Posted by David on 7/19/08

More | Report Post

How does USCIS view entry(ies) without inspection prior to
IIRIRA effective date of April 1, 1997. In my example,
alien is a native and citizen of Mexico. Alien entered
without inspection at age 5 in 1991, returned to Mexico in
1996. Re-entered without inspection March 2000 at age 14.
Has been in the US since. Alien is a 245(i) qualified
grandfathered beneficiary through filing of an I-130 on
April 23, 2001 by alien’s US born brother. Alien would like
to adjust now through naturalized US citizen spouse under
grandfathered provision of 245(i). Alien does not have any
order of deportation prior or current. Both entries were
undetected.

Is it correct to determine that in light of Raul RODARTE-
Roman, 23 I&N Dec. 905 (BIA 2006) (ID 3531) in
which “pursuant to sections 301(b)(3) and 309(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-
546, 3009-578, 309-625, no period of an alien’s presence in
the United States prior to April 1, 1997, may be
considered “unlawful presence” for purpose of determining
an alien’s inadmissibility under section 212(a)(9)(B)”. The
alien’s first entry in 1991 and departure in 1996 was prior
to IIRIRA effective date of April 1, 1997, thus waived or
not looked at for purpose of 245(i) adjustment?.

Understandably, alien’s re-entry post IIRIRA on March 2000
is subject to 3/10 year ban if alien departs after being
unlawfully present for more than 1 year, however, alien is
protected as a 245(i) beneficiary since alien has been
present since March 2000. Is there also additional
protection due the fact that alien was a minor on both
entries? How is first entry/departure even explained to
USCIS during application process so as not to have adverse
actions but be truthful?

RE: USCIS Interpretation of IIRIRA to 245(i), 7/19/08, by David.

Immigration Law Chatboard

LATEST POSTS | BY TOPICS | SUBMIT A POST