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Testing123 and John Rogers.
If I’m on Canadian soil (as I am at a Canadian airport) even though I’m in Secondary at US Customs how can I be “removed” from the US if I’m not in the US?
Hence what removal proceedings could take place if I’m in Canada?
Furthermore why let me withdraw my application to ENTER the US?
That language explicitly says I’m NOT in the US since I obviously haven’t ENTERED yet. If I haven’t ENTERED then how can any REMOVAL take place?
You were never removed, so no ban due to removal is applicable to you.
However, you are still admissible due to being found to have overstayed.
Let me repeat that, you do NOT have a removal ban (9A or 9C). Your ban is due to overstay (9B1 or 9B2).
As I said, you either overstayed for over 180 days, or you did not (only you know whether you have overstayed over 180 days or not).
If you did overstay for over 180 days, you are banned because of this overstay, WHETHER OR NOT you were ever removed.
Picture another scenario. Let's say a guy admitted to have smoked weed to the border agent.
The agent would refuse him entry, and let him withdraw his application for admission.
The guy, despite technically withdrawing his entry to the United States and was never removed, would still be banned for life, and requires lifetime waiver, because the inadmissibility is due to him admitting to smoke weed.
The same logic applies to your situation. Instead of smoking weed, your 'offense' is overstay, and they give you the ban due to that.
As I said, I think you should consult a competent lawyer, or contact either John, Ken, or Michelle.
You would be able to send them all your documents so they can more properly access your situation.
“However, you are still admissible due to being found to have overstayed.”
I meant to say, you are still INadmissible. Sorry for the typo.
Testing123
What do you glean from this then?
“grant individuals permission to withdraw the application for admission completely, which allows the traveler the opportunity to avoid removal proceedings and any potential ban on entry, and depart immediately from the U.S.”
@testing123 great explanation.
Samuel, try not to get too caught up in the logic of "why" and "this makes no sense".
The truth is you file a waiver, and you can travel. What you are describing is a very common occurrence, I have many clients in the same boat being in Brampton. "Overstay" or "suspected of overstay" is probably close to 30% of the waivers I do.
In Brampton, which has a large South Asian community, we get a lot of clients who traveled to the US as a visitor from India. (for example) They try and get status but are unsuccessful. They get status in Canada. They become a Canadian Citizen. They try and travel to the US. They get denied and are "allowed to withdraw their application". They file a waiver.
Hi Sam,
What you described there was ground of inadmissibility due to removal. Look up 212(a)(9)(A)(i) for expedited removal.
You were NOT banned under 212(a)(9)(A)(i) because you were never removed, but you already had an underlying ground of inadmissibility due to being found to have overstayed, which is 212(a)(9)(B)(i)(II) (probably, impossible to tell without looking at your doc).
IF they had removed you, you would have an additional ground of inadmissibility, which is due to expedited removal (212(a)(9)(A)(i)).
That's what the article is describing, the ban due to removal (or Section 212(a)(9)(A)).
This 212(a)(9)(A)(i) ban does NOT apply to you because you voluntarily withdrew your application to enter the US.
The 212(a)(9)(B)(i)(II) ban, however, applies to you, since they found you to have overstayed for over 180 days.
Read up 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) again.
The law explicitly mentioned that, whether you departed or were removed, the ban would still apply:
“(i) In general.-Any alien who-”
“(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or”
“(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible.”
I understand that the waiver process is very elaborate, laborious and costly, but I think you should at least try to consult with one of the experts here, and (if you trust them), send them your documents, so they can more properly analyze your situation. There is only so much that can be done over online forum.
#100 It may not be necessarily in his best interest to file for a waiver. It will depend on the specifics of his case. Plus by him getting the 10-year ban, I assume that he was unlawfully in the USA for at least 1 year or more
#98 Testing is essentially correct though and it would be good if you could share some specifics on your case...Like maybe telling us what codes they specifically charged you under.
Thanks to all for the input.
I’m guessing the most prudent thing is to just wait for my FOIA and take it from there.
In essence it makes no sense to pay an attorney or consultant to find out exactly what my case entails if it turns out I don’t need a waiver.
I still am not sure why some are offered the opportunity to withdraw their application and some are not.
Really what is the purpose of offering this discretionary action?
Samuel, you may need a waiver, yes but it may be in your best interest to wait. It will depend on a few factors. I really would like to see what your sworn statement or charging papers said.
Specifically, I want to see what codes they have placed you under.
You can call us at 1 888 908-3841 or 604 332-9213 if you want to reach me directly.
email us at info@deniedentrytousa.com if you wish.
usentrywaiverservices.com
#107 It is good that they allowed you to withdraw your application.
Which FOIA did you do? The big one can take almost 5-6 months to come in and it is a smart thing that you did by ordering it. There is a possibility that you may not need a waiver after the 10 years has ended.
