AOS with lifetime bar but paroled

[Jaytee2009 0]

It has been a while since I posted, and it has mostly been a hellish life, but getting back on track now. My wife came in illegally in 2001, and we married in 2003. My visa petition was approved, but she had to use consular processing. In Mexico, 7/13/2009, the consulate denied for life, based on a false claim to citizenship. After battling that to have it reconsidered, and trying humanitarian parole through DC, that all failed.

Then in August 2010 (after living in Mexico for a year) we had a huge terrible family event and my wife was given parole at point of entry (land border). It was really a miracle that this was approved after being denied a visa for life previously.

This was only good for a week though, and due to the circumstances, she couldn't return within a week to Mexico. We have been living in the US again since then. We want to apply for AOS. I have tried to consult with many lawyers, and we have paid enough out in lawyer fees to have gone to school and learn how to do this the right way. Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa.

Here are my questions:

1. I-485 Page 2 part 10 D says not eligible if "Your authorization stay expired before you filed this application" but part 10 F 1 seems to say it doesn't matter if "you are applying because you are...An immediate relative of a U.S. citizen. So will she be able to adjust even though the parole expired?

2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?

3. If the AOS is denied, would there be appeal rights? Also, would she be deported immediately from wherever they would make that denial decision assuming we were in an interview or court?

Thanks in advance, so much to all you who help, and the info you have posted that helps.

[JimVaPhuong 4,863]

It has been a while since I posted, and it has mostly been a hellish life, but getting back on track now. My wife came in illegally in 2001, and we married in 2003. My visa petition was approved, but she had to use consular processing. In Mexico, 7/13/2009, the consulate denied for life, based on a false claim to citizenship. After battling that to have it reconsidered, and trying humanitarian parole through DC, that all failed.

Then in August 2010 (after living in Mexico for a year) we had a huge terrible family event and my wife was given parole at point of entry (land border). It was really a miracle that this was approved after being denied a visa for life previously.

This was only good for a week though, and due to the circumstances, she couldn't return within a week to Mexico. We have been living in the US again since then. We want to apply for AOS. I have tried to consult with many lawyers, and we have paid enough out in lawyer fees to have gone to school and learn how to do this the right way. Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa.

Here are my questions:

1. I-485 Page 2 part 10 D says not eligible if "Your authorization stay expired before you filed this application" but part 10 F 1 seems to say it doesn't matter if "you are applying because you are...An immediate relative of a U.S. citizen. So will she be able to adjust even though the parole expired?

2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?

3. If the AOS is denied, would there be appeal rights? Also, would she be deported immediately from wherever they would make that denial decision assuming we were in an interview or court?

Thanks in advance, so much to all you who help, and the info you have posted that helps.

Ouch!

Since she was given only one week, it sounds like she was paroled into the US at the discretion of the CBP officer for humanitarian reasons. That one discretionary act would not remove the lifetime bar. She is still inadmissible. They just chose to overlook that inadmissibility for one week.

Before anyone can guess what's going to happen, we need to know the exact terms under which she was paroled. There are usually conditions that come with being paroled into the US. I strongly suspect those conditions included a waiver of any right to appeal a decision by an immigration officer (similar to the one that VWP visitors agree to), and a prohibition against applying for any immigration benefits while in the US.

You can expect the AOS to be denied because of the ban. I think it's reasonable to assume they would take her into custody for removal. Without knowing the terms of her parole I can't guess whether she'll have a chance to appeal, or even get a hearing in front of an immigration judge.

I think you need a very good lawyer - fast.

[NigeriaorBust 4,087]

You have a wife that has a lifetime bad and was granted a week in the US for an emergency and overstayed. To a immigration person it will look like this person has zero respect for immigration laws. I don't think staying here is making your case better, it is probably going to have the opposite affect. The longer you stay the less apt you are to ever be able to get the desired results. The group immigrat2us.net is about the best there is about immigration for couples with issues. But I think you have probably taken the wrong road.

[belinda63 3,038]

She was denied entry to the US for life and CBP felt enough compassion to allow her in for one week to deal with the serious family emergency. Now she has seriously overstayed that parole and you really think she has a chance of adjusting status?

