A Guide for Immigration Advocates [1, 19 ed.]

Table of contents :
Introduction & Acknowledgements
Table of Contents
Unit 1: Overview of Immigration & the Law
§ 1.1 A Nation with Borders
§ 1.2 Who Is a Citizen? Who Is an Alien?
§ 1.3 The Grounds of Inadmissibility
§ 1.4 What Can Happen to an Alien Who Is Inadmissible?
§ 1.5 The Grounds of Deportability
§ 1.6 What Can Happen to an Alien Who Is Deportable?
§ 1.7 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal”
§ 1.8 What Is a Lawful Permanent Resident?
§ 1.9 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility
§ 1.10 Immigration through a Family Visa Petition: INA §§ 203, 204
§ 1.11 Asylum: INA § 208
§ 1.12 Refugee Status: INA § 207
§ 1.13 Registry: INA § 249
§ 1.14 Amnesty: The Legalization and SAW Programs: INA §§ 245A, 210
§ 1.15 Cancellation of Removal for Non-Permanent Residents: INA § 240A(b)
§ 1.16 Immigration Status
§ 1.17 Applicants for Lawful Status
§ 1.18 Undocumented Immigrants
§ 1.19 What Is DHS?
§ 1.20 The Structure of the DHS Immigration Agencies
§ 1.21 CIS, ICE & CBP Offices and the Saga of the “A-File”
§ 1.22 How Does a Field Office Work?
§ 1.23 Immigration Court and the BIA: The Executive Office for Immigration Review
§ 1.24 The INA
§ 1.25 Agency Regulations
Further Information
Appendix 1-A
Appendix 1-B
Appendix 1-C
Appendix 1-D
Appendix 1-E
Unit 2: Advocate/Client Partnership & Interviewing Skills
§ 2.1 The Advocate/Client Partnership: What’s in It for Us?
§ 2.2 Creating a Partnership with Our Clients
§ 2.3 Building and Presenting a Case in Partnership with Our Clients
§ 2.4 The Client Meeting: Interviewing and Counseling Clients
Appendix 2-A
Appendix 2-B
Unit 3: Grounds of Inadmissibility & Deportability
§ 3.1 Overview of Admissibility, Deportability, Admission and Removal
§ 3.2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse
§ 3.3 Alien Smuggling: Grounds of Inadmissibility and Deportability
§ 3.4 Visa Fraud
§ 3.5 Document Fraud: Ground of Inadmissibility and Deportability
§ 3.6 Insufficient Documentation
§ 3.7 False Claim to U.S. Citizenship
§ 3.8 Likely to Become a Public Charge
§ 3.9 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists
§ 3.10 Entry, Admission and Effective Dates
§ 3.11 Unlawfully Present in the United States without Being Admitted or Paroled
§ 3.12 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver
§ 3.13 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted
§ 3.14 Failure to Attend Removal Proceedings
§ 3.15 Past Removal or Deportation/Exclusion
§ 3.16 Summary of IIRIRA Inadmissibility Grounds
§ 3.17 Grounds of Deportability (Except Those Related to Crimes)
§ 3.18 Clients with Criminal Records
§ 3.19 What Is a Criminal Conviction?
§ 3.20 What Evidence Can the DHS Submit to Show a Conviction?
§ 3.21 What Is a Sentence for Immigration Purposes?
§ 3.22 How to Analyze a Past Conviction: The Categorical Approach
§ 3.23 Inadmissibility and Deportability Based on Drug Offenses
§ 3.24 Crimes Involving Moral Turpitude
§ 3.25 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions
§ 3.26 The Moral Turpitude Ground of Deportability
§ 3.27 Firearms Offenses
§ 3.28 Aggravated Felonies
§ 3.29 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment
§ 3.30 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration
§ 3.31 Clearing Up a Criminal Record
§ 3.32 The Good Moral Character Requirement
Further Information
Appendix 3-A
Appendix 3-B
Appendix 3-C
Appendix 3-D
Appendix 3-E
Appendix 3-F
Appendix 3-G
Appendix 3-H
Appendix 3-I
Appendix 3-J
Appendix 3-K
Unit 4: Family Visas: Qualifying Family Relationships Eligibility for Visas & the State Department Visa Bulletin
§ 4.1 Overview of the Family Immigration Process: A Two-Step Process
§ 4.2 The Immediate Relative Category and the Definition of “Child” and “Spouse”
§ 4.3 K Visa
§ 4.4 Petitions under the Preference System: Definition of Siblings and Sons and Daughters
§ 4.5 The Preference Categories
§ 4.6 Derivative Beneficiaries
§ 4.7 How the Preference System Works
§ 4.8 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate
§ 4.9 Advising Your Client about When a Visa May Become Available
§ 4.10 Child Status Protection Act (CSPA)
§ 4.11 The V Nonimmigrant Visa
§ 4.12 When Is a Visa Petition Terminated or No Longer Good?
§ 4.13 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings
Further Information
Appendix 4-A
Appendix 4-B
Appendix 4-C
Appendix 4-D
Appendix 4-E
Unit 5: Family Visas: Submitting the Petition; Marriage Issues; VAWA
§ 5.1 Completing Government Forms
§ 5.2 Completing the Visa Petition, Form I-130
§ 5.3 The G-325A and Photograph: Required in a Petition for a Husband or Wife
§ 5.4 Documenting the Visa Petition
§ 5.5 What Documents Are Needed to Prove Family Relationship?
§ 5.6 Obtaining Documents in the United States to Show Family Relationship
§ 5.7 Obtaining Documents from Other Countries
§ 5.8 Making Proper Copies of Documents
§ 5.9 Making Certified Translations of Documents
§ 5.10 Documenting the Immigration Status of the Petitioner
§ 5.11 Filing the I-130 Packet
§ 5.12 CIS Challenges to a Marriage
§ 5.13 The Legal Standard for a Marriage
§ 5.14 Documentation to Show That a Marriage Is Bona Fide
§ 5.15 What Will Happen at the Marriage Fraud Interview?
§ 5.16 Preparing Your Client: Self-Defense Techniques for CIS Interviews
§ 5.17 Special Rules That Affect Spousal Visa Petitions
§ 5.18 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”)
§ 5.19 Requirements for a VAWA Self-Petition for an Abused Child
§ 5.20 Requirements for a VAWA Self-Petition for an Abused Parent
§ 5.21 Procedures for Self-Petitioning under VAWA
Appendix 5-A
Appendix 5-B
Appendix 5-C
Appendix 5-D
Unit 6: Family Visas: Consular Processing & Waivers of Inadmissibility & Deportability
§ 6.1 The NVC, the U.S. Consulates and the Department of State
§ 6.2 How the DHS and the State Department Divide Responsibility in Visa Cases
§ 6.3 Initial Consular Processing at the NVC
§ 6.4 Obtaining Documents According to NVC Instructions and the FAM
§ 6.5 Getting Ready for the Interview
§ 6.6 What Will Happen at the Interview?
§ 6.7 What Happens after the Immigrant Visa Is Granted
§ 6.8 What to Do if Your Alien Registration Card Fails to Arrive
§ 6.9 Waivers of Grounds of Inadmissibility
§ 6.10 What Is a Waiver?
§ 6.11 What Is Discretion?
§ 6.12 How to Find the Waivers in the Act
§ 6.13 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission
§ 6.14 Waiver for Certain Crimes under INA § 212(h)
§ 6.15 Waiver of Inadmissibility/Exemption for Alien Smuggling
§ 6.16 Document Fraud Waiver of Inadmissibility
§ 6.17 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g)
§ 6.18 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses
§ 6.19 Procedure for Applying for a Waiver
§ 6.20 How Do You Establish Extreme Hardship?
Further Information
Appendix 6-A
Appendix 6-B
Appendix 6-C
Appendix 6-D
Appendix 6-E
Appendix 6-F
Appendix 6-G
Unit 7: Family Visas: Adjustment of Status & Conditional Residence
§ 7.1 What Is Adjustment of Status?
§ 7.2 Who Is Eligible for Adjustment of Status Based on a Family Petition?
§ 7.3 What Forms and Documents Are Needed to Apply for Adjustment of Status?
§ 7.4 The Application for Adjustment, Form I-485
§ 7.5 Form G-325A, Fingerprints, Photos, and Medical Exam
§ 7.6 Submitting the Adjustment Application
§ 7.7 The Effect of Leaving the Country
§ 7.8 What Will Happen at the Adjustment Interview?
§ 7.9 The Decision: Approvals and Denials
§ 7.10 Introduction: The Immigration Marriage Fraud Amendment Act
§ 7.11 What Is Conditional Permanent Residency?
§ 7.12 Who Is a Conditional Permanent Resident?
§ 7.13 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition”
§ 7.14 When to File the I-751 Joint Petition
§ 7.15 Completing the I-751 Joint Petition
§ 7.16 Application Procedure: Filing, Interview, Standard for Approval, Denials
§ 7.17 Termination of Conditional Residency by CIS during the “Testing Period”
§ 7.18 Introduction to Waivers of the I-751 Joint Filing Requirement
§ 7.19 When to File
§ 7.20 How to File a Waiver
§ 7.21 The “Good Faith” Waiver
§ 7.22 The Extreme Hardship Waiver
§ 7.23 The Battery or Extreme Cruelty Waiver
§ 7.24 Proof of Battery or Extreme Cruelty
§ 7.25 Additional Help for Battered Spouses and Children
§ 7.26 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died
§ 7.27 Dependent Sons and Daughters
§ 7.28 Special Situations Involving Conditional Residency and Waivers
Further Information
Appendix 7-A
Appendix 7-B
Appendix 7-C
Appendix 7-D
Appendix 7-E
Appendix 7-F
Appendix 7-G
Appendix 7-H
Appendix 7-I
Appendix 7-J
Unit 8: Legal Research for Immigration Practice
§ 8.1 What Is Legal Authority?
§ 8.2 Distinguishing Primary Law Sources from Secondary Research Sources
§ 8.3 Hierarchy in Legal Authority
§ 8.4 Sources of Legal Authority: The Constitution
§ 8.5 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act)
§ 8.6 Sources of Legal Authority: Regulations
§ 8.7 Sources of Legal Authority: Cases
§ 8.8 Sources of Legal Authority: Internal Agency Operating Instructions
§ 8.9 Understanding the Code: The Case Citation System
§ 8.10 Citations in Judicial Decisions
§ 8.11 Citing the Immigration and Nationality Act
§ 8.12 Citing to the Code of Federal Regulations
§ 8.13 Research Tips for the Immigration and Nationality Act and the Regulations
§ 8.14 Other Primary Sources: Internal Operating Instructions
§ 8.15 Additional Tools for Research: Using Treatises and Other Secondary Sources
§ 8.16 Practical Tips for Legal Research
§ 8.17 Gaining Access to Library Materials
Further Information
Appendix 8-A
Appendix 8-B
Appendix 8-C
Appendix 8-D
Appendix 8-E
Appendix 8-F
Unit 9: Legal Writing & Appeals
§ 9.1 Writing Techniques for Persuasive Legal Writing
§ 9.2 Writing Clearly
§ 9.3 Accuracy
§ 9.4 Presenting the Facts in Legal Arguments
§ 9.5 Practical Tips for Written Communication with DHS and the Courts
§ 9.6 The Courts
§ 9.7 Overview of Administrative and Judicial Bodies
§ 9.8 Administrative Appeals of Immigration Cases
§ 9.9 Appeals of Immigration Cases in Federal Judicial Courts
§ 9.10 The Right to Appeal
§ 9.11 The Importance of Prompt Action on Denials
§ 9.12 Appeals and Motions to Reopen and Reconsider Compared
§ 9.13 Procedure for Appeals before the BIA
§ 9.14 Motions to Reopen/Reconsider in EOIR
§ 9.15 Appeals and Motions to AAO
§ 9.16 Who Is Qualified to File a Brief?
§ 9.17 Keeping Clients Involved in and Informed about Their Appeals
Appendix 9-A
Appendix 9-B
Appendix 9-C
Appendix 9-D
Appendix 9-E
Appendix 9-F
Appendix 9-G
Appendix 9-H
Appendix 9-I
Unit 10: The Removal Process
§ 10.1 Overview and Definition of Terms
§ 10.2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings
§ 10.3 Arrests, Issuance of the Notice to Appear and Order to Show Cause
§ 10.4 The Master Calendar Hearing: Beginning Removal Proceedings
§ 10.5 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order
§ 10.6 After a Final Removal Order: Surrender and Removal
§ 10.7 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal”
§ 10.8 Detention, Bonds and Procedure
§ 10.9 Bond Equities
§ 10.10 Preparing for the Bond Redetermination Hearing
§ 10.11 Posting the Bond
§ 10.12 Expedited Removal Proceedings under INA § 235
Further Information
Appendix 10-A
Appendix 10-B
Appendix 10-C
Appendix 10-D
Appendix 10-E
Appendix 10-F
Unit 11: Introduction to Cancellation of Removal under INA § 240A(b), (Former Suspension of Deporation) & Introduction to Evidence for Immigration Cases
§ 11.1 Overview of the Law
§ 11.2 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1)
§ 11.3 Continuous Physical Presence
§ 11.4 Documenting Continuous Physical Presence
§ 11.5 Good Moral Character and Criminal Bars
§ 11.6 Introduction to Exceptional and Extremely Unusual Hardship
§ 11.7 Family Separation
§ 11.8 Hardship to the Applicant’s Children
§ 11.9 Community Ties
§ 11.10 Medical Conditions
§ 11.11 Conditions in the Country of Deportability
§ 11.12 Working with a Client and Her Family to Determine Hardship
§ 11.13 Putting It All Together
§ 11.14 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases
§ 11.15 Overview of the Law
§ 11.16 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal
§ 11.17 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation
§ 11.18 Continuous Physical Presence under VAWA Cancellation
§ 11.19 Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal
§ 11.20 Extreme Hardship under VAWA Cancellation of Removal
§ 11.21 Children under VAWA Cancellation
§ 11.22 VAWA Cancellation Compared with VAWA Self-Petitioning
§ 11.23 Motions to Reopen
§ 11.24 What Is Suspension of Deportation and Who Can Qualify?
§ 11.25 Continuous Physical Presence in Suspension Cases
§ 11.26 Good Moral Character for Suspension of Deportation
§ 11.27 Hardship for Suspension of Deportation
§ 11.28 Discretion in Suspension of Deportation Cases
§ 11.29 What Is Evidence?
§ 11.30 Relevant and Irrelevant Evidence
§ 11.31 Analyzing the Strength of Evidence in Cancellation Cases
§ 11.32 How to Use Evidence
§ 11.33 Summary of Procedure
§ 11.34 Suspension of Deportation Benefits under NACARA
Appendix 11-A
Appendix 11-B
Appendix 11-C
Appendix 11-D
Appendix 11-E
Appendix 11-F
Appendix 11-G
Appendix 11-H

