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KeratNY

Denied re-entry with advance parole?

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Filed: AOS (pnd) Country: Canada
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4 minutes ago, Scazy said:

I know one person who traveled with AP waiting for AOS and having an overstay history prior. I did not recommended her to travel at that time because, you know, “what ifs”, but she went on a trip and entered back with no problems. 

Yes they do say that entry is not granted to anyone but UCS, but what exactly that means? In my understanding that phrase means you won’t be admitted if you break the law that would make you inadmissible. Like, returning LPR convicted of inadmissible crime won’t be admitted - that’s the law and it’s abailable for all to exam your situation before travelling. But it does not mean that you still might be denied entry if have not committed anything that makes you inadmissible, just because the officer had a bad day. I believe that’s where all the paranoia and panic starts because it does sounds pretty scary that you always have a chance not to come back - and it’s impprtant to understand that this “chance” is not like gambling, but immigration laws which available for anyone and can be calculated based on your personal factors in immigration journey. 

Right? 

Great, great answer, and helpful to hear that anecdoe

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Filed: K-1 Visa Country: Spain
Timeline
3 hours ago, Ben&Zian said:

Why people are so 'desperate' to immediately go home and travel after just having dealt with the long wait to get here in the first place is beyond me; but regardless, if you have AP, then you're fine. That's what it's for, travel and re-entry. As noted, immigrations has final say on entry, always has been that way. It isn't because of the "current climate", i laugh about that all the time. Again it's been this way for years and years. So either take the "chance" or "risk" to travel, or just wait until you have your green card. Pretty simple stuff.

Some people is not desperate to go home but like me, has to show up for something else (in my case university exams) 

K1 Visa Process

Nov. 2016 - Applied for K1 Visa
Nov. 2016 - NOA1 

April 2017 - NOA2 (6 months!)

April 2017 - Arrived to NVC

April 2017 - Got the # from NVC

May 2017 - Case left NVC

May 2017 - Arrived to Embassy

May 2017 - Got Package 3 

May 2017- Got Package 4

May 2017 - Interview [APPROVED!]

June 2017 - Visa arrived home

June 2017 - Made it to the US. Finally with my future hubby!!

July 2017 - Married!

AOS Process

August 2017 - Started AOS

August 2017 - NOA1

Sept. 2017 - Biometrics

19th Dec. 2018 - Interview date  [16 months]

Dec. 2018 - GC processing

29th Dec. 2018 - GC arrived home! [10 days!]
Remove Conditions - Soon...


 

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Filed: AOS (pnd) Country: Canada
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3 minutes ago, Boiler said:

If you use Ap your are paroled in, NOT admitted.

 

QED

Yes. Presumably when I adjust status that technical distinction would go away. If I had problems adjusting status then this may come into play. 

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Filed: AOS (pnd) Country: Canada
Timeline
10 minutes ago, Andsco said:

I was left to sit down for 2 hours while the officer processed at least 30 to 40 people in front of me. I remember people asking "why are you not processing her?" and he kept saying "soon". Finally after that long he kept playing it "cool" but still, he left me there for 2 hours. On top of that, every time I said why I went back (4 days!!!) to my country (I had to show up for exams because I study online) he kept twisting my words (like he wanted to understand the wrong thing or something).  I am not traveling anymore until I get my green card, that's for sure. 

Well I am sorry you had to go through 2 hours of stress, but he let you in, so that's a GOOD result on traveling with advance parole.  In an ideal world, people would love to wait until they have their green cards before traveling, but the waits increasing to 12-20 months for AOS are making that harder and harder to do. So traveling on advance parole is becoming a more and more common thing. I think CBP officers often like to make people sweat too, to see how they react under pressure and stress. 

 

It will suck for me to sit in 2-3 hours in secondary processing but that will be just a drop in the bucket to my happiness and relief if/when I am let back in. 

Edited by KeratNY
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3 hours ago, Ben&Zian said:

Why people are so 'desperate' to immediately go home and travel after just having dealt with the long wait to get here in the first place is beyond me; but regardless, if you have AP, then you're fine. That's what it's for, travel and re-entry. As noted, immigrations has final say on entry, always has been that way. It isn't because of the "current climate", i laugh about that all the time. Again it's been this way for years and years. So either take the "chance" or "risk" to travel, or just wait until you have your green card. Pretty simple stuff.

