After the I-601 has been denied

[beckyb 0]

We received my husbands I-601 denial letter on Tuesday, Sept. 6. The part of the immigration act cited for the denial said that since he failed to appear at his deportation hearing after he was arrested for illegally entering the country that he was ineligible for a waiver for 5 years. He was deported 3 years ago so we have another 2 years of waiting. Along with the denial letter, however, came the paperwork for the 212 appeal. What do we do? Do I keep the case alive by appealing the decision spending Lord knows how much more money or do we wait until 2013? Do I try to find another lawyer? I don't know what to do. I feel like this is a bogus reason for denying his waiver application.

My reason for thinking it's bogus: During the time my husband was in the US (illegally) he applied for and received TPS (temporary protective status) and a work visa. Both of these approvals came after he missed the deportation hearing. Do we have any grounds for appeal based on that? Or are we just beating our heads against a bureaucratic brick wall?

[Jaqui 0]

I'm sorry to hear this. The reason he was granted TPS is because he had not incurred the 5 year ban yet. The ban does not come into effect until he tries to apply for a visa:

Department of State - Skipped an immigration court hearing in the US. INA 212(a)(6)(B) - 5-year ban with no waiver

"(B) Failure to attend removal proceeding.-Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible."

He had to seek admission (apply for visa) and depart/be removed from the US.

You will find many other wives in this situation on the immigrate2us.net website for wives petitionining through El Salvador.

Edited September 8, 2011 by Jaqui

[beckyb 0]

Thanks Jaqui! The denial letter was very informative and gave me the same information you cited. I was just wondering if we should even do the appeal since there is the 5 year ban. He has 2 years left of that ban. I go to see the lawyer on Wednesday to see what they say. BTW -- I just registered for the immigrate2us site. Thanks!

I'm sorry to hear this. The reason he was granted TPS is because he had not incurred the 5 year ban yet. The ban does not come into effect until he tries to apply for a visa:

Department of State - Skipped an immigration court hearing in the US. INA 212(a)(6)(B) - 5-year ban with no waiver

"(B) Failure to attend removal proceeding.-Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible."

He had to seek admission (apply for visa) and depart/be removed from the US.

You will find many other wives in this situation on the immigrate2us.net website for wives petitionining through El Salvador.

[Used to be broken 143]

Thanks Jaqui! The denial letter was very informative and gave me the same information you cited. I was just wondering if we should even do the appeal since there is the 5 year ban. He has 2 years left of that ban. I go to see the lawyer on Wednesday to see what they say. BTW -- I just registered for the immigrate2us site. Thanks!

To file an appeal you need a legal error to contest. In your case there is no legal error you husband missed his deportation hearing and therefore is not eligible to file for a waiver until the clock runs out on his ban which is 5 years for the in abstentia order.

Even if you did have a legal error in your case, an appeal takes 2 years to wind its way to court so in your situation it would not be helpful.

Regarding the post from Jaqui, "The ban does not come into effect until he tries to apply for a visa" not exactly correct. You can avoid the effect of the bar if you never leave the US. Since your husband was already in proceedings what you should have done was contact an attorney and attempt COR =Cancellation of Removal which is difficult and not sure if he would have qualified but that is why talking to an attorney is helpful. As you can see you wasted quite a bit of time and energy filing the I601 when he was not even eligible to file for 2 more years.

If you have not done so you should consult with an Immigration Attorney for the next steps. A waiver involving a Deportation Absconder is a negative aggravating factor that you will need to overcome, making your waiver a bit more difficult. You will have to overcome that with positive mitigating factors and probably a stronger demonstration of hardship.

Edited September 12, 2011 by Used to be broken