18 January 2012

Legal loophole sees undocumented migrant granted American visa

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After two decades of worry which were finally realised when he was arrested and ordered deported, Rogelio Servin returned to his Californian home as a legal resident thanks to a little known, and little used, loophole in US immigration law.

American visa

Mr Servin was not inspected as he crossed the US-Mexico border and therefore did not enter the country illegally.

Mr Servin, now 32, arrived in the US without a valid American visa when he was 12 years old. Both he and his mother both crossed the US-Mexico border without being questioned by a US immigration officer and this, according to Servin's legal team, meant that he had officially been 'inspected and admitted' to the United States legally.

Mr Servin, who has been living in California ever since, initially adjusted well to American life, he graduated from a local high school and became the manager at a local restaurant. However, after losing his job he had an argument with his wife which led to his conviction for false imprisonment, a felony crime, for which he served three months in a county jail.

Upon his release he reconciled with his wife and set to rebuilding his life with a new job. While driving to work in April 2011, he was pulled over by local police for playing loud music and after being breathalysed, was arrested for driving while under the influence.

As he was a convicted felon who had apparently entered the country illegally, the US Department of Homeland Security placed him in detention and began deportation proceedings.

Mr Servin hired a legal team to argue his case; after researching the law, they decided that the 'inspected and admitted' ruling, first used in 2010, applied and therefore should not be deported.

As Mr Servin and his wife Huana had taken in his brother's children when he was deported in 2010, Mr Servin's legal team managed to convince the authorities that, as the family's sole wage earner, he should be allowed to stay and support his family.

The ruling combined with the 2010 ruling, which saw Graciela Quilantan be permitted to stay in the US as she had crossed the border in the car of a US citizen which wasn't inspected, has led to concerns that American immigration authorities would receive thousands of similar claims.

Although the ruling doesn't apply to the majority of illeg al immigrants in the US who subverted the border by crossing through deserts or over mountains, there are still plenty of illegal immigrants who did manage to cross without being inspected.

While the circumstances of both Mr Servin's and Ms Quilantan's cases have been described as extraordinary, it is unlikely a significant amount of illegal immigrants will be able to secure legal residency this way.

Ms Clayton of Mr Servin's legal team said she had already received inquiries from four other people who believe they could benefit from the ruling.

"It's hard to speculate how many immigrants this could help because it is judged on a case-by-case basis on how they entered, but there's a vast population that has driven over in a car and entered legally" she said.

However, with the ramifications of the rulings still being debated by legal experts, it can't be known for certain the eventual effects the rulings will have on US immigration and deportation policy.

The American Visa Bureau is an independent migration consultancy specialising in helping people from Visa Waiver Program (VWP) countries make their ESTA application.

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