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I understand that if someone previously overstayed a visa waiver (ESTA) by 6 years, that person should be banned for 10 years.

Now to be banned, you need to accumulate more then 365 days of overstay.

Now the law says that you DO NOT start accumulating days if you have a pending case with the immigration offices for asylum.

Now if after 6 years of pending asylum case you are being denied asylum (and ordered removed), and you leave voluntarily, will you be banned from re-entering?

More details:

  • I entered originally in 2011 (through LAX, on ESTA).
  • Applied for asylum in 2012 (within 1 year of entering).
  • 2017 denied asylum, ordered removed.
  • Left US in 2017 right away voluntarily.
  • Now having same original passport, just applied for new ESTA, was approved.

Also, we applied WITHIN the 90 days limit, so we never stayed there NOT even a single day illegally.

Question:

In this case, will I be banned from re-entering via LAX (on VWP)?

  • Thank you. If they do not see a ban on the computer when scanning the passport, they will still know I overstayed? How? – SZSZ May 6 '18 at 14:06
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    If you were eligible to enter the US on the visa waiver program then you come from a country that the US considers safe. Your asylum claim was almost certainly doomed before it began and the only surprise is that it took six years to decide. Now, after only a few months away you're proposing to re-enter the US. T he border guard could be forgiven for thinking that you are attempting to live in the US without going through the Green Card system. I'd put money on you being turned away. – user77213 May 6 '18 at 14:28
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    Your chances of just ever entering the USA again are slim and none. Don't even dream of using ESTA. – user 56513 May 6 '18 at 14:47
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    @TheZealot 6 years is more than a year. Those statements are not conflicting. – pipe May 7 '18 at 8:30
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    Given the small number of states in the US VWP, I can't really wrap my head around any VWP national applying for asylum in the US... To my (and the Department of State's) knowledge, none of them is that bad. – xuq01 May 8 '18 at 2:50
26

You're probably not formally banned, but that just means that a border guard will be allowed to let you in without losing his job over it, if he believes you're really a genuine tourist or business traveler.

But they never have to let anyone in. And with the background you're presenting here you will have a devil of a time convincing any border guard that this time you really truly actually intend only to visit. Then you'll be sent back anyway.

Also, if your asylum application was filed after your 90-day VWP status ran out, then you have overstayed on VWP and even one day of VWP overstay means that you're forever barred from entering under the VWP again. It would be helpful if the ESTA system detected this and rejected your application outright, but this doesn't mean that you won't be turned away when actually arriving in the US, if they discover the overstay at that point in time.

All in all, this sounds like a lost cause.

14

To add to @Henning Makholm answer, your case is problematic in more ways than one and you're almost certainly guaranteed to be denied on more grounds than one.

Firstly you have demonstrated immigrant intent by your claim for asylum the first time around. That is a disqualifier for ESTA and non immigrant visas. At this point considering you fought this case for six years, nothing shows your intentions have changed and a reasonable immigration or consular officer (if you should apply for a visa) will deny your application.

Second you may even have committed immigration fraud and a zealous immigration officer could say you entered the previous time on ESTA knowing full well you were going to claim asylum. That's Preconceived intent, and that is basis for immigration fraud and that carries a permanent ban.

The fact that you did not accumulate more than one year or even one day of illegal presence (per your timeline) just means legally you do not have a bar and that you are not inadmissible. In practice however almost no consular officer or airport/border immigration officer will let you into the country knowing your immigration history. I mean it doesn't make sense for them to.

So even if you are able to argue that you never overstayed your ESTA because you filed asylum before your ESTA expired, your overall history makes you very very very unlikely to ever enter the USA on a non-immigrant visa.

PS: Even if you left the USA just one day after your asylum petition was denied, it means you had started accumulating unlawful presence from the day of that ruling unless you were specifically granted voluntary departure.

  • thank you. Though, I believe, after the immigration ruling is delivered, you have 180 days to leave voluntarily without accruing. – SZSZ May 6 '18 at 16:18
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    @SZSZ you have 180 days to leave voluntarily without accruing That is not correct. – user 56513 May 6 '18 at 16:20
  • CAn you please cite me the paragraph in US immigration law where you take it from that it is not correct? – SZSZ May 6 '18 at 16:21
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    @SZSZ but a maximum of 120 days after the date that the order is issued. I am feeling lazy to find the direct link to USCIS, however Wikipedia should suffice. Note also that voluntary departure is not automatic, it must be explicitly stated. You're treading dangerous ground. – user 56513 May 6 '18 at 16:26
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    INA: ACT 240B - VOLUNTARY DEPARTURE Sec. 240B. 1/ (a) Certain Conditions.- (1) In general.-The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under section 240 or prior to the completion of such proceedings, if the alien is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4)(B) . (2) 2/ PERIOD- (A) IN GENERAL- Subject to subparagraph (B), permission to depart voluntarily under this subsection shall not be valid for a period exceeding 120 days. – user 56513 May 6 '18 at 16:31

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