Permanent residents in removal or deportation may be eligible for waivers, re-adjustment or other relief from removal, such as asylum, even if they were not eligible for their green card at the time they received it. Residents may also have a statute of limitations argument if ICE waits more than five years to place them in removal proceedings
Green card holders who have lived in the US for many years may be shocked to suddenly find themselves in removal proceedings, facing deportation, because they were not technically eligible for permanent residency at the time they entered. At the time they became a resident, they did not meet one of the requirements for their green card. If ICE has waited more than five years to initiate removal proceedings, they may argue that the statute of limitations pursuant to 8 USC 1256(a) has passed. Or, they may be eligible for a waiver under INA 237(a)(1)(H), which waives fraud at the time of becoming a resident, or under INA 212(k), if the inadmissibility was not known to, and could not have reasonably been discovered before the time of departure. Additionally, they may be eligible to re-adjust to permanent residency. Thus, even if you were not technically eligible to become a permanent resident, you still may be eligible for relief from removal and be able to stay in the US with your green card.
Let us take as an example, Analisa from Calabria Italy. Analisa’s permanent resident father petitions for his daughter as an adult unmarried child. They receive an approval on the I-130 relative petition. Because she is an adult, she must remain unmarried throughout the entire process to receive her green card. If she marries, her relative petition will be automatically revoked because there is no family preference category for married children of permanent residents. Any married child of a permanent resident is simply not eligible for the green card.
Her dear dad prepares the immigrant visa application forms and documents. He does it himself from the U.S., with minimal input from his daughter. Dad likes to be in charge. Since she had minimal involvement in the whole immigration application process, she was never informed that if she married, she would not be eligible for her green card.
She goes to the interview at the US Consulate and is issued an immigrant visa. Shortly before she comes to the U.S., she marries her childhood love, Giovanni, but does not tell her parents or family right away.
At the time she enters the U.S., she becomes a lawful permanent resident. She then petitions for her husband Giovanni, and he comes to the US also as a resident. They have two beautiful US citizen children. Seven years go by.
She applies for naturalization, and is fingerprinted. USCIS reviews her file, and refers her case to ICE.
Suddenly, Analisa is placed in removal proceedings for not having been in possession of a valid immigrant visa at the time she entered the US. The Notice to Appear in immigration court charges her with violating the Immigration and Nationality Act, INA Section 237(a)(1)(A), as being inadmissible at the time of entry or of adjustment of status or violates status: “Inadmissible aliens – Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable”. ICE also may or may not charge her with fraud.
First, did US ICE wait too long to put her into removal proceedings? Whether she has an argument that the statute of limitations has passed depends upon the jurisdiction in which she is living. If she resides within the Third Circuit, yes, her attorney can make a motion to terminate based upon ICE initiating proceedings after the statute of limitations.
According to the INA, 8 USC 1256(a), ICE would have had to initiate removal proceedings within five years of the date of Analisa’s becoming a permanent resident, based on her lack of eligibility at the time she was granted residency. Because it was seven years between the date she became a resident and the date ICE issued the Notice to Appear, the statute of limitations has passed and the Immigration Judge should terminate removal proceedings. However, this will work in the Third Circuit but not in other jurisdictions. So, if she resides in New York, most likely she will not win on a statute of limitations argument.
However, she would be eligible for a 212(k) waiver, if she can prove she really did not know she had to remain unmarried throughout the process, and that it would not have been reasonable for her to know. The other option is a waiver under 237(a)(1)(H) which waives fraud at the time of becoming a permanent resident, as long as the individual is the spouse, parent, son or daughter of a U.S. citizen or permanent resident. She may also be eligible for re-adjustment to permanent residency.
Thus, if you were actually not eligible for your green card at the time you received it, you still may be eligible for relief from removal and be able to remain permanently in the U.S. Of course, you will need a competent attorney to represent you in immigration court and for presentation of the waivers and any other applications you may be eligible for.
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