MUY SOLO

IT READS, TO ME...

"PRESS THE RIGHT ARROW UNTILL ARRIVING AT THE DATE OF THE EVENT"

"THEN SCROLL DOWN TO CHANNELL........."

They submitted their I-129F in early February! Big deal, waiting less than 2 months!!!

I'm sorry if this offends anyone but Muy Solo, I hate people like you.

I wonder, muy solo, if you realize what will happen if the wrong person sees your post. Not hard to track you down and throw your beloved's ### out of the USA. First names, date of NOA1, country of beneficiary, enough information to track you down.

Sweet dreams!

doesnt bother me honey, im not stupid enuf (are you?) to have my real info on a public website and only my husband and i know if or when he may travel to the usa...

anyway, im not going to waste my time with you over this. ive stated my opinions and so have you. i wish you well, and i hope all the DISPLACED anger you are feeling towards the uscis that is spilling out here on the forum, as you declare yourself patient, will subside, in time. You should try expressing this anger here in the forum directly, rather than scrolling through the posts to find someone to vent on. this is my last reply to you. best wishes.....MUY SOLO

well i hear u and its probly good advice but he was here 10 years before, when he was deported, so we will just take our chances. together. and there is no problem with him working hes made great money here and his job is waiting for him. if it ever got to be a problem ill just move over there and make do.i spent 8 months there, and we built a home there, we will just rent it out untill, if, we have to come back. i dont respect my country or my government anymore. i see what a giant farce it is. lifes too short for all that nonsense uscis stuff. i dont cherish the usa like when i was young and just believed everything i learned in school. besides, ill keep workin on the application and someday if he ever gets an interview appointment we will ust fly back to honduras and go to it. all this i read about what the uscis puts people thru, much longer than us for sure, i dont care if i have to lie my ### of to get the visa . i just do not care anymore. im mad as hell, my husbands mad as hell and so thats the plan.

yea, im not your average head in the sand conforming law abiding us citizen. bad laws , bad system, needs to be broken.

I WISH YOU NO BAD OR HARM, EXPRESS YOURSELF, I CAN LISTEN TO YOU WITHOUT YOUR HURTFUL COMMENTS AFFECTING ME. I DISAGREE WITH YOU AND I HAVE MY OWN LOGIC WHICH MOTIVATES ME, WHETHER YOU AGRE OR NOT. BEST OF LUCK TO YOU IN THE PROCESS.

you are full of #######. either respect USA laws or get your Azz to his country.

you have a right to your opinion, even tho its different than mine. this country belongs to the people,you and i and all the others here. not the beaurocracy. the people will demand and procure change by failing to submit to the beaurocracies wrongs and following their own path, just like our forefathers did when they disagreed with the government ...the taxes, rights and laws. and change it did and will continue to.

and, shonjaved...i do not throw anything in your face. i commend you and others who make a choice you believe in, to follow the process. i simply choose differently and have shared my thoughts and plans with you. i do not need to convince you or change you. best of luck and speedy process to you.

Dont pee on my leg and call it rain!! you openly bragged about having your husband illegally enter as many time as it took til your old an grey

" if he gets a second deportation he will just keep coming back illegal. till were old n grey."

you then tried to justify your actions :

"there is no problem with him working hes made great money here and his job is waiting for him."

"i dont respect my country or my government anymore. i see what a giant farce it is. lifes too short for all that nonsense uscis stuff. i dont cherish the usa like when i was young and just believed everything i learned in school. "

"yea, im not your average head in the sand conforming law abiding us citizen. bad laws , bad system, needs to be broken "

" i dont care if i have to lie my ### of to get the visa "

I never wish ill will on no one. but YOU my dear. I hope the USICS puts you though All the Dramas they can possible muster. I hope your husband gets to face a 10 year bann. you get Found of Missrepresentation.

I am sure the path your going - it wont be a wish or a hope it will be YOUR reality. you wanna be a bad azz rebel you, wanna ignore the laws that protect you. go to the honduras and start your mess there. I have been apart from my sweet husband for well over a year following the laws. there are people on this very thread trying so hard to get their waivers approved - your big mouth mocks them! you think its funny? you think its cute? you said ...

" this country belongs to the people,you and i and all the others here. "

stop mocking the USA then follow the rules.

HEY ...MAYBE OUR LUCKY NUMBER COMES UP BEFORE HE LEAVES ...THEN ALL WILL BE WELL AND GOOD AND LEGAL...IM NOT OPPOSED TO THAT, I JUST CANT BANK ON IT...ANYWAY..TIME WILL TELL.

well, i dont know much...my husband is waiting in Honduras , im in usa... i only have the noa 1. we cant wait anymore and today he decided to come here illegal and hope for a miracle of amnesty in the future. he is leaving this weekend. bad laws . bad system. we are in love and cant wait for the "right" way anymore, they finally broke us.

there are alot of people who can advise you wisely here on this forum. good luck. muy solo.

Are you freakin' serious?

And how much money is he going to waste on sneaking in? $2000? $4000? And you're going to waste how much trying to file a waiver, supporting him while he's illegal, paying whatever fine gets decided on IF it gets decided on? Did it occur to you that all this chatter about amnesty and actually passing an immigration law is just political chatter building up for a midterm election? Does it occur to you that *nothing* might happen? Do you know how many people have been camping out waiting since the 80s for another "amnesty"? And here's me, paying good money to GO to Honduras for months at a time. Sit tight, save your money, make your plans for the future and be mature about it. Delayed gratification is good for the character.