Citation preview

ILRC.GdImmAd18thEd.Cov.Vol12014:. 5/27/14 12:20 PM Page 1

A Guide for Immigration Advocates is a two-volume, practical guide for advocates to use in their everyday practice. In addition to substantive law, each chapter includes information on critical books for your library, Internet research, systems for identifying the potential remedies in a case, and how to manage a caseload. This book is a real time-saver for attorneys and paralegals, whether working for a community organization or in private practice!

The Guide is the best practical how-to resource on non-business immigration I've found. It is used on a daily basis by staff and attorneys alike. I like it for the good overview it gives before I start research in primary authority. — JoAnn Barten, Immigration Attorney

I love A Guide for Immigration Advocates! This manual got me started in immigration law, and this essential reference manual is what really helped me learn immigration law when I transitioned from business litigation. I highly recommend it to all attorneys and legal assistants who want to learn immigration law. — Adam Chester, former Supervising Attorney, Catholic Charities of Dallas, Immigration & Legal Services

A Guide for Immigration Advocates is an excellent resource. I give it to clients who are human resource professionals or in-house legal staff at large corporations, as well as retaining a copy in our firm's library. It is one of my top recommendations, because the Guide gives a good overview and important information for common immigration issues.

A Guide for Immigration Advocates

Completely updated in 2014. A Guide for Immigration Advocates is a practical and essential tool for beginning immigration attorneys, immigration law firms employing paralegals, BIA accredited representatives, and nonprofit community-based organizations. The Guide is unique among immigration law manuals because it provides a comprehensive detailed overview of the law that is both practical and easy to use. More than a compilation of immigration law topic articles, it’s a how-to manual containing clearly worded explanations of each subject and includes sample applications, charts, and examples to illustrate the concepts. This invaluable resource also provides practical advice on working with your clients to elicit the information you need to assist them efficiently and accurately.

— C. Matthew Schulz, Partner, Global Immigration & Executive Transfer, Baker & McKenzie, LLP

A Guide for Immigration Advocates TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

19th Edition - Volume 1 By ILRC Staff Attorneys 1663 MISSION STREET SUITE 602 SAN FRANCISCO, CA 94103 T 415.255.9499 / F 415.255.9792 WWW.ILRC.ORG

19th Edition Volume 1

A Guide for Immigration Advocates 19th Edition Volume 1

Written by the Immigrant Legal Resource Center San Francisco, California

This edition was made possible through financial support from the Equal Access Fund, a program of the State Bar of California’s Legal Services Trust Fund.

A=

Copyright 2014 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

 

The Immigrant Legal Resource Center The Immigrant Legal Resource Center (ILRC) is a national, non-profit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights. Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. What We Do: •

•

Legal Professionals & Advocates: o

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

o

Publications: ILRC publishes some of the top reference manuals on immigration law.

o

Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of non-profit organizations, public defenders, and others assisting immigrants.

Immigrants: o

Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the democratic process in the United States, so as to enable them to advocate for better policies in immigration law, as well as in health care, community safety, and other issues that affect the immigrant community.

•

o

Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.

o

Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants.

Laws, Policies, & Practice: o

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

o

Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.

o

Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system.

How to contact us: •

General inquiries: [email protected]

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Publications: [email protected]

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Attorney of the Day (AOD): [email protected]

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Website: www.ilrc.org

How to support our work: Please visit our website www.ilrc.org to make a tax-deductible contribution.

INTRODUCTION AND ACKNOWLEDGEMENTS It has been 13 years since the September 11, 2001 terrorist attacks and the U.S. has yet to bring immigrant communities out of the shadows cast by 9/11. Laws enacted and policies implemented since then under the guise of enhancing our security have largely negatively impacted the due process rights of noncitizens, kept families separated, and wasted government resources, rather than made us safer. Sensible reforms to our laws have met stiff resistance from those who want to continue to enforce our current dysfunctional system. Inconsistent adjudications, increased deportations, and significantly increased enforcement actions continue to be the modus operandi of the Department of Homeland Security (DHS), the federal agency with responsibility for immigration, adding up to a system that simply does not work. With state legislation emerging around immigration enforcement, the fractures are getting even more pronounced. Despite, and even because of, the tenor and actions of our government, we believe it is important to continue to advocate with government officials to help ensure respect for our civil liberties and the creation of an immigration system that reflects our history as a nation of immigrants, as we recognize that both are essential if we are to enhance our national security. We hope this book helps you in your work when advocating with, and on behalf of, immigrants and in engaging in a dialogue with our government so that the United States treats immigrants with the respect and dignity they deserve. For the 19th Edition, updated in 2014, ILRC would like to acknowledge the ILRC legal staff: Kathy Brady, Eric Cohen, Lena Graber, Bill Hing, Angie Junck, Alison Kamhi, Sally Kinoshita, Lourdes Martinez, Erin Quinn, Mark Silverman, and our law fellow Grisel Ruiz. We thank former legal staff members Evelyn Cruz, Nora Privitera, and Su Yon Yi for their contributions to previous editions. Over the years, we have had many terrific attorneys and law clerks provide invaluable research efforts. We would like to thank Eunice Lee, Ezra Corral, Andrei Romanenko, Pauline Nguyen, Parisa Ijadi-Mahsoodi, Bo Han Yang, Azar Khoshkbariie, Susi Garcia, Perla Sanchez, Michelle Law, Nasha Vida, Kaveena Singh, Maria Banuelos, Paul Tran, Anagha Apte, Lynsay Skiba, Stella Kim, Carolina Romero, John Bauman, Michelle Jun, Mark Thorndahl, Manjit Kang, Jeff Klein, and Charles Hamel for their contributions to the 2001–2012 editions. Erica Tomlinson, an immigration attorney in private practice in Sacramento, authored and updated the part of Unit 21 related to employment-based visas. Ann Block and Gail Pendleton helped write and edit various units over the lifespan of this manual. Thanks also to Tanya Broder, Bernardo Merino, Christina Fabie, Yvonne Parker, Zachary Nightingale, Merle Khan, Susan Bowyer, Penelope Seator Evangeline Abriel, Dan Torres, and Helen Lawrence for their editorial assistance with The Guide. Special thanks to Susan Lydon, the ILRC’s former Executive Director, who for many years coordinated the writing of this manual. On the production side, Tim Sheehan, Shari Kurita, and Linda Mogannam of our education program have done outstanding work to prepare this manual for publication, and its eventual distribution to the advocates of immigrants. Thank you to the groups that permitted us to use their materials for this Update, including NILC, CLINIC, IRSA, Interpreter Releases, as well as all the law firms and non-profit agencies who allowed us to use some of their cases as examples. The update of this practitioner handbook was made possible with financial support from the Legal Services Trust Fund Program – Equal Access Fund of the State Bar of California, for which we are very grateful. Immigrant Legal Resource Center San Francisco, June 2014

A Guide for Immigration Advocates April 2014

A Guide for Immigration Advocates 19th Edition Table of Contents Unit One § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 § 1.14 § 1.15 § 1.16 § 1.17 § 1.18 § 1.19 § 1.20 § 1.21 § 1.22 § 1.23 § 1.24 § 1.25 Appendix 1-A Appendix 1-B Appendix 1-C Appendix 1-D Appendix 1-E

Overview of Immigration and the Law A Nation with Borders ....................................................................................... 1-2 Who Is a Citizen? Who Is an Alien? ................................................................. 1-4 The Grounds of Inadmissibility .......................................................................... 1-5 What Can Happen to an Alien Who Is Inadmissible? ........................................ 1-6 The Grounds of Deportability ............................................................................ 1-7 What Can Happen to an Alien Who Is Deportable?........................................... 1-9 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal” .................................................................................. 1-9 What Is a Lawful Permanent Resident? ........................................................... 1-12 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility ............................................................................... 1-13 Immigration through a Family Visa Petition: INA §§ 203, 204 ....................... 1-13 Asylum: INA § 208 .......................................................................................... 1-14 Refugee Status: INA § 207 ............................................................................... 1-14 Registry: INA § 249 ......................................................................................... 1-14 Amnesty: The Legalization and SAW Programs: INA §§ 245A, 210 ............. 1-14 Cancellation of Removal for Non-Permanent Residents INA § 240A(b) ................................................................................................. 1-15 Immigration Status ........................................................................................... 1-16 Applicants for Lawful Status ............................................................................ 1-19 Undocumented Immigrants .............................................................................. 1-19 What Is DHS?................................................................................................... 1-20 The Structure of the DHS Immigration Agencies ............................................ 1-22 CIS, ICE & CBP Offices and the Saga of the “A-File” ................................... 1-23 How Does a Field Office Work? ...................................................................... 1-24 Immigration Court and the BIA: The Executive Office for Immigration Review ......................................................................................... 1-26 The INA............................................................................................................ 1-27 Agency Regulations ......................................................................................... 1-28 Answers to Exercises Note-Taking Guide Student Work-Sheet for Role-Plays #1 and #2 List of Non-Immigrant Visas Flowchart: United States Department of Homeland Security

Table of Contents-1

Immigrant Legal Resource Center April 2014

Unit Two § 2.1 § 2.2 § 2.3 § 2.4

The Advocate/Client Partnership and Interviewing Skills The Advocate/Client Partnership: What’s in It for Us? ..................................... 2-1 Creating a Partnership with Our Clients............................................................. 2-2 Building and Presenting a Case in Partnership with Our Clients ....................... 2-7 The Client Meeting: Interviewing and Counseling Clients .............................. 2-12

Appendix 2-A Appendix 2-B

Annotated Client Interview Checklist Sample Client Intake Form

Unit Three

Grounds of Inadmissibility and Deportability

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13

§ 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26 § 3.27

Overview of Admissibility, Deportability, Admission and Removal ................ 3-2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse ......................... 3-13 Alien Smuggling: Grounds of Inadmissibility and Deportability .................... 3-18 Visa Fraud ........................................................................................................ 3-23 Document Fraud: Ground of Inadmissibility and Deportability ...................... 3-26 Insufficient Documentation .............................................................................. 3-29 False Claim to U.S. Citizenship ....................................................................... 3-30 Likely to Become a Public Charge ................................................................... 3-36 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists ........... 3-58 Entry, Admission and Effective Dates ............................................................. 3-64 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 3-65 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 3-67 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted ..................................................................... 3-78 Failure to Attend Removal Proceedings ........................................................... 3-89 Past Removal or Deportation/Exclusion .......................................................... 3-90 Summary of IIRIRA Inadmissibility Grounds ................................................. 3-94 Grounds of Deportability (Except Those Related to Crimes) .......................... 3-96 Clients with Criminal Records ....................................................................... 3-100 What Is a Criminal Conviction? ..................................................................... 3-102 What Evidence Can the DHS Submit to Show a Conviction? ....................... 3-106 What Is a Sentence for Immigration Purposes? ............................................. 3-106 How to Analyze a Past Conviction: The Categorical Approach .................... 3-107 Inadmissibility and Deportability Based on Drug Offenses ........................... 3-115 Crimes Involving Moral Turpitude ................................................................ 3-119 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions ....................................... 3-122 The Moral Turpitude Ground of Deportability .............................................. 3-124 Firearms Offenses .......................................................................................... 3-126

