Frequently Asked Immigration Questions
Inadmissibility
What does it mean to be admitted?
To be “admitted” into the United States, you must be inspected by an immigration officer at the port of entry (i.e. at the airport or at the border). If you crossed the border without being inspected by an immigration officer, then you “entered without inspection (EWI)”.
What is inadmissibility and does it apply to me?
Although the concept of inadmissibility arises in a number of contexts, there are two common areas when it becomes an issue:
When a person is applying for legal permanent residence (whether through adjustment of status or through consular processing), but the U.S. government states that he/she cannot obtain the immigrant visa (i.e. greencard) because he/she had committed an act that is a ground of inadmissibility, as defined under the Immigration and Nationality Act.
When a person is in deportation/removal proceedings, he/she is alleged to have been inadmissible at the time he/she seeks to enter the United States. One common example is if the person is a legal permanent resident (i.e. greencard holder) and was convicted of a crime that is a ground of inadmissibility. When this individual travels outside the United States temporarily (i.e. on vacation) and then seeks to return, the immigration official at the U.S. airport will allege that the crime the individual committed in the past renders him/her inadmissible. The immigration official may allow the individual to enter the United States, but this entry is not an “admission”, the individual is only being paroled into the U.S.
What are the grounds of inadmissibility?
The following are the most common grounds of inadmissibility:
- Health related grounds (ex: HIV, tuberculosis, history of mental disorders
- Criminal grounds (ex: committed a crime involving moral turpitude, controlled substance conviction, engaging in prostitution)
- Security grounds (ex: members of the Communist Party, members of the Nazi Party, engaged in terrorist activities)
- Public charge grounds (ex: if the person coming to the U.S. is likely to need welfare)
- Undocumented entry and immigration status violations (ex: entering the U.S. without inspection (EWI), engaging in fraud or misrepresentation to obtain a U.S. visa, making a false claim of U.S. citizenship, those who violate the terms of a student visa by engaging in unauthorized employment)
- Lack of documentation requirements (i.e. an individual who does not have a valid passport or a valid U.S. visa upon arrival at the border or airport);
- Previous deportation/removal from the United States or unlawful presence in the United States
- a. A person who was ordered deported/removed by an immigration judge for any reason is inadmissible for ten (10) years.
- b. A person deported/removed because he/she was convicted of an aggravated felony (which is defined under the Immigration and Nationality Act) is inadmissible for twenty (20) years.
- c. People who entered legally but have been unlawfully present in the U.S. (i.e. overstayed a student, tourist, or other visa) for more than 180 days but less than a year are inadmissible for three (3) years.
- d. People who entered legally but have been unlawfully present in the U.S. (i.e. overstayed a student, tourist, or other visa) for more than a year are inadmissible for ten (10) years.
Deportation & Removal
What are the grounds for removal/deportation?
The most common grounds of removal/deportation are:
- Persons who are inadmissible (please refer to the inadmissible grounds here)
- Persons who violate their visa status (ex: working without permission or overstayed the allowable period of stay)
- Persons who were convicted of or pled guilty to certain criminal convictions (ex: selling controlled substances, domestic violence, aggravated DUI, fraud)
- Persons who endanger public safety (ex: terrorist, Nazi)
How does the removal/deportation process start?
Deportation proceedings begin with the U.S. Immigration and Customs Enforcement (“ICE”) issuing a Notice to Appear (“NTA”), which is the charging document in removal proceedings. Thereafter, a Master Calendar hearing is held in an Immigration Court so that you may respond to the charges listed on the NTA and apply for any relief (ex: file for a waiver of the criminal conviction, file for Cancellation of Removal).
It is very likely that you will have to attend several Master Calendar hearings in order to get the paperwork in order to apply for the relief you are seeking. The Immigration Judge will then set an Individual Hearing (i.e. the trial) in order to hear the evidence in support of the application for relief. Depending on the grounds for deportation/removal, you may be subject to mandatory detention throughout these removal proceedings.
Why am I in removal/deportation proceedings when I did not serve any jail time for the crime I committed?
Unfortunately, the sentence you received for your criminal conviction is not related to your removal/deportation proceeding. It is possible to have only paid a fine after pleading guilty to a crime and thereafter be placed in removal proceedings. The reason is that the immigration laws in the United States will examine your criminal conviction under a different set of standards under the Immigration and Nationality Act.
Can a person who is a legal permanent resident (i.e. greencard holder) get deported/removed from the United States?