Xristos, the problems people make for themselves. Care to know why it's a 'bad system'? You're contributing. Thanks a bunch.

well i hear u and its probly good advice but he was here 10 years before, when he was deported, so we will just take our chances. together. if he gets a second deportation he will just keep coming back illegal. till were old n grey. and there is no problem with him working hes made great money here and his job is waiting for him. if it ever got to be a problem ill just move over there and make do.i spent 8 months there, and we built a home there, we will just rent it out untill, if, we have to come back. i dont respect my country or my government anymore. i see what a giant farce it is. lifes too short for all that nonsense uscis stuff. i dont cherish the usa like when i was young and just believed everything i learned in school. besides, ill keep workin on the application and someday if he ever gets an interview appointment we will ust fly back to honduras and go to it. all this i read about what the uscis puts people thru, much longer than us for sure, i dont care if i have to lie my ### of to get the visa . i just do not care anymore. im mad as hell, my husbands mad as hell and so thats the plan.

yea, im not your average head in the sand conforming law abiding us citizen. bad laws , bad system, needs to be broken.

you are full of #######. either respect USA laws or get your Azz to his country.

you have a right to your opinion, even tho its different than mine. this country belongs to the people,you and i and all the others here. not the beaurocracy. the people will demand and procure change by failing to submit to the beaurocracies wrongs and following their own path, just like our forefathers did when they disagreed with the government ...the taxes, rights and laws. and change it did and will continue to.

well, i dont know much...my husband is waiting in Honduras , im in usa... i only have the noa 1. we cant wait anymore and today he decided to come here illegal and hope for a miracle of amnesty in the future. he is leaving this weekend. bad laws . bad system. we are in love and cant wait for the "right" way anymore, they finally broke us.

there are alot of people who can advise you wisely here on this forum. good luck. muy solo.

Are you freakin' serious?

And how much money is he going to waste on sneaking in? $2000? $4000? And you're going to waste how much trying to file a waiver, supporting him while he's illegal, paying whatever fine gets decided on IF it gets decided on? Did it occur to you that all this chatter about amnesty and actually passing an immigration law is just political chatter building up for a midterm election? Does it occur to you that *nothing* might happen? Do you know how many people have been camping out waiting since the 80s for another "amnesty"? And here's me, paying good money to GO to Honduras for months at a time. Sit tight, save your money, make your plans for the future and be mature about it. Delayed gratification is good for the character.

Xristos, the problems people make for themselves. Care to know why it's a 'bad system'? You're contributing. Thanks a bunch.

well i hear u and its probly good advice but he was here 10 years before, when he was deported, so we will just take our chances. together. if he gets a second deportation he will just keep coming back illegal. till were old n grey. and there is no problem with him working hes made great money here and his job is waiting for him. if it ever got to be a problem ill just move over there and make do.i spent 8 months there, and we built a home there, we will just rent it out untill, if, we have to come back. i dont respect my country or my government anymore. i see what a giant farce it is. lifes too short for all that nonsense uscis stuff. i dont cherish the usa like when i was young and just believed everything i learned in school. besides, ill keep workin on the application and someday if he ever gets an interview appointment we will ust fly back to honduras and go to it. all this i read about what the uscis puts people thru, much longer than us for sure, i dont care if i have to lie my ### of to get the visa . i just do not care anymore. im mad as hell, my husbands mad as hell and so thats the plan.

yea, im not your average head in the sand conforming law abiding us citizen. bad laws , bad system, needs to be broken.

you are full of #######. either respect USA laws or get your Azz to his country.

you have a right to your opinion, even tho its different than mine. this country belongs to the people,you and i and all the others here. not the beaurocracy. the people will demand and procure change by failing to submit to the beaurocracies wrongs and following their own path, just like our forefathers did when they disagreed with the government ...the taxes, rights and laws. and change it did and will continue to.

and, shonjaved...i do not throw anything in your face. i commend you and others who make a choice you believe in, to follow the process. i simply choose differently and have shared my thoughts and plans with you. i do not need to convince you or change you. best of luck and speedy process to you.

I'm not one to jump into political threads, or even ones with *touchy* topics. But I am so angry by what's going on in my neighborhood that I have to say something.

I live in California... Southern California to be exact. Our state is going to sh*t. If I discuss this openly, I run the risk of being called a "racist". Funny thing is, my sister-in-law is from Mexico. She came here legally and has followed all "the rules". She works legally, and she's ticked off too.

I am not a racist. I do not hate mexicans.

I just don't find it at all fair, that rules apply one place and not another. If we're going to make it ok for every illegal to stay here in California, work, get driver's licenses, etc. then I should be able to do the same in any other country. YES, I'm going to ask that we abolish visas and immigration laws completely! Why have rules? I should be able to go to Canada next weekend to join my husband. Demand a job without a permit, and get a driver's license. I also want them to take care of me, give me free medical, and fun stuff like that.

I have no objection to people wanting a better life. But rules are not rules if they don't apply to everyone. California is supposed to accept every illegal alien from Mexico with open arms, yet Mexico themselves deport Guatamalens all day. (Actually, the US pays for their deportation; we figure it'll save us money because most of them are just using Mexico as their expressway to get to the US). If we deport, we're racists... so why don't they accept the Guatamalens based on that theory with open arms too?

We have a country that was attacked in 2001. We have Al Queda's living in Mexico, learning the language, blending in - because they know how damn ez it is to come here.

We have banks in So. Cal handing out mexican flag souveniers to get new customers, allowing Matricula Consular cards as formal ID to open accounts. No SS# needed.

My best friend is a science teacher in the LA school district. He loves to teach. His kids love him too. His students walked out Friday, didn't come in Monday, were locked in on Tuesday (only half there). Why? Most of the kids interviewed DIDN'T KNOW WHY they were protesting. The saw it on myspace, it prolly sounded like a fun day off from school. Anyone want to take a guess at how much it cost the State to pay all the teachers for those days?

Again, rules for one group of people, but not for another. I'm sick of it. Go ahead and tell me how much i suck. I don't care.

i agree. abolish all immigration laws everywhere in the world and just let people live, love laugh and be happy. let the governments spend thier resources on passing out new id's and taking photos. sure, bar the terror-types and the real criminal bad-asses but, let the others come and go freely. amen.

well, i dont know much...my husband is waiting in Honduras , im in usa... i only have the noa 1. we cant wait anymore and today he decided to come here illegal and hope for a miracle of amnesty in the future. he is leaving this weekend. bad laws . bad system. we are in love and cant wait for the "right" way anymore, they finally broke us.

there are alot of people who can advise you wisely here on this forum. good luck. muy solo.