Table of Contents-2

A Guide for Immigration Advocates April 2014

§ 3.28 § 3.29 § 3.30

§ 3.31 § 3.32 Appendix 3-A Appendix 3-B Appendix 3-C Appendix 3-D Appendix 3-E Appendix 3-F Appendix 3-G

Appendix 3-H Appendix 3-I Appendix 3-J Appendix 3-K

Unit Four

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13

Aggravated Felonies ....................................................................................... 3-128 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment ............................................................................................. 3-133 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration............................................................. 3-138 Clearing Up a Criminal Record ...................................................................... 3-139 The Good Moral Character Requirement ....................................................... 3-141 Answers to Exercises Chart of Grounds of Inadmissibility, Deportability, Good Moral Character Form I-864P Poverty Guidelines Instructions for Obtaining Criminal Record Checks Requests for Criminal Records Chart on Admission and Removal Proceedings Charts on the Three & Ten Year Bars + May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence USCIS Public Charge Fact Sheet USCIS Memo on INA 212(a)(6) USCIS Vaccination Requirements Unpublished BIA case on False Claim to U.S. Citizenship dated October 27, 2008 Family Visas: Qualifying Family Relationships Eligibility for Visas and the State Department Visa Bulletin Overview of the Family Immigration Process: A Two-Step Process ................. 4-1 The Immediate Relative Category and the Definition of “Child” and “Spouse” ...................................................................................................... 4-6 K Visa ............................................................................................................... 4-13 Petitions under the Preference System: Definition of Siblings and Sons and Daughters ................................................................................... 4-15 The Preference Categories................................................................................ 4-16 Derivative Beneficiaries ................................................................................... 4-22 How the Preference System Works .................................................................. 4-24 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ............................................................... 4-26 Advising Your Client about When a Visa May Become Available ................. 4-32 Child Status Protection Act (CSPA) ................................................................ 4-33 The V Nonimmigrant Visa ............................................................................... 4-43 When Is a Visa Petition Terminated or No Longer Good? .............................. 4-46 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings .......................................................................... 4-53

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Appendix 4-A Appendix 4-B Appendix 4-C

Appendix 4-E

Answers to Exercises The Visa System USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010. USCIS Policy Memorandum, “Revised Guidance for the Child Status Protection Act (CSPA)” Note-Taking Guide

Unit Five

Family Visas: Submitting the Petition; Marriage Issues; VAWA

Appendix 4-D

§ 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14 § 5.15 § 5.16 § 5.17 § 5.18 § 5.19 § 5.20 § 5.21 Appendix 5-A Appendix 5-B Appendix 5-C Appendix 5-D

Completing Government Forms ......................................................................... 5-2 Completing the Visa Petition, Form I-130 ......................................................... 5-4 The G-325A and Photograph: Required in a Petition for a Husband or Wife............................................................................................ 5-11 Documenting the Visa Petition......................................................................... 5-12 What Documents Are Needed to Prove Family Relationship? ........................ 5-13 Obtaining Documents in the United States to Show Family Relationship ...................................................................................................... 5-14 Obtaining Documents from Other Countries ................................................... 5-15 Making Proper Copies of Documents .............................................................. 5-16 Making Certified Translations of Documents .................................................. 5-17 Documenting the Immigration Status of the Petitioner .................................... 5-18 Filing the I-130 Packet ..................................................................................... 5-19 CIS Challenges to a Marriage .......................................................................... 5-21 The Legal Standard for a Marriage .................................................................. 5-22 Documentation to Show That a Marriage Is Bona Fide ................................... 5-24 What Will Happen at the Marriage Fraud Interview? ...................................... 5-25 Preparing Your Client: Self-Defense Techniques for CIS Interviews ............. 5-26 Special Rules That Affect Spousal Visa Petitions ............................................ 5-28 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”) ................................................ 5-31 Requirements for a VAWA Self-Petition for an Abused Child ....................... 5-42 Requirements for a VAWA Self-Petition for an Abused Parent ...................... 5-45 Procedures for Self-Petitioning under VAWA ................................................. 5-47 USCIS Form I-130, Petition for Alien Relative; and USCIS Form G325A, Biographic Information Sample Visa Assignment from Exercise 5.2 Note-Taking Guide

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Unit Six

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12 § 6.13 § 6.14 § 6.15 § 6.16 § 6.17 § 6.18 § 6.19 § 6.20 Appendix 6-A

Appendix 6-B

Appendix 6-C Appendix 6-D Appendix 6-E Appendix 6-F Appendix 6-G

Family Visas: Consular Processing and Waivers of Inadmissibility and Deportability The NVC, the U.S. Consulates and the Department of State ............................. 6-2 How the DHS and the State Department Divide Responsibility in Visa Cases ...................................................................................................... 6-3 Initial Consular Processing at the NVC ............................................................. 6-4 Obtaining Documents According to NVC Instructions and the FAM ............... 6-9 Getting Ready for the Interview ....................................................................... 6-11 What Will Happen at the Interview? ................................................................ 6-14 What Happens after the Immigrant Visa Is Granted ........................................ 6-16 What to Do if Your Alien Registration Card Fails to Arrive ........................... 6-17 Waivers of Grounds of Inadmissibility ............................................................ 6-18 What Is a Waiver? ............................................................................................ 6-19 What Is Discretion? .......................................................................................... 6-19 How to Find the Waivers in the Act ................................................................. 6-21 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission ......................................... 6-22 Waiver for Certain Crimes under INA § 212(h) .............................................. 6-25 Waiver of Inadmissibility/Exemption for Alien Smuggling ............................ 6-30 Document Fraud Waiver of Inadmissibility ..................................................... 6-32 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) ....................................... 6-35 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses.......................................................................... 6-38 Procedure for Applying for a Waiver ............................................................... 6-43 How Do You Establish Extreme Hardship? ..................................................... 6-47 Sample NVC cover letter to designated attorney, along with the Processing Fee Bill Invoices for the Immigrant Visa (IV) Application and the Affidavit of Support Sample Payment Receipt print-outs from the Immigrant Visa Invoice Payment Center, along with the accompanying “Document Cover Sheets,” to be returned to NVC with the IV Application and the Affidavit of Support. Answers to Exercises Sample Successful Waiver Application Declaration in Support of Waiver of Unlawful Presence Bar Overview of the Unlawful Presence Waiver, Form I-601A, filing process Sample Provisional Unlawful Presence Waiver

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Unit Seven § 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10 § 7.11 § 7.12 § 7.13 § 7.14 § 7.15 § 7.16 § 7.17 § 7.18 § 7.19 § 7.20 § 7.21 § 7.22 § 7.23 § 7.24 § 7.25 § 7.26 § 7.27 § 7.28 Appendix 7-A Appendix 7-B Appendix 7-C Appendix 7-D Appendix 7-E Appendix 7-F Appendix 7-G Appendix 7-H

Family Visas: Adjustment of Status and Conditional Residence What Is Adjustment of Status? ........................................................................... 7-2 Who Is Eligible for Adjustment of Status Based on a Family Petition?.......................................................................................... 7-3 What Forms and Documents Are Needed to Apply for Adjustment of Status? ................................................................................. 7-18 The Application for Adjustment, Form I-485 .................................................. 7-21 Form G-325A, Fingerprints, Photos, and Medical Exam ................................. 7-22 Submitting the Adjustment Application ........................................................... 7-24 The Effect of Leaving the Country................................................................... 7-25 What Will Happen at the Adjustment Interview? ............................................ 7-25 The Decision: Approvals and Denials .............................................................. 7-28 Introduction: The Immigration Marriage Fraud Amendment Act.................... 7-31 What Is Conditional Permanent Residency? .................................................... 7-31 Who Is a Conditional Permanent Resident? ..................................................... 7-32 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition” .................................. 7-34 When to File the I-751 Joint Petition ............................................................... 7-34 Completing the I-751 Joint Petition ................................................................. 7-37 Application Procedure: Filing, Interview, Standard for Approval, Denials ....................................................................................... 7-38 Termination of Conditional Residency by CIS during the “Testing Period” .............................................................................. 7-40 Introduction to Waivers of the I-751 Joint Filing Requirement ....................... 7-42 When to File ..................................................................................................... 7-43 How to File a Waiver ....................................................................................... 7-44 The “Good Faith” Waiver ................................................................................ 7-45 The Extreme Hardship Waiver ......................................................................... 7-46 The Battery or Extreme Cruelty Waiver .......................................................... 7-47 Proof of Battery or Extreme Cruelty ................................................................ 7-48 Additional Help for Battered Spouses and Children ........................................ 7-48 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died .............................................................................................. 7-49 Dependent Sons and Daughters ........................................................................ 7-49 Special Situations Involving Conditional Residency and Waivers .................. 7-51 Answers to Exercises Sample Letter Sample Letter, Spanish I-751 Chart comparing 245(a) and 245(i) Note-Taking Guide Excerpts from INA §245 Exercise and Sample I-485, and I-485A

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Appendix 7-I Appendix 7-J

2005 Memo Problems on 245(i) Eligibility

Unit Eight

Legal Research for Immigration Practice

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12 § 8.13 § 8.14 § 8.15 § 8.16 § 8.17

What Is Legal Authority? ................................................................................... 8-2 Distinguishing Primary Law Sources from Secondary Research Sources ............................................................................................................... 8-3 Hierarchy in Legal Authority ............................................................................. 8-3 Sources of Legal Authority: The Constitution ................................................... 8-4 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act) .............................................................................................. 8-4 Sources of Legal Authority: Regulations ........................................................... 8-5 Sources of Legal Authority: Cases ..................................................................... 8-5 Sources of Legal Authority: Internal Agency Operating Instructions ................ 8-7 Understanding the Code: The Case Citation System ......................................... 8-8 Citations in Judicial Decisions ........................................................................... 8-9 Citing the Immigration and Nationality Act ..................................................... 8-11 Citing to the Code of Federal Regulations ....................................................... 8-11 Research Tips for the Immigration and Nationality Act and the Regulations .......................................................................................... 8-12 Other Primary Sources: Internal Operating Instructions .................................. 8-13 Additional Tools for Research: Using Treatises and Other Secondary Sources ........................................................................................... 8-13 Practical Tips for Legal Research .................................................................... 8-14 Gaining Access to Library Materials................................................................ 8-15

Appendix 8-A Appendix 8-B Appendix 8-C Appendix 8-D Appendix 8-E Appendix 8-F

Citing Unpublished Federal Appellate Opinions Issued before 2007 Chart: The Thirteen Federal Judicial Circuits Library Resources for Immigration Paralegals Immigration Law Research Web-Sites Research Questions for 8 CFR and the Immigration and Nationality Act Extra Research Questions for Legal Research Practice

Unit Nine

Legal Writing and Appeals

§ 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Writing Techniques for Persuasive Legal Writing ............................................. 9-2 Writing Clearly ................................................................................................... 9-2 Accuracy............................................................................................................. 9-3 Presenting the Facts in Legal Arguments ........................................................... 9-3 Practical Tips for Written Communication with DHS and the Courts..................................................................................................... 9-5 The Courts .......................................................................................................... 9-6 Overview of Administrative and Judicial Bodies ............................................... 9-6 Administrative Appeals of Immigration Cases .................................................. 9-7

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§ 9.9 § 9.10 § 9.11 § 9.12 § 9.13 § 9.14 § 9.15 § 9.16 § 9.17 Appendix 9-A Appendix 9-B Appendix 9-C

Appeals of Immigration Cases in Federal Judicial Courts ................................. 9-8 The Right to Appeal ......................................................................................... 9-11 The Importance of Prompt Action on Denials ................................................. 9-11 Appeals and Motions to Reopen and Reconsider Compared ........................... 9-12 Procedure for Appeals before the BIA ............................................................. 9-13 Motions to Reopen/Reconsider in EOIR .......................................................... 9-17 Appeals and Motions to AAO .......................................................................... 9-21 Who Is Qualified to File a Brief? ..................................................................... 9-22 Keeping Clients Involved in and Informed about Their Appeals ..................... 9-22

Appendix 9-E Appendix 9-F Appendix 9-G Appendix 9-H Appendix 9-I

Hierarchy of Courts’ Authority Route of Appeal for a Typical Deportation or Removal Case Form EOIR-26 Notice of Appeal to the Board of Immigration Appeals (BIA) with Instructions Form EOIR-29 Notice of Appeal from Decision of CIS Officer, with Instructions Form I-290B Notice of Appeal or Motion Change of Address Form -- Board of Immigration Appeals Writing Exercise Paragraphs for Writing Discussion Legal Writing Homework Assignment

Unit Ten

The Removal Process

Appendix 9-D

§ 10.1 § 10.2 § 10.3 § 10.4 § 10.5

§ 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 Appendix 10-A Appendix 10-B Appendix 10-C