Because some people have been here for a while and miss their families? You are assuming only people applying for AOS have been the ones that have gone through the K-1 process. 

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3 hours ago, Ben&Zian said:

Why people are so 'desperate' to immediately go home and travel after just having dealt with the long wait to get here in the first place is beyond me; but regardless, if you have AP, then you're fine. That's what it's for, travel and re-entry. As noted, immigrations has final say on entry, always has been that way. It isn't because of the "current climate", i laugh about that all the time. Again it's been this way for years and years. So either take the "chance" or "risk" to travel, or just wait until you have your green card. Pretty simple stuff.

I know right!  This "climate" and blaming President Trump for everything is getting very irritating. 

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Filed: K-1 Visa Country: Wales
Timeline

I used AP to holiday in Mexico.

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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2 hours ago, Scazy said:

Yes they do say that entry is not granted to anyone but UCS, but what exactly that means? In my understanding that phrase means you won’t be admitted if you break the law that would make you inadmissible. Like, returning LPR convicted of inadmissible crime won’t be admitted - that’s the law and it’s abailable for all to exam your situation before travelling. But it does not mean that you still might be denied entry if have not committed anything that makes you inadmissible, just because the officer had a bad day. I believe that’s where all the paranoia and panic starts because it does sounds pretty scary that you always have a chance not to come back - and it’s impprtant to understand that this “chance” is not like gambling, but immigration laws which available for anyone and can be calculated based on your personal factors in immigration journey. 

Right?

Not entirely. In practice, I do believe that is the case...they don't deny entry for no reason. But they do have discretion for any parolee.

 

An LPR is in a different situation. While they are not guaranteed entry, they also have rights to challenge any decision in front of an immigration judge. So even if the CBP officer says no, they have proper recourse and due process. As a parolee (well, attempted parolee with no actual status yet), you have neither...they say no and you can be sent back home.

Edited by geowrian

Timelines:

ROC:

Spoiler

7/27/20: Sent forms to Dallas lockbox, 7/30/20: Received by USCIS, 8/10 NOA1 electronic notification received, 8/1/ NOA1 hard copy received

AOS:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago, 9/27/17: received by USCIS, 10/4/17: NOA1 electronic notification received, 10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received, 10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update), 1/5/18: EAD + AP mailed, 1/8/18: EAD + AP approval notice hardcopies received, 1/10/18: EAD + AP received

9/5/18: Interview scheduled notice, 10/17/18: Interview

10/24/18: Green card produced notice, 10/25/18: Formal approval, 10/31/18: Green card received

K-1:

Spoiler

I-129F

12/1/16: sent, 12/14/16: NOA1 hard copy received, 3/10/17: RFE (IMB verification), 3/22/17: RFE response received

3/24/17: Approved! , 3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received, 4/12/2017: Sent to Riyadh embassy, 4/16/2017: Case received at Riyadh embassy, 4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

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39 minutes ago, geowrian said:

Not entirely. In practice, I do believe that is the case...they don't deny entry for no reason. But they do have discretion for any parolee.

 

An LPR is in a different situation. While they are not guaranteed entry, they also have rights to challenge any decision in front of an immigration judge. So even if the CBP officer says no, they have proper recourse and due process. As a parolee (well, attempted parolee with no actual status yet), you have neither...they say no and you can be sent back home.

Very true. I’m not too familiar with parole travels, but I did a very extensive research on what’s this phrase means   “only USC is granted entry” which I see in pretty much every travel thread  and that was my conclusion I posted above. However, I also bumped in opinions, what if conditional resident returns back to US and his ROC petition was denied while he’s away, there is “a chance” entry also would be denied without the right to see IJ.  The “rights” sometimes is very vague for a clear understanding...What you think about it? 

Edited by Scazy
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I think it depends on a few things. In my point of view, I think risk is assessed by WHERE you are traveling to. There are some countries that don't have the best relations with the US and maybe I would be a bit weary traveling to those countries or were from one of those countries. It is not like the ban lists that occurred a while back which temporarily denied AP/GCs just came out of nowhere. Those countries have been points of contention for years. But if you are from a country with no real issue at the moment, I don't think it is a huge risk as long as you don't do anything illegal, or you do not have something hidden that could come up with AOS if it is evaluated while you are gone. 