Absolutely. Deporation/Removal doesn’t only affect those individuals who are in the United States without status (i.e. “illegal”). Only a U.S. Citizen cannot be deported/removed from the United States. It is possible for a LPR to have committed a crime many years ago and be placed in removal proceedings now.
What are aggravated felonies?
The harshest immigration consequences are reserved for a category of crimes called “aggravated felonies,” which is specifically defined in the Immigration and Nationality Act. Aggravated felonies include the following criminal convictions:
- murder
- rape
- illicit trafficking in a controlled substance (i.e. sale in illegal drugs)
- money laundering in transactions exceeding $10,000.00
- offense relating to firearms, explosives or arson
- any crime of violence, whether against people or property, for which the term of imprisonment imposed is at least 1 year. Examples include:
- a. theft offenses or burglary offense for which the term of imprisonment is at least 1 year
- b. an offense relating to child pornography
- c. an offense that relates to the owning, controlling, managing, or supervising of a prostitution business
- d. an offense relating to smuggling people
- e. an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.00
- f. perjury
Convictions for any of these crimes outside the United States will have the same immigration consequences, where the term of imprisonment was completed within the last 15 years. Since each conviction differs from one person to another and from one state to another, it is important to consult an attorney to determine if your criminal conviction can be defined as an “aggravated felony” under U.S. immigration laws.
What if I am charged as an “Aggravated Felon”?
Depending on when you were convicted of your aggravated felony crime, it is possible to file for a waiver. In addition, it may be possible to overturn your prior criminal conviction. Please call us so we can determine if your are eligible for a waiver or if we can help you overturn your prior criminal conviction.
How do I win a removal/deportation case?
There are many ways of winning a deportation or removal case.
They include the following applications for relief:
Cancellation of Removal – available to permanent residents who have continuously resided in the United States for 7 years or those individuals without any status who have been continuously present in the United States for 10 years. To be granted Cancellation of Removal, the Immigration Judge will look to see how long you have been here in the United States, your family relationships in the United States, your federal tax filings and whether you have a past criminal history.
Asylum – if you have been persecuted in your home country and have a fear of returning to your home country, you may apply for asylum.
Adjustment of Status – if you have an approved I-130 Petition filed by a family member and can now adjust your status, you can do so before the Immigration Court.
Adjustment of Status with a Waiver of Inadmissability (i.e. I-601 Waiver) – you can adjust your status based on an approved I-130 Petition, but if you have a criminal conviction or a ground of inadmissibility, you will also have to file an I-601 waiver before the Immigration Court. The judge will grant you this waiver by determining if your U.S. citizen or LPR wife, parent or child will suffer “extreme hardship” if you are deported from the United States. “Extreme hardship” includes any medical conditions, financial hardship and/or cultural hardship suffered by your family member.
Am I eligible for bond if I am detained by ICE?
Depending on when you were convicted of the crime and/or your current status in the United States, you may be eligible for bond. If you are eligible for bond, then you can be released from ICE detention on bond while your immigration case is pending before the Immigration Court.
“Stokes Interview”
What is a “Stokes” Interview?
An undocumented immigrant residing in New York and married to a U.S. citizen or Legal Permanent Resident, who has filed an I-130 Petition and an I-485 Adjustment of Status Application with their spouse, will be scheduled for an adjustment of status interview at their local USCIS office. At this initial interview, the couple will be asked to present certain documents and answer questions proving the validity of their marriage. If the USCIS officer is not satisfied that the marriage is legitimate, the officer may schedule the couple for a second interview, known as a Stokes interview.
Why was I given a “Stokes” Interview?
The officer has total discretion to require that a married couple return for a second “Stokes” interview. One reason the officer may not be convinced of the validity of a marriage includes an inability to answer questions about the spouse in detail. There are many other reasons that an officer may question a marriage’s legitimacy. Couples must be fully prepared for the initial interview or they risk being called back for a “Stokes” interview.
What happens in a “Stokes” Interview?
During the Stokes interview, the couple is separated. Each spouse is questioned one-on-one by a USCIS officer, who will ask detailed questions about their marital relationship, their families, employment, travel, and many other matters. The answers provided by each spouse must match nearly perfectly or there is a strong possibility that the USCIS officer will deny the I-130 Petition and then place the undocumented spouse in removal proceedings (i.e. deportation hearings) in Immigration Court.
Preparation is the key to successfully navigating a Stokes interview. Failure may lead to the most serious consequences. We have attended many of these interviews with our clients and counseled them on what to expect at a Stokes interview.
If you have a Stokes interview scheduled or have been issued a denial following a Stokes interview, please call (646) 768-4190 or email us at betty@bettyhuanglaw.com to schedule a consultation.