Overview and Definition of Terms .................................................................. 10-2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings ................................................................................... 10-6 Arrests, Issuance of the Notice to Appear and Order to Show Cause .............. 10-9 The Master Calendar Hearing: Beginning Removal Proceedings .................. 10-10 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order ........................................................................................ 10-18 After a Final Removal Order: Surrender and Removal .................................. 10-27 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal” .......................................................................... 10-28 Detention, Bonds and Procedure .................................................................... 10-31 Bond Equities ................................................................................................. 10-40 Preparing for the Bond Redetermination Hearing .......................................... 10-43 Posting the Bond ............................................................................................ 10-44 Expedited Removal Proceedings under INA § 235 ........................................ 10-45 Sample Form I-862, Notice to Appear Sample Form I-213, Record of Deportable/Inadmissible Alien Form EOIR 33/IC, Alien’s Change of Address Form/Immigration Court

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Appendix 10-D

Appendix 10-E Appendix 10-F Unit Eleven

§ 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 § 11.18 § 11.19 § 11.20 § 11.21 § 11.22 § 11.23 § 11.24 § 11.25 § 11.26 § 11.27 § 11.28 § 11.29 § 11.30

Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services Sample Form I-286, Notice of Custody Determination Custody Hearing Checklist Introduction to Cancellation of Removal under INA § 240A(b), (Former Suspension of Deportation) and Introduction to Evidence for Immigration Cases Overview of the Law ........................................................................................ 11-3 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1) ............................................................... 11-3 Continuous Physical Presence .......................................................................... 11-5 Documenting Continuous Physical Presence ................................................... 11-9 Good Moral Character and Criminal Bars...................................................... 11-10 Introduction to Exceptional and Extremely Unusual Hardship ...................... 11-21 Family Separation .......................................................................................... 11-25 Hardship to the Applicant’s Children ............................................................. 11-26 Community Ties ............................................................................................. 11-28 Medical Conditions ........................................................................................ 11-29 Conditions in the Country of Deportability .................................................... 11-30 Working with a Client and Her Family to Determine Hardship..................... 11-31 Putting It All Together ................................................................................... 11-32 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases.................................................................. 11-33 Overview of the Law ...................................................................................... 11-35 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal ................................................................................ 11-36 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation ...................................................................................... 11-37 Continuous Physical Presence under VAWA Cancellation ........................... 11-38 Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal......................................................... 11-39 Extreme Hardship under VAWA Cancellation of Removal .......................... 11-40 Children under VAWA Cancellation ............................................................. 11-42 VAWA Cancellation Compared with VAWA Self-Petitioning ..................... 11-42 Motions to Reopen ......................................................................................... 11-44 What Is Suspension of Deportation and Who Can Qualify? .......................... 11-44 Continuous Physical Presence in Suspension Cases ...................................... 11-47 Good Moral Character for Suspension of Deportation................................... 11-49 Hardship for Suspension of Deportation ........................................................ 11-49 Discretion in Suspension of Deportation Cases ............................................. 11-49 What Is Evidence? .......................................................................................... 11-50 Relevant and Irrelevant Evidence................................................................... 11-50

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§ 11.31 § 11.32 § 11.33 § 11.34 Appendix 11-A Appendix 11-B Appendix 11-C Appendix 11-D Appendix 11-E Appendix 11-F Appendix 11-G

Appendix 11-H Unit Twelve

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8 § 12.9 § 12.10 § 12.11 § 12.12

Appendix 12-A Appendix 12-B Appendix 12-C

Analyzing the Strength of Evidence in Cancellation Cases ........................... 11-51 How to Use Evidence ..................................................................................... 11-53 Summary of Procedure ................................................................................... 11-53 Suspension of Deportation Benefits under NACARA ................................... 11-55 Answers to Exercises Cancellation of Removal Application Checklists Cancellation of Removal Statute INA § 243A Document Checklist Excerpts from INA Section 101(f) -- Good Moral Character Immigration Case Analysis Chart Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, with Instructions Sample Form EOIR-42B Applying for Cancellation of Removal [For Lawful Permanent Residents] under INA 240A(a) (Formerly the 212(c) Waiver) Introduction: Cancellation of Removal and the Former 212(c) Waiver ........... 12-1 Overview of Legal Requirements..................................................................... 12-3 Seven Years Continuous Residence after Admission ...................................... 12-3 A Noncitizen Who Has Been Convicted of an Aggravated Felony Is Barred from Eligibility for Cancellation of Removal ................................. 12-14 Other Groups Who Are Ineligible .................................................................. 12-16 The Balance Test ............................................................................................ 12-16 Positive Factors .............................................................................................. 12-17 Factors on the Negative Side .......................................................................... 12-20 Proving Rehabilitation: The Three Story Approach ....................................... 12-21 Summary of Procedure ................................................................................... 12-24 Preparing the Client for the Hearing .............................................................. 12-25 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings ................................................................................. 12-27

Appendix 12-D Appendix 12-E

Sample Answers to Exercises § 240A(a) Waiver Checklists Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, with Instructions Letters of Support Sample Letters of Support

Unit Thirteen

Ethical Duties of Paralegals

§ 13.1 § 13.2

Overview of Authorized and Unauthorized Practice of Law ........................... 13-2 What Is Authorized Practice of Law? .............................................................. 13-2

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§ 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9 § 13.10 § 13.11 § 13.12 § 13.13 § 13.14 § 13.15 § 13.16 § 13.17 § 13.18 § 13.19 § 13.20 § 13.21 § 13.22 § 13.23 § 13.24 § 13.25 Appendix 13-A Appendix 13-B Appendix 13-C Appendix 13-D Appendix 13-E Appendix 13-F Appendix 13-G Appendix 13-H Appendix 13-I Appendix 13-J Appendix 13-K

Explicitly Authorized Representation in Immigration Cases ........................... 13-3 Entering an Appearance ................................................................................... 13-6 Paralegals Working under the Supervision of a Lawyer .................................. 13-8 The Independent Paralegal and Immigration Consultants................................ 13-9 Overview of Ethical Duties ............................................................................ 13-13 What Are Legal Ethics? ................................................................................. 13-13 What Other Rules Govern Ethics of Nonlawyers? ......................................... 13-13 The Duty of Zealous Representation .............................................................. 13-14 The Duty of Competence ............................................................................... 13-14 Duty of Client Confidentiality and Privileged Information............................ 13-15 Grounds for Discipline before DHS Immigration Agencies and EOIR ........................................................................................ 13-17 Disciplinary System of the DHS and EOIR ................................................... 13-21 Summary Disciplinary Proceedings and Immediate Suspension ................... 13-22 Forms of Discipline ........................................................................................ 13-23 Reinstatement ................................................................................................. 13-23 Confidentiality in Disciplinary Proceedings .................................................. 13-24 Malpractice ..................................................................................................... 13-25 Tips for Giving Professional Service and Avoiding Professional Discipline ................................................................................... 13-26 Other Legal Actions by Disgruntled Clients .................................................. 13-27 Introduction to BIA Accreditation ................................................................. 13-27 How to Apply for Recognition of Your Agency ............................................ 13-28 How to Apply to Become an Accredited Representative ............................... 13-32 Limits of Recognition..................................................................................... 13-33 Answers to Exercises Title 8: Aliens and Nationality -- DHS Regulations and EOIR Regulations Sample Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative before the Immigration Court Form EOIR-28 Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with Instructions Form EOIR-31, Request for Recognition of a Non-Profit Religious, Charitable, Social Service, or Similar Organization, with Instructions Board of Immigration Appeals Frequently Asked Questions (FAQs) about the Recognition and Accreditation (R&A) Program Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative before the Board of Immigration Appeals Draft Model Code of Professional Responsibility for Accredited Representatives Approved Application for Partial BIA Accreditation Approved Application for Full BIA Accreditation

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Unit Fourteen § 14.1 § 14.2 § 14.3 § 14.4 § 14.5 § 14.6 § 14.7 § 14.8 § 14.9 § 14.10 § 14.11 § 14.12 § 14.13 § 14.14 § 14.15 § 14.16 § 14.17 § 14.18 § 14.19

Asylum Overview of Asylum Law ................................................................................ 14-2 The Statute: Legal Requirements for Eligibility for Asylum ........................... 14-3 Other Sources of the Law on Asylum: The Regulations, Case Law and the U.N. Handbook .................................................................................... 14-4 Well-Founded Fear of Persecution ................................................................... 14-6 Past Persecution................................................................................................ 14-8 What Is Persecution? ........................................................................................ 14-9 Persecutors: Government and Non-Governmental Forces ............................. 14-17 Connecting Persecution to the “Enumerated Grounds” ................................. 14-19 Political Opinion ............................................................................................ 14-23 Imputed Political Opinion .............................................................................. 14-26 Membership in a Particular Social Group ...................................................... 14-30 Nationality ...................................................................................................... 14-49 Race ................................................................................................................ 14-51 Religion .......................................................................................................... 14-52 The REAL ID Act and Corroboration ............................................................ 14-55 Bars to Asylum and Discretion ...................................................................... 14-56 Affirmative Applications before the CIS ....................................................... 14-57 Defensive Asylum in Removal Proceedings .................................................. 14-61 “Should I Apply for Asylum?” Analysis of Risks and Benefits.................... 14-65

Appendix 14-A Appendix 14-B

Answers to Exercises After Winning Asylum: Benefits for Asylees

Unit Fifteen

Asylum and Withholding of Removal; Statutory Bars to Asylum and Withholding on Removal; Preparing a Declaration

§ 15.1 § 15.2 § 15.3 § 15.4 § 15.5 § 15.6 § 15.7 § 15.8 § 15.9 § 15.10 § 15.11 § 15.12 § 15.13

Comparing Asylum and Withholding of Removal ........................................... 15-2 Differences in the Legal Standard .................................................................... 15-3 Differences in Benefits ..................................................................................... 15-6 Bars to Both Asylum and Withholding of Removal ........................................ 15-8 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal ................................................................................ 15-20 Discretion in Asylum Cases ........................................................................... 15-26 Relief under the Torture Convention.............................................................. 15-28 Overview of Declarations ............................................................................... 15-29 Organization of an Asylum Declaration ......................................................... 15-29 Use of Details in Declarations ........................................................................ 15-30 Working Together with Your Client to Write the Declaration ....................... 15-30 Interviewing the Applicant (The Circle Method) ........................................... 15-33 Drafting a Declaration .................................................................................... 15-34

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Appendix 15-A Appendix 15-B Appendix 15-C Appendix 15-D Appendix 15-E

Chart Comparing Asylum, Withholding and CAT How to Write an Asylum Declaration, Declaration of Eric Cohen Sample Asylum Declaration Chart Comparing Asylum/Withholding Bars Feedback Form

Unit Sixteen

U and T Visas, Registry, Legalization, Family Unity and Discretionary Relief

§ 16.1 § 16.2 § 16.3 § 16.4 § 16.5 § 16.6 § 16.7 § 16.8 § 16.9 § 16.10 § 16.11 § 16.12 § 16.13 § 16.14 § 16.15 § 16.16 § 16.17 § 16.18 § 16.19 § 16.20 § 16.21 § 16.22 § 16.23 § 16.24 § 16.25 § 16.26 § 16.27 § 16.28 § 16.29 § 16.30 § 16.31 § 16.32 § 16.33

Introduction ...................................................................................................... 16-3 Who Is Eligible for U Nonimmigrant Status? .................................................. 16-4 Applying for the U Visa ................................................................................... 16-9 Adjustment of Status ...................................................................................... 16-13 Derivative Family Members ........................................................................... 16-14 The T Visa for Victims of Trafficking ........................................................... 16-16 Requirements for T Nonimmigrant Visas ...................................................... 16-16 Establishing That the Applicant Is a Victim of a Severe Form of Trafficking in Persons ................................................................................ 16-18 Application and Adjustment to Lawful Permanent Residence ....................... 16-19 Overview of the Law of Registry ................................................................... 16-20 Entry before 1972 ........................................................................................... 16-21 Continuous Residence in the U.S. .................................................................. 16-21 Good Moral Character and Not Ineligible to Citizenship .............................. 16-22 Grounds of Inadmissibility and Deportation .................................................. 16-23 Discretionary Denials ..................................................................................... 16-23 Registry Application Procedure: Persons Not in Proceedings ....................... 16-24 Applications in Removal Proceedings ........................................................... 16-24 Documenting Residence for Registry Applications ....................................... 16-24 Documentation: Use of Affidavits ................................................................. 16-25 Overview of the Immigration Reform & Control Act of 1986....................... 16-26 Legalization Program for Persons in U.S. since before 1/1/82 ...................... 16-26 Legalization Program for Agricultural Workers ............................................ 16-27 Legalization Denials: Appeals and Reopening............................................... 16-27 Late Legalization or Late Amnesty ................................................................ 16-28 Nicaraguan and Cuban Adjustment under the Nicaraguan Adjustment and Central American Relief Act of 1997 .................................. 16-29 The Haitian Refugee Immigration Fairness Act of 1998 ............................... 16-31 Introduction: Family Unity ............................................................................. 16-33 Basic Eligibility Requirements for Family Unity ........................................... 16-34 Who Is a Legalized Alien? ............................................................................. 16-34 Children under 21 as of the Applicable Date in 1988 .................................... 16-35 Spouse ............................................................................................................ 16-35 Residence in the U.S. since before the Applicable Date in 1988 ................... 16-36 Effect of Absences from U.S. ......................................................................... 16-37

