Re-entry after divorce

[Deputy Purple 1,294]

Be there at the airport waiting for her, and ready to talk to CBP.

If it was me, I'd probably go so far as to return to China and re-marry her then accompany her back to the US. My 2 reason for this:

1. It would allow me to be with her as she goes through CBP.

2. If CBP is "on the fence" about her entry the fact that you married & with her just might be the determining factors to allow her in to plead her case.

I would follow the recommendation of using a different POE.

[Bobby+Umit 161]

Jim is mostly right in his post, but I do not agree that the divorce would start USCIS to recall the GC, not during the valid period of the GC, that is. The conditional greencard was based on they entered the marriage in good faith, not that the marriage was "still" active.

Everyone else suggesting that the divorce would cause some issue with re-entry on the GC is wrong.

The GC is still valid, and she can return to the US on it. She didn't violate any rules, and the card is good for two years. As long as she returns before that expiration, she is entitled to all the privileges/benefits of a GC holder.

Once she arrives, she can file for removal of conditions on her own, because of the divorce (and that the marriage was entered in good faith). USCIS makes this determination, not CBP. Again, if she has valid entry permits (in this case, the GC), this would not prevent her from re-entry.

Remember - the GC doesn't just "go away" or become "invalid" once the couple divorces. The GC holder has the option to remove conditions immediately after the divorce (not waiting for the 2 yr period to end), or wait till the 2yr mark (90 less that is )

Most lawyers suggest that the GC holder petition to remove conditions as soon as possible after the divorce, to head off any issues. (once you go past the expiration date of the GC, you open a can of worms).

[JimVaPhuong 4,863]

Jim is mostly right in his post, but I do not agree that the divorce would start USCIS to recall the GC, not during the valid period of the GC, that is. The conditional greencard was based on they entered the marriage in good faith, not that the marriage was "still" active.

The permanent resident status is premised on the "condition" that they remain married to the petitioner. They are required to remove that condition after being married to the petitioner for two years by filing a joint petition. The fact that a waiver is required to self-petition indicates that it's an exception to the rule, and not simply another way to get a 10 year green card.

Anyway, as far as USCIS terminating the conditional permanent residency, INA section 216(b):

(b) Termination of Status if Finding that Qualifying Marriage Improper.-

(1) In general.-In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that-

(A) the qualifying marriage-

(i) was entered into for the purpose of procuring an alien's admission as an immigrant, or

(ii) has been judicially annulled or terminated, other than through the death of a spouse; or

(B) a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 204(a) or subsection (d) or (p) of section 214 with respect to the alien; the Attorney General shall so notify the parties involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.

(2) Hearing in removal proceeding.-Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.

As I said, USCIS is compelled to terminate the permanent resident status if they discover the divorce. This doesn't mean the alien will wake up the day after the divorce is final to find ICE standing in their doorway. The notification clause is important, which is why I included paragraph 2. USCIS will send a notice of intent, giving the alien an opportunity to respond with a properly filed I-751 and waiver request. Failing a proper response from the alien, USCIS will terminate the permanent residency and initiate removal proceedings. There's a good chance this sequence of events occurred in the OP's case. I can't think of any other reason why CBP would be so concerned about the divorce decree of a US citizen entering the United States.

By the way, most immigration attorneys are well aware that divorce terminates conditional permanent residence, and that is the reason they recommend filing the I-751 as soon after the divorce as possible.

[Bobby+Umit 161]

The permanent resident status is premised on the "condition" that they remain married to the petitioner. They are required to remove that condition after being married to the petitioner for two years by filing a joint petition. The fact that a waiver is required to self-petition indicates that it's an exception to the rule, and not simply another way to get a 10 year green card.

Anyway, as far as USCIS terminating the conditional permanent residency, INA section 216(b):

As I said, USCIS is compelled to terminate the permanent resident status if they discover the divorce. This doesn't mean the alien will wake up the day after the divorce is final to find ICE standing in their doorway. The notification clause is important, which is why I included paragraph 2. USCIS will send a notice of intent, giving the alien an opportunity to respond with a properly filed I-751 and waiver request. Failing a proper response from the alien, USCIS will terminate the permanent residency and initiate removal proceedings. There's a good chance this sequence of events occurred in the OP's case. I can't think of any other reason why CBP would be so concerned about the divorce decree of a US citizen entering the United States.