 

And as to the person who doesn't understand why people would want to go home, please know that family is very important to some people. People are already missing out on important events or just plain miss their family. If you are like my husband, he doesn't even want to be here in the US. He never has, and so far hasn't changed his mind since arriving. He loves his home and is only here for our relationship and the better economy at the moment. He can't wait to book that flight home the day he gets AP to visit home. I will certainly be going with him too. And he is not from a high-risk country (as we noticed during our K1 interview) so it won't be a problem in our eyes.

Edited by Sarah&Facundo
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44 minutes ago, Scazy said:

 However, I also bumped in opinions, what if conditional resident returns back to US and his ROC petition was denied while he’s away, there is “a chance” entry also would be denied without the right to see IJ.  

 

In those specific circumstances,  if denied, the alien would still have thirty days to file a motion. Taken from my own denial letter:

"There is no appeal of this decision. If you believe the law was inappropriately applied or the analysis used in reaching the decision was inconsistent with the information provided or with precedent decisions or if you have new or additional information that you wish us to consider, you may file a motion to reopn or reconsider ((Form I-290B) pursuant to 8 C.F.R 103.5.

A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence.  Title 8, Code of Federal Regulations, Sections 103.5 states in pertinent part: A motion to reconsider must state the reasons for  reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or service policy. A motion to reconsider a decision on an application or petition mist, when filed, also establish that the decision was incorrect based on the evidence or record at the time of the initial decision".

 

 

In addition to this, a new I-751 (or multiple I-751s) can be filed immediately, which gives a new receipt number, extension, and puts the new I-751 at the back of the line for adjudication. These new I-751s must , by law, be adjudicated by USCIS before a final order of removal can be issued by an immigration judge (which is the point that ones LPR status is terminated.) . 

Also, a conditional LPR filing with a waiver does not have to file an I-751 in the 90 days preceding expiry of the 2yr card, they can file at any time before a final order of removal - it even states this in the I-751instructions.

 

 

There is also the fairly significant fact that a LPR has the absolute right to a hearing with an immigration judge and cannot be arbitrarily refused this. Whether they like it or not, CBP do not have the right to deny due process.

This is quite possibly why when the trump ban first happened, there were reports of people being asked to sign I-407s at the border to relinquish their LPR status there and then. 

 

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf

"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."

 

and

 

 

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).

 

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

 

 

 

 

Edited by mindthegap

CR1 / DCF (London): 2012 / 2013 (4 months from I-130 petition to visa in hand)

I-751 #1- April 2015 [Denied]

 

April 2015 : I-751 Joint filing package sent fedex next day 09:00am from UK ($lots - thanks). 
Jan 2017: Notification that an interview has been scheduled at a local office. Bizarrely still no RFE... 
Jan 2017: 2hr wait, then interview terminated before it began, due to moving my ID to another state 2 wks prior. New interview 'in a few months...maybe.'   Informed them that divorce proceedings are underway, but not finalised at this time. 
March 2017: An Interview was scheduled - marked as no-show as they didn't actually send out a notification of interview. FML 
April  2017: Filed an official complaint with the ombudsman, and have requested Senator & Congressman assistance
August 2017: Interview - switched to a (finalised) divorce waiver. Told that decision will be made that afternoon, but no problems foreseen with my case. 
October 2017: Letter of Denial received - reason given as 'I-751 petition was not properly filed'. Discovered ex-spouse made false allegations to USCIS in 2015. No opportunity given to review & refute allegations  - contrary to USCIS policy.

I-751 #2 - Oct 2017 - Mar 2021[Denied] 

 

October 2017: Within 72hrs of receiving denial notice, a new waiver I-751, divorce decree & $680 cheque, sent to Vermont via FedEx overnight 9am priority.  
Dec 2019: Filed FOIA request for full A# file
Feb 2020: FOIA request completed - entire A# file received as a .PDF; 197 pages fully redacted, and 80 partially redacted. Don't waste your time!
March 2021: I-751 #2 denied for lack of evidence. No RFE, no interview, and evidence in previous I-751 not reviewed - contrary to policy. Huge errors in adjudication.

