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The Importance of "Entry" On Getting A Green Card In Immigration Court

To get a green card in removal proceedings through a relative, numerous pitfalls exist. But, before even considering those issues, such as criminal history, a threshold question exists—how did the applicant enter the United States? If the person seeking to end their removal case entered America without inspection, this has serious consequences. Most importantly, it is unlikely that such person can get a green card inside the United States through a family member as a defense to deportation. (Other options, such as asylum or cancellation of removal if applicable, would remain). Recent changes in legal interpretation have also essentially foreclosed getting the green card outside the United States as a way to avoid a deportation order. Thus, the question of entry is a critical one.

To fully understand this point, there's three main things to know:

1) What all is "entry without inspection"?;

2) What does it mean to get a green card inside the U.S.?; and

3) Do exceptions exist?

First, entry without inspection. In a sense, "entry" exists on a spectrum. The strongest example of clear entry without inspection is walking across a border without passing through customs. On the opposite side of the spectrum, that is, people who obviously entered with inspection, are those who entered the country lawfully by presenting themselves to a customs official with the proper documentation in their own passport. Even if such a person overstayed the visa on which they were admitted, for instance, a B-2 visitor visa, the person's entry was still lawful. There is a significant gray area though in between these two extremes. For instance, a more complicated case would be entering on someone else’s passport, or through other methods such as being “waived through” at customs without submitting documentation (for example, by sitting in the passenger seat of a car without talking to customs). Depending on the specific facts, such entry may be a regular admission into the United States or it may be entry without inspection, the result could vary. But, even if the entry was with inspection, such entry could also create another issue for getting the green card—immigration fraud—which requires its own special handling.

Second, if it turns out you did enter the country without being inspected, getting a green card inside the United States is generally not possible. In family based applications, there are two ways to proceed toward a green card. Only the first one is very useful in removal proceedings at this point in time (January 2019). The first path is “adjustment of status,” which involves submitting applications to U.S. Citizenship and Immigration Services and getting interviewed for the green card inside the United States. Second, there is “consular processing,” which includes sending the relevant documents to the U.S. Department of State and attending an interview outside the United States at a consulate abroad. If you entered without inspection, and an exception does not apply, you normally would have to proceed through “consular processing” (though this is no longer a viable option in removal proceedings). The reason for having to do consular processing is found in Section 245(a) of the Immigration and Nationality Act. This provision says that a person can adjust their status to that of a lawful permanent resident (green card holder) only if they were “inspected and admitted or paroled into the United States.” Thus, without proper entry, getting a green card inside the United States is generally not possible. This is true even if you married a U.S. citizen! Instead, "consular processing" would have to be used, but as mentioned, there are serious issues with this. If you were properly "admitted," however, even if you are in removal proceedings and there are no other issues you can seek a green card through family sponsorship as a defense to deportation.

Finally, as with most of immigration law, there are a few exceptions to the general rule that entering the U.S. without inspection prevents you from getting a green card inside the U.S. The biggest exception is called the “grandfather clause.” This clause, in Section 245(i) of the Immigration and Nationality Act, applies to people who had a family member or employer file certain papers for them before certain dates. The specific details of the “grandfathering clause” are beyond the scope of the current topic. But, if you entered without inspection and had someone put in papers for you before April 30, 2001 there may be a possibility you can adjust status in the United States, even in removal proceedings. Other, more minor exceptions, may also apply depending on the case.

In sum, then, know that how you entered the country is critically important for what options are available to you. If you entered without inspection, family sponsorship is pretty much closed off as an option to you if you have a deportation case. The law on this may change, but even if it does, there are still many more technical hoops that have to be jumped through for the sponsorship to work. If you were inspected, however, and there are no other issues, sponsorship by a spouse or other family member may be critical to avoiding deportation. Although, please note, there are still special procedural rules that have to be followed if you are in removal proceedings, as opposed to a family sponsorship case outside of Immigration Court.

Disclaimer: Although I'm an attorney, unless I am retained by you, I am not your attorney. The information in this blog is solely general legal information. Especially in immigration law, the particular facts of your individual case are vitally important and general legal information alone should not be used to make a personalized decision. In addition, the law can change rapidly, and what is found in a particular post may not be the most current reflection of the law. Thus, please speak with an attorney before either taking or choosing not to take any action relevant to your case.

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