World Journal Weekly Q & A - January 21, 2007Losing Political Asylum & Then Having a Bonafide Marriage with a U.S. Citizen – Can I Get my Green Card?Massachusetts Ms. Wang asks: I came to America in 2000. In January 2001, I applied political asylum but lost. I married a U.S. citizen in June 2001. Now we have one son together. My husband applied for me 5 years ago. How long do I have to wait to get the green card? Dear reader: It is difficult for me to answer your question because of lack
of details. You state that you applied for political asylum but
lost, but do not say whether you lost before the asylum office or
the immigration court. I will assume for purposes of your question
that you are/were in proceedings before the immigration court since
technically an individual does not really "lose" before
the immigration asylum office but is only "referred" to
an immigration court if the asylum office does not grant political
asylum. Since most individuals do not say that they have "lost"
their asylum case if there is still an appeal pending, I will further
assume for purposes of your question that you have a final order
and that your case is neither before the Board of Immigration Appeals
or federal court. The final order would be one of removal and not
deportation or exclusion since you lost your political asylum in
January 2001 after having entered the U.S. in 2000. In such event,
you would under most circumstances have to attempt to reopen your
removal proceedings to gain eligibility for adjustment of status
to permanent basis residence based upon your marriage to a U.S.
citizen. In addition, accepting voluntary departure precludes adjustment
of status for 10 years. (There are of course exceptions to the rules
including the possibility of adjustment now if you were paroled
into the U.S. or the 10-year bar being overcome because of circumstances
occurring after your case was lost). I do note that this is a complex
area of law, and so it is not altogether surprising that your case
is taking so long. There is also a good chance of failure in a case
like yours. Hopefully you have good legal representation that is
knowledgeable in this area of immigration law. Felony or Aggravated Felony? The Immigration Consequences of BothHuang reader asks: I applied one child policy asylum and won in 2001. The same year I also received C8 card. In 2004, my friend came to U.S. and asked me to pick him up. I went to Chinatown’s Holiday Inn to pick him up but was arrested became a scapegoat and was convicted as a conspirator. I was jailed for 18 months. After the end of the term in December 2005, I was transferred and detained by Immigration. Because I have no relatives here and do not know the law, I do not know what to do. I am worried that I will be deported. Please kindly provide me with the relevant law and give me some guidance. Dear reader: It is difficult for me to answer your question also because you did not state the type of crime for which what you have been charged as a conspirator. However, it is apparent that you were arrested for felony because of the length of time that you were jailed. There are a number of crimes for which imprisonment for a year or more will most probably result in your removal. These are aggravated felonies and include firearms offenses, crimes of violence for which there is a one-year sentence, theft for which there is a one-year sentence, child pornography, supervising a prostitution business, fraud or deceit where the loss is over $10,000, tax evasion where the loss is over $10,000, alien smuggling except where it is done for the first time to help a spouse, child, or parent, etc. If you are deemed to be an aggravated felon, the only relief possible is with a grant under the Convention against Torture which is available to those who can establish by a preponderance of the evidence that they would be tortured by the home country government or a group of which the home government is aware of its activities and does nothing to stop it from inflicting the torture. Even if the crime is not considered an aggravated felony, it would be a deportable offense if it was a crime involving moral turpitude and was committed within five years of the last admission to the U.S.. However, as an asylee, you are eligible to file for a waiver application where you are adjusting status to permanent residence as long as the crime was not an aggravated felony. Such waivers are granted in the discretion of the Attorney General if he finds that the waiver would be appropriate for humanitarian purposes, to ensure family unity, or when it is otherwise in the public interest. This waiver route has however been seriously circumscribed by the past attorney general, John Ashcroft, who enunciated very strict rules for waiver approvals where persons have committed violent or dangerous crimes. In addition, you may be able to attain relief (if not an aggravated felony) through withholding of removal (a form of relief which is like asylum but does not confer a path to permanent residence) as long as the crime is not a serious nonpolitical crime. I note however that withholding of removal demands a higher burden of proof of persecution in order for individuals to qualify than asylum. Will Past Nonimmigrant Status of Persons Haunt Them in Immigrant Visa Interviews Overseas?Zhang reader asks: I am a U.S. citizen. In 1996, I applied for my sister to immigrate.
As of now, it has been 10 years. During this time, in 1999, my sister
came to U.S. under B1 visa to do business. Due to the need of the
company, the company wanted her to study in the U.S.. Therefore,
she transferred into F-1 status and studied here for one year and
2 months. She then returned back to China. My questions: Dear reader: 1 U.S. consular officers are fairly keen on determining whether immigrant visa candidates have tricked them in the past. To the counselor officer, the question may be whether your sister had a true intention to do business only when she obtained the B-1 business visa and entered the U.S.. If the consular officer determines that your sister's true intent was to study when she applied for the B-1 visa, there could indeed be problems. 2 If the consular officer makes a finding of misrepresentation or fraud, and that finding is upheld, your sister can request a waiver only if she is able to prove extreme hardship to a U.S. citizen or permanent resident parent or spouse. If she has such relations, she may file an I-601 application for waiver of grounds of inadmissibility at the consulate which would then transmit the application to the nearest U.S.C.I.S. office having jurisdiction over the region. Your sister or you should go to an immigration lawyer with knowledge in the area of waivers.
|
Copyright © 2003-2007 Alan Lee,
Esq. |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
|