Are you freakin' serious?

And how much money is he going to waste on sneaking in? $2000? $4000? And you're going to waste how much trying to file a waiver, supporting him while he's illegal, paying whatever fine gets decided on IF it gets decided on? Did it occur to you that all this chatter about amnesty and actually passing an immigration law is just political chatter building up for a midterm election? Does it occur to you that *nothing* might happen? Do you know how many people have been camping out waiting since the 80s for another "amnesty"? And here's me, paying good money to GO to Honduras for months at a time. Sit tight, save your money, make your plans for the future and be mature about it. Delayed gratification is good for the character.

Xristos, the problems people make for themselves. Care to know why it's a 'bad system'? You're contributing. Thanks a bunch.

well i hear u and its probly good advice but he was here 10 years before, when he was deported, so we will just take our chances. together. if he gets a second deportation he will just keep coming back illegal. till were old n grey. and there is no problem with him working hes made great money here and his job is waiting for him. if it ever got to be a problem ill just move over there and make do.i spent 8 months there, and we built a home there, we will just rent it out untill, if, we have to come back. i dont respect my country or my government anymore. i see what a giant farce it is. lifes too short for all that nonsense uscis stuff. i dont cherish the usa like when i was young and just believed everything i learned in school. besides, ill keep workin on the application and someday if he ever gets an interview appointment we will ust fly back to honduras and go to it. all this i read about what the uscis puts people thru, much longer than us for sure, i dont care if i have to lie my ### of to get the visa . i just do not care anymore. im mad as hell, my husbands mad as hell and so thats the plan.

yea, im not your average head in the sand conforming law abiding us citizen. bad laws , bad system, needs to be broken.

Hi Everyone,

I need some advice or knowledge about a potential situation. This is not posted to cause a firestorm of negativity, it's a possible situation that I want to give the persons involved real scenarios to think through their decision. Ok there is a person who is here illegally. been here for 5 years. The person has met someone and they want to get married. They are expecting a child in 7months so the person is leaving the country to go back to have the K-3 filed. what potential problems do they face when leaving the country to go back. If they see a visa not in the passport what will they do? Or what are some possible outcomes? They said an attorney told them to leave since there is no record of them being here and try for the k-3 later. The worry is will there be red flag raised with customs when leaving the country. Thanks for your responses.

Hi Everyone,

I need some advice or knowledge about a potential situation. This is not posted to cause a firestorm of negativity, it's a possible situation that I want to give the persons involved real scenarios to think through their decision. Ok there is a person who is here illegally. been here for 5 years. The person has met someone and they want to get married. They are expecting a child in 7months so the person is leaving the country to go back to have the K-3 filed. what potential problems do they face when leaving the country to go back. If they see a visa not in the passport what will they do? Or what are some possible outcomes? They said an attorney told them to leave since there is no record of them being here and try for the k-3 later. The worry is will there be red flag raised with customs when leaving the country. Thanks for your responses.

well, i dont know much...my husband is waiting in Honduras , im in usa... i only have the noa 1. we cant wait anymore and today he decided to come here illegal and hope for a miracle of amnesty in the future. he is leaving this weekend. bad laws . bad system. we are in love and cant wait for the "right" way anymore, they finally broke us.

there are alot of people who can advise you wisely here on this forum. good luck. muy solo.

IM SO ANGRY AND DIGUSTED I MAY HAVE TO GO TO TH ER FOR NERVE PILLS TODAYANT TAKE MUCH MORE OF THIS. SORRY, NOT VERY UPLIFTING, ...

They are all out surfing....

We waited for what seemed like forever, NOA1 Nov 14, 2005 NOA2 February 16 2006. But once it got out of the CSC, I haven't had time to catch my breath.

My interview is in a week and a half!!!!

i hate all those sons-a - %#@!$'s at CSC. i hope before i die i get the opportunity to screw up their lives!

it is soooo frustrating, im waiting also for the noa2. it seems rediculous in this computer age they cant do ma simple thing like that without waiting several months or much more...i have called every customer service line, emailed every office, and we are totally powerless to force any faster action ourselves.

know it may not help but ust wanted you to know you are not alone. i spend 4 to 8 hours a day on the net researching this whole ball of confusion and the only thing i found was a senators contact page. i wrote 20 and 5 answered me back with a downloadablew form to request asistance formally, from them...

heres the link

Senator Nelson, please use the form on his Web site: http://billnelson.senate.gov/contact/index.cfm#email

good luck, hope it gets faster for you...muy solo

bad laws should be broken...sorry, i am a vigilante...i think when we sit back and succumb to our leaders idiocy we condone and perpetuate it.

just wondering if anyone knows of any waivers approved without using any medical/psyche evidence. i believe they should think the crime/kidnapping/economy is cruel and unusual suffering for a usc.

thanks, muy solo

well, i respect your perrogative to express your own opinion, i am sure you have had some life experiences that helped shape your opinion.

its like that old bumper sticker "if guns are outlawed, only outlaws would have guns"

do away with all immigration bars, be a god-(or higher power)loving generous welcoming nation eager to share with our worldly brothers and sisters the wealth of our lands. Sure, do security checking to wed out terorists, but barring that, welcome all....give me the tired the poor, the wretched masses...

i feel now , like so full of hate, anger and disgust for my own usa government for being so full of stupid timewasting life wasting messed up paperwork and delays. for greed, selfishness...

i hope this news release means we all can tell uscis to drop dead...ill be callin my husband to tell him come on over, their bull#@$% rules dont matter anymore.

they screwed thier own selves by making a majority of americans very very angry with the anti immigration view and the anti immigration tactics. *note: the majority is a mut dog mixture of people from all over the world...!!! what is american anyway? those foreigners lucky enuf to get here in a generation before all this greedy nonsence?

immigrants today will only help our economy...each new person coming will ned to BUY food, clothing, shelter, medical, vehicles, insurance, pay taxes...geez, its simple math.

i really believe alot of the delays with uscis is some unwritten way to prevent immigration by delaying it and the relationships caught in between, to death!

so, im totally opposite your views and yes, full of anger. you can say what you want to me or about me nice or nasty, it doesnt matter to me those who differ, cuz i believe im right and right with y god, on my opinion.

muy solo

YES YES YESSSSSSSSSSSSSS!!! CONGRATS!!! NEW HOPE FOR ALL AT CSC MY NOA 1 RECIEVED APPROX. 6 WEEKS AGO.........THANKS FOR THE UPLIFTING POST AND MAY THE REST BE SPEEEEEEDY FOR YOU TOO!

