As a result of this legal labyrinth my husband is considered inadmissible which means he is unable to adjust his status to legal permanent resident. Even though he is not deportable based on the conviction, through the stealthy flick of a magic wand the immigration judge determined he was deportable based on his VISA overstay. That is what his deportation mandate says: "deportable due to overstay violation." He can't rectify his VISA overstay because he is inadmissible based on his "crime" (i.e attempt at self preservation) which is considered a "particularly serious crime". It goes around in a circle: overstay----particularly serious crime---denied asylum---inadmissible---can't adjust status--overstay, etc: with no way to get out of the loop.
I recently spoke to a reporter from California who was flabbergasted that he was being deported based on an overstay violation yet he was married to an American citizen. Apparently, she is familiar with a lot of Mexican immigrant cases in which the individuals had overstayed their VISA's but had been allowed to stay because they are married to U.S. citizens. I had no explanations for her, other than the circle metaphor I wrote about in the previous paragraph.
She kept asking if he had ever left the United States and tried to re-enter without inspection. I told her "no" at least three times. And then she couldn't believe that he was being deported based on overstay and not on the conviction. I explained to her that the one conviction of reckless endangerment is not a deportable offense. I told her I would be happy to send copies of official documents that corroborate what I was saying. At the end of the conversation she said that his case is unlike any she has ever encountered and that basically it was too complicated for her but she would pass the story onto a co-worker in New York.
The honest truth about Khalid's situation is it has not followed any predictable or standard format for immigration cases. I believe the reason for this is because he is Muslim and has dark skin. I have done enough research and read enough books to confirm my hypothesis. Despite the experiences of the reporter in California, there are numerous cases of Muslim men, married to American citizens, who have been deported based on overstay alone. Oftentimes, the man has not overstayed and is a legal permanent resident, or has a green card pending but is deported anyway. There is a documentary entitled Out of Status that outlines just such a case. If you can get it I recommend viewing it--it will knock your socks off.
Khalid was simply at the wrong place (U.S.) at the wrong time (2001)and was caught up in the moral panic that ensued against Muslims shortly after 9/11. Based on his name, where he came from and his religion--and not on who he actually was-- he was labelled as a possible terrorist. When Homeland Security found out otherwise it was too late. The damage had been done, too many mistakes had already been made and the case had gone too far for them to admit they were wrong. The cards were stacked against Khalid the first time he went before an immigration judge. Once he was deemed deportable it did not matter how much money Khalid spent or what his lawyers said or tried to undue, he would never be able to shake that horrible label.
As far as lawyers go, they have been impotent at best. I honestly don't think most immigration lawyers have the knowledge or appropriate experience to deal with a case as complex as Khalid's. We have been told different things from different lawyers on what Khalid's status as inadmissible means. Some have told us that he cannot file his waivers or the paperwork that would allow him to adjust his status to that of legal permanent resident here in the United States. Instead, he would have to travel to India and file the paperwork with the Indian consulate. Then the State department would have the option of denying it and making Khalid wait another 1-3 years.
Yet, another lawyer said that because Homeland Security misplaced his passports he does have the option of filing for an adjustment of status. But it would be a long shot. A better option would be to hire a lawyer to overturn the conviction. Of course, this would require excessive amounts of money, that honestly, we just don't have.
Another possibility; and by the way, this is not coming from a lawyer but rather a personal suspicion (not unreasonable in light of how difficult my husband's case has been): the State department could refuse to let him back in the country at all. This is despite the fact that he qualifies for a waiver stating he is eligible because it has been over 15 years since the conviction. Mercy, do the complications ever end???
The few positive aspects of all this include the following: Khalid came to the States legally, has a social security number, a work permit, has been paying taxes, plus he’s married to a U.S. citizen. This should work in our favor! Because of these factors he should not be barred from re-entering the normal 10-20 years undocumented immigrants normally are(immigrants who enter without papers and/or without inspection). But then again—his case has not followed standard procedures: so it is nearly impossible to predict what will happen.