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§ 16.34 § 16.35 § 16.36 § 16.37 § 16.38 § 16.39 § 16.40 § 16.41 § 16.42 § 16.43 § 16.44 § 16.45 § 16.46 § 16.47 § 16.48 § 16.49 § 16.50 § 16.51 § 16.52 § 16.53 § 16.54 § 16.55 Appendix 16-A Appendix 16-B Appendix 16-C Appendix 16-D

Appendix 16-E Appendix 16-F Appendix 16-G Unit Seventeen

§ 17.1 § 17.2 § 17.3 § 17.4 § 17.5 § 17.6

Applicants Do Not Have to Remain Eligible for a Second Preference Visa .............................................................................................. 16-37 Children Born Abroad to Mothers with Family Unity ................................... 16-38 Criminal Disqualifying Grounds .................................................................... 16-38 Other Grounds of Disqualification from Family Unity .................................. 16-39 Benefits of Family Unity ................................................................................ 16-40 Limitations of Family Unity Status ................................................................ 16-41 Overview of Types of Voluntary Departure ................................................... 16-42 Voluntary Departure as a Removal Defense .................................................. 16-43 Eligibility and Grounds of Disqualification ................................................... 16-44 Effective Date of Law with Warnings ............................................................ 16-47 Clients Who Wish to Apply for Relief in Removal Proceedings May Apply Only for the Third Type of Voluntary Departure ........................ 16-47 Stays of Deportation/Removal ....................................................................... 16-48 Prosecutorial Discretion ................................................................................. 16-50 Deferred Action .............................................................................................. 16-52 Deferred Action for Childhood Arrivals ........................................................ 16-52 Criminal Bars to DACA ................................................................................. 16-53 Continuous Residence and Travel Requirements for DACA ......................... 16-59 Educational Requirements for DACA ............................................................ 16-61 What Does an Approval of DACA Provide? ................................................. 16-63 Renewal Process ............................................................................................. 16-64 Deferred Action in Sympathetic Cases .......................................................... 16-64 Private Bills Passed by Congress ................................................................... 16-66 Sample Affidavit in Support of Registry Case Interoffice Memorandum: New Classification for Victims of Criminal Activity -- Eligibility for “U” Nonimmigrant Status Sample Public Defender Request USCIS Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens Sec. 249 INA & Sec. 101-A-19 INA Voluntary Departure Advisals DACA Chart Naturalization and Acquisition and Derivation of Citizenship for Children What Is Naturalization? .................................................................................... 17-2 Advantages and Disadvantages of the Naturalization Process ......................... 17-2 The Nine Requirements .................................................................................... 17-4 Lawful Permanent Resident Status: INA § 318 ............................................... 17-4 Age: INA § 334(b) ........................................................................................... 17-5 Residence: INA § 316 ...................................................................................... 17-5

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§ 17.6(a) § 17.6(b) § 17.6(c) § 17.7 § 17.8 § 17.9 § 17.10 § 17.11 § 17.12 § 17.13 § 17.14 § 17.15 § 17.16 § 17.17 § 17.18 § 17.19 § 17.20 § 17.21 § 17.22 § 17.23 § 17.24 § 17.25 § 17.26 § 17.27 § 17.28 § 17.29 § 17.30 § 17.31 § 17.32 § 17.33 § 17.34 Appendix 17-A Appendix 17-B Appendix 17-C Appendix 17-D Appendix 17-E Appendix 17-F Appendix 17-G Appendix 17-H

Abandonment of Residence: Losing One’s Status as an LPR ........................ 17-12 Special Exception: Nationals of the United States ......................................... 17-15 Special Exception: People Serving in the U.S. Armed Services .................... 17-15 Good Moral Character: INA § 316(a)(3)........................................................ 17-18 Temporary Bars to Naturalization .................................................................. 17-23 Permanent Ineligibility for Naturalization...................................................... 17-24 English Language: INA § 312(a)(1) ............................................................... 17-25 U.S. History and Government: INA § 312(a)(2) ............................................ 17-28 Belief in the Principles of the U.S. and the Oath of Allegiance: INA § 316(a)(3) ...................................................................... 17-29 Step One: The Application ............................................................................. 17-31 Step Two: The Interview and Naturalization Application.............................. 17-32 Step Three: The Final Hearing and the Oath of Allegiance ........................... 17-33 Contested Naturalization Proceedings............................................................ 17-33 Overview of Acquisition and Derivation of Citizenship ................................ 17-34 Introduction to Acquisition of Citizenship ..................................................... 17-34 Who Can Acquire Citizenship at Birth outside of the U.S.? .......................... 17-35 How to Use the Charts.................................................................................... 17-36 Documenting a Claim of Acquisition of Citizenship ..................................... 17-39 Acquisition of Citizenship Exercises ............................................................. 17-40 Derivation of Citizenship ............................................................................... 17-41 Who Can Derive Citizenship .......................................................................... 17-41 Using the Chart to Determine Derivative Status ............................................ 17-41 Child Citizenship Act of 2000 ........................................................................ 17-43 Submitting an Application for and Documenting a Claim of Derivative Citizenship................................................................................ 17-44 How to Appeal a Denial of a § 320 Citizenship Application ......................... 17-45 Section 322: Citizenship for Children ............................................................ 17-45 Introduction to Loss of Citizenship ................................................................ 17-48 Expatriation .................................................................................................... 17-48 Denaturalization: INA § 340 .......................................................................... 17-50 Denaturalization Proceedings: INA § 340 -- 8 CFR § 340.2.......................... 17-51 Practice Questions .......................................................................................... 17-51 Answers to Exercises Charts A, B & C: Acquisition and Derivation of Citizenship Advantages and Disadvantages of Naturalization Example Homework Assignment -- Naturalization Cases Practice Exercises on Acquisition of Citizenship Small Group Exercises on Acquisition of Citizenship Title 8 of Code of Federal Regulations (8 CFR), Part 316 -- General Requirements for Naturalization Requirements for Becoming a U.S. Citizen through “Naturalization” (English, Spanish & Chinese)

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Unit Eighteen § 18.1 § 18.2 § 18.3 § 18.4 § 18.5 § 18.6

Identifying Immigration Solutions Introduction ...................................................................................................... 18-1 A Systematic Approach to Identifying Solutions ............................................. 18-2 Long-Term Option Sheet.................................................................................. 18-3 Incorporation into the Case File ....................................................................... 18-5 Two-Part Approach .......................................................................................... 18-6 Sample Exercises.............................................................................................. 18-7

Appendix 18-A Appendix 18-B Appendix 18-C Appendix 18-D Appendix 18-E Appendix 18-F Appendix 18-G Appendix 18-H Appendix 18-I Appendix 18-J Appendix 18-K Appendix 18-L

Answers to Exercise § 18.1 Long Term Option Worksheet (blank) Long-Term Option Sheet for Gloria Long-Term Option Sheet for Carlos Cliente Long-Term Option Sheet for Maria & Juan Lopez Sample Retainer Agreement Cancellation of Removal (for Non-LPRs) Checklists Income-Screening Portion of Client Intake Interview Case Activity Sheet Developing a Case Management System Additional Long-Term Option Sheet from Exercises Guide to Abbreviations in the Long-Term Option Sheet

Unit Nineteen

Constitutional and Statutory Rights of Immigrants

§ 19.1 § 19.2 § 19.3 § 19.4 § 19.5 § 19.6 § 19.7 § 19.8 § 19.9 § 19.10 § 19.11 § 19.12 § 19.13 § 19.14 § 19.15 § 19.16 § 19.17 § 19.18 § 19.19

Overview of the Unit ........................................................................................ 19-2 Overview of Constitutional Rights ................................................................... 19-3 Authority to Question People about Immigration Status ................................. 19-4 Questioning and Types of “Stops” of Immigrants ......................................... 19-12 The Right to Remain Silent ............................................................................ 19-18 Searches .......................................................................................................... 19-21 Rights in Public Places ................................................................................... 19-21 Rights in the Home and Other Private Places ................................................ 19-22 Rights at Schools and Places of Worship ....................................................... 19-24 Workplace Raids ............................................................................................ 19-26 Rights in Automobiles .................................................................................... 19-28 Rights at the Border........................................................................................ 19-30 Rights at Border Equivalents: Airports, Trains/Buses ................................... 19-31 Rights upon Being Arrested by the DHS and While in DHS Detention ........................................................................................... 19-35 Right to Legal Representation ........................................................................ 19-55 Rights Regarding Immigration Detainers/Holds for Those in Criminal Custody ....................................................................................... 19-56 Rights of Juveniles ......................................................................................... 19-63 The “Equal Protection” Rights of Immigrants ............................................... 19-67 Right Not to Be Discriminated against in Employment ................................. 19-67

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§ 19.20 § 19.21 § 19.22 § 19.23 § 19.24 § 19.25 § 19.26 § 19.27 Appendix 19-A

Rights around Worker Exploitation ............................................................... 19-68 Right to Public Education............................................................................... 19-69 An Overview .................................................................................................. 19-70 Administrative Complaints............................................................................. 19-71 Lawsuits against the DHS .............................................................................. 19-80 Raising Violations of Rights in Removal Hearings: Motions to Suppress and Motions to Terminate ........................................................... 19-81 Organizing a Community Response to Rights Abuses................................... 19-85 Legal Support When Rights Have Been Violated .......................................... 19-86

Appendix 19-B Appendix 19-C Appendix 19-D Appendix 19-E Appendix 19-F Appendix 19-G Appendix 19-H Appendix 19-I

Assignments, Outlines and Materials for a “Know Your Rights” Community Meeting Relevant Constitutional Amendments KYR Materials Homework Assignment – Administrative Complaints ICE Enforcement Memos on Schools Immigration Enforcement in the Wake of September 11, 2001 Dangerous Merger Fact Sheet ICE Fact Sheet on Detention Reform Sample Motion to Suppress, Covering 4th and 5th amendment arguments, including an argument on widespread 4th Amendment violations

Unit Twenty

Negotiation Skills and Building Community Support

§ 20.1 § 20.2 § 20.3 § 20.4 § 20.5 § 20.6 § 20.7 § 20.8 § 20.9 § 20.10 § 20.11 § 20.12 § 20.13

Appendix 20-A Appendix 20-B Appendix 20-C Appendix 20-D Appendix 20-E

What Is Negotiation? ........................................................................................ 20-2 Clients as Negotiators....................................................................................... 20-2 Negotiating: Practical Tips ............................................................................... 20-4 Negotiation Strategies ...................................................................................... 20-6 Introduction ...................................................................................................... 20-9 Obtaining Letters and Testimony ................................................................... 20-10 Organizing Campaigns in the Immigrant Community ................................... 20-10 Encouraging Clients to Be Advocates ............................................................ 20-12 Helping Immigrants Form Immigrant-Based Committees ............................. 20-13 Committee Activities...................................................................................... 20-15 Media Coverage ............................................................................................. 20-17 Effectiveness of the Public Campaign on Family Unity ................................ 20-18 Public Campaign on Income Requirement for Affidavits of Support: The Ana Rivera Case................................................................... 20-19 Negotiation Letter Providing Evidence of CIS Delay Petition Campaign to Stop Deportation of Children Exercises and Role-Plays Press Clippings on Ana Rivera More Ana Rivera Press

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Unit Twenty-One

§ 21.1 § 21.2 § 21.3 § 21.4 § 21.5 § 21.6 § 21.7 § 21.8 § 21.9 § 21.10 § 21.11 § 21.12 § 21.13 § 21.14 § 21.15 § 21.16 § 21.17 § 21.18 § 21.19 § 21.20 § 21.21 § 21.22

