World Journal Weekly Q & A - December 7, 2008

Q & A 1. 2. 3. 4. 5.


Q&A 1.

Can I Get My Bond Money of $5,000 Back Since My Brother Won His Political Asylum Case?

Jimmy reader asks:

My younger brother sneaked into the U.S in 2003 and was jailed in Puerto Rico’s Immigration detention for over twenty days. I paid $5,000.00 and bailed him out. I still kept the receipt. In July 2008, he won his political asylum case. Can I get the $5,000.00 bail fund back? If I can, how to do it, which form to fill out, where to file and do I have to do it in person?

Dear reader:

From speaking with an immigration bonding company, most immigration bonds can be returned after an individual wins a case for political asylum. The bond obligor (person whose name is on the papers as having paid the money) should make an InfoPass appointment at the local U.S.C.I.S. office, bring all the paperwork including the grant of political asylum and bond receipt, and the U.S.C.I.S. information officer will then direct him or her on where to go. The bond obligor must be present.

 

Q&A 2.

Petitioner Has Passed Away - Can the Younger Sister Still Immigrate Under Humanitarian Reinstatement of the I-130 Petition?

Ming reader asks:

I read an article recently in Entertainment Weekly titling “ Who Could be the Substitute Petitioner, If the Original Petitioner Passed Away?” The article mentioned the bill of HR1892 has signed into law in March 13, 2002.

My older sister who was a U.S. citizen applied for my younger sister’s family in December 1994. Unfortunately, she passed away in October 2004. In 2005, my younger sister’s priority date became current. Immigration sent us letters twice and urged us to start the process. However, during that time we did nothing because we thought that application had become invalid due to our older sister’s passing. Our mother (a U.S. citizen) filed papers for my younger sister in March, 2002 (which was done worrying my nephew might be aged out). This application is still not current. Will U.S.C.I.S. consider my older sister’s old priority date on my mother’s application? My mother is very old and is not in good health, she is in urgent needs to have our whole family reunited.

Dear reader:

Your younger sister can request humanitarian reinstatement of her case under the Family Sponsor Immigration Act of 2002 in which she and the other members of your family can outline and document all the humanitarian reasons for which the petition by your older sister should be reinstated. Humanitarian reinstatement is within the discretion of U.S.C.I.S. The 2002 Act allows such reinstatement for visa petitions approved prior to the petitioner's death if there is a substitute sponsor (spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, a grandparent, or grandchild or legal guardian) to sign the I-864 affidavit of support, and humanitarian circumstances can be shown. I do note that although there are no hard and fast rules, the U.S.C.I.S. has traditionally been more sympathetic to petitions filed in other categories than the F-4 (sibling) category. However, consideration could be given the fact that your mother is a citizen and has already filed a petition on your sister's behalf. A separate problem could arise if she is overseas and her case was terminated by the Department of State under its authority to terminate the registration of any alien who fails to apply for the immigrant visa within one year following notification to the alien of the availability of such visa. The Department can reinstate the registration of an alien who establishes within two years of such notification of availability that the failure was due to circumstances beyond his or her control. In your case, that could be a concern as you noted that the priority date became current in 2005 and you were twice urged to start the process.

Q&A 3.

What is the Position of a Person Caught Entering the U.S. at the Airport, Sent Back, and Who Reentered the U.S. Subsequently

Xue reader asks:

I got caught entering to the U.S. at the New York airport in the end of 2001. I was then not yet 18 years old. After I was finger printed and photo taken, I was sent back to China. My questions are:

1. Am I considered being deported?

2. If I got caught again, will I be sent back to China immediately, or I will be allowed to be bailed out and appear in court?

3. If I am married to a green card holder or a U.S citizen, can my spouse apply for me?

Dear reader:

1 Generally speaking, individuals who are caught entering the U.S. are usually served with papers stating that they cannot return to the country until five years have passed as they are considered removed. The papers would have an immigration "A" file number on them, and the information would also be entered into the U.S. government computer database along with your fingerprints.

2 If you had such an order of summary removal and reentered the United States within the five-year period without permission from the U.S. government and without legal entry, you would be subject to reinstatement of the prior order of removal if caught which would bar you from having your case adjudicated in the immigration court unless U.S.I.C.E. designated you as a person passing a credible fear asylum interview. Detention decisions in that situation would be up to U.S.I.C.E., which could release you, give you a bond or an order of supervision during the period of time of the credible fear interview and immigration court appearances (assuming that you passed the credible fear interview).

