AOS with lifetime bar but paroled (parole is expired)

J

jaytee

Registered Users (C)
Since about a year ago, it has been mostly been a hellish life, but getting back on track now. My wife came in illegally in 2001, and we married in 2003. My visa petition was approved, but she had to use consular processing. In Mexico, 7/13/2009, the consulate denied for life, based on a false claim to citizenship. After battling that to have it reconsidered, and trying humanitarian parole through DC, that all failed.
Then in August 2010 (after living in Mexico for a year) we had a huge terrible family event and my wife was given parole at point of entry (land border). It was really a miracle that this was approved after being denied a visa for life previously.
This was only good for a week though, and due to the circumstances, she couldn't return within a week to Mexico. We have been living in the US again since then. We want to apply for AOS. I have tried to consult with many lawyers, and we have paid enough out in lawyer fees to have gone to school and learn how to do this the right way. Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa.
Here are my questions:
1. I-485 Page 2 part 10 D says not eligible if "Your authorization stay expired before you filed this application" but part 10 F 1 seems to say it doesn't matter if "you are applying because you are...An immediate relative of a U.S. citizen. So will she be able to adjust even though the parole expired?

2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?

3. If the AOS is denied, would there be appeal rights? Also, would she be deported immediately from wherever they would make that denial decision assuming we were in an interview or court?

Thanks in advance, so much to all you who help, and the info you have posted that helps.
 
I hope you are going to hire a competent attorney. Your case is not a DIY cased based on forum advice. Read the literature below. It is not very promising.

Humanitarian Parole

If in fact you are outside the U.S. and have to travel to the U.S. temporarily because of an urgent business or personal situation, you can apply for a humanitarian parole document to be paroled into the U.S. on humanitarian grounds, if you cannot receive the required visa and any obligated waiver of excludability.

Note: You cannot use Humanitarian Parole to circumvent normal visa issuing procedures, and is not a means to bypass delays in visa issuance. Parole is an extraordinary measure sparingly used to bring an otherwise inadmissible alien into the U.S. for a temporary period of time due to a very compelling emergency.


jaytee said:
Since about a year ago, it has been mostly been a hellish life, but getting back on track now. My wife came in illegally in 2001, and we married in 2003. My visa petition was approved, but she had to use consular processing. In Mexico, 7/13/2009, the consulate denied for life, based on a false claim to citizenship. After battling that to have it reconsidered, and trying humanitarian parole through DC, that all failed.
Then in August 2010 (after living in Mexico for a year) we had a huge terrible family event and my wife was given parole at point of entry (land border). It was really a miracle that this was approved after being denied a visa for life previously.
This was only good for a week though, and due to the circumstances, she couldn't return within a week to Mexico. We have been living in the US again since then. We want to apply for AOS. I have tried to consult with many lawyers, and we have paid enough out in lawyer fees to have gone to school and learn how to do this the right way. Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa.
Here are my questions:
1. I-485 Page 2 part 10 D says not eligible if "Your authorization stay expired before you filed this application" but part 10 F 1 seems to say it doesn't matter if "you are applying because you are...An immediate relative of a U.S. citizen. So will she be able to adjust even though the parole expired?

2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?

3. If the AOS is denied, would there be appeal rights? Also, would she be deported immediately from wherever they would make that denial decision assuming we were in an interview or court?

Thanks in advance, so much to all you who help, and the info you have posted that helps.
Click to expand...
 
We hired 2 different lawyers, and they couldn't get it done. We got the parole approved without a lawyer, and in fact the lawyers recommended not to go near the border. Verbally applying at the border is how the parole was approved during the emergency.

Yes the humanitarian parole was extraordinary and for an emergency and for temporary. The I-485 does say that the alien had to be parolled in to Adjust Status, meaning that even if it is temporary, it is possible to do. The part about being used to circumvent visa's makes someone apply for a visa first.

I am concerned about the appeal process being available and the possible deportation if denied in the end.
 
She was paroled for a limited period of time. Her parole has expired. She is subject to deportation at this time.

You need to listen to the lawyers. Since they could not get it done, it is likely impossible. You need to move to her country so she can stop living in fear.
 
Aliens come in this country and apply for AOS after expiration of their visa's (or whatever document permitted entry) all the time. They had been subject to deportation, but can still adjust from within the US.

We haven't had a lawyer attempt the AOS. The lawyers attempted consular processing and consular reconsideration.
 
jaytee said:
Aliens come in this country and apply for AOS after expiration of their visa's (or whatever document permitted entry) all the time. They had been subject to deportation, but can still adjust from within the US.
Click to expand...

The difference is that your wife came into the country ILLEGALLY, she doesn't have the same status as someone who came with a visa. Expired visa and filing for AOS is done daily, your wife NEVER had a legal status in this country. The parole you had CAN'T establish a legal status for her to file for a green card. You cannot equate your situation with that of people who entered the country via legal means....
 