Her compassionate parole does not overcome her lifetime ban. And USCIS will have access to her file and they will be aware of the ban if you file for AOS. She should have been given an opportunity to appeal or respond to the decision and if she did not do so then it remains.

[Deputy Purple 1,294]

Even over at Immigrate2US.net I haven't seen any success on getting a lifetime ban for false claim of US Citizenship overturned and they've even had cases where the Alien was a minor child with a relative who made the claim on behalf of the child!

It really sounds like you took your shot at getting the ban overturned and despite your statement that "there was no material evidence of the false claim to citizenship" apparently you were unable to prove such to be true.

Remaining in the US will just make things worse for her as she'll live in fear of discovery and deportation. It sounds like you made the choice to move to Mexico and build a life with her which was the right path to take if you don't want to have the stress of living illegally hanging over your whole family.

I would also imagine that she has made it impossible to ever be granted humanitarian parole into the US again as she has already violated that agreement by remaining in the US for 6 months despite only being granted 1 week. She should have contacted USCIS and asked for an extension if there was a really good reason that she couldn't leave in the allotted time-frame.

[Jaytee2009 0]

Thanks for the quick responses. I am really hoping to get input on something related to law, not just opinion, though that helps too. I will respond to help fill in gaps.

Since she was given only one week, it sounds like she was paroled into the US at the discretion of the CBP officer for humanitarian reasons. That one discretionary act would not remove the lifetime bar. She is still inadmissible. They just chose to overlook that inadmissibility for one week.

Before anyone can guess what's going to happen, we need to know the exact terms under which she was paroled. There are usually conditions that come with being paroled into the US. I strongly suspect those conditions included a waiver of any right to appeal a decision by an immigration officer (similar to the one that VWP visitors agree to), and a prohibition against applying for any immigration benefits while in the US.

There were no other terms or paperwork with the parole. It was just an I-94. Not even a stamp in her passport.

You can expect the AOS to be denied because of the ban. I think it's reasonable to assume they would take her into custody for removal. Without knowing the terms of her parole I can't guess whether she'll have a chance to appeal, or even get a hearing in front of an immigration judge.

It sounds like you are pretty sure it will be denied. They probably wouldn't even giver her an interview in that case. So if she is denied on paper, they would refer her to immigration court right? Since there were no terms other than date to the parole, what would be a reason for no appeal?

You have a wife that has a lifetime bad and was granted a week in the US for an emergency and overstayed. To a immigration person it will look like this person has zero respect for immigration laws. I don't think staying here is making your case better, it is probably going to have the opposite affect. The longer you stay the less apt you are to ever be able to get the desired results. The group immigrat2us.net is about the best there is about immigration for couples with issues. But I think you have probably taken the wrong road.

I think to a normal US Citizen it might look like she has no respect for immigration laws. To an educated USCIS officer, they would probably see that at least she applied for parole, instead of jumping the border. The longer or shorter she stays doesn't really matter, because this can never be fixed from a consulate where they offer no appeals or reconsiderations ever. The wrong road was taken at crossing in 2001, but that is too late to fix. I am trying to figure out if the wrong road now is applying for AOS.

And USCIS will have access to her file and they will be aware of the ban if you file for AOS. She should have been given an opportunity to appeal or respond to the decision and if she did not do so then it remains.

I wonder how much USCIS can really see without request more info. I went to the USCIS offices and called many times and they never saw she had been denied the visa. They only saw her original petition approval and that it went to the consulate processing. There is no appeal for visa's denied in consul's. There is no waiver for this. We tried to respond to the decision and it was ignored. The consulate is run by the US Department of State. The I-485 in the US and immigration courts is run by USCIS. The rules are very different, and this is why appeal could be possible from within the US and not from outside.

Even over at Immigrate2US.net I haven't seen any success on getting a lifetime ban for false claim of US Citizenship overturned and they've even had cases where the Alien was a minor child with a relative who made the claim on behalf of the child!

It really sounds like you took your shot at getting the ban overturned and despite your statement that "there was no material evidence of the false claim to citizenship" apparently you were unable to prove such to be true.

The consulate didn't even appear to look at our papers. Even though we did send evidence that the consulate officer messed up, and wish the conversation is recorded, there was no chance to prove such from that side of the border.

