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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Attorney
Category: European Law
Satisfied Customers: 106820
Experience:  7+ years of experience handling various legal matters.
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Are Alien Files from the EU to the United States arriving

Customer Question

Are Alien Files for visitors from the EU to the United States arriving with a ESTA number maintained by the United States ? If so, from where should one request a file on an individual visitor?
Submitted: 1 year ago.
Category: European Law
Customer: replied 1 year ago.
Does the United States Customer and Border Control maintain files on European Union visitors to the United States who have been admitted through the ESTA Waiver Program for 2014 and 2015. ? If yes, where would one search for such a file?
Customer: replied 1 year ago.
Correction: Customs and Border Control
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

The U.S. does maintain files for all those that enter the U.S. You can file a G-639 Freedom Of Information Act (FOIA) request and get a complete copy of your immigration file which should include the information that you seek. It is free but may take 2 to 3 months or more to process. Here is a link:

http://www.uscis.gov/g-639

And here is another link:

http://www.cbp.gov/site-policy-notices/foia

If it is someone else's immigration file, you would have to get that person's permission or they would have to file the G-639.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Customer: replied 1 year ago.
I too am an attorney with 15 years experience, but not a specialist in immigration law. The reason for my inquiry is that the FOIA/PS instruction sheet says" A PRIVACY ACT [PA] REQUEST ":permits US citizens or lawful permanent residents" to gain access..." I have already sent the G-639 to the correct address on my behalf, and my partner's request, but he is a French citizen entering the US via ESTA, never over staying 90 days. We live together ; I have had a house here for 38 years, and we maintain an apartment in French St. Martin, a French territory within the Dept. of Guadeloupe, and on or before 90 days we leave one country to the other. We have had no problem with CPB officers in the US until recently, and I am working up a complaint against 3 officers whose conduct violated the CPB's own Directive on Standards of Conduct. My French partner was permitted entry; however, one officer stated she was writing that we have been given a warning [ a warning not to continue the alternating visits between St. Martin and the US. I find no legal authority that what we have steadfastly been doing, not exceeding a 90 day stay in either jurisdiction, We were lied to, detained one and a half hours; While my partner was in secondary inspection [neither he or his luggage was searched},, I was stalked in the baggage 's Standards of Conduct which is prohibited under the CBP, and bullied by the officer who provoked the whole affair. Also the ESTA law is flawed in that it does not give EU citizens any guidance on how long the visitor must stay out of the US before re-entering which is left to the prosecutorial discretion of the CBP officer.. ; I have TSA clearance which is not relevant to this matter, but does indicate that "the system" views me as a "low risk" traveler. The clearance was granted to me without making an application for it . As a former litigator, I am not thin-skinned and knew they had no basis for this detention or his potential deportation.. My partner is not English-speaking , and neither of us were intimidated, but remained courteous throughout the ordeal even though the officer in charge of Secondary Inspection asked me to translate her questions in French and my partners' answers; I am not employed by the government to do that, but in an effort to end this ridiulous affair, I agreed. Their excuse was that one cannot use the ESTA rule to "live in the US," which is not what we are doing. He has never exceeded staying 6 months [non-consecutively]; I had planned upon arrival in the US to apply for long stay Visa of 1 yea which I must do in person at the French Consulate in New York, which is the first step to legal residency if the visa is re-granted up to the fifth year.. However, dealing with this complaint has taken the time I needed to requests and receive all the documentation the French government requires for the long stay visa, all of which I qualify for. The reasons for my partner's trips are for sight-seeing and helping me to prepare my house for sale without compensation, and to "live together" anywhere, but not the US for sure. So now I am concerned that my passport has been tainted by the"so-called" warnings" and that is likely to affect my Visa application for French legal residency, or for a third country; my French partner is likely to have difficulty re-entering the US, and/or application for legal residency in another country.also. So it is imperative to know what this officer was warning us about," and given the instructions on the FOIA request, which seems to limit the right to request to US citizens and legal US residents. What is your opinion? Thanks a lot. Andrea
Customer: replied 1 year ago.
there are some mistakes in this message, so please forgive that, but I think you will know what I am after.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