History of Immigration Law and Policy and Employment-Based Immigration

The Interests That Affect U.S. Immigration Policy ......................................... 21-2 The First Immigrants (Colonial–1800)............................................................. 21-4 European Immigration to the East Coast, the First Wave: 1800s ..................... 21-5 Chinese Immigration to the West Coast, 1848–1890 ....................................... 21-6 The Second Wave of Europeans (1880–1915) ................................................. 21-8 West Coast II, Mexican Migration (1900–1930) ............................................. 21-9 1938–1965: World War II and McCarthyism ................................................ 21-10 Changing Political Views (1965–1976) ......................................................... 21-11 Refugee Act of 1980 and Act of 1986 ............................................................ 21-12 The Anti-Immigrant Crusades of the 1990s ................................................... 21-13 The Effects of September 11 .......................................................................... 21-16 Conclusions .................................................................................................... 21-18 A Word to Nonprofit Agency Staff on Employment Visas............................ 21-18 Overview and Relation to Other Immigration Options .................................. 21-19 The Employment-Based Preference System .................................................. 21-20 The First Preference: Extraordinary Aliens, Outstanding Professors and Researchers, Multi-National Executives and Managers .......................... 21-21 The Second Preference: Professionals and Exceptional Ability Immigrants ......................................................................................... 21-23 The Third Preference: Professionals, Skilled Workers and Other Workers ......................................................................................... 21-25 The Fourth Preference: Special Immigrant Religious Workers ..................... 21-27 The Fifth Preference: Special Immigrant Investors........................................ 21-28 Labor Certification ......................................................................................... 21-30 Special Considerations: Adjustment of Status and Consular Processing for Employment-Based Immigrants ............................................. 21-37

Glossary of Immigration Terms

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UNIT ONE OVERVIEW OF IMMIGRATION AND THE LAW

This Unit Covers an Introduction to Basic Concepts and Practices in Immigration Law, Including:      

Citizenship and alienage (Part One); Removal from and admission into the United States (Part Two), Ways that a person can become a lawful permanent resident (Part Three), Kinds of immigration status (Part Four); Structure of the DHS (Part Five); and The Immigration Act (Part Six)

This Unit Includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 § 1.14 § 1.15 § 1.16 § 1.17 § 1.18 § 1.19 § 1.20 § 1.21 § 1.22 § 1.23

A Nation with Borders ....................................................................................... 1-2 Who Is a Citizen? Who Is an Alien? ................................................................. 1-4 The Grounds of Inadmissibility .......................................................................... 1-5 What Can Happen to an Alien Who Is Inadmissible? ........................................ 1-6 The Grounds of Deportability ............................................................................ 1-7 What Can Happen to an Alien Who Is Deportable?........................................... 1-9 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal” .................................................................................. 1-9 What Is a Lawful Permanent Resident? ........................................................... 1-12 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility ............................................................................... 1-13 Immigration through a Family Visa Petition: INA §§ 203, 204 ....................... 1-13 Asylum: INA § 208 .......................................................................................... 1-14 Refugee Status: INA § 207 ............................................................................... 1-14 Registry: INA § 249 ......................................................................................... 1-14 Amnesty: The Legalization and SAW Programs: INA §§ 245A, 210 ............. 1-14 Cancellation of Removal for Non-Permanent Residents INA § 240A(b) ................................................................................................. 1-15 Immigration Status ........................................................................................... 1-16 Applicants for Lawful Status ............................................................................ 1-19 Undocumented Immigrants .............................................................................. 1-19 What Is DHS?................................................................................................... 1-20 The Structure of the DHS Immigration Agencies ............................................ 1-22 CIS, ICE & CBP Offices and the Saga of the “A-File” ................................... 1-23 How Does a Field Office Work? ...................................................................... 1-24 Immigration Court and the BIA: The Executive Office for Immigration Review ......................................................................................... 1-26

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The INA............................................................................................................ 1-27 Agency Regulations ......................................................................................... 1-28

Laura is a Mexican citizen living in Mexico. She wants to move to the United States to find work to support her family. She crosses the border at night by walking through the Rio Grande River near Brownsville, Texas. Marta is from the Philippines. She wants to come to the United States to visit her sister and go to school. She obtains a visitor’s visa from the U.S. consulate in Manila. When her plane lands at the Los Angeles Airport, she goes through immigration inspection. Asmeer was born in New York City.

PART ONE: CITIZENSHIP AND ALIENAGE § 1.1 A Nation with Borders One idea controls U.S. immigration law: the United States is a nation with protected borders. Immigration authorities may challenge any person who tries to come into the United States. People who can show that they are U.S. citizens may enter. People who are not U.S. citizens are called “aliens” under the immigration laws. (A more appropriate and less offensive name is “non-citizens,” but because the U.S. immigration law covered in this manual uses the term aliens, we use it here in order to minimize confusion.) Aliens must meet several requirements set out by law in order to enter or stay in the United States. Only officers of the U.S. government can give an alien permission to enter the U.S., or to stay here once she has entered. Example 1.1: When Marta went to apply for a visitor’s visa in Manila, she went to the U.S. consulate there. The consulate is a U.S. government office located in another country. The government of the Philippines cannot give Marta a visa to visit the U.S.; only a U.S. consular official can do this. When Marta landed at the airport, an employee of the U.S. Customs and Border Protection, or CBP, inspected her. Only a CBP official may give an alien permission to physically enter the United States. Marta needed this permission in addition to the visa from the U.S. consulate. The United States Congress writes the laws about citizens and aliens. The current laws are called collectively the Immigration and Nationality Act of 1952, as amended (the INA). The INA is the basic immigration statute (law) which we will cover in this guide.

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The Immigration and Naturalization Service (INS) was for many years the main federal government agency that administered U.S. immigration law. However, effective March 1, 2003, Congress dissolved the INS, and all of its functions were assumed by the Department of Homeland Security (DHS). Immigration laws are now administered and enforced by three separate divisions within the DHS: the U.S. Customs and Border Protection (CBP), the U.S. Citizenship and Immigration Services (CIS), and the U.S. Immigration and Customs Enforcement (ICE). The CBP’s main responsibility is apprehending aliens attempting to enter into the U.S. illegally, and, especially, preventing terrorists from entering the U.S. ICE’s mission includes managing investigations of document, identity, visa, and immigration fraud; investigating immigration violations and migrant smuggling; and detaining, prosecuting, and removing undocumented and deportable aliens. The CIS’s mission is the adjudication of all petitions previously adjudicated by the INS, including asylum and refugee applications. The DHS also writes most of the regulations that accompany the Immigration and Nationality Act (the Act, or INA). Regulations are meant to implement the laws set out by Congress in the statute. Regulations usually provide more detail about how the various agencies will implement the laws. Regulations governing the conduct of the Immigration Courts and the Board of Immigration Appeals, known collectively as the Executive Office for Immigration Review (EOIR), are written by the Department of Justice. This is because the EOIR is part of the Department of Justice. Almost all immigration regulations, including those governing EOIR, are found in title 8 of the U.S. Code of Federal Regulations, referred to as 8 CFR. We’ll discuss DHS, CBP, ICE, CIS, EOIR and the regulations in more detail below.

NOTE: Finding Your Way in the INA and the Regulations. The INA is divided up into sections, which are numbered. This allows us to refer to different parts of the law. For example, section 208 of the Act is written as “INA § 208.” The immigration regulations are also divided into sections, which correspond to sections in the INA. For example, INA § 208 discusses applications for political asylum. Section 208 of the regulations also deals with political asylum. That would be written as “8 CFR § 208.” After DHS was created, the regulations governing DHS and EOIR were split into two separate parts, many of which are identical. This was to differentiate between DHS and EOIR as separate agencies within separate departments in the federal government. Generally, regulations governing EOIR have a “1” before them but otherwise are nearly identical to the DHS regulations. So, in the example above, 8 CFR § 208 contains the DHS regulations pertaining to asylum, and 8 CFR § 1208 contains the EOIR regulations pertaining to asylum. Though these regulations generally parallel each other, they also contain differences due to the different adjudicators governing the case. In this example asylum officers adjudicate asylum claims before DHS, and immigration judges adjudicate asylum claims before EOIR.

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An important purpose of this guide is to help you become comfortable using the Act and the regulations. If you have a copy of the INA and the regulations now, please look up the sections that we will discuss in this unit. It is generally a good practice to first look up what the INA provides as the law on a topic, then turn to the regulations to learn how DHS will enforce or implement that law.

§ 1.2 Who Is a Citizen? Who Is an Alien? Anyone who is born in the United States, including Puerto Rico, is a U.S. citizen. (The only exception is the child of a foreign diplomat.) In addition, many people who are born outside the United States acquire U.S. citizenship from their parents. Some of these people may not even know that they are U.S. citizens. Example 1.2-a: Asmeer was born in New York. She has been a U.S. citizen since the moment she was born. The fact that her parents are here without papers does not hurt her status as a U.S. citizen. Teresa was born in the Dominican Republic. Although she does not know it, her grandfather was once a U.S. citizen, and he passed citizenship on to her mother, who passed it on to Teresa. Teresa has been a U.S. citizen since the moment of her birth in the Dominican Republic. See Unit 17. Anyone who is not a U.S. citizen is an alien. Section 1.16 describes the various types of immigration status an alien may have. One significant difference among them is that “immigrants” generally intend to make the U.S. their home, but “non-immigrants” are only granted visas for a temporary period and a specific purpose—not to make the U.S. their home. An immigrant is someone who has been granted lawful permanent residence, also known as a green card. Example 1.2-b: Sarwan has had a green card for twenty years. Marta is here temporarily on a tourist visa. Laura entered the U.S. without papers and has no lawful immigration status. All of them are aliens, and subject to the immigration laws. What rights does a U.S. citizen have under immigration laws? A U.S. citizen can never legally be thrown out of the U.S. (removed) or stopped from entering the U.S. (not admitted). Neither CBP nor ICE can arrest, detain, or do anything else to a U.S. citizen, unless he or she is suspected of having committed a crime. Example 1.2-c: Teresa crossed into the U.S. illegally from the Dominican Republic. She is picked up by ICE in a raid. She comes to you for help. After studying the law, you realize that Teresa is really a U.S. citizen. If you can prove that she inherited U.S. citizenship from her grandfather and mother, Teresa will be released. ICE will have to

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treat her like any other U.S. citizen: it cannot keep her in jail or remove her (force her to leave the United States). Aliens do not have this protection. If an alien commits certain acts, or does not have a visa or other immigration papers, he or she can be deported or removed. This is true even if the person has a green card. Plus, any alien who tries to enter the U.S. at the border may not be admitted if he or she has committed certain acts or does not have a visa or other papers. Example 1.2-d: Sarwan is a permanent resident and convicted of selling marijuana. Under the immigration laws, any alien who receives a drug conviction can be removed (deported). If ICE discovers the conviction, it will bring Sarwan before an immigration judge. The judge can order ICE to remove Sarwan and send him back to India. In addition, Sarwan will lose his green card. Marta lied to the U.S. consulate in the Philippines in order to get her tourist visa. An alien who commits fraud to get a visa may not be admitted at the border. If CBP at the Los Angeles airport discovers that Marta committed fraud, they can refuse to let her come into the U.S. In fact, Marta will only be able to get a hearing if she swears under oath that she is actually a lawful permanent resident of the United States, a refugee (someone who has been granted refugee status), an asylee (someone who has been granted asylum in the United States), or if she asks for asylum or says that she fears persecution in the Philippines. Otherwise, they can refuse to let Marta enter the U.S., and she is not entitled to have the decision reviewed by a court.

PART TWO: WHO IS DEPORTABLE? WHO MAY NOT BE ADMITTED? In the examples discussed in Part One, Sarwan and Marta got in trouble with immigration authorities. Their problem was that they came within a ground of inadmissibility or deportability. The grounds of inadmissibility and deportability are basic parts of immigration law. We will study them in detail in Unit 3 and throughout this guide, but the following is an overview.

§ 1.3 The Grounds of Inadmissibility The grounds of inadmissibility are a list of the kinds of aliens that Congress wants to “keep out.” They apply to aliens who want to enter the United States temporarily or permanently, and also to aliens who apply for certain kinds of immigration status. The list is found in the INA, at § 212(a). Congress came up with the first version of this list in 1882. Ever since that time, Congress has added and subtracted items from the list of grounds of inadmissibility. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress revised and added grounds, and changed the name used in the Act from “grounds of exclusion” to “grounds of inadmissibility.”

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The grounds of inadmissibility punish many different kinds of behavior and status. For example, an alien is inadmissible for having “bad” behavior if he or she:    

has been convicted of certain crimes; is a terrorist helped smuggle other aliens into the U.S.; has committed immigration fraud;

An alien is also inadmissible as a potential threat to the U.S. public, if he or she:  

has certain contagious diseases; will probably go on welfare in the U.S.;

An alien is also inadmissible if he or she:  

does not have a valid visa or legal permission to enter the U.S.; has entered the U.S. without permission

These are just a few examples. The list of grounds of inadmissibility found at INA § 212(a) is quite long. Throughout this guide you’ll become quite familiar with the various grounds of inadmissibility.

Exercise 1.3: Take a copy of the Immigration and Nationality Act. Find INA § 212(a). See if you can answer the following questions. (Note: the hardest part may be finding the right subsection of 212(a) in your copy of the INA. Keep trying!) Answers are at Appendix 1-A. 1. Stella has been a prostitute for several years. Might she be inadmissible under INA § 212(a)(2)(D)? 2. Marta lied to a consular officer so that she could get a visa to come to the U.S. Might she be inadmissible under INA § 212(a)(6)(C)? 3. Laura does not have any visa or legal permission to get into the U.S. Might she be inadmissible under INA § 212(a)(6)(A)? 4. Maurice is currently married to four women because he believes in polygamy. Might he be inadmissible under INA § 212(a)(10)(A)?