MUY SOLO

yessss! congrats!

muy solo

Try posting your questions at www.immigrate2us.net in the I-601 waiver forum there are alot more people over there experienced in waivers.

good luck

Char

thanks char, will do!

muy solo

Hi there folks!

I woke up with a text message from my fiancee saying she has received the NOA1 in the mail yesterday!! When she checked her online banking a check for $170 had been cashed!

This is all very exciting, and we're both very glad that we're now a "number" in the system!

Many thanks to all of those who have helped so far. If anyone has any tips from this point any comments are welcomed!

Regards,

Justin

congratulations! im new in this too and i got my noa1 recently too so im know the excite ment !! i hope a smooth and problem free experience for you both!

muy solo

You could try posting this in the waivers forum as they may be able to help you if someone has had some experience of it.

thanks, im still trying to understand the proper navigation of this site...ill give it a try!

muy solo

You definitely need a lawyer on this issue. I don't think anyone on this board is qualified to answer these questions. Good luck.

since its sunday, cant contact a lawyer, my mind is in overdrive...i did some case history studies on lexis nexis..but i cant seem to comprehend what the info is telling me/how this might afect our case..any idea on interpreting this as may apply to us?

lexisnexes is free info for those so inclined to further boggle their brains!

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2005 U.S. App. LEXIS 28989,*;432 F.3d 685;

2005 FED App. 0489P (6th Cir.)

JAGUBHAI NARANBHAI PATEL, VANITABEN THAKORBHAI PATEL, Petitioners, v. ALBERTO GONZALES, United States Attorney General, Respondent.

No. 04-3829

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

432 F.3d 685;2005 U.S. App. LEXIS 28989;2005 FED App. 0489P (6th Cir.)

December 1, 2005, Submitted

December 30, 2005, Decided

December 30, 2005, Filed

PRIOR HISTORY: [*1] On Appeal from the Board of Immigration Appeals. Nos. A90 303 169; A90 303 170.

COUNSEL: ON BRIEF: Margaret W. Wong, MARGARET WONG & ASSOCIATES, Cleveland, Ohio, for Petitioners.

Emily Anne Radford, Keith I. Bernstein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

JUDGES: Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge. *

* The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.

OPINIONBY: CLAY

OPINION: CLAY, Circuit Judge. Petitioners, Jagubhai and Vanitaben Patel, appeal an order of the Board of Immigration Appeals ("BIA") entered on June 1, 2004 denying Petitioners' request for: (1) a discretionary waiver of deportation pursuant to § 212(i) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(i); (2) a discretionary waiver of deportation pursuant to § 237(a)(1)(H) of the INA, codified at 8 U.S.C. § 1227(a)(1)(H); and (3) a nunc pro tunc order legalizing Petitioners' 1993 entry into the United States. For the reasons set forth below, we DENY the petition for review.

I.

BACKGROUND [*2]

A. Procedural History

On February 2, 2001, Sanjay Herat, a naturalized United States citizen, applied for immediate relative visas for his parents, Petitioners Jagubhai and Vanitaben Patel. The Immigration and Naturalization Service ("INS") approved Herat's application, and thereafter, Petitioners applied for an adjustment of their status to that of lawful permanent residents. At an interview to determine whether Petitioners were eligible for adjustment of status, an INS examiner learned that Petitioners gained entry into the United States through the use of fraudulent passports in 1993. Petitioners subsequently withdrew their applications for adjustment of status.

Based on the information the INS obtained in the interview, the INS initiated removal proceedings. On September 21, 2001, the INS issued Notices to Appear charging Petitioners with being subject to removal pursuant to § 212(a)(6)(A)(i) of the INA, codified at 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded removability and requested adjustment of status. Thereafter, Petitioners, through their attorney, filed an I-485 form requesting adjustment of status, an I-601 form requesting waiver [*3] of deportation, and an I-212 form requesting permission to reenter the United States.

After a hearing, the IJ issued a written opinion denying Petitioners' request for adjustment of status, and holding that Petitioners were ineligible for waiver under § 212(i) of the INA and nunc pro tunc relief. Petitioners appealed to the BIA, which adopted and affirmed the IJ's opinion. On June 24, 2004, Petitioners timely petitioned this Court for review of the BIA's decision.

B. Substantive Facts

Petitioners Jagubhai and Vanitaben Patel are natives and citizens of India. They first entered the United States in 1981 on a B-2 visa, and settled in Ohio where Petitioner Jagubhai owned and operated a motel. In 1986 and 1987, Petitioners brought their children Sanjay Herat, Jagruitben Patel, and Nimikaben Patel to join them. In 1992, Petitioners temporarily returned to India. One year later, in 1993, they returned to the United States. To gain entry, Petitioners used fraudulent passports.

In January 2001, Petitioners applied for permanent resident status on the basis of their son Sanjay's approved immediate relative visa. Sanjay Herat became a naturalized citizen of the United States [*4] in approximately 2000. Due to Petitioners' application for adjustment of status, however, the INS discovered that Petitioners entered the United States with fraudulent passports. Thereafter, Petitioners withdrew their applications for adjustment of status and the INS initiated removal proceedings.

