Banned

How could they have deported your wife you are an American Citizen and have a child?

I hear this question whenever I tell the story of how my wife was deported and banned from the United States. Our story goes like this:

My wife came to the United States from Honduras on February 1, 2004. She was arrested and taken to the INS’s Eagle Pass office where she was finger printed, photographed and given paperwork. She received a Notice to Appear and was released. This is where the problem starts.

My wife’s Notice to Appear stated “a date to be set at a time to be set”. She received no other notification.  No notice of the result of the failure to attend proceedings was served upon her pursuant to INA 239(a)(1)(G)(ii), which states: “In removal proceedings under section 240 (in this section referred to as a ‘notice to appear’) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following:

The consequences under section 240(b)(5) of the failure, except under exceptional circumstances, to appear at such proceedings.”






This notice is critical due to it explaining the seriousness of not attending and the power of the Judge to order removal in absentia. This is a statutory requirement. She did not get this statutory notice requirement.

Fast forward to December of 2005, Hurricane Katrina had devastated Louisiana and I had been working as a Relief Worker in New Orleans. I met my future wife and was impressed by her beauty and her heart to help others. I proposed to her on Valentine’s Day in 2006. She came back with me to California and we were married on June 17^th of 2006.

After the marriage we went to an Immigration Lawyer and started the process of bringing her two children to the United States and to get counsel on clearing up her mess. This would be a lengthy process but we were confident that things would work out. The kids received their Visas after a year and came to the U.S. in 2007. Our blended family included my son from a previous marriage and her daughter and son. In 2010 we had another child to add to the family as our daughter was born.

Shortly after the birth of our daughter we started the process of getting my wife’s status corrected. We knew that she would have to leave the country to be interviewed at the Embassy in Honduras and then we would have to go through the waiver process. We were confident that we would receive a waiver.

We received notice the first week of May 2012 that CIS wanted to see us in Santa Ana, California on the 1^st of June. We were surprised and thought maybe we would not have to have her leave the country for Honduras. Our lawyer called us a few days later and told us that if my wife showed up for the appointment on June 1^st she would be taken into custody and placed in a detention center. We needed to have her leave the country before the appointment and I would attend the meeting alone.  So, on our daughter’s 3^rd birthday my wife had to self-deport herself to Honduras.

My meeting with CIS was exactly what the lawyer had said. CIS claimed they were only checking to see if we had a valid marriage, although when CIS found out my wife was not with me they changed the office to meet me in (ICE officers would no longer be needed to arrest her). They already had copies of our bank statements, family photos and everything else that was needed to prove our marriage was valid.

Our next step was to wait for our appointment at the U.S. Embassy in Honduras. We finally received the appointment for October 15^th of 2012. I flew down and we went to the appointment expecting to hear that my wife was not eligible for a Visa, but could apply for the waiver program. Instead we heard that my wife was not eligible for entry into the U.S. for 3 reasons and one of them had a penalty of a 5 year ban that was not able to be waived. I was shocked and speechless as I questioned the State Department Officer as to what we were to do as a family. After calling my lawyer, I found out that they were banning my wife for failure to appear at her deportation hearing. My lawyer questioned us and asked if she had ever received any other paper work. The answer was, NO.

My lawyer sent letters to the Embassy to try to correct this but when the Embassy finally did reply they did not want to look into my wife’s file. They did not care that there is no signed copy of a Notice to Appear with A DATE ON IT and she never received the paper outlining the penalties if she failed to appear for her deportation hearing.

I sent letters to my congressman and he requested multiple times that the Embassy look into the case. The Counsel General of the embassy responded to the congressman’s e-mails immediately with a prepared letter that stated she was not eligible for the waiver program due to missing her deportation hearing. Finally I requested the congressman to forward my letter to the Counsel General where I quoted from the U.S. Citizenship and Immigration Services Adjudicator's Field Manual where the mistake was made in my wife’s case. The Counsel General replied that we needed to go back to the courts to have the case corrected.

We are now trying to have my wife’s case reopened in Texas to have the one charged dropped so that we can apply for the waiver program.

How the government can justify tearing up a family is a shock to most people and has them pose the question, “How could they have deported your wife, you are an American Citizen and have a child?” See, everyone looks at me and sees a white male republican and they don’t understand. I explain we need to have Immigration Reform passed that protects families. Our government should not be splitting up families but helping to preserve them.

 

The following is from the U.S. Citizenship and Immigration Services Adjudicator's Field Manual, Chapter 40 Grounds of Inadmissibility under Section 212(a) of the Immigration and Nationality Act \ 40.6 Section 212(a)(6) of the Act - Illegal Entrants and Immigration Violators:

 40.6.2(b)   Section 212(a)(6)(B) of the Act: Failure to Attend Removal Proceeding  

(iv) Notice Requirement .

In order to be inadmissible under Section 212(a)(6)(B) of the Act, the alien must actually have been in removal proceedings under section 240 of the Act . A section 240 removal proceeding is initiated by the filing of the Notice to Appear (NTA), Form I-862 , with the immigration court. See 8 CFR 1003.14(a) . Even if the alien was served with the Notice to Appear, the alien will not be inadmissible under section 212(a)(6)(B) of the Act unless the NTA was actually filed with the immigration court.

Also, even if the NTA has been filed, an alien cannot be found to have “failed to appear” unless the alien had notice of the proceeding and of the obligation to appear. If the record shows that the alien had actual notice of the date and time of the removal hearing, and that the alien failed to appear, these facts would generally be sufficient to show the alien’s inadmissibility. See Matter of G-Y-R- 23 I&N Dec. 181 (BIA 2001) .