Published on the World Journal Weekly on April 26, 2015

Q & A 1. 2.

Q&A 1.


Person Summarily Removed 5 Years Ago Wonders If He Can Return Through USC Child’s Sponsorship


A friend asks:

I have a friend came into the U.S with a tourist visa 10 years ago and applied for asylum, but later he gave up and returned to China. He came into the U.S again before the visa expired, but the visa was invalidated when he tried to come in, he applied for asylum again. Again, he gave up the application and the judge ordered him a deportation order. He left the U.S and returned to China and barred for 5 years. 5 years has elapsed, his child has became U.S. citizen.  He wants to know if his child can petition for him and will he be able to obtain the immigrant visa? Can people with deportation order immigrate to the U.S? What kind of qualification do I need in order to come to the U.S to reunite with my family?

Mr. Lee answers:

When your friend tried to come back to the United States, he was technically not admitted into the country and received an order of summary removal from the immigration court for 5 years. As he has served the 5 years, it would appear that he is no longer subject to the order. By the same token, however, other sections of the immigration law may prove to be obstacles to his immigrating through his son. One could be whether he used fraud or misrepresentation in order to try to reenter the United States. Another could be whether he stayed in the U. S. for over a year illegally on either of his 2 journeys to this country. The law states that most individuals who have remained illegally in the U. S. for one year are barred from returning for 10 years. There is an exception for those who have bona fide asylum claims and have not worked illegally. In your friend’s case, the questions are the length of stay illegally and, if the bar applies, whether the asylum claims were bona fide – especially as your friend gave up the asylum applications twice. In the first situation of fraud or misrepresentation, your friend would need a waiver based upon extreme hardship to his parent or spouse who would have to be a U. S. citizen or permanent resident. In the second situation of illegal stay where there is no accepted excuse of bona fide asylum application, he would need the same waiver or have to remain outside the U. S. for 5 more years.

Q&A 2.

What to do Where Son Received a U. S. Passport, But Was Rejected As U. S. Citizen by U.S.C.I.S.?


A reader asks:

I want to ask questions regarding my son’s citizen: I divorced my son’s father in China when my son was 4 year old. My ex-husband has my son’s custody and five years later, I immigrated to the U.S.  In 2008, I got a verbal agreement from my ex-husband that I can have the son’s custody and apply my son to join me in the U.S using my U.S citizenship. My son immigrated to the U.S in May 2009 when he was 17 years old. One month after he arrived, he received green card. I applied for my son’s U.S passport with his green card and my citizenship paper. After he got his U.S citizen passport, I applied for his citizenship certificate. Two months later, we went for the interview, the officer at the interview asked me to provide proof of custody. But I wasn’t able to get the paper from China, hence my son didn’t get his naturalization certificate.  My son is now both holding green card and U.S. passport and both have the same validity date until 2019. I am so confuse, I am not sure whether my son is citizen or permanent resident. If he is U.S Citizen, will not having the naturalization certificate have any impact on him? If he is permanent resident, when the green card is expiring, what should we do?

Mr. Lee answers:

Without proof of your having had custody of your son, the U.S.C.I.S. decision denying your son’s request for a citizenship certificate was most likely correct. Nevertheless he is recognized as a U. S. citizen through issuance of a U. S. passport by the State Department. As you note, your son has both a green card and U. S. passport. There is a chance that he can continue using the U. S. passport without incident. There is also the possibility that his U. S. citizenship could be challenged at a later date. A potential problem is that the law permanently bars someone who makes a representation of being a U. S. citizen when he or she is not one although there are exceptions for those who did not know that their claim to citizenship was false or that they were under the age of 18 at the time of a false citizenship claim and at the time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. If no false documentation was submitted with the U. S. passport application, your son could probably submit an application for naturalization on form N-400 and explain the circumstances at the time of the interview. He would have to surrender the U. S. passport, and the adjudication of the naturalization application would probably take more time than normal because of the unusual circumstances of the case.

 

Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.

 
   
 

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