Tales of Triumph and Tragedy: An Immigration Lawyer’s Perspective — Part 1
Rena and I were strangers. She was not my client and I knew next to nothing about her. Nonetheless, I met with her on a Friday afternoon to prepare her for her interview with USCIS[i] which was to take place in three days’ time. If the interview went well, Rena would become a lawful permanent resident (LPR) of the United States.
Fifteen months prior, Rena had met with another lawyer at our law firm and had been advised to file something immigration lawyers colloquially refer to as a “one-step” application.[ii] The other lawyer determined that Rena had a “clean” case, which made Rena think her application would be approved without a hitch. After working with our firm for months to compile her application, along with all the necessary documents in support, and after paying roughly $4,500 in combined legal fees and filing fees, Rena’s application was sent to USCIS. While her application was pending, Rena was given an employment authorization document (EAD) which granted her permission to be employed in the United States. Ten months later, USCIS notified Rena it was time to complete her medical examination, and she promptly did so. Three months later, Rena was notified that an interview on her application had been scheduled.
Seventeen days after Rena’s interview was scheduled, I met her for the first time. She came into my office, and I explained that I would be helping her prepare for and would be attending her interview with her, as the attorney who was previously helping her had other obligations that day. I started by letting Rena know what to expect at the interview and what the purpose of our meeting was. With that out of the way, I dove into Rena’s application and started asking her questions about her application to simulate what she would encounter at her interview with USCIS. This went on for half an hour without a hitch. Then Rena surprised me.
Rena first entered the United States in the mid-1990s. As a Mexican citizen with valid border crossing card (a type of visa) she was able to enter lawfully and without difficulty. However, because she entered with a border crossing card, she was not supposed to remain in the United States for more than six months at a time and she was supposed to maintain “nonimmigrant” intent. Rena, however, did not comply with the terms of her visa, often staying in the United States for a year or two at a time.
A few years after entering the United States, Rena gave birth to her daughter Sammi. Sammi was born in the United States, meaning that she was a U.S. citizen, although this did not give Rena any right to remain in the United States herself. Rena’s parents lived in Mexico and could not come to the United States to see their granddaughter, so Rena brought her infant daughter to Mexico to introduce her Sammi to grandma and grandpa. Rena’s border crossing card was a few months from expiring, so Rena figured she could renew it while she was in Mexico and knock out two tasks with one trip.
After a few months of planning, Rena and Sammi flew to Laredo, Texas and caught a bus to Rena’s hometown in Mexico. Sammi met her grandparents, and all was going according to plan. Rena then got her documents in order and went to one of the U.S. Embassies in Mexico, where she applied to renew her border crossing card. The consular official, however, told her they could not approve her application unless Rena provided some additional documents that she did not have. Instead of worrying about getting these documents, Rena opted to simply give up on the application and return to the United States with her daughter while her current border crossing card remained valid (it had a few months of validity remaining). Rena and Sammi took a bus back to the United States, legally re-entered the country, and flew home.
Roughly 20 years later, Rena and Sammi sauntered into my office. Halfway through our interview prep, I asked Rena, just as I ask all my similarly situated clients:
Lawyer: “Have you ever been denied a visa to the United States?”
Fast-forward three days. I meet Rena and Sammi at USCIS’ Field Office. The interview notice says to show up at 7:45 AM. I pull into the underground parking lot at 7:30, make my way to the elevator, hit the button for the seventh floor, exchange pleasantries with the officers in the security line, take off my shoes and belt and walk through a metal detector, put my shoes and belt back on, and greet Rena and Sammi. I learn they’ve already checked in, so I go over their case with them one more time, and then have them sign some forms that we’ll need for the interview.
Around 8:30, our number is finally called. All three of us get up and walk to the door and greet the interviewer. I first notice that I have never met this interviewer before, and I assume he must be a new hire or a transfer from a different office, but he seems polite enough. We walk down a corridor, following the interviewer, first right, then left, the right again. He points to an office on the right and we enter. I sit in the chair in back, leaving the front two chairs for Rena and Sammi, as is the custom at USCIS interviews. The interviewer and I discuss some formalities, discuss who will be interpreting, and how, and I provide the interviewer with the forms I had Rena and Sammi sign previously.
Before the interview starts, I let the interviewer know we need to make some adjustments to the forms that were previously filed with USCIS. He asks what changes. I let him know that we need to correct Rena’s most recent date of entry and that we need to change our answers from “NO” to “YES” for the questions which ask whether Rena has ever left the United States after accumulating one year or more of unlawful presence.[iii] The interviewer seemed pleased about this disclosure, stating, “this is a step in the right direction, although I still have some concerns.” It’s rare that a USCIS interviewer is so candid with counsel before an interview ever gets formally underway; I immediately followed up, asking the interviewer what he was concerned about, as I was not aware of any other issues. The interviewer said he was concerned about a visa denial, and our non-disclosure of the denial or the reasons for the denial.
