IMMIGRATION LAW MONTHLY

April/May 2006

Written by Henry J. Chang

I am a Mexican citizen. My daughter was born in Mexico also but her father is a Canadian citizen. Can we cross the border into the United States with my daughter's birth certificate that says she is the daughter of a Canadian citizen, and therefore a Canadian citizen also?

Your daughter may have a claim to Canadian citizenship under the Canadian Citizenship Act, R.S.C. 1985, c. C-29 but her Mexican birth certificate is certainly not sufficient evidence of that. Your daughter must apply for Canadian citizenship on the basis that she is the child of a Canadian citizen born abroad; if he she can establish this fact to the satisfaction of Citizenship and Immigration Canada, she will be issued either a Certificate of Citizenship or a Canadian Passport. Once in possession of proper proof of Canadian citizenship, your daughter will be entitled to enter the United States without first obtaining a visa from a United States consulate, in accordance with 8 CFR §212.1(a).

I was convicted of "malicious injury to real property" and of "petty larceny under $1000" while on a trip to North Myrtle Beach in 2003. I picked up a sign on a lawn while I was drunk and was arrested. I spent the night in jail, paid $800, and was released. I was supposed to show up at a later date for a court appearance but they said that I didn't need to show up if I pleaded guilty. So I didn't show up, since I live in canada. Am I inadmissible?

It is impossible to be sure what has happened in your case. The $800 that you paid may have just been for bail. I know of at least one situation where the police told the accused (who was also Canadian) that "they treated this type of offense like a speeding ticket," then drove him back to the Canadian border after he paid a fee to be released from jail. He never knew that he was supposed to show up for a trial, which he missed. We later found out that he was convicted of the offense in absentia.

If you were supposed to show up at a later date for a court appearance, it sounds like something similar may have happened to you. You may have been convicted in absentia or there may still be an outstanding warrant for your arrest. You would need to find out what has happened in your case. Whether you are inadmissible will depend upon whether you have actually been convicted.

Assuming that you were convicted in absentia, such convictions do not always result in inadmissibility. However, a conviction in absentia that occurs after you have been given notice of the hearing will probably be considered valid. Since you were told that you were supposed to appear, it will be hard to claim that this is not a conviction for immigration purposes.

If you had only been convicted of one crime involving moral turpitude ("CIMT"), we might have argued that the petty offense exception applied. However, since you were apparently convicted of two CIMTs (even though arising from the same conduct), the petty offense exception will not apply to you in the present case.

You can seek a nonimmigrant waiver of inadmissibility under INA §212(d)(3). You can also try to reopen the criminal case. If you can get the court to drop both charges, or even one of them (this would potentially make you eligible for the petty offense exception), you may no longer be inadmissible.

I am a citizen of Mexico. I have a degree in International Business. Can I apply for a TN visa with this degree?

It depends on the profession under which you would be seeking TN status. Eligible TN professions appear in Appendix 1603.D.1 to Annex 1603 of the NAFTA. Your degree would have to be at a bachelor level or higher and it would have to be relevant to the proposed position.

I am a TN nonimmigrant worker. I have been cited for possession of 3-4 grams of marijuana (misdemeanor). If convicted, am I inadmissible? Would the INA §212(d)(3) waiver be available to me? Can I extend my TN status within the U.S. before the conviction is finalized? Also, my wife is applying for a green-card; would my inclusion on this application jeopardize her chances?

A conviction for possession of a controlled substance is a ground of inadmissibility under INA §212(a)(2)(A)(i)(II). So if you depart from the United States after the conviction, you will need to obtain a nonimmigrant waiver of inadmissibility under INA §212(d)(3) before you will be permitted to reenter the country.

According to INA §237(a)(2)(B), a controlled substance offense is also a ground of removal (i.e. deportation) unless it is a single offense involving possession (for personal use) of thirty grams or less of marijuana. In your case, your charge was for 3-4 grams of marijuana (less than the 30 gram limit), so you would not be subject to removal from the United States. Based on the above, it is probably best to seek an extension of your TN status within the United States.

Your wife's case will not be jeopardized if she includes you in her permanent residence case, since your potential inadmissibility does not affect her own eligibility. However, while you are not removable (i.e. deportable), you are still inadmissible to the United States under INA §212(a)(2)(A)(i)(II) if you leave the country. This may be the case even after you become a lawful permanent resident.

If necessary, an immigrant waiver of INA §212(a)(2)(A)(i)(II) is available under INA §212(h)(1).

I am a United States citizen. I currently have a mexican girlfriend. She tried to pose as a United States citizen while crossing the border in June 1999. She was caught and deported back to Mexico. We are going to get married next August but my work is in the US. Can her situation be resolved when I marry her so she can live with me in the United States?

According to INA §212(a)(6)(C)(ii), any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under the Immigration and Nationality Act or any other federal or state law is inadmissible. This provision applies to representations made on or after September 30, 1996. Since your girlfriend's misrepresentation was in 1999, she is caught by this ground. Although there is an immigrant waiver for misrepresentation under INA §212(i), it does not waive false claims of U.S. citizenship under INA §212(a)(6)(C)(ii). So there is no way that your girlfriend will qualify for permanent residence. However, if she can qualify for some kind of nonimmigrant status, perhaps an E-2 visa under the NAFTA, it may be possible to seek a nonimmigrant waiver under INA 212(d)(3) as part of her E-2 visa application.

If your girlfriend was removed from the United States while seeking admission (you said she was deported but, since she was actually removed while trying to enter the United States, it was actually what used to be called "exclusion"), you also have to deal with INA §212(a)(9)(A). As your girlfriend was probably subjected to expedited removal at the port of entry, she would be considered inadmissible under INA §212(a)(9)(A) for a period of five years, in addition to the above ground of inadmissibility. Of course, it has been more than five years since the incident occurred. As long as your girlfriend can prove that she has not illegally entered the United States for the past five years, she will not have to seek permission to reapply after removal.