In light of the Petitioners' 20 year residence in the United States, and family located in the United States, Petitioners sought a discretionary waiver of removal. In particular, they requested relief under § 212(i) of the INA, and a nunc pro tunc order retroactively admitting them to the United States. They also contend that their application requested relief under § 237(a)(1)(H) of the INA. The IJ denied discretionary waivers holding that Petitioners were not eligible for relief under the current version of § 212(i) of the INA and that it did not have the authority to issue a nunc pro tunc order retroactively admitting Petitioners into the United States. In a per curium order, the BIA adopted and affirmed the IJ's decision. Petitioners now appeal the BIA's decision, arguing that: (1) the IJ erred in applying the current version of INA § 212(i) to Petitioners' request for a [*5] discretionary waiver of removal as opposed to the 1993 version of INA § 212(i); (2) the IJ erred in failing to address and grant Petitioners' request for a discretionary waiver of removal pursuant to INA § 237(a)(1)(H); and (3) the IJ erred in denying a nunc pro tunc relief.

II. DISCUSSION

A. THE IJ PROPERLY APPLIED THE CURRENT VERSION OF INA § 212(i) TO PETITIONERS' REQUEST FOR A DISCRETIONARY WAIVER.

1. Jurisdiction

This Court does not have jurisdiction to review a decision of the BIA granting or denying a waiver of removal under INA § 212(i) because such a decision is within the discretion of the Attorney General. 8 U.S.C. 1182(i)(1)-(2) ("The Attorney General may, in the discretion of the Attorney General, waive . . . ." and "No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1)"). In contrast, this Court does have jurisdiction to determine which version of § 212(i) applies to a particular alien. Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005 (9th Cir. 2001). The correct version of 212(i) to apply to an alien is a question [*6] of law not within the Department of Homeland Security's ("DHS") discretion. Id.; see also Gjonaj v. INS, 47 F.3d 824, 826 (6th Cir. 1995).

2. Standard of Review

Neither the BIA nor the IJ addressed the question of which verison of § 212(i) applies to Petitioners. Therefore, this Court has nothing to review and must determine which version of § 212(i) to apply de novo.

3. Analysis

Petitioners contend that the IJ erred in concluding that Petitioners are ineligible for a discretionary waiver of deportation under § 212(i) of the INA because the IJ improperly applied the current version of § 212(i) to Petitioners' request for relief. Petitioners argue that the 1993 version of § 212(i) applies to their request for relief because the conduct for which Petitioners are requesting a waiver occurred in 1993. Because courts must apply the law in effect at the time of decision unless such law has a retroactive effect, and because the application of § 212(i) to Petitioners does not have a retroactive effect, the IJ properly applied the current version of § 212(i). Therefore, this Court denies the petition for review to the extent it rests on the IJ's application [*7] of the current version of § 212(i) to Petitioner's case.

a. INA § 212(i)

The current version of § 212(i) of the INA grants the Attorney General the discretionary power to waive removal of an immigrant being deported on the basis of fraud. 8 U.S.C. § 1182(i) (2005). To qualify for a waiver under § 212(i), an immigrant must be the spouse or child of a United States citizen or of an immigrant lawfully admitted for permanent residence. Id. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act's ("IIRIRA") amendments to the INA in 1996, however, parents of United States citizens or of immigrants lawfully admitted for permanent residence also qualified for § 212(i)'s discretionary waiver. 8 U.S.C.§ 1182(i) (1993). Because Petitioners are parents of a United States citizen, as opposed to a spouse or child, Petitioners are only eligible for a waiver under the pre-IIRIRA version of § 212(i).

b. Retroactivity

Petitioners contend that the application of the current version of § 212(i) is improper because application of the current version of § 212(i) has a retroactive effect on Petitioners. [*8] Although Congress has the authority to enact retroactive statutes, courts ordinarily do not apply statutes retroactively unless a statute evidences congressional intent to apply retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 267, 270, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). Whether Congress intended a statute to apply retroactively is a question of statutory interpretation. Id. at 280. In interpreting statutes, courts apply a presumption against retroactive application. Id. Thus, where a statute is silent as to the scope of its application, the statute should not be applied retroactively. Id.

Not all statutes, however, raise retroactivity concerns. "A statute does not operate retroactively merely because it is applied in a case arising from conduct antedating the statute's enactment." Id. at 269; Campos v. INS, 16 F.3d 118, 122 (6th Cir. 1994). Consequently, courts generally apply the law existing at the time of the decision as opposed to the law existing at the time that the conduct giving rise to the case occurred. Landgraf, 511 U.S. at 280.

The application of law existing at the time of decision [*9] does not violate the presumption against retroactivity unless the statute in question has retroactive effects. Id. at 269-70. A statute has retroactive effects if the statute:

attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and effect of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. . . . Familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Id. Procedural rules generally do not have retroactive effect because procedural rules regulate secondary as opposed to primary conduct. Id. at 275. In contrast, rules that deprive persons of vested substantive rights may have retroactive effects if applied to conduct occurring prior to their enactment. See id. at 272.

The retroactive effect of the elimination of the § 212(i) waiver for parents of United States citizens is an issue of first impression in this Court. Only two circuits, the Ninth and the [*10] Fourth have addressed this issue. Cervantes-Gonzales v. INS, 244 F.3d at 1005-06; Okpa v. INS, 266 F.3d 313, 318-19 (4th Cir. 2001). Both courts held that the restrictions on the availability § 212(i)'s waiver did not have a retroactive affect because an alien could not reasonably rely on the existence of a discretionary waiver to commit illegal conduct. Cervantes-Gonzales v. INS, 244 F.3d at 1006; Okpa, 266 F.3d at 319.

The Supreme Court has addressed the retroactive effects of a discretionary waiver contained in another subsection of § 212. INS v. St. Cyr, 533 U.S. 289, 315-325, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001). In St. Cyr, the Supreme Court held that IIRIRA's elimination of the discretionary waiver of removal had a retroactive effect as applied to persons who pled guilty to removable offenses prior to IIRIRA's enactment. Id. at 322-325. The Supreme Court reasoned that such persons may very well have pled guilty in reliance on the availability of a discretionary waiver. Id. at 322. But for the eliminated waiver provisions such persons might have chosen a hearing over [*11] a guilty plea. Id. The Court expressly rejected the INS's arguments that, 1) the INS's power to grant relief in deportation proceedings was "inherently prospective," and thus did not raise retroactivity concerns; and 2) the elimination of discretionary relief never raises retroactivity problems. Id. at 324-25. The Court stated that "there is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation." Id. at 325 (citing Hughes Aircraft Co. v. United States ex rel Schumer, 520 U.S. 939, 949, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997)).