Remaining in the US will just make things worse for her as she'll live in fear of discovery and deportation. It sounds like you made the choice to move to Mexico and build a life with her which was the right path to take if you don't want to have the stress of living illegally hanging over your whole family.

I would also imagine that she has made it impossible to ever be granted humanitarian parole into the US again as she has already violated that agreement by remaining in the US for 6 months despite only being granted 1 week. She should have contacted USCIS and asked for an extension if there was a really good reason that she couldn't leave in the allotted time-frame.

I don't think we would ever have another emergency that qualifies. Remaining here is better than building a life in Mexico. Mexico was not fun...living there isn't like the resorts. There is much more fear of being killed in Mexico than there is of deportation from the US. It might have been good to contact CBP (not USCIS) to get an extension, but who knows what would have happened there. In dealing with the emergency, we weren't concerned with trying to get extended and taking a chance of them saying no, and taking the I-94 away.

[Kathryn41 3,205]

Thread moved from family visa based AOS forum to AOS from Work, Student & Tourist status as the waiver seems more likely to fit the tourist status than anything else.

[VanessaTony 3,567]

Thanks for the quick responses. I am really hoping to get input on something related to law, not just opinion, though that helps too. I will respond to help fill in gaps.

Okay honestly I think you're pretty screwed... but here's some advice anyway.

You are currently with your wife in the US, who has a lifetime ban. Your options are thus:

1. Have her return to her home country, either with her, or alone, and have her apply for a visa to the US and try the proper channels to overcome the ban

2. Have her live under the radar in the US which is illegal, and that MIGHT work for a little while, but eventually she'll get caught, locked up, and deported

3. Apply for AOS and TRY to overturn the ban from within the US.

Option 1 means you'll be apart while going through the process, option 2 is just irresponsible and option 3 at least you'll be together while trying to get AOS. Problem is, she already has a lifetime ban so the AOS WILL be denied. Now depending on how she entered the US, some entry types (like the visa waiver program) have "no right to appeal" clauses, meaning once it's denied she'll be deported. If they allow the right to appeal you will probably exhaust copious amounts of money, all the while she'll be unable to work legally in the US (because the AOS will probably not even be processed to a stage to get the EAD), and most likely the lifetime ban will be upheld (as you've tried overturning it already and it was already upheld) and she'll be deported.

You asked the question "Since there were no terms other than date to the parole, what would be a reason for no appeal?" As I stated above, some visa types have clauses that state no appeal. It could be that when she entered she was told she had certain conditions on her being permitted entry and those conditions would have been entered in her immigration file. I also don't know enough about parole for compassionate reasons but there could be a clause in there that states "no AOS allowed". There could also be a "no AOS if overstayed" like there is for the VWP. We don't know for sure.

Assuming she is permitted an appeal before an immigration judge, she doesn't appear to have good standing to have her appeal work. Not only did she lie about being a USC and have a lifetime ban for that, of which she was fully aware, she has also overstayed a compassionate parole into the US by a substantial amount and then had the audacity to apply for adjustment of status from within the US making it appear that when she entered that was her intention all along. This makes her look like she has absolutely no regard for the immigration laws of the US, and I highly doubt she'll be approved.

Now this part:

And USCIS will have access to her file and they will be aware of the ban if you file for AOS. She should have been given an opportunity to appeal or respond to the decision and if she did not do so then it remains.

I wonder how much USCIS can really see without request more info. I went to the USCIS offices and called many times and they never saw she had been denied the visa. They only saw her original petition approval and that it went to the consulate processing. There is no appeal for visa's denied in consul's. There is no waiver for this. We tried to respond to the decision and it was ignored. The consulate is run by the US Department of State. The I-485 in the US and immigration courts is run by USCIS. The rules are very different, and this is why appeal could be possible from within the US and not from outside.

Once a visa is denied the file is sent back to USCIS. It usually takes many many months for the file to get back to USCIS and for the file info to be entered into the system (big complaint of people who wish the appeal the denial because they can't do anything until USCIS files are updated and this is something that you mention yourself above). So while USCIS might not have had record of her denial when you visited, they might now, and they most definitely will before they process the AOS. The won't process the AOS when there's something outstanding in the file so they'll want the files from the consulate before starting her AOS process.