It's ok. I understand your frustration. Part of the problem is that U.S. immigration law is primarily administrative, somewhat like bankruptcy, worker's comp, etc. In U.S. immigration law, a non-U.S. Citizen or a non-U.S. Lawful Permanent Resident is considered to be an intending immigrant until they (the person) can prove to the government that they are not. It's like in criminal law, you are innocent until proven guilty, it's the opposite in U.S. immigration law and the burden of proof is on the individual. The officer at the port of entry has wide discretionary powers to admit or deny admission to any non-U.S. Citizen. Of course, those powers are sometimes abused and that's why we have the redress system. Let me ask you a question, out of every year (12 month period) does your partner spend in the U.S.? If you add them up, do they add up to more than 180 days? If not, do the trips look like 90 days in, 60 days out, 90 days in, or basically more time in the U.S. than outside of the U.S.? I'll try to look up the regs for you, but as an attorney, you understand that legal research is costly, so I can't spend too much time doing that.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

I did some of the research for you. Just please don't leave without leaving a positive rating. It is the only way that the website will compensate me (from a portion of your deposit) since I am not given a salary or any other compensation to be here.

I will assume that the answer is that he has been spending more time in the U.S. than outside of the U.S. and that's why the officers are concerned. They do have the power to refuse entry, but of course, they have to be courteous, etc. So I would still report them if you feel they were out of hand. As far as your passport goes, I don't think there will be any issues for you including issues with the French government because of your partner's issue with the U.S. government. Here are the links to the Foreign Affairs Manual that contains the laws that you are looking for:

http://www.state.gov/documents/organization/87154.pdf

http://www.state.gov/documents/organization/87159.pdf

And this link is also helpful because of the statements near the bottom and the PDF link:

https://help.cbp.gov/app/answers/detail/a_id/619/~/visiting-the-u.s.---documents-required-for-canadian-citizens-%2F-residents-%2F

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. Thank you!

Customer: replied 1 year ago.
To answer your question, my French partner has never stayed in the US for over 6 months within a year; the most being 170 days in 2014.(non-consecutively, of course) ; because the number of monthly days vary between 30, 31, and 28;; it is more precise to count days rather than months. To stay more than 180 days would be over the limit. All his departures have been before the dates the prior CBP officers have written as the "until date" , and this past time with all the trouble, he was still permitted to stay 90 days per their own entries.The only remaining doubt I have is can he, as a non-US citizen or permanent legal resident, use the FOIA system to obtain the comments made in his US electronic system file given that the instructions seem to say that FOIA requests can be made by US citizens or permanent legal residents.? Andy don't worry I will leave you very positive feedback. I injured my back yesterday and must go to the doctor now, but will come back for your reply about FOIA Request by aliens.; the rest I can do myself. Thans a lot. Will revisit you later. Andrea
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

For the ESTA, 180 is not a technical limit. The limit on the ESTA is 90 days PER TRIP, not 180 days per year. Now when you add up the days, if they add up to 170 days or less, as you say, in any year period, that is still a good amount that can make them believe that he is spending too much time in the U.S. and basically living here. Obviously it would be worse if he was spending more than 180 days per year, but it still doesn't look good at 170 or even 150 days per year. There isn't a red-line there, it is basically the feeling that the officer gets. If it looks to them that he is living in the U.S. for a significant part of a year, it's going to cause him problems and it eventually did.

Anyway, that information about the FOIA is not correct. I have requested FOIA for even persons that are illegal. As an attorney, you can easily request it on his behalf with his signature granting permission, of course.

Hope your back gets better soon. Let me know if you need anything else but please don't forget that positive rating. Since I'm not given a salary to be here, it's the only way the website will compensate me. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!