This Court has limited the application of St. Cyr to aliens who plead guilty to removable offenses prior to the enactment of IIRIRA regardless of when the removable offenses occurred. Garcia-Echaverria v. United States, 376 F.3d 507, 516 (2004). In Garcia-Echaverria, this Court held that IIRIRIA's elimination of the a § 212© waiver did not have a retroactive affect on a defendant who pled guilty after the § 212© waiver was eliminated. Id. Although as Petitioner correctly observes, the defendant in [*12] Garcia-Echaverria committed the removable offense after the elimination of the § 212© waiver, that fact was not relevant to the outcome in Garcia-Echaverria . See id. at 516 n.8. This Court stated that the relevant conduct was the guilty plea and not when the offense was committed, presumably because the guilty plea was more likely than the criminal offense to be made in reliance on the waiver. Id.

c. As Applied in This Case

Section 212(i) is not intended to apply retroactively. It lists no effective date, and its legislative history gives courts no indication that it should be applied retroactively. See 8 U.S.C. § 1182(i); Cervantes-Gonzales, 244 F.3d at 1005; Okpa, 266 F.3d at 318-19. Thus, using the presumption of statutory construction explained in Landgraf, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 , this Court should presume that Congress did not intend for 212(i) to apply retroactively.

Nonetheless, the IJ correctly applied the current version of § 212(i) to Petitioners. Courts should apply the law in effect at the time of the decision, unless such law has a retroactive [*13] effect on the parties. Landgraf, 511 U.S. at 273. Section 212(i) does not have a retroactive effect on Petitioners. See Campos, 16 F.3d at 122 (holding pre-Landgraf that elimination of a waiver for conduct that occurred prior to the elimination has no retroactive effect). The factors articulated in Landsgraf -- fair notice, reasonable reliance, and settled expectations -- weigh against finding a retroactive effect. See id. at 269-70. In likelihood, Petitioners did not enter the United States through fraud in reliance on the availability of the discretionary waiver. Nor did Petitioners have a settled expectation, given the fact that Petitioners' son was not a naturalized citizen in 1993, that they would receive a discretionary waiver based on their relationship with their son. Finally, unless Petitioners had notice of the waiver in the first place, they cannot rely on the argument that they need "fair notice" of the change. Thus, this Court joins the Fourth and Ninth Circuits in holding that the 1996 amendments to § 212(i) do not have a retroactive effect. Cervantes-Gonzales v. INS, 244 F.3d at 1006; Okpa, 266 F.3d at 319. [*14]

B. THIS COURT DOES NOT HAVE JURISDICTION TO REVIEW PETITIONERS' CLAIM THAT THEY ARE STATUTORILY ELIGIBLE FOR DISCRETIONARY WAIVERS UNDER THE CURRENT VERSION OF INA § 237(a)(1)(H).

This Court is without jurisdiction to review Petitioners' claim that they are eligible for a discretionary waiver under the current version of § 237(a)(1)(H). Petitioners failed to adequately raise the applicability of the current version of § 237(a)(1)(H) in their brief to the BIA. Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005) (holding that this Court does not have jurisdiction to review claims not raised before the BIA). Petitioners mention § 237(a)(1)(H) only once in their brief on appeal to the BIA, and on that occasion admit that in its current form § 237(a)(1)(H) does not apply to their situation. (J.A. at 152) ("IIRAIRA retroactively withdrew Respondents' eligibility under [§ 237 and § 212] . . . ."). Although Petitioners mention the "former 241(f) [sic]," which is the pre-1996 version of § 237(a)(1)(H), on two additional occasions, this too is insufficient to preserve the applicability of § 237(a)(1)(H) for this Court's review. Reference to the pre-1996 [*15] version of § 237(a)(1)(H) did not place the BIA on notice that Petitioners were requesting relief under the current version of § 237(a)(1)(H). Therefore, we are without jurisdiction to grant a petition for review on this ground.

C. PETITIONERS ARE NOT ELIGIBLE FOR NUNC PRO TUNC RELIEF.

1. Standard of Review

Although, this Court reviews the BIA's legal conclusions de novo, it must defer to the BIA's reasonable interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999). When the BIA has adopted and affirmed an IJ's decision, this Court reviews the IJ's decision directly. Selami v. Gonzales, 423 F.3d 621, 624-25 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003)). This Court need not defer, however, to an IJ's interpretation of the INA that conflicts with BIA precedent. See Rodriguez-Roman v. INS, 98 F.3d 416, 427 (9th Cir. 1996) (declining to defer to an IJ's interpretation of the INA adopted by the BIA in a per curiam opinion that conflicted with BIA precedent).

2. Analysis n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 This Court finds it unnecessary to address Petitioners' claim that the IJ and the BIA failed to meaningfully review Petitioners request for nunc pro tunc relief separately. The IJ held that she did not have the authority to issue such relief, and thus clearly addressed Petitioners' request. The real issue is whether the IJ's treatment of Petitioners' claim was legally correct.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*16]

The IJ incorrectly determined that she did not have the authority to issue a nunc pro tunc order granting Petitioners a waiver pursuant to the 1993 version of § 212(i). The IJ's interpretation of the 1996 amendments to the INA as abolishing her authority to issue nunc pro tunc orders for waivers of inadmissibility was unreasonable in light of BIA case law on nunc pro tunc orders. Nonetheless, we deny the petition for review because Petitioners are not eligible for a nunc pro tunc order granting a waiver of removability pursuant to the 1993 version of § 212(i).