I don't know what the chances are of appealing the lifetime ban. Here's a post from another website that specialises in bans: http://immigrate2us.net/forum/showthread.php?88862-Immigration-reform-for-false-claim-to-us-citizenship&p=1052729&viewfull=1#post1052729 this particular person has been fighting for years and living apart for years. I expect you're in for the same fight.

[JimVaPhuong 4,863]

There were no other terms or paperwork with the parole. It was just an I-94. Not even a stamp in her passport.

There will usually be a stamp on the I-94 listing the admission class. The restrictions that apply are a matter of law for that admission class. They don't usually hand you a sheet with all of the applicable restrictions on it.

It sounds like you are pretty sure it will be denied. They probably wouldn't even giver her an interview in that case. So if she is denied on paper, they would refer her to immigration court right? Since there were no terms other than date to the parole, what would be a reason for no appeal?

As I said above, it depends on the class of admission. If your wife was granted humanitarian parole under title 8, section 212.5 of the United States Code, then the conditions described in that section of law would apply. I suggest you bone up on that particular section of title 8 on the USCIS website.

From 212.5(d)(2)(ii):

An alien who is granted parole into the United States after enactment of the Immigration Reform and Control Act of 1986 for other than the specific purpose of applying for adjustment of status under section 245A of the Act shall not be permitted to avail him or herself of the privilege of adjustment thereunder. Failure to abide by this provision through making such an application will subject the alien to termination of parole status and institution of proceedings under sections 235 and 236 of the Act without the written notice of termination required by § 212.5(e)(2)(i) of this chapter.

The above means that the AOS must be denied. Unless she was specifically paroled into the US in order to make an AOS application, then she is statutorily barred from applying. Submitting an application will automatically trigger removal proceedings, as described above. Section 245 of the INA deals with removal proceedings. Section 236 deals with apprehension and detention.

What's more, no written notice needs to be provided, according to the law above. Your first response from USCIS after sending the petition could be ICE officers knocking on your door to take your wife into custody.

I suggest you don't send the AOS petition. I don't think this will end well.

[Jaytee2009 0]

Thanks for quoting law, this helps.

I imagine that she was paroled under 212.5 but the I-94 doesn't make reference as to what law or CFR she was paroled under.

From 212.5(d)(2)(ii):

An alien who is granted parole into the United States after enactment of the Immigration Reform and Control Act of 1986 for other than the specific purpose of applying for adjustment of status under section 245A of the Act shall not be permitted to avail him or herself of the privilege of adjustment thereunder.

I am trying to make sure I understand this completely.

I am wondering if the "privilate of adjustment thereunder" means adjustment is not available soley due to being a parolee - or does the "thereunder" refer to 245A? Since she would be adjusting due to being a spouse of a US Citizen, not as a parolee (such as public interest parolees who can adjust without having a sponsor).

[JimVaPhuong 4,863]

Thanks for quoting law, this helps.

I imagine that she was paroled under 212.5 but the I-94 doesn't make reference as to what law or CFR she was paroled under.

I am trying to make sure I understand this completely.

I am wondering if the "privilate of adjustment thereunder" means adjustment is not available soley due to being a parolee - or does the "thereunder" refer to 245A? Since she would be adjusting due to being a spouse of a US Citizen, not as a parolee (such as public interest parolees who can adjust without having a sponsor).

"Thereunder" is referring to adjustment of status under section 245A. That section of the INA covers the overwhelming majority of adjustment of status applicants, including immediate relatives of a US citizen.

Only certain public interest parolees are permitted to adjust status because of a very narrow exception carved out by the FOEFRPAA Act of 2001. This exception applies only to specific public interest parolees from Laos, Cambodia, and Vietnam who were paroled into the US prior to October 27, 1997. This exception was designed to allow "boat people" who were accepted from refugee camps around Asia and the Pacific Islands to acquire a nationality rather than remain stateless refugees.