By the way, most immigration attorneys are well aware that divorce terminates conditional permanent residence, and that is the reason they recommend filing the I-751 as soon after the divorce as possible.

Your correct - I was trying to make the point that the divorcee has the opportunity to file for that waiver, after divorce. (and that ICE/USCIS won't be there ready to deport the person right after divorce). (I read through you reply to fast I think)

I'm thinking in the "divorced" frame of mind for the marriage status for the conditional greencard.

[JimVaPhuong 4,863]

Your correct - I was trying to make the point that the divorcee has the opportunity to file for that waiver, after divorce. (and that ICE/USCIS won't be there ready to deport the person right after divorce). (I read through you reply to fast I think)

I'm thinking in the "divorced" frame of mind for the marriage status for the conditional greencard.

Yes, but what you said was that the green card is valid for two years, regardless of the divorce.

...

I do not agree that the divorce would start USCIS to recall the GC, not during the valid period of the GC, that is.

...

The GC is still valid, and she can return to the US on it. She didn't violate any rules, and the card is good for two years. As long as she returns before that expiration, she is entitled to all the privileges/benefits of a GC holder.

...

Remember - the GC doesn't just "go away" or become "invalid" once the couple divorces.

The fact is that if USCIS discovers the divorce then the green card does just "go away". USCIS sending a notice of intent is not a friendly invitation to send a petition to USCIS. It's a warning that the basis for your conditional status has ended, and they're going to throw you out of the country very soon unless you do something to prevent it.

Further, CBP does have the authority to determine that a green card is no longer valid. They do this routinely when people remain outside the US for more than a year without a reentry permit. They don't have to consult with USCIS about this. They simply seize the green card, and tell the alien to return to their home country and apply for a returning resident visa. I have little doubt that, in the OP's case, they've determined his ex-wife is no longer a permanent resident. Why else would they subject a US citizen to three hours of secondary inspection over his divorce decree? The divorce decree has no effect on his status whatever, but it has a profound effect on his ex-wife's status. If she attempts to return to the US then I strongly suspect they'll take her green card and send her home.

[gulliver 0]

Jim, you don't think they will parole her in and let her file a I-751 USCIS has sent no notices of anything yet.I don't want her to get sent back that would be very hard for her to understand.Does CBP actual imput divorce decree in the systen or do they forward them to USCIS.I have a feeling they did nothing with the paper work because when i left it was out in the open on a table and the officer went home. Wish I could check I have not called DOS to check still thinking about that one.

Gulliver

[Bobby+Umit 161]

Yes, but what you said was that the green card is valid for two years, regardless of the divorce.

The fact is that if USCIS discovers the divorce then the green card does just "go away". USCIS sending a notice of intent is not a friendly invitation to send a petition to USCIS. It's a warning that the basis for your conditional status has ended, and they're going to throw you out of the country very soon unless you do something to prevent it.

Further, CBP does have the authority to determine that a green card is no longer valid. They do this routinely when people remain outside the US for more than a year without a reentry permit. They don't have to consult with USCIS about this. They simply seize the green card, and tell the alien to return to their home country and apply for a returning resident visa. I have little doubt that, in the OP's case, they've determined his ex-wife is no longer a permanent resident. Why else would they subject a US citizen to three hours of secondary inspection over his divorce decree? The divorce decree has no effect on his status whatever, but it has a profound effect on his ex-wife's status. If she attempts to return to the US then I strongly suspect they'll take her green card and send her home.

Yes - I agree - I made a mistake satying that - again - I was trying to frame my answer in the "divorce" mode, and making it clear USCIS will not come to deport you when they find out of the divorce. Simply applying for the waiver is enough to stop that. And from reading through several divorce cases, and talking to a lawyer about similar issues, the CLPR usually can make it through the process as long as they can prove marriage entered in good faith. Thank you for clearing that up.

Your absolutely right about CBP taking GC's - however, in the context of this OP - the person did not abandon LPR - as my post was referring that.

I have no idea why CBP did that - but the women should still have the opportunity to file for the removal, based on divorce.

As always - in a case like this - an immigration lawyer would be the one to consult.

[gulliver 0]

Ok here is the first reply from my lawyer any thoughts?

She is still allowed to seek a waiver of joint filing of the I-751 if she is divorced from you so it does not bar her from entering the US on her conditional status!

