Kolken & Kolken. Results-oriented immigration lawyers - specializing in Green Card, Deportation Cases and Temporary Visas.

Client permitted to return to the United States despite previous immigration violation

Published: Jun 8, 2009 Source: My Source

Our client is a Canadian citizen. In 2004 he was admitted to the United States as a visitor without any documents being issued to him. He remained in the United States for two years, worked without authorization, and then returned to Canada.

Thereafter, he attempted to return to the United States, but was denied entry on the basis that he was unlawfully present in the United States for one year or more, and as a result, was inadmissible for a period of ten years. He was told to apply for a nonimmigrant waiver of inadmissibility, which if granted in the exercise of U.S. Customs and Border Protection’s discretion, would enable him to enter the United States if he was otherwise admissible.

At this point the client retained our office. After carefully reviewing all of the facts and circumstances, we took the position that a Canadian admissible to the United States, who has not been given a formal document indicating when he was expected to leave, was not inadmissible for unlawful presence. We also took the position that employment without authorization during a prior admission to the United States is not a ground of inadmissibility to future admissions, so long as there is no intention to violate the immigration laws in the future.

U.S. Customs and Border Protection disagreed with our interpretation of the law, which was based upon old Immigration and Naturalization Memos, because USCBP felt that they were not bound by informal positions of the former agency. As a result, we had an Immigration Court proceeding instituted to obtain a court order finding our client admissible to the United States.

Three weeks before trial, U.S. Citizenship and Immigration Services (USCIS), which is another sub-agency under the Department of Homeland Security, issued a new Memo reaffirming the old INS policy. As a result, the attorneys for the Department of Homeland Security agreed with our position and were willing to stipulate that our client was admissible to the United States.

Notwithstanding the fact that the Immigration Judge disagreed with our position, based upon our exhibits and Memorandums of Law submitted, and the fact that there was no disagreement between the parties, we obtained an order terminating the proceedings with prejudice to the Department of Homeland Security. Our client is now able to apply for admission to the United States notwithstanding his previous overstay.

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