Discretionary action is just simply that they use their discretion in evaluating every border case. I will give you an example:
We have a client that has a history of not presenting his waiver to the CBP officer when he crosses over. He will sometimes tell them that he forgot and left it at home...and then pull it out of his pocket. Personally, I think that it was a foolish thing to do.
Anyway, the last time he did this, they told him that he has a history of this behaviour and revoked his waiver. So essentially, they used their discretion in his case to revoke his waiver. They could have easily let him go...but they revoked it because of his history.
Another time I was with a client at the Pacific Highway Border. He was inadmissible and they told him that if he tried to enter again that he would get a 5 Year ban. They then offered him the option to withdraw his application for admission and return to Canada. He refused and said that he still wanted to enter the USA. The officer got visibly irritated and they subsequently processed and issued him for a 5 Year Ban.
I suspect you may not have much negative history with them....which is a good thing.
K SCOTT
I don’t have a negative history with them. I just remember the CBP Officer saying to me that if I presented bank records, etc... then I wouldn’t have a problem.
I didn’t give it much thought at the time as I was somewhat frazzled and exhausted after being in Secondary for 4 hours and just thought my ban was somewhat harsh.
I just let it go.
I hadn’t looked at my documents in a long time and then discovered this application to withdraw which I had signed.
Upon further research and remembering what the Officer said to me about bank records and whatnot I suddenly realized there is a possibility that they never actually banned me as I had the written record of withdrawing my application to enter.
Hence I filed a FOIA online to get my history with them.
Ok well, I think that your case can be cleared without even needing a waiver based on what you just told me. If so, I can actually show a way that you can do it yourself while still protecting you from other things that they can throw at you. There is still one small thing that they may try to throw at you in the future but I will show you how to avoid it.
Essentially, you will get a lifetime clearance and you will be doing all the work....and again you likely won't even need a waiver now or in the future. This will save you thousands of dollars over a lifetime.
If you give us a shout, I can go over it with you and will charge you literally 1 cent to show you a technique to get cleared for life. I am very interested in what you admitted to in your sworn statement.
usentrywaiverservices.com
604 332-9213
1 888 908-3841
K SCOTT
Thanks for your input.
This is what I'm seeing on my paperwork.
*All inspection results were given to SCBPO (redacted) , who concurred that Mr. (redacted) was inadmissible to the U.S. per INA 212(a) (9)(B)(i)(II) as per SCBPO(redacted) (b)(6);(b)(7)(c) the subject was allowed to withdraw his application for admission.*
Sorry for the truncated reply here as I'm in the process of traveling right now. (Obviously not to the US - LOL)
As I mentioned, 212(a) (9)(B)(i)(II) is unlawful presence over a year, and it carries a 10 year bar. You are inadmissible. I would be interested to see how Ken can advice you to avoid filing for waiver.
9B is not as bad as some of the other codes. I really would like to see his sworn statement and what he told them. The worse case scenario is that he has a 10-year ban. His issue may not be relevant after the 10 years. It is a good idea to see what is in his FOIA. Some 10-year bans will automatically disappear after the 10 years.
An example is that let's say that a person got a 10-year ban in Jan 2010 and they have done nothing to address it. It would probably be worth waiting out the extra 15 months since it would save money and CBP could theoretically take a year or more to adjudicate his case.
Essentially, a person could save that money by waiting. Another thing is if he got the ban in 2018 then he may not want to wait until 2028. Yes, then a waiver could be filed. Another remote possibility and this has worked for us before. We did a waiver packet and showed why the sworn statement that they did was one that was not a qualifying one to indicate inadmissibility. CBP agreed and threw it out.
Anyway, bottom line is that there is a chance that he won't have to file for a waiver for the rest of his life(after the 10 years perhaps) and he will save money...which is what we always strive for.
Testing123 & K SCOTT
Ironically I'm currently sitting in an airport now. Anyway...
Here's some other things in my documents: Exact wording as any typos are not mine.
“Subject was admitted as a B2 from 12/31/2014 6/29/2015 and departed the U.S on 07/13/2015 (14 DAY OVERSTAY). (b) (7)(E) RECORD ID (b) (7)(E) and (b) (7)(E) RECORD ID (b) (7)(E) was (b) (7)(E) for overstays as a (b) (7)(E) charge that cares a 10 years bar until December 20, 2024.”
“Subject was asked if he had any receipts, records, pay studs, or any bills to prove that he is living in Canada. Subject could not provide any supporting documents at this time.”
So my issue is that I do not quite understand why I was given a completely separate, very short document (which I signed) which states that I was withdrawing my application to enter the US. My ban strikes me as somewhat specious. Furthermore since I didn't have property records, taxes, etc. on my person at that time (I'm guessing most people generally don't carry these around with them when going on vacation) that was the reasoning to deny me entry.
