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.
|