3 If you had a summary order of removal, and reentered the U.S. illegally at any time, you would encounter much difficulty in adjusting status to permanent residence through marriage to a green card holder or U.S. citizen. The first hurdle would be entitlement to even submit an adjustment of status application because of your illegal entry. For basic eligibility in filing, you would need entitlement to section 245(i) benefits, which allow most illegal individuals to interview in the U.S. upon payment of a fine amount (presently $1,000). The high hurdle is the statutory bar against admission for a person who enters or attempts to reenter the U.S. without being admitted who was either unlawfully present in the U.S. for a combined period of time of more than one year, or has been ordered removed. Relief under the statute is only possible for an alien seeking admission more than 10 years after the date of last departure, provided that the Attorney General consents to the aliens applying for admission prior to the alien's attempting to come back to the States. To most courts and the Board of Immigration Appeals, the bar for a person ordered removed is not waivable. In those jurisdictions, you would be barred permanently as a person ordered removed and entering illegally with that small above exception that the Attorney General can consent to your applying for readmission after 10 years outside the U.S. The Board ruled in 2006 that the bar applied even where an individual sneaked into the U.S. after obtaining permission to apply from the Attorney General prior to 10 years having elapsed since the date of departure. The Ninth Circuit Court of Appeals appears to be the only one having a contrary opinion as of now. In the Ninth Circuit covering the states of Alaska, Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, and Hawaii, individuals may file I-485 applications and show their entitlement to section 245(i) and file an I-212 application for waiver of the 10 year bar with the adjustment of status application. Of course, even in the Ninth Circuit, there is the possibility of arrest before or during the interview if the I-212 or adjustment of status application is denied. A further problem may arise if you re-entered the U.S. prior to five years having passed since the date of departure if you were summarily removed. Then you would also be subject to the prior order of removal. The Ninth Circuit has stated that such individuals are entitled to an adjudication of the applications before the government can reinstate the prior order of removal. However, if there is a reinstatement of removal and U.S.I.C.E. decides that you have passed a credible fear interview, you would only be allowed to apply for withholding of removal based on political fears of return to your home country. On the other hand, if you re-entered the U.S. after the five-year bar was satisfied, you would not be subject to a reinstatement of the old removal order, and would be allowed to have your day in the immigration court.

 

Q&A 4.

Will My Arrest for a Weapons Charge Impact My Naturalization Application? What Else Should I Look Out For?

Chen reader asks:

I got arrested in California international airport in 2005 because I carried dangerous weapon aboard. I was locked in the police station for a day and was bailed out. The police report stated that that was a felony. I hired an attorney and the police withdrew the charge because I did not have any criminal record. During the suit, I did not go to Court because my attorney took care all the issues for me. I did not sign any papers either. My questions are:

1. Does it constitute that I have a criminal record? Will the records in the police station with my fingerprint affect my naturalization application?

2. Next year, I will have my green card for five years. I am prepared to file for naturalization. I filed tax returns in these 5 years. What else do I need to prepare and pay attention to? What will immigration officer ask during the interview? Will my application be returned or denied?

Dear reader:

1 While you do not have a criminal record, you do have an arrest record which must be revealed on your naturalization application form. Depending upon your answers concerning the incident, a naturalization examiner will determine whether or not you have the requisite good moral character for five years in order to be naturalized. Good moral character as determined by community standards will be the criteria used by U.S.C.I.S.

2 The N-400 application lists many of the grounds with which U.S.C.I.S. is concerned in a naturalization application. If you answer affirmatively to other N-400 questions which would potentially bar you from naturalization, you would be questioned on those by the examiner. Other than that, you would have to pass the test of civics and history and English unless you are requesting an exemption and have grounds for such. In answer to your question as to whether your application will be returned or denied - while your application may ultimately be denied, it will not be returned unless there is something wrong with the form edition used, you submit it to the wrong address, you fill it out incorrectly, or your payment to the Department of Homeland Security ($675) for filing the application is incorrect.


Q&A5.

My Mother Married a U.S. Citizen, Got the Green Card From Him, Has Now Divorced, and Wants to Remarry My Father and Sponsor Him. Should She Do It?

Wu reader asks:

My mom and step father have married for over 5 years. My mom came to U.S. in 2005 and has received her green card. Now their relationship has problem and already signed their divorce paper in July 2008. I am now 21 years old. My biological father is sick in China and no one is taking care of him. I want to file immigration paper for him, but I don’t have enough income to sponsor him. Can I still apply for him? My mom is thinking to get back with my father. Can they remarry and have my mom use her green card status applying for him? Will immigration approve? Or my mom should wait until she became a U.S. citizen to be safe? Or I should file for my father after I am naturalized? I can apply for naturalization in 10 years.

Dear reader:

Where an individual immigrates on the basis of marriage after having divorced his or her partner, then divorces the U.S. citizen spouse, and remarries the former spouse and petitions for him/her, U.S.C.I.S. will most likely move to revoke that individual's status even if the individual is by then a U.S. citizen. If you are over the age of 21 and a U.S. citizen, you can of course sponsor your father. I do note that if your biological father or your mother had children with other parties following their divorces, such would be proof that their divorce was bonafide.

 

Copyright © 2003-2012 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.