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Client fell into ICE custody when Canada refused him entry at the
border because of criminal offenses and he was returned to the US
inspectors at the border.
Client, at age 5 in 1957, entered the US with his parents and
brother. They are Indonesians who fled to the Netherlands in the
50's. Then they got into the US. Immigration has files that
show the parents and brother as being admitted as LPRs in 1957.
No immigration file has been found for the client, though there
is a file that cannot be found that is one number away from the
brother's LPR file. Thus, he may not be able to prove he has
been an LPR. He says he had an alien registration card, but lost
it 20 years ago. He has lived in Milwaukee since 1957, is
married to a USC, and works as a truck driver.
Has anyone ever argued that the theory of res ipsa loquitor would
mean that INS had the best evidence of client's entry as an LPR
with his parents and brother in order to prove he has been an
He's made 4-6 trips to Canada as a truck driver delivering cargo,
and then returning to the US. He to me says his status was never
checked. Immigration officers in 2004 say he stated to them
while in custody in June that in 2001 he claimed to be a USC in
order to get back into the US in 2001. Thus, they charged him in
the NTA with being an alien not admitted or paroled who made a
false claim to US citizenship.
In 1974 and 1976 he was convicted of several offenses while over
the age of 21, but he was sent to state reformatory on two
convictions; he PLED on all charges:
1974: eluding an officer; paid fine. (Carrying concealed
weapon [knife] charged dropped).
1976 felony theft of motorcycle; sentenced to 5 yrs at state
reformatory. (Unclear whether prosecutors thought he was a
1976 Reckless use of a weapon to end safety of life.
(Firearm was involved). sentenced to 2 yrs at state
1977 Endanger safety by conduct regardless of life.
sentenced to 2 years at state prison.
I have not yet received the old statutes.
Client, age 52, is charged in the NTA, as an alien not admitted
or paroled, with being inadmissible for making a false claim to
US citizenship in 2001 upon entry to US as a truck driver
returning to his home in the US after a delivery to Canada.
Two separate border patrol agents say in reports that client
admitted to them of making the false claim in order to re-enter
the US in 2001.
ISSUES THAT AFFECT THIS CASE:
1. Is he better off not being an LPR? He could get adjusted
by his USC wife petition using 212(h) waiver that would not be
available to him if he had been an LPR in the past because of
convictions that are aggravated felonies that would bar the
212(h) waiver. UNLESS the charge that he entered the US in 2001
by claiming to be a USC is sustained. Then he could not adjust
because he was not inspected and admitted or paroled. He could
not consular process if the false claim to be a USC is sustained.
2. If he is an LPR charged with entering by a false claim to
USC, can he get 212(c) relief to forgive the aggravated felony
charge and then seek Cancellation as an LPR who has had the
aggravated felonies waived to avoid the false claim to USC
charge? [Since he is charged under section 212, because he was
not admitted in 2001 for claiming US citizenship, he would not be
barred from 212(c) relief because they could not charge him with
a firearms conviction, thus defeating 212(c)] In fact, he may be
better off being charged under section 212 because if he were
charged under section 237 with being removable as one admitted to
the US, then he could not seek 212(c) relief because there is no
parallel firearm ground in section 212.
Client is likely to be found to be an LPR. If so, because of the
convictions that are aggravated felonies, he could not adjust by
his wife because he could not get the needed 212(h) waiver.
If we were successful in claiming that he never made a false
claim to being a USC, then he would be considered to have been
admitted and ICE could charge him under section 237. As an LPR,
he could not seek 212(c) because of no parallel ground in section
So, it seems we are best off if we can prove he is an LPR,
convicted of aggravated felonies, who claimed to be a USC. Then,
he could seek 212(c) relief to waive the aggravated felonies and
Cancellation to avoid the false claim charge.
Answer by Lisa Brodyaga:
Your best bet is registry, under 249, with 212(c), since he has been here since before 1/1/72, and you don't have to prove any particular period of gmc, just that he is now of gmc, and false claim to US citizenship is not a ground of exclusion relating to "criminals, procurers and other immoral persons, etc..." See, Matter of K-, 3 I&N 69, for an old case saying false claim is not bad moral character. The 212(c) would keep him from being "inadmissible" because of the criminal offenses.
Otherwise, your biggest problem will be the issue of the alleged false claim. Since it occurred (if at all) after 1996, it would bar him from adjusting through his wife under any circumstances.
If he is found to have made an oral false claim, he could try for cancellation for LPRs (or non-LPRs, if they don't find him to be a resident), if you could somehow convince the court that none of his offenses was an agfelony. So far as I know, you can't waive the agfelony with 212(c), and then apply for cancellation, because even if it is waived as a ground of inadmissibility, he was still "convicted" of it, and is therefore ineligible for cancellation. That doesn't mean, however, that you shouldn't try.
Otherwise, your best bet is to fight both the EWI and false claim charges. I think you can prove that he is an LPR, if only by testimony of parents (if still alive) and/or brother, plus the fact of the missing file. If the brother is older, his should be one number less. If younger, then one number higher. The Judge will know that's how the system worked.
If you can beat both those charges, then he could do 212(c) with adjustment, through spouse. But I still think your best bet is 212(c) with registry, since he would still be eligible, even if you lost both the EWI and false claim issues, so long as you can prove he is an LPR.
Answer by Lory Rosenberg:
I agree with Lisa, except it may be hard in the 8th circuit convincing court that the last two offenses are not crimes of violence. Arguably, INA 240(c)(6) would allow simultaneous 212(c) and cancellation applications, but he will not be eligible for cancellation since 240A(a)(3) says convicted of an agfel at any time - not deportable for an agfel. The only additional points I can offer relate to whether his parents became citizens and if so, when that happened? If not, the only other approach would be (a) determine if some of the convictions were under a youthful offender sentence scheme like in Devison, and/or (b) investigate for legal infirmities in the criminal process and try and vacate the convictions
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