Ask an Immigration Lawyer: Wait 10 years to go back

I am from Venezuela. I entered legally with a tourist visa on June, 2003. I applied for political asylum on April 2004 but it was rejected. I appealed and it was rejected too on March 2007. Automatically I had a deportation order, but I never received any notification. I went to Venezuela on December 2010 for health reasons. Here are my questions:

1. I was told that I have to wait 10 years, as a punishment, before I go back to the USA. Is that true? I heard also that many people can enter again and for good thanks to some legal process, even when they have a deportation order. I also heard about applying for a pardon or excemption.

2. Could it help me to have a sister who is an American citizen and another living legally in the US? Is there any family petition that will help me not to wait 10 years?

3. My boyfriend is an American Citizen and wants to marry me, but he is in Miami and I am in Venezuela. How can I do it? For I long do I have to wait then to go back to the US?

4. When I left they did not take my I-94 when I left the airport. Is that good or not?

5. How else can I go back legally to the US without waiting for 10 years?

Aggie R. Hoffman

In general, a person outside the U.S. has no legal rights. That, however, does not mean that you may not return to the U.S. The question is how long you must wait and under what circumstances you become admissible. Your particular situation is complex because you have a prior immigration history. Without knowing on what basis your request for asylum was denied, I cannot evaluate what other obstacles may exist to your legal return to the U.S.

For example, was asylum denied because your testimony was found not credible or that your application was determined to be frivolous?

Did you not have any documents to back your assertions? Was your suffering determined not to be persecution? Was your attorney ineffective in presenting your case in court or on appeal? How do you know that you lost your appeal if, as you claim, you never received notice?

Also, the fact that you returned to Venezuela, the country from which you claimed persecution, can adversely impact your credibility in connection with future visa applications.

Depending on the answers to the above questions, you may have been able to marry your novio even after losing your asylum battle and could have processed your resident status. Now that you are outside the U.S., he would have to go to Venezuela or you could meet in a third country to marry, and then file for your immigration.

But, even after the marriage and approval of an immigrant visa petition on your behalf, you will still be facing 10 years of inadmissibility. While the law provides several exceptions to the 10 year penalty, which includes periods of applications for extension of stay and bona fide applications for asylum, your 1 year unlawful period appears to run from March 2007 (when you lost the appeal) until December 2010 (when you left the U.S.).

Your expired, but uncollected I-94 is of no value in seeking re-entry. Moreover, anyone who makes an illegal entry after unlawful status, becomes permanently inadmissible.

So, if you marry your US citizen novio, you would need to apply for a waiver (pardon) of the 10 year period. Such a waiver is difficult to obtain and can be based only on evidence of “extreme hardship” to your U.S. citizen spouse. This often has to do with health and other family circumstances.

And yes, in the alternative, your US citizen sister may file a visa petition for your immigration, but that visa category (family-based 4th preference) has a wait of 9 years. For all practical purposes, if your sister files a petition without delay, your quota is likely to become available in 9 years. This is very close to the 10 years of inadmissibility. You would be eligible to immigrate at that time.

Your U.S. citizen sister may file an immigrant visa petition on your behalf. That would place you in the fourth preference (FP-4) family classification, the lowest of priorities in family immigration. According to the monthly Visa Bulletin, visas in that category are currently available only to those whose petiton was filed prior to Jan 1, 2002. So, if your sister files a petition on your behalf this month, you will likely become eligibile to immigrate in nine years; that is just one year short of the 10 years of inadmissibility.

CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.