Gulliver

[JimVaPhuong 4,863]

Jim, you don't think they will parole her in and let her file a I-751 USCIS has sent no notices of anything yet.I don't want her to get sent back that would be very hard for her to understand.Does CBP actual imput divorce decree in the systen or do they forward them to USCIS.I have a feeling they did nothing with the paper work because when i left it was out in the open on a table and the officer went home. Wish I could check I have not called DOS to check still thinking about that one.

Gulliver

Honestly, I could only venture a guess. I've spent enough time researching stuff like this that I've gotten a pretty good understanding of at least portions of the immigration law. I'm literally obsessive about learning as much as I can about something before getting involved in it. I hate not knowing the answer to a question.

What I don't have is extensive experience dealing with these things. I have my own experience, and what I've read about other people's cases, on this site and others, but I don't have the experience of an attorney who has handled hundreds of cases. I would be more than a little surprised if your attorney has handled cases previously with the same circumstances.

The one thing that stands out in my mind about your case is the three hour secondary inspection, and CBP's interest in your divorce decree. I understand the law relative to a conditional resident getting divorced before they remove conditions on their permanent resident status, but I have never heard of a case like this before. I'm trying to read between the lines, and figure out why CBP would subject a US citizen to this, and why they would be so interested in your divorce decree. CBP would not normally give a rat's a$$ about a US citizen's divorce, so this MUST have been about your wife's immigration status. I just can't think of any other reason they would do this.

CBP obviously knows you're divorced. When someone is placed in secondary inspection they always keep a record of the session. You said they made a copy of the divorce decree. They wouldn't do this if they didn't plan to keep it. I think it's safe to conclude that they have a permanent record of this.

Does USCIS know about the divorce? Well, maybe and maybe not. They DO have access to CBP's computer records, but they don't spend their days reading them to see what's new. They look up information about a specific alien when they have a reason to. There's no reason to believe they'd have a reason to do this in your wife's case yet. I don't know if CBP would have formally notified USCIS about this, nor if they are even required to. CBP makes arbitrary decisions all the time, and they don't have to coordinate those decisions with USCIS. As I mentioned above, they can revoke a green card without any USCIS involvement if they have grounds to do so.

I think the most important aspect is that the next US immigration official your wife is going to encounter is going to be a CBP officer, and NOT a USCIS immigration officer. CBP is going to make the determination whether or not to admit her. Your previous experience with CBP over divorce decree leads me to believe that, at the very least, her encounter with CBP is going to be unpleasant. At the most, she may face several hours of secondary inspection, and ultimately have her green card seized and be put on a plane back to China.

Re. what your attorney told you, you should point your attorney at the section of the INA I quoted before and ask them what they think, and especially about the fact that the alien was abroad when they discovered the divorce. Yes, she is eligible to self petition for removal of conditions, and ask for a "good faith" waiver. Does that mean that CBP is required to recognize that she is still a conditional permanent resident and allow her to enter the US? From my reading of the law, the terms of the INA could be met if she presented herself at a port of entry, and the CBP officer served her with the requisite notice on the spot, and declared her conditional permanent resident status terminated as of the date they learned about the divorce. She'd still be eligible to file an I-751, but she wouldn't be eligible to enter the US because her green card would be invalid.

I'm not saying that's how it's going to go down. In fact, 8 CFR 216.3 describes explicit steps that will be taken to terminate an aliens conditional permanent resident status, and specifically says their status remains intact until they've been notified that it's actually been terminated, but that specifically applies to how USCIS handles termination of status, and everything in it presumes that the alien is in the United States. I've read numerous cases where people never received that notice, and didn't find out their status had been terminated until ICE showed up at their house. I don't see any requirement in the law that USCIS has to notify the immigrant if they are abroad at the time the decision is made. CBP also has the authority to terminate someone's permanent resident status if they have sufficient grounds. They could simply determine she'd abandoned her permanent residence because of the divorce. So the big question here is what is CBP going to do?

[3600rs 24]

Don't know why I was searched went through the initial passport check and on leaving was asked to go through a secondary inspection they were very through.And nobody was ever nice enough to tell me why. So any way my ex comes over and they don't let her in what happens should they not let her in to file a I-751 and stop any further action till thats processed. Will she be able to come in and at least get a chance for a hearing?

Secondary inspections are conducted for a wide variety of reasons.

