6 months, EWI'd again and stayed for 7 months. The total aggregated time would be more than a year.

    But this would not apply to someone who had a successful EWI and never left, 212 a 9 b would apply to them.

    Part two of 212 a 9 c deals with someone who has be deported/removed and enters or even attempts to reenter the United States without being admitted. I understood this to mean that if a person has been deported/ removed for any reason what so ever and after the deportation/removal reenters the country without being admitted (meaning going through a port and being inspected), they are inadmissible.

    212 a 9 c

    (ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's re-embarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, 14a/ 6aa/ the Secretary of Homeland Security has consented to the alien's reapplying for admission.

    This is why that I have been thinking that someone who EWI'd after being deported/removed had a lifetime ban and could not apply for a waiver until after 10 years.

    I'm not trying to act like I'm Mr. know-it-all, I'm just confused. I'm not trying to say I'm right and your wrong to anyone, I just want to understand this.

    Thank you in advance for any help.
    Last edited by lopay; 12-29-2007 at 06:25 AM.

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    Quote Originally Posted by lopay View Post
    I'm kinda confused and hope someone can clarify this.

    If a person is deported/removed, then reenters without inspection, is that not a life time ban?
    Yes, it is. But that deportation has to be an actual deportation or removal. If someone is entering the U.S. and is caught and released and then re-enters EWI that is not 9(c) because a catch and release is NOT a removal/deportation. There is some speculation about whether a person who attempts to enter the U.S. at a POE and is "denied" entry and has to be flown to their country is considered "removed" for this purpose. Like if you fly into the U.S. from India, are denied entry for whatever reason, sent back to India, then you fly to Canada two weeks later and then sneak across the border, that person might be 9(c), because what happened at the airport I think might be considered a removal even though they never made it out of the airport. Confusing....

    Quote Originally Posted by lopay View Post
    212 a 9

    C) Aliens unlawfully present after previous immigration violations.-


    (i) In general.-Any alien who-


    (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or


    (II) has been ordered removed under section 235(b)(1) , section 240 , or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

    I understand c i I and c i II to be independent of each other because of the "or".
    Yes, two different situations. One is: John EWI in 1999 and stayed until 2001. Then he left for a month and EWI again later in 2001 and stayed until now. That's 9(c) under the (I) part.

    Quote Originally Posted by lopay View Post

    "or any other provision of law": doesn't that basically mean that they don't care why you were deported/removed, only that you were deported/removed?
    Definitely doesn't matter why a person was deported/removed. But this doesn't apply to someone who voluntarily departed for example, it refers to formal deportation.

    Quote Originally Posted by lopay View Post
    So it was my understanding that part one deals with people who EWI more than once. Aggregate period of time meaning the total time her in the states from more than EWI.

    When I say EWI, I don't mean a catch and release, I mean a successful entry without getting caught. I guess an example of this would be someone who EWI'd for 6 months, went back to their home for 6 months, EWI'd again and stayed for 7 months. The total aggregated time would be more than a year.
    It's not as simple as EWI more than once. The scenario you just described. Let's say, John EWI Jan. 1 2006 and left July 1, 2006 (6 months unlawful presence), then leaves the U.S. on his own accord and then EWI again on Aug. 1... at this time he will not be 9(c) ineligible as long as he remains in the U.S., even if it's for 5 years, or as long as he doesn't exit and EWI again to be more precise. So, let's say John is in the U.S. from Aug. 1 until March 2007, then he leaves AGAIN (second exit after a period of 6 months unlawful presence plus ANOTHER 7 months unlawful presence) and then he EWIs a third time. Now on that third EWI, he is 9(c), because he previously had 13 months say of unlawful presence. So, you have to count up the unlawful presence that is accumulated, not just the EWIs. Does that make sense? Theoretically a person could EWI, stay a week, leave, EWI, stay a week, and on and on for let's say 20 weeks, as long as their total aggregate illegal presence in the U.S. was less than one year before their final EWI, they would be okay for the waiver.

    Quote Originally Posted by lopay View Post
    But this would not apply to someone who had a successful EWI and never left, 212 a 9 b would apply to them.

    Part two of 212 a 9 c deals with someone who has be deported/removed and enters or even attempts to reenter the United States without being admitted. I understood this to mean that if a person has been deported/ removed for any reason what so ever and after the deportation/removal reenters the country without being admitted (meaning going through a port and being inspected), they are inadmissible.

