How many immigration related government entities does it take to get something right?

The officers working for U.S. Customs and Border Protections at the Ports of Entry around the United States, whether at the airport or at a land crossing such as the Peach Arch in Blaine, Washington, have incredibly broad discretionary powers that can make or break someone's day, or perhaps, life. At the very least, they can make an entry to the U.S. very stressful. A case in point is the experience one of my clients (I'll call him Jake) recently had when seeking to reenter the United States from Canada after a short trip.

My client, who is married to a U.S. Citizen, obtained a multiple entry K-3 visa based on his marriage and eventually filed for lawful permanent resident status (adjustment of status). Prior to him leaving for Canada he was interviewed with his wife at the Seattle Field Office of U.S. Citizenship & Immigration Services in Seattle. At the interview, with his attorney present, the fact that Jake had some criminal history was discussed with the interviewing officer. There was nothing to hide about this history since it came up during the process necessary to obtain the K-3 visa. In fact, our office presented legal argument to the consulate that Jake's criminal history should have no bearing on his eligibility for a visa. The consulate agreed and Jake was issued his visa.

The same legal argument was presented to USCIS prior to the interview and the facts of the case were discussed at length during the interview. At the close of the interview the officer informed us that she had no problem with the criminal history (Jake's offense fell under the petty offense exception) and that she would just need her supervisor's approval. We left that day anticipating that the case would be approved and the green card would follow in the mail as they usually do in approved cases. Well, prior to receiving news of the approval, Jake went to Canada. While he was there his wife called him to let him know that the green card had arrived in the mail. Good news, right?

A day or so later Jake sought to reenter the states using his still valid K-3 visa. At the land crossing the officer inspecting Jake for admission decided he needed to question Jake in greater detail so he placed Jake in an office to be interrogated by another officer. (By the way, Jake was entering the US on a bus so the bus left without him). The line of questioning went something like "are you sure you told USCIS about your criminal history." Jake repeatedly told the officer that he was completely truthful with USCIS and the U.S. Consulate and that his attorney had provided both entities with certified copies of all of the court records and a legal brief. Jake even explained that his green card had been approved just a couple of days earlier. The officer was able to confirm this, but it didn't seem to matter. Four hours later Jake was released, issued a Notice to Appear, and told that he will have to appear in immigration court in Seattle for removal proceedings because of the criminal history.

So here we have three arms of the U.S. Government (U.S. Consulate, USCIS, and USCBP) looking at the same case with the same facts and one of them reaching a different conclusion than the others. And now, another arm, the Department of Justice's Executive Office for Immigration Review, will look at the case. Hopefully it won't get that far as Jake's attorneys intend to file a Motion to Terminate the case as soon as it is set for hearing. Stay tuned.