Although this was the first I had heard about any visa denial, I knew that Rena went to Mexico a few months before her border crossing card expired, and I guessed that she must have tried to renew it even though she previously told me she didn’t. I asked the interviewer, “was the visa denial a renewal application for her border crossing card?” The interviewer appeared uncomfortable giving away the case, but it seemed like he wanted to give Rena the best chance possible. He nodded solemnly before stating, “I just want to make sure she doesn’t make this any worse for herself.” The interviewer then asked me if I wanted to have a few minutes alone with my client. This is unheard of at USCIS interviews, but I jumped at the chance and the interviewer gave us access to an empty office where we were able to shut the door.
Once in a private room, I let Rena and Sammi know what was going on. I asked Rena if she remembered telling me a few days ago that she had never been denied a visa. She said she remembered. I told her that the interviewer was saying she was denied a visa, and she looked confused. I asked Rena if she ever tried renewing her border crossing card, and without hesitation, she nodded yes and said she did this in Mexico. I asked her if she knew the border crossing card was a type of visa and she said no, she thought a visa was authorization to work. I asked if the application was denied, and she said she assumes so because the embassy would not give her the approval notice. I asked her why the visa was denied, assuming in my head that it was based on immigrant intent.[iv] She said her application was denied because she was missing some paperwork. I said okay and told Rena that we would need to amend her application again, and that she should tell the interviewer everything she told me.
Rena, Sammi, and I walked back into the interview room and I told the interviewer that we needed to amend the application, changing our answer from “NO” to “YES” for the question of whether Rena has ever been denied a visa to the United States. I let the interviewer know that, although I did not know the exact circumstances of the visa denial, it does not sound like any material misrepresentation occurred, meaning that the change of this answer should not cause any new issues to arise. I also let the interviewer know that I assumed the visa was denied for reasons of immigrant intent, but noted that Rena was told something different, and that I’d let her convey the story herself later in the interview. The interviewer nodded and appeared slightly relieved.
The interviewer proceeded to call the interpreter and formally begin the interview. Rena did well, but she was clearly nervous, and often got confused about simple questions. The interviewer did a great job of helping Rena clarify what she meant to ensure her sometimes hasty answers were not misinterpreted. After all the questions on the form had been reviewed, the interviewer placed Rena under oath and proceeded to ask her for explanations related to some of the “YES” answers on her application form (such as “have you ever been denied a visa”).
After a few minutes of testimony, the interviewer asked about Rena’s visa denial. The conversation went as follows:
Interviewer: When did you apply to renew your border crossing card?
Rena: When I went back to Mexico the last time I was there.
Interviewer: Where did you apply for your visa?
Rena: At the embassy.
Interviewer: Did you give the embassy any documents?
Rena: Yes, I gave them all the standard documents necessary.
Interviewer: What documents?
Rena: Social Security documents, employment documents, all that stuff.
Interviewer: Mexican Social Security documents?
Interviewer: And what employment documents did they want?
Rena: All of them, you know?
Interviewer: I need you to be more specific.
Rena: They need documents showing you’re employed in Mexico, and that you’re working.
Interviewer: Did you give them these documents?
Interviewer: Did your employer give you these documents?
Rena: No, I bought them in Juarez.
Interviewer: You bought them?
Rena: Yeah, they sell everything in Juarez. Everyone knows what’s going on and how it works. It’s just what you have to do.
Interviewer: And you gave these documents to the embassy with your application?
Interviewer: Were you working in Mexico at that time?
Interviewer: Did you know when you submitted the documents that they were fraudulent?
Rena: Well, I wasn’t working in Mexico, so yeah. But everyone does it, that’s how it works down there.
At this point, having recognized that Rena just admitted to a material misrepresentation that makes her inadmissible, I interrupted the interviewer and asked if it was too late to withdraw Rena’s application. The interviewer told me that it was not too late, and again asked me if I wanted some time to talk to my client privately. Taking the interview up on this offer, Rena and I again found ourselves in a private room, this time with me telling her that her application for a green card was going to be denied.
I explained to Rena that she had just admitted to a material misrepresentation and that this admission rendered her inadmissible to the United States. Rena started crying. I also told Rena that, although there is a waiver of inadmissibility available for this ground of inadmissibility, she cannot avail herself of it because she is lacking a qualifying relative.[v] I told Rena that she has two options, neither of which are good: (1) continue with the interview knowing that the application will be denied, and get ready to be placed in removal proceedings, or (2) withdraw the application knowing that Rena might still be placed in removal proceedings as a result of admitting to a ground of inadmissibility, and potentially lose work authorization as a result of the withdrawal.
