A day’s mail: Item one

Sunday, September 20th, 2009
By: Jonathan MontagJ.D.

To illustrate the frustrations of immigration law, both for foreigners and their attorneys, allow me to describe what came in the mail one day last week. There were three items. Today I will describe the first one.

Item 1

A client was deported in his absence. In the late 1990’s or early 2000’s he had applied for permanent residence based on his professional employment. He waited and waited for an interview and finally despaired and returned to his country. A few years later he had an interview. He was long gone from the United States by this time and had established himself as a professional in his homeland. As a result he did not get notice of the interview. USCIS (or its predecessor, INS) denied his application because he did not show up. USCIS then forwarded his case to immigration court to deport him. He did not get notice of this either. He was deported in his absence, “in absentia.”

A few years later, knowing none of this, he came back to the United States as a visitor. He comes from a country where no visa is necessary to visit the United States. At the border he was denied admission because he had been deported. He explained his situation to the officers at the border. They said they were sympathetic but also powerless to admit him. He went to the U.S. Consulate in his homeland and the consular officers explained that he could get a visa, but he needed to get a nonimmigrant visa waiver of inadmissibility because he had a prior deportation. The consular officers were sympathetic, but their hands were tied and insisted that he get a waiver. Waivers were granted, but because he was a deportee, restrictions were placed on the visa – short lengths of time and restrictions on where he could enter and depart the United States.

We conferred by phone and email. We decided that rather than try to undo the removal order, we would seek a more comprehensive waiver called an “Application for Permission to Reapply for Admission into the United States After Deportation or Removal.” The rules at the time dictated that it be filed in the place he was ordered deported, which was Detroit, Michigan. We filed it in August 2006. Soon after, I received a receipt that the application was accepted. Then, a few months later I received a notice that the application was forwarded to the Nebraska Service Center. Exactly who adjudicated the application was immaterial to me so I thought nothing of the transfer and was heartened that the case was at least being handled. Handled = Progress, right?

Then, the application was returned to the client abroard. A note said it needed to be filed at the Consulate where an alien is applying for a visa. At the time we filed, the client was not applying for the visa and the rules did not call for this procedure in any case. However, the client was going to seek a visitors visa again (remember, his visas were issued for short periods because he was a deportee). I re-prepared the application and he filed it at his Consulate in March 2007. Then we waited.

I contacted the Consulate after a few months to check on the progress of the application and received an email explaining that the Consulate forwarded the case to USCIS and I should contact them. I asked the Consulate where it was filed and whom I should ask about it and was ignored. It was not hard to find out where the regional center of USCIS was that decided these cases abroad. I contacted that USCIS office. I got a curt reply that I need to contact the Consulate for information. I forwarded the email that showed that the Consulate had told me to contact them. Their reply was neither polite nor helpful.

As luck would have it I talked at a conference in San Francisco in November 2008 and on my panel was the USCIS chief for overseas adjudications – the man in charge of the system that was supposed to decide the application/waiver. He asked me to email him with the details. I did. He then put me in touch with the chief of the office that decides the waivers for this region of the world and that chief assigned the case to a deputy. She informed me in the first half of 2009 that her office did not have the file and that the Consulate’s explanation of how it forwarded the application to USCIS did not make sense. She said she would look into it more deeply with the Consulate. Over the summer the deputy informed me that she located the file and forwarded it to Detroit for adjudication. Detroit – where I had filed it in the first place three years earlier!

And this is where the story should end. One would expect that the Detroit USCIS would review the submission, conclude that the client was improperly deported, be a little embarrassed about sending the case away three years ago, and grant the waiver. Well, after three years where the application toured the world and ended up where it started, USCIS in Detroit denied the waiver this month because the deportation was improper in the first place. The decision stated that because the immigration judge should not have deported the fellow, no waiver is necessary. It did not dawn on Detroit USCIS that we all know the order is improper but it is still an order until the waiver is granted or the immigration judge rescinds it. The client continues to face consequences of his deportation. He can be turned away at the border, cannot enter without a visa despite being a citizen of a country where no visa is needed, and requires waivers to get visas and the visas have onerous restrictions on them . The waiver was supposed to cure this and should have been granted precisely because the deportation order was faulty. Instead it was denied.

Three years of fighting and coaxing and watching the papers tour the world and that is the brainless result.



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