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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95225
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Bigamy and Eligilibity for 237a1h Waiver

Customer Question

I married wife 1 in 1995 in Nigeria. She divorced me in 2000. I married wife 2 (US Citizen) in 2002. Adjusted status based on marriage in 2003. I got NTA in 2007 that divorce from Wife 1 was fake. I remarried Wife 2 in 2008, I-130 approved and IJ terminated case. USCIS reopened fraud case and rejected I-485 (married during removal proceedings). Government agrees bigamy was unintentional but it voids 2003 green card. IJ ruled bigamous applicant not eligible for 237a1h waiver to retain 2003 Green Card. I reserved right to Appeal. How do I beat the bigamous charge by USCIS at BIA? Now divorced from Wife 2 and I have 4 US citizen children from another woman.

Submitted: 1 year ago.
Category: Immigration Law
Expert:  Franklin replied 1 year ago.
Hello, my name is XXXXX XXXXX U.S. immigration and business attorney. I'll be happy to help you today.

To be perfectly honest, in my experience as an immigration attorney, it's going to be quite tough to beat the bigamous charge, especially because it seems fairly clear that bigamy occurred, however intentional.

What's your current status in the U.S., and what's your relationship with the women with whom you have four children? I'm thinking that perhaps your best approach now may be to forfeit the appeal, and apply for a I-601 waiver instead, based on the children or woman's best interest.

Customer: replied 1 year ago.
Relist: Inaccurate answer.
"Franlin" did not demonstrate adequate knowledge of immigration requirements, especially after unfavorable EOIR IJ decision. You cannot just "forfeit the appeal" that I've not filed and file "I-601 instead".
Expert:  Franklin replied 1 year ago.
John, thank you for your reply.

I respectfully XXXXX XXXXX I'll opt out of your question and let other experts chime-in. There's no need to respond, as that will simply delay your response. Happy holidays.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. So you filed for the correct divorce in 2007 and remarried wife #2 in 2008? What are the dates of birth of each of your children? When were the I-130 and I-485 approved for that marriage to wife #2?
Customer: replied 1 year ago.


Wife 1 was the plaintiff in both her divorces. The refiled 130 was approved in 2009 but I mentioned the refiled 485 was rejected (in 2010). USCIS raised a new NTA one day before the rejection decision. Government Attorney would have conceeded if the new I-485 was approved. The fraud document case started with Wife 1's application and she insisted USCIS open the initial fraud case against me. Children born in 2009 and 2010 by 1 woman.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Sorry about the delay in getting back to you. Why would your 1st spouse insist that an investigation be opened against you. Did she believe that your second marriage was fraud?
Customer: replied 1 year ago.
When she got in trouble because the divorce she filed was not properly recorded, she told immigration I used the same divorce doc she served me in our country. She said if she can't use it I shouldn't get away with it. Immig had to act on it since she made noise about it.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Well, as you can well imagine, legal research is expensive, and it is not something that we can do for you here. The way to win an appeal is to find cases in Federal courts or the BIA that support the position that a person in a non-intentional bigamous marriage, is eligible for a waiver under INA 237(a)(i)(h). What I can do is start you off in the right direction. The law can be found here:

 

The main case one can start to look at is here:

 

http://openjurist.org/8/f3d/700/casem-v-immigration-and-naturalization-service

 

You can find additional cases to read under the EOIR commentary which can be found here:

 

http://www.justice.gov/eoir/vll/benchbook/templates/Section%20237(a)(1)(H)%20Waiver.htm

 

Unfortunately, since I cannot do extensive research for you, I have not been able to find much that supports your case, however, I did find one case that I find interesting that may establish that you are at least eligible for Cancellation of Removal. Take a look at this link at the note all the way at the bottom:

 

http://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-42832/0-0-0-47378.html

 

Please let me know if you have any additional questions. I would be happy to answer them for you without additional charge. If there is a delay in getting back to you it is either because I am answering other questions or I had to log off, but I will be back with you as soon as possible. It is VERY important that if you are not satisfied, please ask additional questions. DO NOT use the "Poor Service" or "Bad Service" ratings. Please do not rate me on bad news. Bad news is not my fault as I have no control over the law. But my goal is to provide you with top-notch service. Please ask additional questions until you are satisfied so that you give me a positive rating. Just give me a chance to try and help you because I am on your side. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Customer: replied 1 year ago.

The rating section is asking me to rate Franklin and I don't want to give you unfavorable rating by error. Could you have system admin correct that.

Thanks for the time and research. I'm sure if there are so many good news out there, you'll find it.

 

Your first link has nothing on bigamy, although the section of "Immigration or BIA should not base denial on the original fraud" is helpful but not sure if it's an acceptable arguement in unintentional bigamy. Casem remarried thesame man.

