When a person continually receives bad news we like to somewhat console him or her by using an old American adage "when it rains it pours," and based upon the recent rash of harmful decisions coming out of the 9Th Circuit, it's a downpour on intending immigrants.
Last week we explained how the 9th Circuit Court of Appeals fundamentally changed the interpretation of what constituted a lawful entry and how this new interpretation has negatively impacted immigrants who entered the United States using a false document or name.
Previous to this decision a person who entered the U.S. with a false name or document could marry a U.S. citizen and, if there was no other immigration or criminal violations, ask for forgiveness of the entry fraud in the form of a waiver. If the Immigration Service granted the waiver the immigrant would be permitted to adjust status.
It appears now that no such relief will be available. The Court in Orozco v. Mukasey stated that, "eligibility for a waiver of inadmissibility does not make Orozco's underlying entry into the United States lawful. As discussed above, lawful entry is a statutory prerequisite for adjustment of status under 8 U.S.C. 1255(a)."
If you have entered the U.S. using a false name or document make sure you see a reputable immigration attorney before you present any application to the Immigration Service.
In another blow to immigrants the Board of Immigration Appeals (BIA) held and the 9Th Circuit Court of Appeals concurred that an alien's right to request for permission for admission within the United States after being ordered deported should be overturned.
In Torres-Garcia, the BIA held that an alien ordered deported could no longer stay within the U.S. and file a request for a waiver of requirement that he or she live outside of the U.S. for 10 years before an application to adjust status.
With an order of deportation comes the requirement of the immigrant leaving the U.S. for a period of 10 years. However, aliens living in the 9Th Circuit (Includes California) were allowed to file a waiver requesting that the 10 year requirement be waived and that the immigrant be allowed to adjust status here in the U.S. This move is no longer allowed.
In a recent decision the 9th Circuit agreed with the holding in Torres-Garcia that an applicant who is inadmissible under subsection (a)(9)(C)(i)(II) is also ineligible to adjust his status under the special adjustment provision from within the United States. The alien is bound by subsection (a)(9)(C)(ii), requiring that he obtain permission to apply for readmission from outside the United States after ten years have lapsed from the date of his departure.
To continue the turn of bad news for immigrants the 9th Circuit again pulled back from another previously accepted practice. In Momeni, a German national entered the U.S. and was placed in deportation proceedings. During these proceeding he married a U.S. citizen. At issue was whether or not someone who entered the U.S. on visa waiver could contest deportation by filing for an adjustment of status.
The reason this is an issue is because an alien who enters under the Visa Waiver Program is allowed to visit the U.S for up to 90 days without a visa in return they must waive any right to contest, other than on the basis of asylum, any action taken by the U.S. government to remove them. This rule was primarily for those facing deportation in Immigration Court.
Prior to this case such an immigrant could have overstayed his visa, married a U.S. citizen and file an application with the Immigration Service. The no- contest rule was not applied at the INS and such an applicant was treated as routine most often resulting in permanent residency. The suit brought by the respondent backfired and the Court broadened its meaning.
The Court addressing this very scenario stated, "there are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them...We agree with the Tenth Circuit in Schmitt v. Maurer, that to allow an adjustment of status petition after 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute.
If you have come from one of the 27 designated Visa Waiver countries and have overstayed your 90 days please see a reputable immigration attorney as your situation has just drastically changed.
These recent cases truly show the dynamics of immigration and how the law is ever changing and complicated. Before you go forward with an application or petition to the INS do your own due diligence. Study your situation online, consult and immigration expert because in times like these they can keep you from getting all wet.