N-400 - Feb 2018 - Apr 2021 [Denied]

 

February 2018: N-400 filed online.  $725 paid to the USCIS paperwork wastage fund

February  2019: Interview - cancelled after a four hour wait due to 'missing paperwork' on their end. Promised Expedited reschedule.

March 2021: Interview letter received, strangely dated after I-751 denial. No I-751 interview conducted. N-400 interview and test passed, given 'cannot make a decision at this time' paper due to the ongoing I-751 nightmare...

April 2021: N-400 denial received citing recent I-751 denial as basis for ineligibility, even though it should have been a combo interview 🤯

I AM JACK'S COMPLETE LACK OF SURPRISE

 I-751 Service Motion - March 2021 [Sent via FedEx & COMPLETELY IGNORED by USCIS]

 

March 2021: Service Motion request sent overnight addressed direectly to field office director, requesting urgent review and re-opening, based on errors in adjudication - citing USCIS policy, AFM and memorandums as basis for errors. This was completely ignored by USCIS.

 I-751 #3 - June 2021 - Jan 2024 [Denied]

 

IT'S GROUNDHOG DAY

June 2021: I-751 #3 (30+lbs/5000 pages of paperwork) & another $680 sent to USCIS via FedEx ($300+..thanks) .... 

June 2021: Receipt issued, card charged, biometrics waived, infopass scheduled for I-551 stamp number ten.....

Feb 2022: RFIE (no, not an RFE, a Request For Initial Evidence) received, for copies of the divorce paperwork that they already have 😑

July 2022: Infopass for I-551 stamp number eleven.....

August 2023: Infopass for I-551 stamp number twelve....

January 2024: Denial received, ignoring the overwhelming majority of the filing, abundance of evidence, and refutation of a provably false allegation. The denial also contradicts itself in multiple places, as if it was written by someone with an IQ <50.

HAPPY NEW YEAR

 

2024: FML. Seriously. I'm done. 

 

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45 minutes ago, mindthegap said:

 

In those specific circumstances,  if denied, the alien would still have thirty days to file a motion. Taken from my own denial letter:

"There is no appeal of this decision. If you believe the law was inappropriately applied or the analysis used in reaching the decision was inconsistent with the information provided or with precedent decisions or if you have new or additional information that you wish us to consider, you may file a motion to reopn or reconsider ((Form I-290B) pursuant to 8 C.F.R 103.5.

A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence.  Title 8, Code of Federal Regulations, Sections 103.5 states in pertinent part: A motion to reconsider must state the reasons for  reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or service policy. A motion to reconsider a decision on an application or petition mist, when filed, also establish that the decision was incorrect based on the evidence or record at the time of the initial decision".

 

 

In addition to this, a new I-751 (or multiple I-751s) can be filed immediately, which gives a new receipt number, extension, and puts the new I-751 at the back of the line for adjudication. These new I-751s must , by law, be adjudicated by USCIS before a final order of removal can be issued by an immigration judge (which is the point that ones LPR status is terminated.) . 

Also, a conditional LPR filing with a waiver does not have to file an I-751 in the 90 days preceding expiry of the 2yr card, they can file at any time before a final order of removal - it even states this in the I-751instructions.

 

 

There is also the fairly significant fact that a LPR has the absolute right to a hearing with an immigration judge and cannot be arbitrarily refused this. Whether they like it or not, CBP do not have the right to deny due process.

This is quite possibly why when the trump ban first happened, there were reports of people being asked to sign I-407s at the border to relinquish their LPR status there and then. 

 

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf

"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."

 

and

 

 

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).

 

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Wonderful read. But it can be argued in a way that yes, you have 30 days to re open or file another I 751 as long as you in US and not seeking for admission with a terminated conditional LPR status. I personally met some agents who were not very familiar or comfortable with an extension letter (which, btw, specify something like “it’s not valid for work and travel if the status has been terminated), imagine their surprise if someone would  demand hearing with a judge no matter what it’s says in a letter about termination, and they might not be even aware of such memos. Then what? 

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7 hours ago, Ben&Zian said:

Why people are so 'desperate' to immediately go home and travel after just having dealt with the long wait to get here in the first place is beyond me; but regardless, if you have AP, then you're fine. That's what it's for, travel and re-entry. As noted, immigrations has final say on entry, always has been that way. It isn't because of the "current climate", i laugh about that all the time. Again it's been this way for years and years. So either take the "chance" or "risk" to travel, or just wait until you have your green card. Pretty simple stuff.