a. Nunc Pro Tunc Relief

A nunc pro tunc order is an order that has retroactive legal effect. Black's Law Dictionary 1097 (7th ed. 1999). The BIA has long used nunc pro tunc orders to remedy the harshness of United States immigration laws. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004) (citing In re L----, 1 I. & N. Dec. 1 (A.G. 1940); In re T----, 6 I. & N. Dec. 410, 413 (BIA 1954); In re A----, 3 I. & N. Dec. 168, 172-73 (BIA 1948)). Among other uses, the BIA has issued nunc pro tunc orders to retroactively legalize [*17] an alien's admission into the United States thereby eliminating the grounds for deporting the alien. In re L----, 1 I. & N. Dec. at 1; In re T----, 6 I. & N. Dec. at 413-14; In re A----, 3 I. & N. Dec. at 172-73. For example, in the Matter of T, the BIA issued a nunc pro tunc order waiving an alien's perjury as grounds for deportation, despite the fact that the version of the INA in effect at the time the BIA issued the order did not authorize such a waiver. In re T----, 6 I. & N. Dec. at 413-14. The BIA reasoned that the version of the INA in effect when the alien entered the United States authorized a waiver, and thus that the BIA had the authority to issue a retroactive order granting waiver based on the former version of the INA. Id.

Although the INA does not explicitly confer the power to issue nunc pro tunc orders on the BIA, the BIA has interpreted the INA to implicitly confer such power. See In re L----, 1 I. & N. Dec. at 5-6. In 1940, the BIA concluded that Congress did not intend for immigration laws to operate in a "capricious and whimsical fashion," and that Congress therefore must [*18] have intended to allow the Attorney General to have discretion to correct errors through retroactive orders. Id. The BIA has held that the power to issue nunc pro tunc orders has survived numerous amendments of the INA, including amendments that restrict the availability of discretionary waivers. See In re T----, 6 I. & N. Dec. at 413-14 (granting a waiver nunc pro tunc where the petitioner was not eligible for discretionary relief under the current version of the INA due to an amendment to the INA restricting the availability of waiver) ; see also In re Po Shing Yeung, 21 I. & N. Dec. 610, 624 (BIA 1997)(Rosenberg, Board Member, concurring in part and dissenting in part) . As explained by the Second Circuit in Edwards,

The BIA has, through much of § 212©'s history, explicitly deemed it appropriate to award § 212©'s waivers nunc pro tunc . And, despite multiple amendments and a recodification of the statute, Congress has not expressly countermanded this long-standing practice. Congressional reenactments, when made in the light of administrative interpretations of this kind, go a long way to precluding [*19] the INS's current contention [that the 1996 restrictions on availability of the § 212© waiver evince a congressional intent to preclude nunc pro tunc grants of § 212© waivers based on the pre-1996 version of § 212©].

Edwards, 393 F.3d at 309-10 (internal citations omitted).

Although the BIA has the authority to issue nunc pro tunc orders, it only issues such orders in two situations: (1) where the only ground of deportability or inadmissibility would thereby be eliminated; and (2) where the alien would receive a grant of adjustment of status in connection with the grant of any appropriate waivers. In re Felipe Garcia-Linares, 21 I. & N. Dec. 254, 259 (BIA 1996); In re Roman, 19 I. & N. Dec. 855, 857 (BIA 1988). In its earlier cases, the BIA also weighed the equities, including how long the Petitioner had resided in the United States and whether the Petitioner had family living in the United States. In re T----, 6 I. & N. Dec. at 413-14; In re A----, 3 I. & N. Dec. at 171-72.

Contrary to Respondent's assertion, the BIA does not grant nunc pro tunc orders only where [*20] the DHS (formerly the INS) erred causing an alien prejudice. Respondent mistakenly relies on cases in which federal courts have granted, or ordered the BIA to grant, nunc pro tunc orders, and not cases in which federal courts have remanded to allow the BIA to determine whether to grant nunc pro tunc relief. (Resp't Br. 24 (citing Edwards, 393 F.3d at 310).) In contrast, BIA case law indicates that the BIA has authority under the INA to issue nunc pro tunc orders even where there is no clear agency error. In re T----, 6 I. & N. Dec. at 413-14; In re A----, 3 I. & N. Dec. at 171-72; see also Yeung, 21 I. & N. Dec. at 624 (Rosenberg, Board Member, concurring in part and dissenting in part). Respondent offers no reason or authority suggesting that the standard appropriate in federal court is also the standard appropriate for the DHS.

The standard employed by federal courts should not be imposed on the BIA and overrule its longstanding precedent. It makes persuasive sense that the power of the BIA to enter nunc pro tunc orders is greater than that of federal courts. Unlike the BIA, Congress did not entrust [*21] the federal courts to implement the INA but rather to insure that the DHS and BIA act within their statutory authority under the INA. Where there is no agency error, this Court has no reason to be involved in immigration cases. In contrast, the BIA may reasonably determine that a nunc pro tunc order is necessary to effectively implement the goals of the INA even where the DHS has not erred. Therefore, the authority of the BIA to issue a nunc pro tunc order need not be interpreted to be identical to that of federal courts in immigration cases.

b. As Applied in This Case

Here, the IJ incorrectly assumed that she did not have the authority to issue a nunc pro tunc order granting Petitioners a discretionary waiver pursuant to the 1993 version of the INA. The IJ reasoned that the 1996 amendments to the INA eliminated § 212(i) waivers for parents of United States citizens, and thereby also eliminated the DHS's authority to issue nunc pro tunc orders granting such waivers. Although the IJ's reasoning has facial appeal, it is unreasonable because it conflicts with BIA precedent. Rodriguez-Roman, 98 F.3d at 427 (declining to defer to IJ and [*22] BIA decisions in conflict with BIA precedent). Therefore, this Court will not defer to the IJ's interpretation of the INA and will instead follow the long-standing interpretation of the INA articulated by the BIA. As noted above, the BIA has interpreted amendments to the INA restricting the availability of discretionary waivers of deportation not to eliminate its authority to issue nunc pro tunc orders granting such waivers. See In re T----, 6 I. & N. Dec. at 413; see also Edwards, 393 F.3d 299. Thus, the DHS has the authority to issue nunc pro tunc orders granting waivers under the pre-1996 version of the INA even though Congress has eliminated such waivers. See id.