    212 a 9 c

    (ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's re-embarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, 14a/ 6aa/ the Secretary of Homeland Security has consented to the alien's reapplying for admission.

    This is why that I have been thinking that someone who EWI'd after being deported/removed had a lifetime ban and could not apply for a waiver until after 10 years.
    Yes, is someone questioning this? Yes, that's correct, if a person is deported/removed (NOT voluntarily departed though - maybe that is the confusion) and then EWI again they will have a lifetime bar with no waiver for 10 years.

    Quote Originally Posted by lopay View Post
    I'm not trying to act like I'm Mr. know-it-all, I'm just confused. I'm not trying to say I'm right and your wrong to anyone, I just want to understand this.

    Thank you in advance for any help.

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    Quote Originally Posted by laurafern11 View Post
    Yes, it is. But that deportation has to be an actual deportation or removal. If someone is entering the U.S. and is caught and released and then re-enters EWI that is not 9(c) because a catch and release is NOT a removal/deportation. There is some speculation about whether a person who attempts to enter the U.S. at a POE and is "denied" entry and has to be flown to their country is considered "removed" for this purpose. Like if you fly into the U.S. from India, are denied entry for whatever reason, sent back to India, then you fly to Canada two weeks later and then sneak across the border, that person might be 9(c), because what happened at the airport I think might be considered a removal even though they never made it out of the airport. Confusing....
    I'm working right now, but I have read some information about this and will post it as soon as I can. I think that is a removal also, but I'll post what all I have read later.


    Quote Originally Posted by laurafern11 View Post
    It's not as simple as EWI more than once. The scenario you just described. Let's say, John EWI Jan. 1 2006 and left July 1, 2006 (6 months unlawful presence), then leaves the U.S. on his own accord and then EWI again on Aug. 1... at this time he will not be 9(c) ineligible as long as he remains in the U.S., even if it's for 5 years, or as long as he doesn't exit and EWI again to be more precise. So, let's say John is in the U.S. from Aug. 1 until March 2007, then he leaves AGAIN (second exit after a period of 6 months unlawful presence plus ANOTHER 7 months unlawful presence) and then he EWIs a third time. Now on that third EWI, he is 9(c), because he previously had 13 months say of unlawful presence. So, you have to count up the unlawful presence that is accumulated, not just the EWIs. Does that make sense? Theoretically a person could EWI, stay a week, leave, EWI, stay a week, and on and on for let's say 20 weeks, as long as their total aggregate illegal presence in the U.S. was less than one year before their final EWI, they would be okay for the waiver.
    Yea that makes sense. I guess they don't count the time from the second EWI until he has left. I think it's kinda odd because it would seem that they could say the time is from two different periods of being here, fulfilling the "aggregate". I'm not questioning what you are saying, I just find it odd, but then again, I find everything about immigration "odd".



    Quote Originally Posted by laurafern11 View Post
    Yes, is someone questioning this? Yes, that's correct, if a person is deported/removed (NOT voluntarily departed though - maybe that is the confusion) and then EWI again they will have a lifetime bar with no waiver for 10 years.
    There have been some threads where someone didn't know if there husband/wife had been deported.

    Misantito's case

    Mgarcia's case

    MiSantito had asked what would happen if her husband’s case actually ended up being a deportation. I told her that would have been a lifetime ban because it would be a 212 a 9 c ii. I REALLY don't think that he was deported at all because it sounds like a textbook case of catch and release, but she had asked IF it were to turn out to be a deportation, so......

    There is something really major missing with Mgarcia's case. She has an approved I-212. I for one really don't think that they would approve an I-212 if a deportation/removal never happened. One of the first things they have to check is if the I-212 is even needed by checking the person’s A-file to be sure that the wavier is even needed. Then the whole process would have to go through, filling out the I-212 application, the HSL letter, ect. My take was that if he had an I-212, it had to mean that he had a deportation/removal. If there is removal, he would have been removed then EWI'd, 212 a 9 c ii.

    But her case is so weird that unless she comes back and explains some things, I don't think anyone here can help her. If everything she says is true, then there must be something REALLY special going on here. One, she is AOS-ing for an EWI, 2 there is a deportation/removal against him and he EWI'd after his removal, it should have been a lifetime ban according to 212 a 9 c ii (but will not know until she responds--- if the deportation/removal happened after he EWI'd then it does not count as 9 c ii- it’s possible that the I-212 could have been for an order to be removed)

    I understand 100% that catch and release does not count as a removal. I have read somewhere that they are starting to expeditiously remove anyone they catch at the border as the law does allow for this, but I do not know how accurate it is, and how much they actually do this. I'll post my sources later. I agree that no one should just think that the catch and release was a removal, although it could be. I think if anyone thinks that they could have been removed, they should send in their fingerprints to the FBI.