Rena, needing to keep her work authorization for as long as possible, opted to proceed with the interview. I walked Rena back into the interview room. Tears were streaming down Rena’s face while she stoically attempted to compose herself. I told the interviewer we would be proceeding with the interview. With this, the interviewer continued his previous line of questioning and Rena answered truthfully, digging, and crawling into her own grave in the process. The interviewer ended his questioning by asking if Rena had anything else she wanted to say, to which Rena passionately responded, stating, “everything I did, I did for my child. I know it was bad, but I couldn’t let my daughter get stuck in Mexico and experience hardship. It’s in God’s hands now, and I pray for forgiveness.”
When the interviewer had asked all of his questions, he let Rena and I know that he could not make a decision on the application today, and noted that Rena was inadmissible for a misrepresentation and would require a Form I-601, which is the form needed to apply for the relevant waiver of inadmissibility, before he could approve Rena’s application. The interviewer told us we were free to submit the Form I-601 right away, or we could wait for USCIS to issue a Request for Evidence (RFE). Although I knew Rena had no qualifying relative which would allow her to submit a Form I-601, I kept this to myself.[vi]
The interviewer went over a transcript of Rena’s testimony with her to ensure it was correct, dealt with some other minor paperwork, and then walked us down the hallway to the exit. I thanked the interviewer for his time, flexibility, and patience.[vii] Rena found a way to keep her head held high, but I knew how much she was struggling internally. Rena, Sammi, and I all got in an elevator and proceeded down to the lobby. As Rena was leaving the elevator, she thanked me for my help.
Rena’s only mistake was lying to an immigration official once twenty years ago. Had Rena married a U.S. citizen or LPR, this mistake would have been largely inconsequential. Rena’s relatively minor offense had disproportionate consequences, and it is not yet clear whether Rena will eventually be deported because of this one tiny faux pas. Watching this drama unfold, I could not help but think of how unfair it is for Rena to be punished so severely for something so innocuous which occurred so long ago. But that is the state of our immigration system.
For Rena, and for her family, like so many others, the legal immigration process has been a tale of tragedy. These tragic results are completely avoidable, but only with meaningful immigration reform focused on retreating from hardline policies and shifting the national focus to policies which promote fair and sensible outcomes.
Note: All names have been changed to protect the identities of the subjects of this story. Minor details have been altered for the same reason. The dialogue and quotations are a rough approximation of what was said based on the memory of counsel.
[i] USCIS stands for U.S. Citizenship and Immigration Services. USCIS is a branch of the Department of Homeland Security (DHS).
[ii] A “one-step” usually consists of the simultaneous filing of a Form I-130 and a Form I-485 with USCIS, although other permutations exist. Typically, people are only allowed to file one-steps if they have a legally valid entry (admission) to the United States and if they are otherwise admissible.
[iii] This triggers a ground of inadmissibility colloquially referred to as the “10-year bar,” which is codified at 8 U.S.C. § 1182(a)(9)(B). While this would normally present a barrier to the type of relief Rena sought (unless she first applied for a waiver of the relevant ground of inadmissibility), I was able to sidestep this issue by pointing out to the interviewer that, because she entered the United States lawfully through a port of entry with a border crossing card, she was able to satisfy the 10-year bar from within the United States; had she reentered unlawfully, this argument would have been unavailing.
[iv] Border crossing cards are nonimmigrant visas that require proving nonimmigrant intent. There is a presumption of immigrant intent that the applicant for the border crossing card must rebut, so immigrant intent is the most common reason for nonimmigrant visa denials.
[v] Waivers of inadmissibility related to fraud or material misrepresentations are only available for persons who can prove that their denial of admission to the United States will cause extreme hardship for their U.S. citizen or LPR spouse or parent. Rena only had her children, so she is not eligible to apply for this waiver.
[vi] Rena’s EAD was set to expire in four months and I wanted her to be able to renew it before her application was denied, so the delay associated with waiting for an RFE to issue, alongside the 87 days that are typically allowed to respond to an RFE, gave us the cushion we needed to apply to renew Rena’s EAD immediately and have it approved before her LPR application was denied.
[vii] In the time I have been a practicing attorney, I have never met an interviewer so focused on giving the noncitizen applicant the fairest shot possible. Any inequities associated with Rena’s case stem from the state of immigration, rather than from the conduct of the interviewer.