If alien cross the border and is caught finger printed and let go back to Mexico Is it unlawful presence or unlawful reentry.

Asked over 1 year ago - Turlock, CA

My husband in 1998 fled to this country illegally from Mexico. He made it through on his 3rd attempt as the first two attempts he was caught, finger printed, and released back to Mexico. My question is is this considered unlawful presence or unlawful re-entry as one a waiver is available and the other is not. I contacted immigration and they had advised me via the customer service number that it is unlawful presence. As I read through the many questions and answers on this site I see attorneys are saying that it is unlawful re-entry and a 10 year bar is placed after a person has left the country with no waiver. Majority of the illegal people make more than one attempt to the USA before they are successful does that mean they are all unlawful entry... Confused...

Attorney answers (6)

  1. Mario Steven Zapata

    Contributor Level 13

    4

    Lawyers agree

    2

    Answered . It is not not unlawful presence. If your husband is looking into options on how to become a lawful permanent resident, I strongly encourage you to consult and hire an attorney. Generally, I would not advise anyone proceed with immigration filing without first verifying through FBI fingerprints and FOIA (Customs and Border Protection) if there is any record of such arrests/detentions. If your husband was expedited removed during any of those incidents, he is subject to a 10-year permanent bar for which a waiver will not fix.

    Good luck!

    Legal disclaimer: (714) 479-1000 Mr. Zapata's response to your question is general in nature, as not all the facts... more
  2. J Charles Ferrari

    Contributor Level 20

    2

    Lawyers agree

    Answered . You really need to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more
  3. Fabian Celedon Serrato

    Contributor Level 6

    2

    Lawyers agree

    Answered . Being turned away at the border will not pose a bar unless he was subject to an expedited removal. He will be subject to an expedited removal order if he used false/fraudulent documents or attempted to gain entry through a misrepresentation. You're husband should absolutely consult with an experienced immigration lawyer to assure that he and you are properly advised.

    If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education... more
  4. Luz Eliana Phelps

    Pro

    Contributor Level 10

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    Answered . you are not the only one confused with these two different but extremely connected grounds of inadmissibility that as you very well indicate apply to the majority of aliens who made multiple attempts before being able to enter and stay in the United States.
    You must start by yourself conducting a legal research and I will guide you to the right place to start.
    Please go to the BCIS.org the official site of the Bureau of Citizenship and Immigration Services, a site you must book mark for future references because it is accurate and it is the site of the authority you are looking to obtain a decision, yes, the one who will decide whether or not to grant you an immigration benefit.
    The BCIS site has the immigration Laws and one of them is the INA (Immigration and Nationality Act) and that act is available in the BCIS site and you can access it at any time for your research.
    The grounds of inadmissibility are found in Section 212 (a) of the INA, and when you get into that particular section you will find the different grounds of inadmissibility that prevent an alien to get admission to the United States and also the ones that have a waiver, that is that permit an alien to request to be forgiven upon the fulfillment of certain requirements clearly specified in the waiver provision.
    There is one ground that is previous immigration violations: that is the one you must find and that is the one you must read several times until you understand.
    The Immigration Reform of 1996 that became operative in 1997 created these two additional grounds of inadmissibility I will discuss in a while and the ones you are concerned and confused.
    There are two different provisions that you must understand and that I will help you understand.' Lets start with the one that refers to section 235(b),
    The Law says that any person who has been subjected to section 235 (b) proceedings, also known as summary removal ( the removal of an alien at the border without intervention of an immigration judge, normally applicable to aliens who lack the documents to lawfully enter into the Country or those who are found to have committed fraud by presenting documents that do not belong to them ( both very common scenarios).
    The INA says that any person who has been summarily removed at the border ( and yes, during the process the alien is taken photograph and fingerprinted) and later attempts to enter or re-enters without previous obtaining authorization is inadmissible.
    The INA also indicates that an alien who has been physically present in the United States for a period of 1 year or more and later leaves the country and attempt to re-enter or re-enters without authorization and inspection and admission, that alien is inadmissible for a period of 10 years from the time he/she last departed the United States ( this is the permanent bar) the one you refer to "do not have waiver:.
    so lets analyze the case you have presented:
    your husband made three different attempts to enter the United States all of them after the 1996 reform that became operative in April of 1997. at the time of all his attempts the two provisions were operative in addition to the unlawful presence one.
    The first one, he was fingerprinted and a photograph was taken: Question and very important one and you must ask your husband: Did the officer tell your husband that he was inadmissible for 5 years after the date of his return to Mexico and that before re-entering he must seek permission to apply and get admitted? if yes, at least in one of the two different occasions, he was summarily removed and by law he must wait for a period of 5 years outside the United States before applying for admission or face a most severe sanction.
    The Law says that if a person is summarily removed and later re-enters or attempt to reenter then it is barred for 10 years. In cases like this a person summarily removed if wishes to enter before the five years he must seek permission to re-apply if not, he will be barred for 10 yea

    This response is intended as a legal advise but at no time will constitute attorney client privilege or serve the... more
  5. Dhenu Mitesh Savla

    Pro

    Contributor Level 17

    3

    Lawyers agree

    Answered . I somewhat disagree with other attorneys. a permanent bar is for individuals who entered EWI and overstayed for 1 year before a second EWI entry. A permanent bar requires a 10 year wait before being eligible for a waiver. 3 successive attempts do not result in a permanent bar, unless at least one was an "expedited removal". As you can see, this is a very complex area of law and I recommend you contact an attorney very familiar with issues related to waivers, unlawful presence, and the history of immigration laws in these areas.

    Dhenu Savla, Esq.
    SwagatUSA, LLC
    www.swagatusa.com/attorney

    This answer does not create an attorney-client relationship and is not meant to be relied upon as legal advice.
  6. Dean P Murray

    Contributor Level 18

    2

    Lawyers agree

    Answered . I strongly recommend that you contact an immigration lawyer, whether myself or one of my colleagues, and obtain professional assistance. It sounds as though he is subject to a 10-year bar with no waiver option. If you appreciate the time spent preparing this answer, kindly consider marking it BEST ANSWER or HELPFUL. Good luck to you.

    Dean P. Murray
    The Murray Law Firm

    Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely... more

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