Al Southner said:
The difference is that your wife came into the country ILLEGALLY, she doesn't have the same status as someone who came with a visa. Expired visa and filing for AOS is done daily, your wife NEVER had a legal status in this country. The parole you had CAN'T establish a legal status for her to file for a green card. You cannot equate your situation with that of people who entered the country via legal means....
Click to expand...

I will quote from my first post at the top here..." Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa."
She had legal status. The last time she came into the country, it wasn't illegal.

It was the same type of non-law related comments that people gave us last year stating she could never get paroled (or even get a non-immigrant visa, which is possible) due to having a lifetime ban. Be it God or just the heart of a few CBP officers, she was paroled because legally she could be. Please quote CFR or forms if you are unsure or just using your opinion.
 
False claim to USC is a lifetime bar that cannot be waived. Even if a processing facility mistakenly accepted an I-485, it could not be approved.

Humanitarian Parole does not qualify as a basis for filing adjustment of status. INA 212(d)(5)(A)

She has abused the Humanitarian Parole and will never get even that small concession ever again.

They only way you can live together legally is to move to Mexico or a third country that will take you both.

INA 212 (d) [substitute Secretary of Homeland Security for Attorney General]

(5) (A) The Attorney General may, except as provided in subparagraph (B) or in section 214(f) , in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

8 CFR § 212.5 Parole of aliens into the United States.

(c) In the case of all other arriving aliens, except those detained under §235.3(b) or (c) of this chapter and paragraph (b) of this section, those officials listed in paragraph (a) of this section may, after review of the individual case, parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any alien applicant for admission, under such terms and conditions, including those set forth in paragraph (d) of this section, as he or she may deem appropriate. An alien who arrives at a port-of-entry and applies for parole into the United States for the sole purpose of seeking adjustment of status under section 245A of the Act, without benefit of advance authorization as described in paragraph (f) of this section shall be denied parole and detained for removal in accordance with the provisions of §235.3(b) or (c) of this chapter. An alien seeking to enter the United States for the sole purpose of applying for adjustment of status under section 210 of the Act shall be denied parole and detained for removal under §235.3(b) or (c) of this chapter, unless the alien has been recommended for approval of such application for adjustment by a consular officer at an Overseas Processing Office.

(e) Termination of parole —(1) Automatic. Parole shall be automatically terminated without written notice (i) upon the departure from the United States of the alien, or, (ii) if not departed, at the expiration of the time for which parole was authorized, and in the latter case the alien shall be processed in accordance with paragraph (e)(2) of this section except that no written notice shall be required.

(2)(i) On notice. In cases not covered by paragraph (e)(1) of this section, .............

(ii) An alien who is granted parole into the United States after enactment of the Immigration Reform and Control Act of 1986 for other than the specific purpose of applying for adjustment of status under section 245A of the Act shall not be permitted to avail him or herself of the privilege of adjustment thereunder. Failure to abide by this provision through making such an application will subject the alien to termination of parole status and institution of proceedings under sections 235 and 236 of the Act without the written notice of termination required by §212.5(e)(2)(i) of this chapter.
 
Thanks for adding the legal terms and CFR.
The 3rd country is still an option that we are going to pursue if this all fails, but not Mexico...
So many people get stuck on the part about being eligible to apply for AOS with an expired humanitarian parole.
SHE IS ELIGIBLE TO APPLY
Maybe you can review the American Immigration Law Foundation:
...
“Arriving Aliens” and Adjustment of Status
In 1997, the former INS adopted a regulation that barred all "arriving aliens" who were in removal proceedings from adjusting status. See former 8 C.F.R. § 245.1(c)(8); § 1245(c)(8). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, under 8 C.F.R. § 245.1(c)(8) and § 1245.1(c)(8), almost all parolees in removal proceedings were barred from adjustment of status. Several courts struck down these regulations barring adjustment as ultra vires to the statute. On May 12, 2006, the government issued an interim rule deleting the absolute bar on an "arriving alien's" ability to adjust status in removal proceedings. Under the interim rule, USCIS has jurisdiction to adjudicate the adjustment application. Litigation under the interim rule has focused on the BIA's blanket denial of all motions to reopen, remand or continue a removal case while USCIS is adjudicating the adjustment application.
...

I am going to refer back to my original questions 2 and 3 now to see if there are any possible answers now that I have investigated the eligibility to apply issue.
2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?

