2014 July

Edgardo and Maria’s intimate details: Couple’s immigration interview gone wrong

By | Clients, Family-Sponsored Immigration | No Comments

Janet Leigh Screaming in Psycho Shower Scene

A client I will call Edgardo is a United States citizen with roots in Ecuador. On a trip home after his divorce, he met and fell in love with a wonderful woman, and decided to marry her and sponsor her for permanent residence, so that they would be able to share their life in the United States. “Maria” is in her late twenties and has a child from a previous relationship; Edgardo is in his mid forties. Edgardo filed an application for a “fiancee visa,” which took about six months for the first tier of approval. It was then sent to the United States consulate in Ecuador for further review. The consular officer who met with Edgardo’s fiancee, “Maria,” told her that Edgardo would need to appear in Ecuador for an interview.

Edgardo took time off from work, dropped what he was doing, and traveled to Ecuador. He brought with him photographs of the couple’s vacation in Panama, Western Union receipts showing that he had been sending money to help support his fiancee, and copies of dozens of emails the couple had exchanged. The consular officer declined to review the evidence, and instead separated the couple and asked them questions such as “When was the first time you made love with your fiancee?” “Why did you wait so long?” “How many times did you make love yesterday after you picked him up from the airport?” “Who took a shower first afterwards?”

The couple was mortified, which caused them to give slightly different answers. Maria’s application was denied because the couple “was unable to demonstrate the bona fide nature of their relationship.”

I advised the couple to skip the appeal, but instead to simply get married and try again. They arranged for a quick marriage, attended only by a few friends and family members. We fully disclosed that the reason for the quick, sparsely attended wedding was the couple’s desire to submit a new application so that they could live together in the United States.

We again provided extensive documentation of the couple’s relationship; photographs of their wedding and honeymoon (another trip to Panama), additional Western Union receipts showing that Edgardo has sent thousands of dollars to help support Maria and her child, and additional emails between the couple.

When Maria appeared for her interview, the consular officer again declined to review the evidence, but instead opined that Edgardo was too old for Maria. The application was denied.

This time we appealed and finally won the case.

Somewhere along the way, I had written to fourteen State Department officials, indicating my feeling that it was inappropriate, and demonstrated inadequate training, for consular officers to ask visa applicants about the intimate details of their relationships. The only response I got was from the chief consul in Ecuador, advising me that these questions were “the only way” to find out if a relationship is bona fide. For the record, as a veteran of hundreds of interviews for marriage-based cases, I have observed hundreds of ways that properly trained officers approach this issue.  Never once have I heard an officer ask questions like this.

It took Edgardo almost five years to be able to bring his wife to the United States. We don’t know how many years it will take for the couple to live down the trauma of being questioned by a stranger about the intimate details of their relationship.

Your electronic I-94, Travel History could be full of errors

By | CBP, Clients, Visas | No Comments
Screenshot of Online I-94 Retrieval Form

Screenshot of Online I-94 Retrieval Form

 

While you no longer have to worry about replacing a lost or damaged paper I-94, you still have to make sure CBP is doing its job. And you need to worry about more than just your I-94; you also need to make sure that your travel history log is complete and correct!

Recently I had a client go through what I will call ‘the CBP Nightmare.’ Multiple lessons were learned in the process but they all boil down to this: don’t assume CBP is doing their job right.

The CBP Nightmare

It all began with the officer who stamped my client’s passport at the port of entry. According to the stamp, he was approved for a 7-month stay on a B2 visa. The client, having flown multiple times on a B2 since he was a child, concluded this was just a discretionary grant and left it at that.

When my client had a little less than a month of authorized stay (based on the passport stamp), he went online and checked his I-94. The first mistake he saw was the ‘Most Recent Date of Entry.’ The date shown was from 5 trips ago; that is, my client had flown in and out of the U.S. on his B2 five times after the date that was shown! After looking at the Travel History, it was confirmed that CBP had failed to enter my client’s last five entries. This lead to the next mistake: according to the ‘Admit Until Date,’ my client was out of status!

And now, the next episode of the CBP Nightmare: Deferred Inspection.

I have now shown up with my client at the CBP Deferred Inspection Office in Chicago, a small and empty waiting room with a service window. The officer shows up–you have to ring a bell so that an officer will show up at the window–and, without giving us an opportunity to explain why we are there, she immediately tells us that they are no longer giving out paper I-94s and that we need to go online to print them out. Ok, good to know. I handed the officer a full set of copies of my client’s passport, as well as the passport, and printouts of the I-94 and Travel History. I offered the itineraries for all five trips after the one shown in the record, and explained that the last trip that was booked was changed and that my client did not leave the country as scheduled. The officer refused to even look at the itineraries, then she disappeared with passport and copies. We were eventually given back our documents and an updated printout of just the I-94. To our horror, the I-94 indicated that my client was authorized for the standard 6-month period and that he had fallen out of status just a few of days before, which was inconsistent with the information on the passport stamp. We pointed this out to the officer. The officer called her supervisor, and the supervisor instructed the officer to manually correct the stamp on the passport, writing in the previous month, and placing the mark “CWOP” (cancelled without prejudice). They shrugged their shoulders and told us to talk out the rest with CIS. Without prejudice indeed…

But it gets worse. When we get back to the office and check the Travel History, the record shows that my client left the country when he actually didn’t. Apparently, CBP taps only into airlines’ booking records, rather than their boarding records. Then I look through the passport copies that were handed back to me. They kept the page with the original passport stamp! Thankfully, I had made another copy for my records.