Bear in mind: Your EX has the CONDITIONAL CARD.. period! ONLY AN IJ CAN GET HER DEPORTED. She will have her chance for a hearing (worse case). I have yet to see a conditional green card divorcée turned back by the CBP just because of divorce. Research and you will see that there were many conditional residents in the past who traveled after divorce and made it to the US. She can file her 751 on her own with reasonable proof and get approved.

Keep us informed.

[Brother Hesekiel 2,235]

That's wrong.

Once a GC holder is in the US, it will indeed take the action of an immigration judge to terminate the permanent resident's status as an LPR upon USCIS's request.

For that very reason CBP will not allow a GC holder to enter US soil, if they have grounds to conclude that she already abandoned her residency. One twist of this and a form of mercy is to have the LPR sign a statement to this effect, basically surrendering her GC on her own, then let her enter as a tourist instead of sending her back right away.

Once back in, she is not an LPR anymore, thus no judge is needed.

[gulliver 0]

Bob, what evidence would they see in my Ex's case that she has abandoned her residence she has only been out of the country for 5.5 months. So it it your position that they will let her in its mine because she is entitled to file a I751

Gulliver

[3600rs 24]

That's wrong.

Once a GC holder is in the US, it will indeed take the action of an immigration judge to terminate the permanent resident's status as an LPR upon USCIS's request.

Disagree! No, once in the US it is the ICE who will accuse the LPR of wrong doing, the IJ will give the LPR a chance. A fair chance. THERE IS NOTHING LIKE A USCIS REQUEST. Very often the judge will overturn the actions of the USCIS.

For that very reason CBP will not allow a GC holder to enter US soil, if they have grounds to conclude that she already abandoned her residency.

Wrong Again, This is not a abandoning residency issue, do not mix issues. This is if a valid conditional green card holder can get entry after a divorce.

One twist of this and a form of mercy is to have the LPR sign a statement to this effect, basically surrendering her GC on her own, then let her enter as a tourist instead of sending her back right away.

There is no twist, and no mercy statement. No conditional green card holder will sign such statement.

Once back in, she is not an LPR anymore, thus no judge is needed.

She will get back again, she is and will be a PR until the IJ says shes not.

Well Bob, remember its the IJ who dictates NOT your CPB, NOT your USCIS, NOT any Tom, ####### or Harry from a local USCIS or ICE office.

[JimVaPhuong 4,863]

Secondary inspections are conducted for a wide variety of reasons.

Bear in mind: Your EX has the CONDITIONAL CARD.. period! ONLY AN IJ CAN GET HER DEPORTED. She will have her chance for a hearing (worse case). I have yet to see a conditional green card divorcée turned back by the CBP just because of divorce. Research and you will see that there were many conditional residents in the past who traveled after divorce and made it to the US. She can file her 751 on her own with reasonable proof and get approved.

Keep us informed.

There lies the rub! She's not IN the United States. Having your status terminated and being deported are two entirely different things. USCIS can terminate status. An immigration judge can issue a deportation order. A removal hearing does not even occur until AFTER USCIS has terminated the permanent resident status. Further, 8 CFR 239.2 says that a notice to appear for removal proceedings can be canceled if the issuing office determines the alien is not in the United States, in which case an immigration judge will never even get jurisdiction of the case.

Yes, there have been plenty of cases where a conditional permanent resident has traveled outside the US after being divorced, but can you cite another case where they reentered after CBP discovered the divorce, and even had a copy of the divorce decree?

Without seeing another case with the same circumstances, I'm not sure what's going to happen next. A number of things could have happened behind the scenes that could profoundly affect the outcome. CBP may have notified USCIS that the conditional permanent resident wife was now divorced and living abroad. USCIS would be compelled to take steps to terminate the permanent resident status of the wife. Normally, they would be required to send a notice of intent. However, since they know the wife is living abroad, they could cancel the notice. I don't know what happens after that, but I DO know that they don't just sit on the case indefinitely waiting for the immigrant wife to either file an I-751 or allow their green card to expire. Maybe they give the immigrant wife a reasonable amount of time to return to the US and file an I-751 - perhaps the same amount of time they would have been give to respond to the notice of intent. Perhaps they just proceed, and terminate the permanent resident status. We won't know for sure until she tries to reenter the US.

[3600rs 24]

Well, we will follow this thread and see what happens. I agree to you in many ways Jim. Thanks for ur response.