 

I'm worried about statutory eligibility in para 6 of youe 2nd link.In the 3rd link, what was the decision on his intentional bigamy? Was he eligible for 237a1h waiver? Was he eligible but denied based on his other negative point? And where can I find the decison on his 237a1h waiver for bigamy allegation?

How can I arrange for you to do more research for me?


Thank you.

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

Hmm. You should be able to rate the answer that I gave you. There should be a drop down menu by my answer. Let me know if that works for you and if not, let me know if it is ok for the administrators to rate me for you and what you would like that rating to be.

 

As to part 6 in my second link, here is the case:


http://www.justice.gov/eoir/vll/intdec/vol22/3372.pdf

 

Here is what that means:

The provisions of this paragraph relating to the deportation of aliens within the United

States on the ground that they were excludable at the time of entry as aliens described

in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the

Attorney General, be waived for any alien (other than an alien described in paragraph

(4)(D)) who-

(i) is the spouse, parent, son, or daughter of a citizen of the United States or

of an alien lawfully admitted to the United States for permanent residence; and

(ii) was in possession of an immigrant visa or equivalent document and was

otherwise admissible to the United States at the time of such entry except for

those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of

section 212(a) which were a direct result of that fraud or misrepresentation.

A waiver of deportation for fraud or misrepresentation granted under this subparagraph

shall also operate to waive deportation based on the grounds of inadmissibility

at entry directly resulting from such fraud or misrepresentation.

 

So basically, I think the judge in your case is saying that you fail in (ii) because you were not in possession of an immigrant visa meaning that you could not have been approved for that since your 2nd marriage was void. So you would have to find cases that support that the waiver under 237(a)(1)(H) is meant for situations such as that. They are using a chicken before the egg or egg before the chicken argument, so to speak. Again, I can't really do that legal research for you and I don't think you would be able to easily do it online. An attorney that you hire would probably have access to Lexis/Nexis or Westlaw that they pay for in order to do that research which is what they charge clients for. The only other link that I can give you is this one:

 

http://www.justice.gov/eoir/vll/libindex.html

 

And as to the 3rd link, here is the conclusion:

 

II. CONCLUSION
We find that the respondent is ineligible for cancellation of removal under section 240A(a) of the Act because he was never lawfully admitted for permanent residence. We will therefore dismiss his appeal in regard to his eligibility for that relief. However, the respondent, who has a United States citizen child, would appear to be eligible to apply for a waiver under section 237(a)(1)(H) of the Act, 8 U.S.C. § 1227(a)(1)(H) (2000). Despite doubts expressed by the Immigration Judge relating to the respondent 's good moral character, he may also be eligible for cancellation of removal under section 240A(b).6 We will therefore sustain the appeal in part and remand the record to the Immigration Judge.

 

So it seems that he would be ineligible for Cancellation of Removal for Certain Permanent Residents which the application can be found here:

 

http://www.justice.gov/eoir/eoirforms/eoir42a.pdf

 

But it seems that they said that he looked like he was eligible for relief under INA 237(a)(1)(H). And also may have been eligible for Cancellation of Removal for Certain NONpermanent Residents which the application can be found here:

 

http://www.justice.gov/eoir/eoirforms/eoir42b.pdf

 

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. Thank you.

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95225
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help 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!
Customer: replied 1 year ago.

All your insights and links are very helpful. I rated you excellent. I prefer to be told what is rather than what I want to hear. I was elated to see the Board's affirmation that he is eligible for 237a1h waiver but I'll like to know the final decision on his 237a1h waiver application.
You've been very helpful but how can I hire you for further reseach?


Thank you.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Thank you and you are very welcome. Sometimes they do not publish the final decisions, but it may be available if you research it.
Customer: replied 1 year ago.

How about further research?

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

The best I can do are some cases that reference that case:

 

http://www.justice.gov/eoir/vll/intdec/vol24/3572.pdf

 

http://openjurist.org/489/f3d/551/de-la-rosa-v-united-states-department-of-homeland-security

 

http://www.justice.gov/eoir/vll/intdec/vol25/3688.pdf

 

That should at least get you started in the right direction. I know you want to save money and maybe do this on your own, but remember that this is your status in the U.S. at stake. Good luck to you.

Customer: replied 1 year ago.

I'm not planning on pursuing the appeal on my own. I'll retain the services of a well informed attorney. Meanwhile, you havent answered my questions on retaining your services.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Oh, I didn't know that you were asking for that. Unfortunately, that would violate the terms of services of this website and I would get in trouble. I am not allowed to represent you directly. You can look for an attorney at www.ailalawyer.com.
Customer: replied 1 year ago.

How about further reseach? Would there be a fee for that and how much?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Oh. That isn't something we could charge you for. That's something an attorney would charge you probably anywhere from $150 to $350 per hour or more. depending on the attorney. And besides, research alone is not enough. Then the attorney has to craft the argument supported by the positive cases that he or she finds and also anticipate the arguments the government will make and find cases that support their position. It is not an easy task.

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