Federal Court Denies Legal Status To Persons Who Enter U.S.

One of the fundamental steps to obtaining legal permanent residents (green card) status is to show a lawful entry into the United States often described as entry with inspection. In the past the USCIS and courts have accepted as “lawful entry” persons who have presented themselves to an immigration officer even if there were issues with whether their visa was still valid, or if they presented documents with a name other than their own. The I-94 card from these entries into the United States was still accepted as proof of legal entry for filing purposes and in proceedings before the Immigration Court.

In a dramatic reversal of this position the Ninth Circuit Court of Appeal in Orozco v. Mukasey (March 25, 2008) has declared “an alien who obtains entry into the United States by fraudulent means, is statutorily ineligible for adjustment of status under 8 U.S.C. §1255(a).” This case threatens an immediate impact for filing of new adjustment of status applications with the USCIS and with cases before the Immigration Court. It is believed that this case primarily impacts new applications for adjustment of status, and that persons who already have legal permanent resident status will still be able to seek waivers for misrepresentation before the immigration court. Applicants should be aware that if there was any issue with the manner in which they entered the United States, especially with the use of fraudulent documents, altered names on legally obtained documents, or a change of marital status they should discuss this issue with their attorney.

In equally bad news for immigrants, the Court in Duran Gonzalez v. Department of Homeland Security has ruled that an individual must wait 10 years prior to filing an I-212 waiver for permission to re-enter the United States. The Duran Gonzalez case was filed by a class of individuals from Mexico, who had been deported from the United States, returned within 10 years of that deportation and sought to adjust status to legal permanent resident with the aid of an I-212 request for re-admission to the United States. A prior case Perez Gonzalez had provided real relief to individuals not only allowing I-212 requests for re-admission (also called I-212 waivers) to be filed within the United States, but also allowing filing within the 10 year period barring re-entry or relief under INA 212(a)(9)(C)(i)(II). A related case, Matter of Torres-Garcia (BIA 2006) which provides the basis for the Duran Court's new ruling also states that not only must an I-212 waiver be obtained prior to re-entry but that the person must enter by legal means, meaning lawful admission using a valid visa. Many hundreds of cases have been filed with USCIS or are pending with the immigration courts seeking to resolve the prior deportation through the I-212 request for re-admission. In addition USCIS has “held” adjudication of many adjustment of status petitions until we have a final ruling on Duran from the Ninth Circuit.

Immigration attorneys are now awaiting the result of an en banc review of Duran Gonzalez by the Ninth Circuit court as a whole. However a client should have a frank discussion of the new risks associated with proceeding with an adjustment of status application where there is a record of a prior deportation. Individuals should also realize that at any time following April of 1997, persons who were “turned back” at the border or even at a port of entry, may have been subject to “Expedited Removal” or deportation. Evidence of the expedited removals is often found through the fingerprint checks which are part of the adjustment of status process. Before filing any application with USCIS, it is highly recommended that a FOIA or Freedom of Information Act request be filed to determine the full extent of prior contacts or detentions with USCIS or ICE at the border or ports of entry including airports.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.