So..what does this all mean for us? We are kept guessing at what our future holds. We cannot make plans to buy a house or have a family. We have to show up at Homeland Security at intervals of time, scheduled at their discretion. It could be monthly or every three months. We cannot go away on vacation outside of New York for more than 3 days without notifying Homeland Security. It's possible our phones are being monitored. We are living in a soft cage--but a cage none-the-less. In essence, what all this means is we cannot really plan our future because we don't know if we have one.
I recently spoke to a reporter from California who was flabbergasted that he was being deported based on an overstay violation yet he was married to an American citizen. Apparently, she is familiar with a lot of Mexican immigrant cases in which the individuals had overstayed their VISA's but had been allowed to stay because they are married to U.S. citizens. I had no explanations for her, other than the circle metaphor I wrote about in the previous paragraph.
She kept asking if he had ever left the United States and tried to re-enter without inspection. I told her "no" at least three times. And then she couldn't believe that he was being deported based on overstay and not on the conviction. I explained to her that the one conviction of reckless endangerment is not a deportable offense. I told her I would be happy to send copies of official documents that corroborate what I was saying. At the end of the conversation she said that his case is unlike any she has ever encountered and that basically it was too complicated for her but she would pass the story onto a co-worker in New York.
The honest truth about Khalid's situation is it has not followed any predictable or standard format for immigration cases. I believe the reason for this is because he is Muslim and has dark skin. I have done enough research and read enough books to confirm my hypothesis. Despite the experiences of the reporter in California, there are numerous cases of Muslim men, married to American citizens, who have been deported based on overstay alone. Oftentimes, the man has not overstayed and is a legal permanent resident, or has a green card pending but is deported anyway. There is a documentary entitled Out of Status that outlines just such a case. If you can get it I recommend viewing it--it will knock your socks off.
Khalid was simply at the wrong place (U.S.) at the wrong time (2001)and was caught up in the moral panic that ensued against Muslims shortly after 9/11. Based on his name, where he came from and his religion--and not on who he actually was-- he was labelled as a possible terrorist. When Homeland Security found out otherwise it was too late. The damage had been done, too many mistakes had already been made and the case had gone too far for them to admit they were wrong. The cards were stacked against Khalid the first time he went before an immigration judge. Once he was deemed deportable it did not matter how much money Khalid spent or what his lawyers said or tried to undue, he would never be able to shake that horrible label.
As far as lawyers go, they have been impotent at best. I honestly don't think most immigration lawyers have the knowledge or appropriate experience to deal with a case as complex as Khalid's. We have been told different things from different lawyers on what Khalid's status as inadmissible means. Some have told us that he cannot file his waivers or the paperwork that would allow him to adjust his status to that of legal permanent resident here in the United States. Instead, he would have to travel to India and file the paperwork with the Indian consulate. Then the State department would have the option of denying it and making Khalid wait another 1-3 years.
Yet, another lawyer said that because Homeland Security misplaced his passports he does have the option of filing for an adjustment of status. But it would be a long shot. A better option would be to hire a lawyer to overturn the conviction. Of course, this would require excessive amounts of money, that honestly, we just don't have.
Another possibility; and by the way, this is not coming from a lawyer but rather a personal suspicion (not unreasonable in light of how difficult my husband's case has been): the State department could refuse to let him back in the country at all. This is despite the fact that he qualifies for a waiver stating he is eligible because it has been over 15 years since the conviction. Mercy, do the complications ever end???
The few positive aspects of all this include the following: Khalid came to the States legally, has a social security number, a work permit, has been paying taxes, plus he’s married to a U.S. citizen. This should work in our favor! Because of these factors he should not be barred from re-entering the normal 10-20 years undocumented immigrants normally are(immigrants who enter without papers and/or without inspection). But then again—his case has not followed standard procedures: so it is nearly impossible to predict what will happen.
So..what does this all mean for us? We are kept guessing at what our future holds. We cannot make plans to buy a house or have a family. We have to show up at Homeland Security at intervals of time, scheduled at their discretion. It could be monthly or every three months. We cannot go away on vacation outside of New York for more than 3 days without notifying Homeland Security. It's possible our phones are being monitored. We are living in a soft cage--but a cage none-the-less. In essence, what all this means is we cannot really plan our future because we don't know if we have one.
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