Can a deportee who receives a residence permit return to the US? We answer your immigration questions

A user identified as Stephen, but has a different name and asked that his identity be withheld, saying he was deported from the United States to Mexico five years ago. But a few days ago he received a letter from the Department of State’s National Visa Center informing him that visa quotas for lawful permanent residents (LPR, Green Card) are now available.

“The problem is that I was deported for DUI (driving while intoxicated or under the influence of an illegal drug), but I want to know if I can return to the United States with my family,” he added.

This is one of the latest questions answered by specialized lawyers consulted by the Univision Notices editorial team. You can send us yours at: jcancino@univision.net.

For lawyer Jose Guerrero, who practices in Miami, Florida, the case Stephen “It depends on what type of DUI it was or what prompted your deportation from the United States. If it’s for a simple offense, the case can be resolved by requesting a pardon, but if there are complications, to find a way back. Other measures have to be taken.

Guerrero adds that “it is also necessary to review whether the reason for which the person was deported makes him or her inadmissible or is simply an undocumented person who committed a common driving offense while operating a motor vehicle.”

“But if it’s an aggravated DUI, for example, if you ran over someone and killed them or you damaged another’s private property in the accident, you have to go through another waiver process.”

The waiver Guerrero mentioned corresponds to the I-601 waiver, for those declared inadmissible for “certain reasons of inadmissibility,” and the I-212 waiver, “for those who are deported.”

As in the case of Stephen“You don’t just have to consider the people who need to be processed to return to the United States and get residency,” says Alex Galvez, an immigration lawyer practicing in Los Angeles, California.

“You also have to find out how the person was deported,” he says. “If you are granted voluntary deportation, you may need amnesty for the time you were here illegally, to remove the weight of the so-called penalty law, which carries a sentence of up to 10 years outside if an undocumented stay exceeds 365 days. .

If the undocumented stay is more than 180 days, there is a penalty of three years without being able to return to the country.

However, Gálvez adds, “This type of waiver can only be requested if residency (green card) has been requested by a resident spouse, citizen spouse, resident father, or citizen father. They are the only ones who can have a 10-year sentence lifted through a provisional waiver through Form I-601-A.

Now, “if you were deported and you weren’t granted voluntary departure and the residence request was made by a citizen or resident spouse or father, you would need two waivers,” Gálvez clarifies. “One is requested with Form I-601 and the other with Form I-212.”

There is also a third waiver available, the I-212H “in the case of certain more serious crimes,” he noted.

The Office of Citizenship and Immigration Services (USCIS) explains that the I-212(H) waiver “provides a waiver based on inadmissibility for crimes, which can be surprisingly useful for undocumented individuals, VAWA (domestic violence) applicants, or permanent residents. ” It adds that “it can be applied multiple times and has the potential to waive serious criminal convictions (except drug-related).”

Both “affirmative action and in the case of a defense against deportation and not always requiring proof of extreme hardship” can be used to achieve that.

“Unfortunately, it cannot be used to excuse drug convictions or conduct, except in an incident related to the possession of a small amount of marijuana,” USCIS advises.

USCIS also explains that to qualify for a waiver of inadmissibility you must provide, among others:

• Evidence showing why you qualify for a waiver of inadmissibility, which depends on the ground(s) of inadmissibility applicable to you and must include evidence why we should grant a waiver of inadmissibility as a matter of discretion.
• Evidence to support your claim of extreme hardship (if applicable).
• If you are applying for a waiver that requires you to show extreme hardship that affects the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, you must submit proof and evidence showing the family relationship. How denial of admission can cause great hardship to your eligible family member.
• If you are a VAWA self-applicant, you can show how denial of admission would cause a great hardship to your qualifying family member or yourself.
• Evidence supporting waiver of eligibility due to communicable disease related to public health (if applicable).
• Evidence supporting your request for vaccination exemption (if applicable).
• Evidence supporting waiver of inadmissibility due to physical or mental disorder and associated harmful behavior.
• Evidence supporting waiver for immigration fraud or misrepresentation (if applicable).
• Evidence supporting waiver of inadmissibility due to membership in a major political party (if applicable).
• Evidence supporting waiver of admissibility due to alien trafficking (if applicable).
• Evidence that you are eligible for a waiver if you are a TPS applicant.

Many deportation cases or problems involving Hispanic immigrants who have settled in the United States have their roots in three letters: DUI. In English it means ‘driving under the influence’, i.e. driving under the influence of alcohol or drugs.

Although it is not severely punished in some Latin American countries, in the US it is a very serious offense that turns a drunk driver into a criminal. Even if you didn’t cause the accident, for a person with US citizenship it means arrest, trial and heavy fines that increase depending on the level of alcohol in the body, repeat offenses or if there is a minor in the car (shooting damage or injuries).

In the case of immigrants, this also has specific consequences for permanent residence in the country, especially for an undocumented person, but also for anyone with a visa or residence card (green card).

“Here we must understand that a DUI charge disqualifies an undocumented person from deportation protection (in the case of Dreamers or TPS holders). Courts consider this charge very serious, and the immigration consequences are dire because it leads to deportation,” explains Lilia Velasquez, associate professor at the University of California, San Diego School of Law. “Driving under the influence of alcohol is a very serious situation. ,” he points out.

“In this type of proceeding, judges analyze the danger the intoxicated person poses to society.” He asserts. “Some customers say, when they get the charges, there was no damage, that they just hit a pole and their car was damaged. , but that’s not how the courts see it. They analyze the results that Deaths that can result from drunk driving, collisions with other cars. “It’s a very serious matter.”

Consequences of driving under the influence of alcohol are also taken into account by the consulate when analyzing whether to grant a visa or not. “If the consul determines during the interview that the person has a DUI charge or suspects that he is an alcoholic, he will refer him to a psychologist to determine the severity of the problem. And once you have that person’s health status report in hand, you will decide whether to issue a visa or not,” Velasquez explains.

Note:
Guerrero warns that if Stephan “tried to enter without permission at the time he was deported, they detained him and deported him again, in that case the situation is different. He also lost his rights to remain in the United States.” will be.” ”