Nonetheless, this Court will not grant the petition for review. Although the IJ has the authority to issue nunc pro tunc orders granting waiver under the 1993 version of the INA, and such relief would eliminate the sole grounds for removing Petitioners, Petitioners are not eligible for such relief. When Petitioners entered the United States in 1993, their son, Sanjay Herat, was not yet a United States citizen. Consequently, in 1993, Petitioners were not eligible for a [*23] discretionary waiver under the 1993 version of § 212(i). Thus, the IJ does not have the authority to grant such relief under the 1993 version of § 212(i). See In re T----, 6 I. & N. Dec. at 413 (granting a discretionary waiver nunc pro tunc to an alien who qualified for the waiver at his time of entry).

III.

CONCLUSION

For the reasons set forth above, we DENY the petition for review.

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thank, muy solo

You definitely need a lawyer on this issue. I don't think anyone on this board is qualified to answer these questions. Good luck.

thanks for taking the time to look at it, i guess i will get a consult on this matter

sincerely,...muy solo

re:IF alien violated immigration law before April 1st 1997... WHICH VERSION OF LAW APPLIES?

I MEAN, IS IT THE DATE HE ENTERED, OR THE DATE HE WAS ORDRED DEPORTED OR THE DATE ACTUALLY DEPORTED THAT DECIDES ? CONFUSED SINCE I READ THIS..."601 waiver is based on the prior immigration violation and it should be filed accordingly. it has two basic parts which should be kept in mind before writing.

Immigration Law is changing and has changed in the past tremendously and every time it changes law becomes tough for the requirements stand points, so the first thing to be determine when the immigration violation occurred.

IF alien violated immigration law before April 1st 1997 but after Sept 30th 1996, he should file waivers under transitional rule of Immigration Illegal reform act of 1996

If Violation occurred before Sept 30 1997, then alien should file waiver under IMMACT1990"

NOW IM LOST...

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

so sorry but im confused with my husbands details which applies??...he entered illegal w/o inspection 1-1-1996. he got married and tried to adjust. (different woman, not me). he failed to appear for deportation hearing june 17, 1996 and was deported in absencia on that date. he filed a motion to reopen on oct. 21, 1999. it was denied nov. 24, 1999. he appealed dec. 22, 1999. appeal dismissed april 25, 2001. he was physically deported on oct. 18, 2001. which is the date that decides which version of law his i-601 will use? now he is married to me,...we married, oct. 7, 2005 in Honduras, ive returned to usa and filed the i-130 & i-129f...& preparing waiver which i guess we will need in tegucigalpa embassy...

thanks so much,...muy solo

__EE_

U.S. Departuwni of Justice

1mmigratioi and Naturalization Service

601 West Broadway, Room 601

Louisville, KY 40202

XXXXXX XXXX XXXX XXXX A2XXXXXXX

C/CXXXXX, Atty

PLLC Date: August 21, 2001

400 W. XXXXXXXX

Louisville, KY 40202

NOTICE OF DENIAL OF APPLICATION TO REGISTER PERMANENT

RESIDENCE OR ADJUST STATUS

On April 3, 1998, you filed an Application t Register Permanent Residence or adjust Status (Form [.485), seeking to adjust your status to that of a lawful permanent resident

,.of the United States pursuant to Section 2’!. of the Immiarat ion and Nationality Act as arneidcd.

Title 8, Code of Federal Regulations, Section 245.2(a)(1) states in pertinent part:

(a) General(1)Jurisdiction. . After an alien. . .is in deportation or removal proceedings, his or her application for adjustment of status under section 245 of

the Act. . . shall be made and considered only in those proceedings.

The Service record shows that you last entered the United States without inspection on January 1, 1996. On June 17, 1996 you were deported in absentia. You filed a motion to reopen with the Immigration Judge on October 21, 1999. On November 24, ‘1999 an Order and Summary Decision of the Immigration Judge was issued denying the reopening of your proceedings. On Decen’;ber 22, 1999 a notice of appeal was filed with the Board of Immigration Appeals regarding the reopen request. The Board of Immigration Appeals issued a decision 3fl 25, 2001 affirming the Immigration Judge’s decision and the appeal was dismissed.

Therefore the District Director does not have the jurisdiction to adjust your status. Accordingly, your appli ation must be, and hereby is, DENIED.

Christine G. Davis

District Director

—

I just recently joined this website myself. I found it very helpful. I yet to send the i-130 next week:)

Welcome.

Good luck and i hope it all goes fasssssssssst for you! It took me so long to feel my papers were correct before i mailed my i 130...i kept re-reading and cheking over and over, drove myself crazy!

sincerely,

Muy Solo

YIPPEEEEE, THE TRAINS A MOVIN !!!

Hello there, welcome to VJ you will find a wealth of information on this site and the people are so helpful, I know I found the process hard but being amongst people going through the same thing that can answer my questions and also make me laugh at the same time certainly made the time I waited so much better.

Donna

THANKS SO MUCH, I WAS WONDERING THE WHERE AND WHEN, THE MAILMAN MUST THINK I AM CRAZY, AS I'M ALWAYS WIATING ON THE PORCH!

SINCERELY,

MUY SOLO

Hello "Muy Solo" , Welcome to VJ. If it wasn't for this site , I've would of been paying hundreds of dollars to a lawyer. I'm a Floridian as well (Miami) and recently received the NOA-1 and immediately sent the I-129F petition for K-3 visa. Your I-130 will be sent to CSC and in approximately 2 weeks from the time you sent your petition you will received your NOA-1.

There is lots of information on this site , take advantage and if you have any questions , don't hesitate and ask.

Good luck in your journey.

THANKS SO MUCH I WONDERED WHERE AND WHEN, , I GUESS THATS A BAKLOG REDUCTION THING BEING FORWARDED FROM TEXAS? I APPRECIATE THE REPLY AND GOOD LUCK TO YOU BOTH, AS WELL!

I REALLY APPRECIATE THE SINCERE WELCOME, THANKS TO ALL WHO REPLIED...EACH LITTLE SHRED OF INFO AND REALITY HELPS US HANG IN THERE!

SINCERELY

MUY SOLO