    I actually think that anyone who has been in the US at any point should send in their fingerprints to the FBI to know 100% what is on their file. The consulate is going to do, so it can’t hurt to know what they are going to find out. It would also give a person time to challenge anything that is not correct. If we had done this before we went to CDJ with my wife, it would have saved us a lot of trouble.

    Thanks

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    Quote Originally Posted by lopay View Post
    I guess they don't count the time from the second EWI until he has left.
    They DO count the time of illegal presence of the second EWI. That is the determining factor. The issue is not the illegal entry - it's about the accumulated presence unless someone has re-entered illegally after having accumulated 365 days of illegal presence.

    If someone entered illegally on Jan. 1 and left on March 1, he has accumulated 3 months of illegal presence. NO ban. If he re-enters illegally on April 1 and leaves on June 30, he has accumulated an additional three months of illegal presence. Now he has accumulated less than 180 days of illegal presence total. NO Ban. He can go to a visa interview and not face a ban. No need for a waiver. He entered illegally twice - doesn't matter. He did not accumulate illegal presence.

    Same scenario but he stays unti August 1. He now has accumulated more than 180 days of illegal presence. Three year ban.

    Misantito's fiance's case is just like thousands of others. He attempted to enter and was caught. He tried again and he made it. His attempted entry does not impact him. He is only facing a ban because he has accumulated more than 180 days of illegal presence since 2004. The chances that he was deported are slim to none.

    Mgarcia's case is strange - something major is missing from the story since a 212 waiver did not appear to be necessary yet it was submitted and approved. Chances are 99.9% that we do not have all of the details.

    Expedited removal is common. If the border patrol believes that the person did not have an intent to deliberately commit fraud or if the violation is not serious, the person is very often allowed to withdraw their application for admission and depart the United States - this means they are not prohibited from applying for entry in the future. This ususually happens to people passing through a POE with a valid visa, but are found to have lied about their reason for entry i.e. saying they are visiting friends when they really have a USC fiance or spouse. Expedited removal means they are barred from re-entry for a period of five years.

    I actually think that anyone who has been in the US at any point should send in their fingerprints to the FBI to know 100% what is on their file.
    Always a smart thing to do. But even people who EWId and accumulated illegal presence will show a 100% clean record most of the time.

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    With the other cases, I was never implying that they would have received the lifetime ban because of the amount of time here, but because of a deportation.

    Msantito had asked what would happen if her husbands capture at the border ended up being a deportation. If it was a deportation/removal, then he would have a lifetime ban because of 212 a 9 c i II, not i. But that is a HUGE if because as everyone has said, his case sounds like a catch and release and most of the time, catch and release doesn't count as a removal.

    I wonder if Mgarica is going to come back. I'm would really like to know more about her case, and more importantly be sure that no one is giving her family a run for their time or money by promising them things that can never happen.

    And if a person who has been ordered removed/deported is caught at the border and is fingerprinted, they get a lifetime ban, right? 9 c i II says "or attempts to reenter the US without admission".

    So would it be correct to say that if anyone has been removed and EWIs successfully or get caught attempting to EWI, they would have a lifetime ban with hope for a waiver only after 10 years of being outside the US according to 212 a 9 c i II and 9 c i, right?

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    http://www.americanlaw.com/unlawfulmemo3.html

    Section 212(a)(9)(A)(i) of the Act provides that aliens who have been ordered removed from the United States through expedited removal proceedings or removal proceedings initiated on the alien’s arrival in the United States and who have actually been removed (or departed after such an order) are inadmissible for 5 years.

    Section 212(a)(9)(A)(ii) of the Act provides that aliens who have been otherwise ordered removed, ordered deported under sections 242 or 217 of the Act or ordered excluded under section 236 of the Act and who have actually been removed (or departed after such an order) are inadmissible for 10 years. Aliens who have been removed more than once are inadmissible for 20 years

    http://www.americanlaw.com/1996law.html

    Section 301 also creates INA §212(a)(9)(C), which imposes a permanent bar to admission for aliens who were unlawfully present for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted.

    http://www.shusterman.com/245aila2.html

    A reference to "an order of removal" is deemed to include a reference to an "order of exclusion and deportation" or an "order of deportation" INA Section 309(d)(2). Therefore, when section 212(a)(9)(A) refers to departures while an order of removal is outstanding, it probably encompasses departures after exclusion or deportation orders as well.