Refugee parolees can adjust after one year present in the US. Asylum parolees, or someone adjusting on the basis of an asylum application, can adjust after their I-589 is approved. Almost all other parolees are covered by the conditions outlined in section 212.5(d), including humanitarian parolees. Unless they were paroled into the US specifically for the purpose of adjusting status under INA 245(a), then they are statutorily barred from adjusting status on that basis, and even submitting a petition to adjust status will automatically trigger removal under section 235, and (if necessary) apprehension and detention under section 236.

(Sorry, I said section 245 applied to removal in my previous post. I actually meant to type 235.)

[Jaytee2009 0]

Thanks for that law, 235.

The thereunder does seem like it could be referring to 245a.

It seems to me that you are basically saying she won't even get to an interview or even if she does, they won't get to the part about claiming false citizenship because they will say she can't adjust from an expired parole status.

It seems parts of the law contradicts itself. Also see the guidance from the Interim Rule of May 12, 2006. It states arriving aliens (which includes anyone paroled by any form) are able to adjust status under USCIS even when in removal proceedings. Footnotes indicate that even before this rule, USCIS has allowed adjustment of status to "arriving aliens" not in removal proceedings, which is my wife's current situation. If she were detained (due to parole being expired), then she would be in removal proceedings and as the rule shows, still be eligible to adjust.

You can find the PDF by searching in google for:

ARRIVING ALIENS AND ADJUSTMENT OF STATUS:WHAT IS THE IMPACT OF THE GOVERNMENTS INTERIM RULE OF MAY 12, 2006

[belinda63 3,038]

Why don't you just file the AOS and see what happens? We can bounce the law around all day and all night but we aren't attorneys or judges so what we say here really doesn't matter.

[Darkarma 2]

By what you have written here and on other forums (immigration), i would suggest if filling fees are not a problem give it a shot. I remember you writing that your wife did not mention anywhere in the US i.e. on I-9 forms that she was a US citizen. Then she should stand a chance as the mistake was by the consulate in Juarez, regarding the claim to citizenship and she was denied a visa and barred for a lifetime. If there is no proof that she claimed, i dont understand that how come the consulate rejected her petition in the first place? There seems to some misunderstanding. Please clear that first using an attorney.

[VanessaTony 3,567]

Thanks for that law, 235.

The thereunder does seem like it could be referring to 245a.

It seems to me that you are basically saying she won't even get to an interview or even if she does, they won't get to the part about claiming false citizenship because they will say she can't adjust from an expired parole status.

It seems parts of the law contradicts itself. Also see the guidance from the Interim Rule of May 12, 2006. It states arriving aliens (which includes anyone paroled by any form) are able to adjust status under USCIS even when in removal proceedings. Footnotes indicate that even before this rule, USCIS has allowed adjustment of status to "arriving aliens" not in removal proceedings, which is my wife's current situation. If she were detained (due to parole being expired), then she would be in removal proceedings and as the rule shows, still be eligible to adjust.

You can find the PDF by searching in google for:

ARRIVING ALIENS AND ADJUSTMENT OF STATUS:WHAT IS THE IMPACT OF THE GOVERNMENTS INTERIM RULE OF MAY 12, 2006

Question, WHY did her consulate think she claimed US citizenship? Did she tell them/admit it? There has to be a reason they think she claimed USC, what was the reason (proof or not they had to have a reason/suspicion).

There are a few laws in the USCIS stuff that contradict each other. VWP for example. Used to be it didn't matter if you applied after your status expired but lately they've been ruling that even though the contradiction of the inability of an expired VWP person to adjust status and the "anyone can adjust even when out of status" makes you think that the "anyone can adjust" rule would apply, they VWP entrant agreed to "no AOS after VWP expired" and so that rule applies (that sounds confusing but you get the idea).

Anyway the ONLY way to know for sure is to try, like I said. She will be deported if she's caught by ICE living "under the radar" or she might be deported if you apply for AOS (and she isn't eligible). The other option is to just send her home now in which case you have next to no chances anyway. So try, and please let us know what happens.

**Edit - I should say I trust Jim on this one. Based on the info you provided I dont like your chances, but there could be something we don't know, or a part of your case that's important but you haven't told us (or realised it's important).

Edited January 17, 2011 by Vanessa&Tony