§ 1.4 What Can Happen to an Alien Who Is Inadmissible? An alien who comes within a ground of inadmissibility is called an inadmissible alien. An advocate might describe the person’s situation by saying “my client is inadmissible.” The opposite of an inadmissible alien is an admissible alien: a noncitizen who does not come within any ground of inadmissibility.

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The grounds of inadmissibility apply to aliens who are either trying to gain lawful admission (legally enter) the United States, or who have entered the United States without documents and were not inspected by an immigration officer at the border. The inadmissibility grounds are the legal bases for keeping the person out. If a CBP agent at the border decides that an alien who is trying to enter the United States is inadmissible (for example, because he thinks her entry documents are fake, or she is likely to go on welfare, or she has committed a crime), the alien may have a very difficult time gaining entry to the U.S. The border officer may refuse to let her enter, and try to convince her to withdraw her request to enter. If the officer asserts that the person is lying at the time of entry or lied to get her entry visa (visa fraud), he can bar her entry and in many cases the person will not have the right to see a judge, in a procedure called expedited removal. For more information about expedited removal, see Unit 10. If an alien enters the U.S. illegally, she can be removed from the U.S. (forced to leave) for being inadmissible. The inadmissibility ground that would apply is being present in the U.S. without having been admitted or paroled. See INA § 212(a)(6)(A). Thus, an alien who entered the U.S. illegally and lived here for twenty years would still be held to be “inadmissible” and “seeking admission” because she was not inspected and admitted when she entered. The grounds of inadmissibility also are used as the test for who may receive some kinds of immigration benefits and status. For example, if a person is married to a U.S. citizen and is applying for a green card through the marriage, he will face the grounds of inadmissibility. If the person is inadmissible, for example, because of immigration or criminal violations, his application for a green card may be denied. To sum up, an inadmissible alien might have problems in three different contexts. She might not be admitted at the U.S. border. If she enters the U.S. without being admitted, she could be removed for being inadmissible. And, she might be ineligible to become a lawful permanent resident or acquire some other immigration status.

§ 1.5 The Grounds of Deportability The grounds of deportability apply to a person who already has been admitted to the United States, either for a temporary stay or as a permanent resident. (As we discussed above, the grounds of deportability do not apply to a person who entered the U.S. illegally, without being inspected and admitted. The grounds of inadmissibility apply to that person.) The grounds of deportability are a list of reasons or conduct that can result in a person who was already allowed in to be removed from (forced to leave) the United States. The list is found in the INA, at § 237. An alien who comes within a ground of deportability is a deportable alien. The list includes several grounds that are similar to grounds of inadmissibility and some that are different. For example, an alien can be removed if he or she:

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     

has been convicted of certain crimes is a terrorist obtained legal status by committing marriage fraud helped smuggle aliens into the U.S. falsely claimed to be a U.S. citizen in order to get a benefit from the government was really inadmissible at the time he or she was admitted to the U.S.

The last ground is important. An alien is deportable if, at the time the person was admitted to the U.S., he really was inadmissible. In other words, aliens whom the CBP could have refused to admit to the United States do not have the right to stay in the U.S. just because the CBP made a mistake by admitting them at the border. Example 1.5: Marta is inadmissible because she committed visa fraud when she got her visitor’s visa at the U.S. consulate in the Philippines. Despite that, she managed to get through CBP inspection at the Los Angeles International Airport because at the time CBP did not detect the fraud, and she was admitted to the U.S. Three months later, CBP discovers that they should not have admitted Marta when she came in. Marta is deportable now because, at the time she entered the U.S., she was actually inadmissible.

Exercise 1.5: In your copy of the INA, turn to § 237. Answer the following questions. Answers are at Appendix 1-A. 1. Fidel is a permanent resident who has been living in the U.S. for some time. He is paid $1,000 to bring some Mexican citizens across the border illegally. Fidel gets everyone across the border, and then is arrested by CBP. Might Fidel be deportable under INA § 237(a)(1)(E)? 2. Flavia was convicted of assault with a deadly weapon and sentenced to two years in prison. This offense is a “crime involving moral turpitude.” Might Flavia be deportable under INA § 237(a)(2)(A)(i)? Might Flavia be deportable for any other reason? 3. Laura crossed the border secretly in order to avoid the CBP inspection point. Is she inadmissible or deportable? (careful) Might Laura be inadmissible under INA § 212 (a)(6)(A)? 4. Martin borrowed his brother’s border crossing card to get through CBP inspection at the Mexican border. He had active tuberculosis but did not tell the CBP officer at the border. Might he have been inadmissible under INA § 212(a)(1)(A)(i) when he was admitted? Might he now be deportable under INA § 237(a)(1)(A) for more than one reason?

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§ 1.6 What Can Happen to an Alien Who Is Deportable? An alien who comes within a ground of deportability is a deportable alien. If ICE discovers that an alien is deportable, it can bring the alien into immigration court for a removal hearing. This is true even if the person has a green card. In some cases, no matter how sympathetic the person’s case is, the person will be removed (deported). Example 1.6: Michelle is a French citizen who has had a green card for twenty years. She has six U.S. citizen children. She owns her own home and runs a business that employs 20 American citizens. If she is convicted of drug trafficking she almost certainly will be removed for being deportable, no matter how much harm this may cause to her family and employees.1

§ 1.7 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal” Noncitizens who are in the United States can be brought into removal proceedings if ICE charges them with being inadmissible or deportable. First, ICE must present evidence that the person is an alien. Once ICE does so, and if the judge finds that ICE is correct about the person being inadmissible or deportable, the person can be “removed” (deported) from the United States. Whether your client faces the grounds of inadmissibility or of deportability in removal proceedings depends upon whether she has been lawfully admitted to the United States. This also determines who will have the burden of proof in the removal case, ICE or your client. If your client has not been lawfully admitted to the United States yet, she faces the grounds of inadmissibility. In that case, the client has the burden of proving that she is admissible. This means that if the client does not present persuasive evidence that she is admissible, she will be removed. See INA § 240(c)(2). If the client has been lawfully admitted, she faces the grounds of deportability. In that case ICE has the burden of proving that the client is deportable. This means that if ICE does not present persuasive evidence that the client is a deportable alien, the client will not be ordered removed. See INA § 240(c)(3). If ICE believes a person is removable, it will begin removal proceedings against her by filing a Notice to Appear with the Immigration Court.2 The Notice to Appear contains a list of charges made by ICE against the person. The Notice to Appear states the nature of the proceedings; the legal authority under which the government is conducting the proceedings; the 1

If Michelle faced certain harms upon return to France, for example torture or persecution, she might qualify for some humanitarian relief. See Unit 15. 2 You can see a sample Notice to Appear in Unit 10, Appendix 10-A.

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charges against the alien, the alien’s obligations to the government while in proceedings,3 and the sections of law that the alien violated. In other words, it charges the person with being a deportable or an inadmissible alien. See Unit 10, § 10.3 for detailed information on the Notice to Appear. An important issue is whether the client will be allowed to have a removal hearing before a judge, or whether an official of one of the three DHS branches alone will order her to be removed. We want our clients to have a removal hearing before an immigration judge, instead of just having a DHS agent decide their fate. An immigration judge might be more impartial than a DHS agent and more likely to follow the rules. There is more of an opportunity to present evidence and make legal arguments in immigration court. Also, the client can apply for relief from removal, and if she wins she would not be removed at all. The CBP, however, has the power to order the removal of certain noncitizens who have not been admitted without giving them the chance to take their case before a judge in a removal hearing. This is called the expedited removal process. People currently subject to this process are noncitizens who are at the border applying for admission, if a. they have no entry documents, or b. CBP claims that they have fake documents or lied to obtain the documents or enter at the border (committed visa fraud). There are a few exceptions to this rule. People who assert that they really are permanent residents, refugees or asylees, Cuban citizens or nationals, and people who claim that they fear persecution in their home country can obtain a removal hearing before a judge, even if they are stopped at the border (before admission). Under the statute, or INA, DHS can choose to apply expedited removal to anyone in the U.S. who entered illegally if she cannot demonstrate that she has been present in the U.S. at least 2 years. Although the government has not been applying the entire two-year rule, as of January 2006, the government has applied expedited removal to noncitizens who have either been in the United States for 14 days or less, and are apprehended within 100 miles of any U.S. land border, or who have arrived by sea and are apprehended within 100 miles of any coastal border area. In these cases, the person is not issued a Notice to Appear in front of the immigration judge. Instead, the person is issued a removal order by the officer handling her case. For the government to apply expedited removal, the U.S. must have full diplomatic relations with the person’s home country. In practice, most people who are subject to expedited removal are people charged at the border with committing visa fraud or not having documents. In general, any noncitizen who has been lawfully admitted into the United States has the right to appear before an immigration judge in removal proceedings except for non-permanent residents convicted of certain serious crimes.

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This includes the responsibility to notify the government of any change of address. See Unit 10.

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The Important Right to Remain Silent. Although a person charged with being inadmissible has the burden to show she is admissible, ICE first has to provide the court with evidence that she is an alien. If ICE cannot do that, it cannot institute removal proceedings. If ICE has no evidence that the person being charged is a not a U.S. citizen, then the person cannot be removed. The immigration courts have no power over U.S. citizens. Unfortunately, often it is our clients themselves who give ICE the crucial information that they are aliens and deportable or inadmissible. Example 1.7-a: Laura was picked up by ICE near San Antonio, Texas. She admitted to ICE officers that she is a Mexican citizen and that she entered the U.S. without inspection. ICE will use this statement to write the charges in the Notice to Appear and to prove that Laura is an alien who has not been lawfully admitted and should be removed for being inadmissible. Andre was also picked up by ICE near San Antonio. He confessed to the ICE officers that he is a Mexican citizen who had been lawfully admitted to the U.S. using a bordercrossing card, but then had simply stayed here for three years. ICE will use this statement to write the charges in the Notice to Appear and to prove that Andre was admitted but now is deportable and should be removed. In both of the above examples, immigration authorities used the individual’s own statements to show they were not citizens of the United States. In reality, any person who is in the United States has the right to refuse to speak with ICE. In some cases, if the person is willing to withstand strong pressure, ICE will not be able to get the facts it needs to write up charges for the Notice to Appear or to meet its burden of proof in court. Then ICE cannot remove the person—even if he or she has no immigration papers. See Unit 19. Example 1.7-b: Mario was caught by ICE near El Centro, California, but he refused to speak to them. He continued to refuse even though ICE agents pressured him to talk and threatened him with jail. Because ICE did not know what country Mario was from and how he entered the U.S., it was not able to prove the crucial facts to the judge. ICE could not prove that Mario came under any ground of deportation or inadmissibility; it could not even prove that he was not a U.S. citizen. Since ICE could not meet its burden of proof, the hearing could not go forward, and ICE had to let Mario go free. Removal proceedings, burden of proof and other defenses are discussed in more detail in Unit 10. More information about who has been admitted and who is still “seeking admission” is provided in Unit 3, § 3.1.

Exercise 1.7: For each story, answer the following three questions. Have the following people been lawfully admitted into the U.S. or not? Would they be charged with being inadmissible or deportable? Will they have the burden of proof or will ICE or CBP (whichever agency is

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responsible) in the examples below? Do they have a right to a removal hearing before a judge? (Answers at Appendix 1-A.) 1. Cecilia crosses the border illegally. Fifteen days later, she is arrested by ICE in San Diego. What if she was arrested in San Diego when she was only in the U.S. for a week? 2. Monique flies in to the U.S. from Africa. She tells the CBP officer at the inspections booth that she has false documents. She says that she fled her home country because she is afraid of persecution, and she wants political asylum. 3. Sonny enters the U.S. on a student visa. Later he sent $300 to his friend to help the friend illegally enter the U.S. ICE finds out about this and arrests Sonny.

PART THREE: BECOMING A LAWFUL PERMANENT RESIDENT § 1.8 What Is a Lawful Permanent Resident? Many of our clients want to become permanent residents of the United States, or to help a family member become a permanent resident. This section will discuss permanent residency and give an overview of the ways to obtain it. People use a few terms to describe permanent resident status. A permanent resident is someone who has a green card, or who has immigrated, is a lawful permanent resident or LPR, has adjusted status to permanent resident or received an immigrant visa. All these terms mean the same thing. A permanent resident has several important rights, including the rights: 1. to live and work permanently in the United States, 2. to travel in and out of the U.S. (with some restrictions), 3. to help other family members (spouse and unmarried sons and daughters) immigrate by filing a visa petition for them, and 4. to apply for U.S. citizenship, after some years as a permanent resident. How can an alien become a lawful permanent resident? We will discuss this topic at length in this guide. This is a brief overview of the ways that someone can become a permanent resident. We are presenting this list to underline the fact that the grounds of inadmissibility are closely related to permanent residency. Aliens who are inadmissible may have a very difficult time becoming lawful permanent residents. The grounds of inadmissibility do not only apply at the border. They apply almost any time a person applies to immigrate.