3. If the AOS is denied, would there be appeal rights? Also, would she be deported immediately from wherever they would make that denial decision assuming we were in an interview or court? {Can she be detained at the interview, and would having a lawyer present help prevent any such detaining?}
 
2. Since there was no material evidence of the false claim to citizenship, could there be an approval for AOS, when the visa had been denied for life from the Consulate?
Click to expand...
What is their basis of them claiming she made a false claim to citizenship? I figure if you can convince USCIS she didn't make that false claim, she would overcome that reason of inadmissibility (although the expired humanitarian parole is still another issue).

But that's not going to be easy. You'll need to provide evidence to counteract the finding of a false claim to citizenship, or show that their evidence is contrived or dubious (e.g. they heard her neighbor's brother say your wife called herself an American citizen). The fact that the attorneys didn't see a way to attack or counteract their evidence, plus the fact that you're not saying she didn't make the claim and you're only saying there is "no material evidence", leads me to believe she actually claimed to be a US citizen.
 
jaytee said:
I will quote from my first post at the top here..." Form I-485 says you must be paroled or admitted, and she was paroled. It doesn't matter that she didn't come in on a visa."
She had legal status. The last time she came into the country, it wasn't illegal.

It was the same type of non-law related comments that people gave us last year stating she could never get paroled (or even get a non-immigrant visa, which is possible) due to having a lifetime ban. Be it God or just the heart of a few CBP officers, she was paroled because legally she could be. Please quote CFR or forms if you are unsure or just using your opinion.
Click to expand...


I can assure you of one thing, you are missing the Pacific Ocean with your boat, as wide and expansive that Ocean is. You have huge obstacles to your immigration filing, the humanitarian parole was issued primarily because she couldn't obtain immigration status in the US. This was so because she came illegally in the first place. Your case is a classic example of causality. You are selective in quoting the I-485 form, because it appears as if this fits your boot, but it doesn't.

Your wife made a false claim to US citizenship, an offense akin to leprosy of the immigration law. False claim to US citizenship triggers automatic lifetime ban in the US. It is possible that USCIS during their routine background investigation, uncovered documentation completed by your wife in which she claimed to be a US citizen. My suspicion, I-9 verification form which ask for immigration status, because when you chose US citizen, no documentation is asked (based on my experience), but LPR requires producing a green card, which she never had in the first place. I like the passion you have for your wife's case, but in the end, this a case of a tail wagging the dog, an improbable case. I don't think quoting USCIS administrative law or manual to rebut your case is going to placate you, because your judgment is grossly impaired because she is your spouse.
 
She didn't claim US Citizenship at anytime. No I-9, no other document anywhere. She never had contact with police, immigration or any court except for during her Visa interview and then her Parole at port of entry.
Of course my bias leans towards anything that can be used for my wife's benefit. I am also welcome to here any possible negative laws or direction that a court may take. At least then I can try to pull up laws to defend against those things.
I understand the general theory is if someone doesn't present documents, it is assumed they crossed by stating they are USC, but that is not the only way. I wish we knew what exactly really happened or how the coyote did it, but there is no way to know - as there is no record or way to contact the coyote.
What we will be trying to fight is the misapplication of law by the consulate, the determination of a claim having been made based on questionable partial statement during that interview, which didn't admit guilt, as their only evidence and without understanding nor intent to understand what really happened. They were just trying to move the line as they do everyday in busy Juarez.
 
According to the consulate, where did she make a false claim of citizenship? And to whom ... a company, a government official? Let us know the full story so we can figure out a plan of attack if one is viable.
 
During the interview the lady asked a few questions about how she met me and if she had kids. Then she asked her how she got in the US in 2001. She said in car but the interviewer asked but how to know more details. My wife said she was in the backseat with 2 coyotes in the front. Then my wife said she would have had to say something with the word citizen in it, but she didn't remember. The interviewer asked "US citizen?" My wife responded she didn't know. The interviewer asked if she saw any papers and my wife responded no. The interviewer left for a few minutes and came back with a denial, which was expected for unlawful presence, but it wasn't expected it would have a lifetime ban. She didn't know that meant she couldn't do a waiver so she came out of the building, we called our lawyer and faxed it and then found out that this sounded terminal...
In no time in the interview did my wife admit to having said anything, because she didn't even get questioned by CBP when she came over. Probably she was taken to be underage or something or there was already a deal with a corrupt CBP agent, who knows. Also she didn't affirm that the US was part of the phrase, because she really didn't remember the rest of some english sentence from 8 years ago.
 
Was your wife being interviewed in Spanish or English? What is her English proficiency? I think if language was a barrier, then why didn't she take a translator to the interview? Once again, your case is holding on to straws here.
 
The interview was in Spanish in 2009 and her english proficiency is almost to a high school level now. She had come over here illegally in 2001 and had no english proficiency. She was trying to explain what she remembered the coyote who only spoke english had said in 2001. My wife did not affirm to having said anything or even that the part US was in whatever she had to say that contained the word citizen.
 
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