Because people have parents and siblings and family? There are are a billion reasons for why someone would want/need to go back home. Pretty insesitive to even question someone else’s motives. You can laugh all you want at the “current climate” opinion but the fact of the matter is that its unstable. Ive never seen such turmoil and confusion at airports as was witnessed by the first travel ban executive order. If it happened once it can happen again. 

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Just now, Ermin&Zijada said:

Well he was the one that enacted the travel ban 😂 should be blame Hillary for that one too?

Perhaps it was in her emails.

CR1 / DCF (London): 2012 / 2013 (4 months from I-130 petition to visa in hand)

I-751 #1- April 2015 [Denied]

 

April 2015 : I-751 Joint filing package sent fedex next day 09:00am from UK ($lots - thanks). 
Jan 2017: Notification that an interview has been scheduled at a local office. Bizarrely still no RFE... 
Jan 2017: 2hr wait, then interview terminated before it began, due to moving my ID to another state 2 wks prior. New interview 'in a few months...maybe.'   Informed them that divorce proceedings are underway, but not finalised at this time. 
March 2017: An Interview was scheduled - marked as no-show as they didn't actually send out a notification of interview. FML 
April  2017: Filed an official complaint with the ombudsman, and have requested Senator & Congressman assistance
August 2017: Interview - switched to a (finalised) divorce waiver. Told that decision will be made that afternoon, but no problems foreseen with my case. 
October 2017: Letter of Denial received - reason given as 'I-751 petition was not properly filed'. Discovered ex-spouse made false allegations to USCIS in 2015. No opportunity given to review & refute allegations  - contrary to USCIS policy.

I-751 #2 - Oct 2017 - Mar 2021[Denied] 

 

October 2017: Within 72hrs of receiving denial notice, a new waiver I-751, divorce decree & $680 cheque, sent to Vermont via FedEx overnight 9am priority.  
Dec 2019: Filed FOIA request for full A# file
Feb 2020: FOIA request completed - entire A# file received as a .PDF; 197 pages fully redacted, and 80 partially redacted. Don't waste your time!
March 2021: I-751 #2 denied for lack of evidence. No RFE, no interview, and evidence in previous I-751 not reviewed - contrary to policy. Huge errors in adjudication.

N-400 - Feb 2018 - Apr 2021 [Denied]

 

February 2018: N-400 filed online.  $725 paid to the USCIS paperwork wastage fund

February  2019: Interview - cancelled after a four hour wait due to 'missing paperwork' on their end. Promised Expedited reschedule.

March 2021: Interview letter received, strangely dated after I-751 denial. No I-751 interview conducted. N-400 interview and test passed, given 'cannot make a decision at this time' paper due to the ongoing I-751 nightmare...

April 2021: N-400 denial received citing recent I-751 denial as basis for ineligibility, even though it should have been a combo interview 🤯

I AM JACK'S COMPLETE LACK OF SURPRISE

 I-751 Service Motion - March 2021 [Sent via FedEx & COMPLETELY IGNORED by USCIS]

 

March 2021: Service Motion request sent overnight addressed direectly to field office director, requesting urgent review and re-opening, based on errors in adjudication - citing USCIS policy, AFM and memorandums as basis for errors. This was completely ignored by USCIS.

 I-751 #3 - June 2021 - Jan 2024 [Denied]

 

IT'S GROUNDHOG DAY

June 2021: I-751 #3 (30+lbs/5000 pages of paperwork) & another $680 sent to USCIS via FedEx ($300+..thanks) .... 

June 2021: Receipt issued, card charged, biometrics waived, infopass scheduled for I-551 stamp number ten.....

Feb 2022: RFIE (no, not an RFE, a Request For Initial Evidence) received, for copies of the divorce paperwork that they already have 😑

July 2022: Infopass for I-551 stamp number eleven.....

August 2023: Infopass for I-551 stamp number twelve....

January 2024: Denial received, ignoring the overwhelming majority of the filing, abundance of evidence, and refutation of a provably false allegation. The denial also contradicts itself in multiple places, as if it was written by someone with an IQ <50.

HAPPY NEW YEAR

 

2024: FML. Seriously. I'm done. 

 

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