In addition the CBP Officer told me that the next time I travel if I could present those things I'd be fine. I took this to mean that withdrawing my application saved me from the ban because why would the CBP Officer tell me to bring those things the next time I travel?
On another note ... but relevant to what I'm saying... I have a friend who has triplets and 2 of them are international professional snowboarders (young men) who fit the stereotype of stoned out surfer/snowboarder types. They are sponsored by a couple of big American ski companies.
Long story short... they often (if not always) were getting pulled into Secondary when traveling to the US (neither has a criminal record of any sort). The final straw was when they had a big competition to go to in Oregon and were denied entry.
They weren't banned or anything but now they ALWAYS travel with their respective records of employment, lease agreement, taxes, transcripts because they always seem to get pulled into Secondary and as a preemptive strike immediately present these things to CBP (even without being asked) and since they've been doing this they've never again been denied entry to the US.
Two things are very weird here:
1. A 10 year bar that expires on December 20 2024 means that you departed the US on December 20 2014, after having continuously stayed in the US in a way that would result in unlawful presence that's over a year. You departed on July 13 2015, your ban should have gone all the way to July 13 2025.
2. You only overstayed for 14 days. Yes, you were in the US for over 6 months, but only the days that were beyond the period of admission should in theory count against unlawful presence. 9B2 means you were unlawfully present for over a year, but you only violated the term of your admissions for only 14 days, a far cry from 365 days.
Before your last entry, were you in the US in a way that would result in such severe overstay? Did you depart the US on December 20 2014, then reentered on Dec 31 2014?
If you are ABSOLUTELY sure that you never overstayed for over 180 days, then the border agent might have administered the ban by mistake, and you MAY be able to overcome it by bringing proof of ties to Canada (mortgage, pay stubs, letter of employment, etc).
You should consult an expert to have them evaluate your situation. As you have hopefully been finding out, it is very hard to assess your situation without knowing the full story. Maybe once you get your FOIA record you can contact either John, Ken or Michelle, and send them your docs.
Testing123
In addition it says on one of my documents and I quote EXACTLY -
“Subject was a match as and overstays as a 9B2 charge that cares a 10 years bar until July 14, 2019.”
Those are the exact words as any typos or mistakes/misspellings are not mine here.
So you see why I'm somewhat confused?
I'm no dummy by any means but this whole thing with the ban and being allowed to withdraw my application to enter and the CBP Officer telling me to bring tax records, bank statements, etc. the next time I try to enter the US seems all so willy nilly and convoluted.
And yes I did depart the US on December 20, 2014 and went back for New Year's Eve on December 31, 2014.
I filed a FOIA online but should I file the big one that requires you to do it through the mail?
Hi Sam,
I have to say that all this confusion is mostly because of all the fixation on withdrawal of application.
My advice is, ignore the fact that you were given the chance to withdraw the application. It simply means you were not removed, and the removal bar does not apply to you, and you don't need I-212. John brought up examples of his own clients where they were granted the withdrawal of application because of their overstay inadmissibility, and still required (I-192) waivers to waive the overstay bar.
You (and only you) know how long you were in the US, and whether or not you overstayed.
Your last trip did not result in the 10 year bar because you only overstayed for 14 days. The trip that ended in December 20 2014, however, DID.
It all boils down to this and it's very simple: if you have ever overstayed over 180 days, you got the bar and you would need a waiver (or as Ken said, wait out the bar until it expires); if you did not overstay over 180 days, then you did not have the bar (and got charged by mistake, which, with some help, you MAY be able to overcome).
Now you might wonder why was it that they let you in on December 31 if you had been banned from December 20. The answer is, sometimes CBP makes mistakes when determining someone's inadmissibility, and let people in by mistake.
It does not mean, however, that they have forgiven the underlying ground for your inadmissibility, and they are still well within their rights to enforce it the next time you seek admission.
The reverse is also true. Sometimes, CBP mistakenly deems someone as inadmissible, even though they are not. In this case, you may be able to fight your case, though it's not wise to do so alone unless you have significant knowledge in US immigration (and sometimes criminal) law.
Again, it all boils down to this: you either overstayed for over 180 days, or you did not. If you did, then the bar applies.
@testing123 great advice.
Testing123
Then why the discrepancy in the dates listed on my documents? Is it common practice to list 2 completely separate dates one is barred until?
The SAME document says I’m barred until July 14, 2019 and also says until December 20, 2024.
So that’s really where my confusion is and the CBP Officer explicitly telling me to bring tax records, etc. the next time I travel to the US. That suggests to me that if I just provided proof of my ties to Canada then all would be good. Would you not think the same thing?
Do you not find that weird and confusing?
You see why I’m questioning the documents?