Based on the above experience, I have come up with the following:

Tips for the Travelling Nonimmigrant

  1. Check your I-94 and Travel History as soon as possible after your last entry and make sure it’s correct;
  2. Don’t rely on the information on your passport stamp–always check it against the information in your electronic record;
  3. CBP can change official travel documents on the spot with no record of the change–keep good copies of every original document you give them;
  4. Also make sure to keep copies/printouts of the I-94 and Travel History versions you are trying to correct;
  5. Hire an immigration attorney to help you navigate the Deferred Inspection process and help you file a complaint against CBP if necessary.

Raymond’s world travels – Geologist struggles to get permanent residence

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For this blog entry, I will let my readers play the role of the Immigration Service adjudicating officer.

“Raymond” is a geologist who is also an IT expert. At the time he contacted me, he was working in a temporary status (H-1B) for a US research university, in a very unique program. He spent several months at the university creating and perfecting software. Then he took the software with him to the other part of his job, which involved living on a very specialized ship, somewhere out in the Pacific. The project on the ship was funded by an international consortium of about two dozen nations. Its purpose was to study the earth’s core to help predict, and possibly prevent, earthquakes. Using a multi-million dollar budget, the ship uses specially-designed, one-of-a-kind drilling equipment to bring samples up from beneath the ocean floor. Each sample must be carefully analyzed and recorded, using the software that Raymond developed. The information is transmitted to consortium members, who are sometimes using computer systems that are different than the one on the ship. If the software breaks down, or isn’t properly designed in the first place, hundreds of thousands of dollars, or maybe more, in research will be lost.

 In order to get permanent residence for Raymond, I had to show that his work was exceptional, and that it would have nationwide benefits in the United States. I am guessing that very few of my readers’ friends and neighbors would be able to replace Raymond. And I am also guessing that many of my readers would like to know ahead of time if their city was about to be hit by an earthquake. But I will let you each play the role of the adjudicating officer before you read the next paragraph.

 Would Raymond’s employer have sent him out on the ship if his work was not exceptional? Would the consortium have invested many millions of dollars if the work would not have nationwide, and indeed international, benefits?

 The immigration officer found that Raymond’s work was not exceptional, and that it would not have nationwide benefits. It took over a year for me to win the appeal. By then, Raymond and his wife were living in Australia, where his work was appreciated, and where his wife settled into a PhD program that would keep them in Australia for several years.

Raymond is finally about to come back to the United States, now that his wife has finished her PhD. He is on the ship right now, and will be back at the university, further refining the software, in a few months.

For the past five years or so, the international consortium has had to do without his services.

ICE Detainers are creating civil liability for local counties and sheriffs

By | Detention, Removal | No Comments

On June 18, 2014, our Chicago Associate Noelia Rodriguez and I attended the annual AILA National Conference in Boston, MA. As immigration attorneys, it is very important for us to stay up to date on the most recent changes and trends in immigration law. The AILA National Conference is the most important symposium of the year where immigration attorneys from all over the United States gather to network and get educated in all things relating to immigration law.

Andrea and Noelia in Boston

Andrea and Noelia in Boston

Among the multitude of topics discussed at this year’s National Conference, one of the most intriguing was the seminar on ICE Detainers.

 What are ICE Detainers?

When a person gets arrested by a state law enforcement agency, if that community has an agreement with ICE, ICE will be notified of that person’s arrest. ICE will then issue an ICE Detainer to the local county or sheriff’s office, requesting that the jailer hold the individual for 48 hours after that person’s state imposed sentence is complete so that ICE can come to pick up that individual.

The only basis in law for an issuance of a mandatory ICE Detainer is for a non-citizen who has committed a drug-related crime. However these days, ICE Detainers are being used to pick up any non-citizen even with the slightest infraction such as driving without a license. ICE Detainers for these types of misdemeanors are supposed to be treated as requests and should never exceed 48 hours excluding weekends and holidays. If they do exceed 48 hours, then the local law enforcement agency is subject to civil liability.

How does the 48 hour rule work?

The law says that once an ICE Detainer has been issued, the local law enforcement may hold that individual for 48 hours. The clock starts running the instant that person is eligible to be released from local law enforcement custody. This happens when:

The charges against the person have been dismissed

  • A person is eligible to be released after paying his/her bond
  • A person is eligible to be released on defendant’s own recognizance
  • A person has completed his/her criminal sentence
  • The charges against the person have been dismissed

As soon as this event occurs, the clock starts running. So for example, if your charges were dismissed by the judge on Tuesday at 2:21pm, the local jail should only hold you until 2:21pm on Thursday. If ICE has not yet picked you up by then, the local agency is subject to civil liability because they are holding in violation of your 4th amendment rights to be free from seizure without probable cause.

What about federal holidays or weekends?

This rule states that the 48 hours does not include weekends or holidays. Therefore if your charges are dismissed on Thursday July 3rd at 3pm, the jail may hold you until Tuesday 3pm because Friday the 4th of July is a federal holiday and Saturday and Sunday are the weekend.

Why does all of this matter?

This is important because if you are the subject of an ICE Detainer you should know your rights and know your legal options. As always, consult an attorney before taking any action.

It also matters because if, as an attorney, you are aware of a pattern of practice in your local jurisdiction that violates these standards, you should file suit to correct it. Due to diligent clients and attorneys working together, a pattern of limiting or refusing to honor ICE Detainers has started emerging in many counties across the United States. Here is a list of counties that have already decided to limit or refuse honoring ICE Detainers due to their exposure to civil liability: https://cliniclegal.org/resources/articles-clinic/states-and-localities-limit-compliance-ice-detainer-requests-jan-2014.