Written by attorney Nicolas Andres Olano


ARRIVING ALIEN? (Im not from Mars!): The term "arriving alien" is commonly used in immigration court. What this means is that you have not yet been "admitted" into the United States. Yes it sounds weird but we are dealing with what is called a "legal fiction." We make believe certain things for legal purposes. So here you are physically present within the United States but you legally you are still standing at the border. This has certain effects upon your rights and it varies if you are a resident, a non immigrant or an intending immigrant. LEGAL PERMANENT RESIDENT: (LPR's) The law and regulations state that LPR's who are leaving the U.S. for a brief period of time are not "seeking admission" and as such should not be considered arriving aliens. The exeption to the rule is the comission of a crime that would render the alien inadmissible before he or she left. IMMIGRANT and NON-IMMIGRANT: The person who is entering the U.S. to live here permanently is some one who is considered an intending immigrant. To "enter" the U.S. with such an intention you must have an immigrant visa. A person that is allowed to enter with such a visa is NOT considered as an arriving alien and is deemed admitted to the U.S. Now if that person does not have a visa and is stopped at the border and allowed to physically enter for humanitarian or other reasons beneficial to the U.S he or she will be "paroled." This person is being let into the U.S. but is legally considered to remain at the U.S. border until the situation is resolved. The same thing may happen to someone who is simply being brought to the U.S. by an agency - the IRS, for example-. Though this person is NON-IMMIGRANT he or she is being let into the U.S. without a visa and as such will be "paroled." The individual who were "paroled" are "arriving aliens." THE MOST IMPORTANT THING What you have to know about being an arriving alien in removal proceedings/deportation is that the Immigration Judge does NOT have the power (Jurisdiction) to give you residency via an adjustment of status application. So if you find yourself before an immigration judge and the charging document - Notice to Appear- states that you are an arriving alien, the you should know that only Immigration, not EOIR - The Immigration Judge- may not grant you residence.

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