Immigration Judge grants Clients permission to withdraw applications for admission, removal order avoided

Clients, a Canadian family, were placed into removal proceedings pursuant to INA § 212(a)(7)(A)(i)(I). Pursuant to INA § 212(a)(7)(A)(i)(I), an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General, is inadmissible.

Background

In 2009, Clients moved from Africa to Canada and became permanent residents. Clients were later admitted into the United States as lawful permanent residents on January 24, 2013. After being admitted as lawful permanent residents, Clients remained in the United States for one week before returning to live in Canada. Over the next 19 months, Clients were admitted into the United States (together) as lawful permanent residents, approximately four (4) times, to shop and visit family. Each trip varied in length from one (1) to two (2) weeks in duration. After each trip, Clients would return to Canada.

In 2014, Clients applied for admission into the United States as lawful permanent residents. Clients were questioned and then directed to secondary inspection. During secondary inspection, U.S. Customs and Border Protection (“CBP”) officers questioned Clients about their status. Based on Clients’ answers, CBP officers concluded that Clients had not maintained their permanent resident status. Clients acknowledged that at that time they were unable to move to the United States and take up residence. As a result, Clients each signed a Form I-407, Abandonment of Lawful Permanent Resident Status, in order to conclude the encounter and return to Canada. Clients became Canadian citizens in late 2014.

In 2015, Clients returned to the U.S./Canada border to reclaim their permanent resident cards and enter the United States as lawful permanent residents. Clients were questioned and then directed to secondary inspection. During secondary inspection, Clients admitted to each having signed a Form I-407, Abandonment of Lawful Permanent Resident Status; however, Clients stated that they believed that by signing the forms they were only “temporarily” leaving their permanent resident cards in possession of immigration officers, until they were able to take up residence in the United States. Clients mistakenly, but honestly, believed that once they were ready to take up residence they could return to the border, collect their permanent resident cards, and apply for admission into the United States as permanent residents.

When asked by immigration officers why they agreed to abandon their permanent resident status and sign a Form I-407, Clients provided several reasons, such as a desire to end the inspection process and avoid having to return to Buffalo to appear before an immigration judge, and the misplaced belief that the Form I-407 was only “temporary” in nature. At the conclusion of the border encounter, Clients gave a sworn statement and requested a hearing before an immigration judge to regain their permanent resident status.

Clients were issued a notice of hearing to appear before the Immigration Court in Buffalo, New York. As counsel, I filed a Motion to Continue Master Calendar Hearing on behalf of clients in order to review the Clients’ claims to permanent resident status. The Court granted the Motion and scheduled a new Master Hearing.

After reviewing Clients' case, it was clear that they could not sustain a claim to permanent resident status, and that they should request to withdraw their applications for admission in order to avoid a removal order.

Clients were Eligible for Withdrawal of their Applications for Admission to the United States

Before an Immigration Judge, I requested that my Clients be allowed to withdraw their applications for admission to the United States.

Title 8 C.F.R. § 1240.1(d) authorizes an immigration judge to grant permission to withdraw an application for admission.  Specifically, the regulation states: 

An immigration judge may allow only an arriving alien to withdraw an application for admission. Once the issue of inadmissibility has been resolved, permission to withdraw an application for admission should ordinarily be granted only with the concurrence of the Service. An immigration judge shall not allow an alien to withdraw an application for admission unless the alien, in addition to demonstrating that he or she possesses both the intent and the means to depart immediately from the United States, establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice.

In the present case, Clients met the requirements of section 1240.1(d). First, Clients were “arriving alien[s].” Second, I spoke with the Office of Chief Counsel, who represent the government in Immigration Court, and secured an agreement that they would not oppose my request.

Third, Clients were able to demonstrate that they possessed both the intent and means to depart the United States immediately because they were firmly established in Canada.

Fourth, granting Clients’ request for permission to withdraw their applications for admission would be in the interest of justice. In particular, Clients’ only ground of inadmissibility was pursuant to INA § 212(a)(7)(A)(i)(I) as immigrants not in possession of valid entry documents.

Conclusion

Fortunately, the Immigration Judge granted Clients' request for withdrawal and terminated removal proceedings. As Canadian citizens, Clients wished to avoid being ordered removed so they could make temporary visits to the United States for pleasure, without first having to seek permission to reapply for admission into the United States (Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal).

If you have a similar border situation, please contact the office for a thorough review your case. We look forward to hearing from you.