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    Quote Originally Posted by kitkat1 View Post
    http://www.americanlaw.com/unlawfulmemo3.html

    Section 212(a)(9)(A)(i) of the Act provides that aliens who have been ordered removed from the United States through expedited removal proceedings or removal proceedings initiated on the alien’s arrival in the United States and who have actually been removed (or departed after such an order) are inadmissible for 5 years.

    Section 212(a)(9)(A)(ii) of the Act provides that aliens who have been otherwise ordered removed, ordered deported under sections 242 or 217 of the Act or ordered excluded under section 236 of the Act and who have actually been removed (or departed after such an order) are inadmissible for 10 years. Aliens who have been removed more than once are inadmissible for 20 years

    http://www.americanlaw.com/1996law.html

    Section 301 also creates INA §212(a)(9)(C), which imposes a permanent bar to admission for aliens who were unlawfully present for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted.

    http://www.shusterman.com/245aila2.html

    A reference to "an order of removal" is deemed to include a reference to an "order of exclusion and deportation" or an "order of deportation" INA Section 309(d)(2). Therefore, when section 212(a)(9)(A) refers to departures while an order of removal is outstanding, it probably encompasses departures after exclusion or deportation orders as well.


    Right, that's what I have been saying.

    "or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted."

    Maybe your thinking that I was saying to the other people that their catch and release counted as a removal. In Msantito's case, she asked what would happen if they actually removed her husband when he got caught at the border.

    She said that her husband attempted to enter and was caught. He then tried again and was successful. Her question was about the first time he tried to enter. If he had been removed the first time, his case would read like this:

    2000 (or whenever it was): caught at border and expeditiously removed (this would fulfil the first part of the 9 c i II)
    2001 (or whenever it was): reentered the US without being admitted (this would fulfill the second part of 9 c i II)

    So he would have a lifetime ban because he would have been deported then reentered without having been admitted after his deportation. That's 9 C i II.

    Also the two are independent of each other, I does not rely on II, nor does II rely on I.

    However I am NOT saying that her husband has a lifetime ban because there is no reason to suspect that he was deported when he was caught. I was simply answering her question to what would happen if his first attempt had been a deportation.
    Last edited by lopay; 12-30-2007 at 03:10 AM.

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    Right. But the point is that people who are caught attempting to enter at the border of Mexico are pretty much never official removed or deported. They simply do not have the personnel to do that considering the number of people who EWId in the past. That's how the whole unofficial policy of catch and release started. So it's normally completely safe to assume that a person who was caught at the border was not officially removed or deported and will not be facing a lifetime ban for a subsequent successful entry. That's all we've been trying to say here - especially in regard to misantito's case.

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    Kitkat, I'm sorry if you ever thought I was trying to say other wise.

    I understand 100% that getting caught at the border would count as a deportation or removal and I don't think I have ever said otherwise.

    The only time an attempted entry (meaning they get caught at the border) can affect a person is if that they have been ordered removed before.

    In MSantito's case, I was simply answering a question that she asked; I was never saying that was actually what she was facing.

    I still hold my ground in Mgarcia's case, but you can't prove me wrong until she comes back (just joking by ALL means, it doesn't matter who is right or wrong here, but rather that people get the help the need.)

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    Quote Originally Posted by kitkat1 View Post
    Right. But the point is that people who are caught attempting to enter at the border of Mexico are pretty much never official removed or deported. They simply do not have the personnel to do that considering the number of people who EWId in the past. That's how the whole unofficial policy of catch and release started. So it's normally completely safe to assume that a person who was caught at the border was not officially removed or deported and will not be facing a lifetime ban for a subsequent successful entry. That's all we've been trying to say here - especially in regard to misantito's case.
    The catch & releases can not be considered expedited removal because, as stated, expedited removal results in a 5 year ban. My husband had 3 'catch & releases' and was given a 3 year ban which we successfully got waived (after 2 years!) But they stated that he was only banned for 3 years after entered and staying for 11 months- had his catch & releases really been expedited removals and earned him a 5 year ban, he wouldn't have been told he'd be admissible after 3.......

    I think the 'catch & releases' are actually denials of entry. The denial of entry (evben though technically you are on US soil) doesn't include any sort of removal/ deportation- just a 'no, you may not come in...'
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