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Ways to return to the US after deportation

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12:10 AM November 20th, 2011

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By: Lourdes Santos Tancinco, November 20th, 2011 12:10 AM

Peter was an undocumented immigrant who overstayed in California for more than eight years. He married a US citizen and obtained conditional resident status for two years. His green card, however, was not renewed because it was discovered that his marriage was not entered into good faith but was in fact fraudulent. Peter was deported. He returned to Manila to live with his 84-year old father, Ricardo.

While in the Philippines, Peter was informed by a friend that the only way he might return to the US was through a petition by a family member. Ricardo, Peter’s elderly parent, happened to be a World War II veteran and a US citizen. He convinced 84-year old Ricardo to go to the US and file a petition for him. He purchased a one-way ticket for his father and on Oct. 1 Ricardo arrived in the US.

Upon his arrival, Ricardo worked on filing the petition for his son. He approached a free legal aid group and was told that after filing this petition, Peter would have to wait approximately 15 years before a visa could be issued, given the severe backlog in family petitions. Ricardo said that because of his age, he might no longer see the day the visa is finally issued to his son.

Unspeakable ordeal

The petition process was not the only issue complicating Ricardo’s stay in the US. During his first few weeks, he stayed with a distant relative in San Francisco. As soon as he ran out of funds to support himself, he lost his welcome at his relative’s residence and found himself in a veterans homeless shelter. Homesick and longing for the care of his friends and family, Ricardo called his son Peter and begged him to send him money and a ticket to go back to the Philippines.  Peter expressed his concerns about his petition and asked his father if he could stay longer in San Francisco. Ricardo nevertheless insisted on returning to the Philippines.

Ricardo would have been saved from traveling to the US and going through this unspeakable ordeal had Peter received accurate information about the process of returning after deportation. His father’s presence in the US was not necessary to file the petition. The waiting period prohibiting return to the US imposed after deportation may be waived by filing the appropriate applications.

Deportation has consequences. There are statutory periods of time before a deportee is allowed to return to the US. Those who were forced to return to the homeland through a final court order are barred from returning for 10 years. There is a bar of 20 years for an individual who has a second deportation.

These 10-year and 20-year bars apply only to deportees who do not have crimes classified as aggravated felonies in their record. If the deportee was previously convicted of an aggravated felony, the bar prohibiting return to the US becomes permanent.

For those who were sent back to their country of origin at the port of entry or those “airport to airport” cases, there is a five-year bar before being allowed to return to the US.

Those who leave the US during the pendency of their deportation cases are also considered barred for 10 years.

Exceptions to the rule

There are cases where certain individuals who are under such statutory bars are allowed to travel back to the US prior to the end of the statutory period.

One who has a 10-year bar from returning to the US may be allowed to reenter earlier if certain conditions are met and applications to the US. Citizenship and Immigration Service to reenter are approved.

A deportee may file for permission to reapply for admission. The grant of such application removes inadmissibility resulting from the prior deportation. An application seeking permission to reapply for admission is a discretionary remedy granted to the deportee and is subject to review only on the basis of a showing of arbitrariness—a very high standard. Immigration officers evaluate cases on a balancing test and must review all of the factors presented by the parties.

Among the factors considered are: the basis for deportation; recency of deportation; length of residence in the US; the applicant’s moral character; the applicant’s respect for law and order; evidence of reformation and rehabilitation; the applicant’s family responsibilities; any admissibility under other sections of law; hardship to the applicant and others; and the need for the applicant’s services in the US.

The actions undertaken by Peter which caused such hardship for his 84-year-old father could have been prevented. Deserving deportees who still aspire to return to the US, (especially those separated from immediate family members left behind in the US) do have a legal recourse.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

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