Sunday October 13, 2013
Kaieteur News
ImmigrationINFO (Immigration News For Our Community)
Traveling under advance parole does not lead to inadmission By Attorney Gail S. Seeram, GailLaw.com Under U.S. Immigration laws, individuals who depart the United States after having lived there without lawful status for one year or more are barred from returning for 10 years. The “10-year bar” is a statutory penalty for having accrued one year or more of unlawful presence in the U.S. The bar is triggered upon departure from the U.S. If an individual with a 10-year bar seeks to return to the U.S., before remaining outside the U.S. for 10 years, then that person must file a waiver in order to be lawfully admitted into the U.S. Individuals who depart the United States while their application for adjustment of status is pending incur an additional problem. Normally, when one leaves the U.S. while his adjustment of status application is pending, that application is considered abandoned. To avoid abandoning the application, the applicant must apply for and obtain advance parole prior to leaving the US. Noncitizens who had one year or more of unlawful presence in the U.S. but had received advance parole from U.S. Citizenship & Immigration Services (USCIS) reasonably believed that they would be readmitted into the U.S. upon their return without having incurred a 10-year bar. Unfortunately, USCIS did not agree. USCIS had taken the position that a person who obtains advance parole and returns lawfully is subject to the 10-year bar. The position was based on the conclusion that the person “departed”
the U.S. However, recently, that position has been overturned by the Board of Immigration Appeals (BIA) in the case, Matter of Arrabally. This important decision by the BIA, in essence, established the following conditions under which certain noncitizens who are not legal permanent residents could travel abroad, while awaiting adjudication of their adjustment of status application in a situation in which they would have been otherwise inadmissible as legally barred from being admitted into this country. To travel, such an individual needs (1) to have his or her bona fide adjustment of status application pending before the USCIS; (2) be otherwise not inadmissible or have a prima facie eligibility for a waiver of such inadmissibility; (3) to have been granted a d v a n c e parole by the USCIS; (4) travel abroad temporarily; (5) be returning to the USA in order to continue pursuing this very application for adjustment of status. If all of these conditions are met, such individuals, the BIA held, do not make a “departure” from the USA for purposes of triggering the overstay bars. This is a significant victory for individuals who need to travel during the pendency of their adjustment of status application. Matter of Arrabally is also a significant victory for those who have previously been denied adjustment based on their ineligibility for an unlawful presence waiver after departure under advance parole. These individuals may now have grounds to reopen
Gail S. Seeram their adjustment of status application, pursuant to new case law. The Board of Immigration Appeals cautioned that the decision did not protect an applicant of other grounds of inadmissibility. Applicants who are subject to inadmissibility for prior criminal convictions or misrepresentations will still need to obtain waivers in order to obtain their green cards. Moreover, if for any reason, the pending application for adjustment of status is denied, the applicant could be placed into removal proceedings as an “arriving alien,” which could significantly affect their eligibility for relief. Leaving the United States, where one has accrued unlawful presence is a very intricate issue. Many different factors play a part in determining whether a bar is in effect, and if so, if any relief is available from that bar. Therefore, it is imperative to consult an experienced and knowledgeable immigration attorney before leaving the country to find out the risks of departure and the possibility of return.
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APNU dismisses calls for early general elections …no intention to bring no confidence motion against Govt. - Granger Leader of A Partnership for National Unity (APNU), David Granger, says that his party has no intention of tabling a ‘no confidence motion’ against the Government in Parliament thereby forcing General Elections. Granger made the disclosure this past week while responding to an earlier position voiced by Head of the Presidential Secretariat, Dr. Roger Luncheon. Dr. Luncheon had said that the government would call elections before any such motion could be debated in Parliament. According to Granger, the only elections that APNU is preparing for is the Local Government Elections. He said that he did not believe that the statement uttered by Dr. Luncheon represented a serious government policy to pursue elections ahead of the 2016 deadline. “Dr. Luncheon is on a fishing expedition…He is just fishing for a response,” said Granger. He said that Dr. Luncheon was probably seeking to put the idea of a return to the polls in public domain, to see if there is a favorable response. According to Granger, APNU is not worried that this constitutes an intention on part of government to proceed with early General Elections. Granger said that APNU is
more focused on, and is committed to local government elections. He said that it would be a serious error in judgment to go to national elections without going to Local Government Elections. APNU is preparing for that election, according to Granger, who said that the party is looking forward to the President’s assent to the four pieces of legislation. He said too that the party is concerned that after eight weeks, there has been no assent and as such he wonders if there is an ulterior motive on the part of the President. Granger suggested that it is either the President does not intend to assent to the Bills or that there is a deliberate ploy to delay the holding of the elections. “There is no intention now to bring a vote of no confidence…On the matters before us now we don’t have any plan to bring a motion of no confidence against the government.” During his post-Cabinet press briefing this week, Dr. Luncheon said that he believes that a return to General Elections is the only way to solve the impasse afflicting Guyana’s Parliament for the last two years. “I strongly believe that what has occurred over the first two years of the tenth Parliament, particularly in Parliament, may not be a phenomenon that could be
Opposition Leader, David Granger resolved any other way than by General Elections.” Dr. Luncheon said that the President has made his position public, in that there exist two options, “I (Donald Ramotar) do it, or they do it.” Asked to respond to the possibility of the political opposition moving to Parliament to execute a vote of no confidence in the government forcing an election, Dr. Luncheon stressed that the ruling party has never resorted to an election held under threat.