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§ 1.9 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility In each application discussed below, people who want to immigrate must meet two tests: they must qualify for the particular means of immigrating, and they must be admissible. Even if a noncitizen is inadmissible she may still be able immigrate. Certain grounds of inadmissibility might not apply in some applications. In others, applicants may ask CIS to waive (forgive) the ground of inadmissibility. (We discuss waivers of inadmissibility in detail in Unit 6.) The point is that whenever someone applies for permanent residency, you must check the law to see what grounds of inadmissibility apply, and whether your client might come within one of those grounds. Some types of applications do not require that the person is “admissible,” but might require that the person is of “good moral character. The good moral character requirement is related to the grounds of admissibility, but not the same. A person who comes within certain grounds of inadmissibility—especially the grounds related to crimes—cannot establish good moral character required for some immigration benefits. In addition, there are other bars to good moral character that are not based on inadmissibility grounds. An important thing to understand about good moral character is that it need only be shown for a certain amount of time, for example, the preceding five years. We shall discuss good moral character in Units 3 and 11. In some cases, a person is “admissible” even though she is not a person of “good moral character.” Likewise, a person can show the required time period of good moral character, but still be inadmissible.

§ 1.10 Immigration through a Family Visa Petition INA §§ 203, 204 Some people can become lawful permanent residents through their family members. A lawful permanent resident or a U.S. citizen can file a visa petition on behalf of certain close family members. To get the visa approved, the family must prove that the person submitting the visa petition is a permanent resident or U.S. citizen, that the alien who wants to immigrate is related to that person, and that the relationship can form the basis for an immigrant visa petition under one of the listed visa categories. After the visa petition is approved, the person may apply to immigrate. Some people are able to immigrate very soon after the visa petition is approved. Others may have to wait up to ten or twelve years or more. How long the person must wait to immigrate depends upon the kind of visa petition which was submitted, and where the person waiting to immigrate was born. People who immigrate through a family visa petition must be admissible. The CIS can waive some grounds of inadmissibility. We shall discuss immigration through family visa petitions in Units 4–7.

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§ 1.11 Asylum: INA § 208 A person who cannot return to her own country because she fears persecution may apply for asylum in the United States. See INA § 208. The person may apply by mailing an application to a CIS Asylum Office. Or, if she has already been arrested by ICE or CBP and brought before an immigration judge or an asylum officer, she can ask the immigration judge or the asylum officer for asylum. A person who has been granted asylum is an asylee. One year after the grant of asylum, the asylee is eligible to apply for adjustment to permanent resident status. See INA § 209. The person must be admissible at that time. However, some grounds of inadmissibility do not apply to asylees. In addition, there is a broad waiver available for other grounds for humanitarian reasons. We discuss asylum in Units 14 and 15.

§ 1.12 Refugee Status: INA § 207 A person who is outside the United States and who cannot stay in or return to his or her country because of fear of persecution may apply for refugee status. See INA § 207. If the government approves the application, the person may enter the U.S. legally as a refugee. One year after entering, the person can apply to adjust status to permanent residency. See INA § 209. The person must be admissible, but many grounds of inadmissibility do not apply to refugees.

§ 1.13 Registry: INA § 249 A person who has lived in the United States since before January 1, 1972 may apply to immigrate by making a “record of admission for permanent residence.” This process is known as registry. INA § 249. For those that have lived here for a long time, this is a great option because some grounds of inadmissibility do not apply, but the person must be able to establish good moral character at the time of application. Registry is discussed in Unit 16.

§ 1.14 Amnesty: The Legalization and SAW Programs INA §§ 245A, 210 In 1986, Congress passed a law that created three legalization (also known as amnesty) programs for undocumented people in the United States. The application periods for these special programs have closed, but you will encounter people that obtained status through these programs or tried to apply. The first legalization program was for people who have lived in the U.S. since January 1, 1982. The Special Agricultural Worker (SAW) program was for people who did agricultural work in the U.S. during at least one year, from 1985 to 1986. The CubanHaitian program was for certain people from Cuba and Haiti.

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The legalization programs had two phases. In the first phase, people became lawful temporary residents for a period of time. In the second phase, temporary residents applied for lawful permanent residency. Participants were required to be admissible generally, but several grounds of inadmissibility did not apply or could have been waived. Several other requirements applied. See Unit 16. Some people who might have been eligible for legalization were denied benefits because of the way the former INS interpreted the legalization laws. Several groups of these people filed class action lawsuits against the INS, and ultimately Congress enacted a law, called the LIFE Act,4 which contained provisions for these class members to apply again for legalization. This program is discussed in Unit 16.

§ 1.15 Cancellation of Removal for Non-Permanent Residents INA § 240A(b) People who have lived in the United States for ten years may be eligible to apply for cancellation of removal. It is not possible to walk into a CIS office and apply; the person must be in removal proceedings before an immigration judge. Generally, neither ICE nor CIS will put a person in removal proceedings solely for the purpose of allowing her to apply for cancellation of removal. Thus, this is an application of last resort, meaning that one applies only if they are facing removal. If the judge grants cancellation of removal, the person will become a lawful permanent resident as of the date of the judge’s decision. People who apply for cancellation of removal must show four things: that they have continuously resided in the United States for at least ten years before their removal proceedings began; that they have “good moral character;” that they have never been convicted of certain crimes, and that their spouse, parent, or child who is a U.S. citizen or lawful permanent resident would suffer “exceptional and extremely unusual hardship” if they were removed. INA § 240A(b). It is very difficult to qualify for cancellation of removal because the hardship requirement is so onerous. Cancellation of removal is discussed in Unit 11.

Exercise 1.15: The following people come to your office. You must answer two questions about each person (answers are at Appendix 1-A): a. Might the person be eligible to immigrate? How? b. From the facts you have, might there be a problem in the case? 1. Maurice’s mother is a United States citizen. Maurice first entered the United States on a student visa in 1984. He obtained the visa by fraud. 2. Estella has lived in the U.S. since July 4, 1968. 4

The full name of the LIFE Act is the Legal Immigration Family Equity Act, Pub. L. 106-553, enacted on December 21, 2000.

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3. Ng is a lawful permanent resident. He was recently charged with possession of cocaine for sale. 4. Roberto came to the U.S. after soldiers terrorized his village because they suspected the villagers of supporting anti-government guerrillas. Roberto fears he could be killed if he returns. 5. Iman came to the United States on January 1, 1983, and has been living here ever since. In 1986 he was convicted of a serious crime. 6. Flavio came here last month. He has no family in the U.S. and is not afraid to return to Costa Rica, where he was born.

PART FOUR: FORMS OF IMMIGRATION STATUS § 1.16 Immigration Status Lawful permanent residence is one kind of immigration status. Aliens in the United States may have different kinds of immigration status. These are the types of status under current law. A person who is removed will lose lawful immigration status. Lawful permanent residents or Green Card-holders have the right to work and live permanently in the United States, and travel to other countries. There are many ways to become a lawful permanent resident. These are discussed in Part Three. Permanent resident status is shown by an Alien Registration Card, I-551 (“green card”— although actually these cards have been many different colors over the years including blue, white or pinkish); a foreign passport with Permanent Resident Stamp; or a Lawful Temporary Resident Card (I-688) with a permanent resident sticker. Another way to show lawful permanent resident status is an I-94 (white card) with a photo and a stamp of “Temporary Evidence of Permanent Resident Status, I-551.” A person who has lost his green card and has applied for a replacement may have this type of card. Lawful temporary residents are people who are in the process of getting legal status through one of the “amnesty” programs described in § 1.14 and Unit 16. An applicant for a program may have a “work authorization” card marked I-688A. A temporary resident will have a card marked “I-688” on it. A person who has completed the amnesty program and became a permanent resident will now have a regular residency card, but could have the older I-688 with a permanent residency sticker on it. (There are not many people with lawful temporary resident status around anymore; most have adjusted to lawful permanent resident status.) Asylees and Refugees are people who have been granted political asylum or refugee status and who have not yet become permanent residents. Asylees and refugees have the right to work, to travel outside the U.S., and to accept certain public benefits.

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Non-Immigrant Visa Holders. Many people—for example, tourists, students and temporary workers—are in the U.S. on temporary non-immigrant visas. A non-immigrant is someone who has come to the United States for a temporary time and a specific purpose. For example, a person may come as a tourist for three months in order to visit the United States. Common non-immigrant visas are visitor or tourist (“B-1/B-2” visa) and student (“F-1” visa). Non-immigrant visas are defined in INA § 101(a)(15). See Appendix 1-D for a list of the nonimmigrant visa categories. Documents that show non-immigrant status are the foreign passport with a nonimmigrant visa stamp from a U.S. consulate and an I-94 card showing entry with inspection. Border Crossing Card is a kind of non-immigrant visa. It allows the person to cross into the United States for up to 72 hours per visit. The person must stay within 25 miles of the border. The purpose of the trip must be to visit. People who come to the U.S. with Border Crossing Cards do not have visas in their passports and usually do not have their passports stamped with a date of entry. 8 CFR § 212.6. Aliens with Temporary Status. At times Congress or CIS will permit certain groups of aliens to have temporary permission to live and work in the United States. This status does not necessarily lead to becoming a permanent resident. 1. Temporary Protected Status (TPS). In the Immigration Act of 1990, Congress created the “Temporary Protected Status” (TPS) category for persons who are from certain countries which are going through civil war, natural disasters, or other dangerous conditions. The first TPS designation made by Congress was for persons from El Salvador who entered the United States on or before September 19, 1990, but there are now many others. The list of countries is updated regularly, and you can check the CIS website for a current list of countries with designated TPS status at www.uscis.gov/tps. The law is found at INA § 244. See Unit 14 for more discussion of TPS. 2. Deferred Enforced Departure, Formerly Extended Voluntary Departure. This is very similar to Temporary Protected Status. Most recently, DED has been granted for Liberian nationals, with President Obama granting the latest extension through September 30, 2014. Those with DED are authorized to work in the United States, but are generally not considered in lawful status for other immigration benefits. 3. Family Unity Pursuant to § 301 of the Immigration Act of 1990. Some spouses and children of people who participated in the legalization programs are eligible for temporary permission to live and work in the United States under the Family Unity program. Family Unity is discussed in Unit 16. 4. Parolee. The CIS and/or CBP may choose to “parole” a person into the United States, i.e., just let the person in, in for variety of reasons. See 8 CFR § 212.5.

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5. Deferred Action. CIS grants deferred action to self-petitioners for family immigrant visas under the Violence Against Women Act (VAWA) (see Unit 5, § 5.20), and in its discretion to certain immigrants and visitors with compelling circumstances. A grant of deferred action means ICE will not deport these noncitizens, even though they are deportable. VAWA self-petitioners maintain deferred action status until they adjust status to lawful permanent residence. 6. Deferred Action for Childhood Arrivals (DACA). This special program began in 2012 for certain people that came to the U.S. prior to their 16th birthday and had been in the United States since June 15, 2007. It is a special deferred action program with its own application process. DACA recipients receive authorization to work, but in reality, this is not a status that, at this time, leads to more permanent status. Like regular deferred action above, a grant of deferred action means ICE will not deport these noncitizens, even though they are deportable. 7. Prosecutorial Discretion. This is a process that is similar to deferred action in that ICE agrees not to pursue removal of certain aliens who are removable. The idea behind it is that ICE should concentrate on high-priority cases and forego removing people with close ties to US citizens, long-term presence in the United States, or minor criminal problems. ICE, as an enforcement entity, has always had the discretion to choose which cases to pursue. However, there have been some recent developments in how ICE is supposed to view these types of cases (see Unit 16 for more information on prosecutorial discretion policies). 8. “K” Visa Holder. This is a temporary status available to the fiancée of a U.S. citizen and that fiancée’s children after the approval of a fiancée petition, or to the spouses and minor children of U.S. citizens who are waiting outside the United States for the approval of an immigrant visa petition. 9. “S” Visa Holder. A very few “S” visas are available each year to persons who can provide critical information about terrorist or organized crime activities. “V” Visa Holder. This is a temporary status available to the spouses and minor children of lawful permanent residents who have been waiting to immigrate through petitions filed by their permanent resident relative for at least 3 years. The family visa petitions had to have been filed on or before December 21, 2000. Nonetheless, you might encounter noncitizens who have held this status in the past or have such a visa. 10. “T” Visa Holder. “T” visas are available to victims of “a severe form of trafficking in persons,” who are in the U.S. because of the trafficking, and who would suffer “extreme hardship involving unusual and severe harm” if removed from the U.S. This visa is also available to the victim’s spouse and children (and parents, if the victim is under 21 years old). T visa holders may apply for permanent residence after 3 years. 11. “U” Visa Holder. The “U” visa is available to immigrants who are victims of certain enumerated forms of criminal activity, possess information concerning that criminal

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activity and would be helpful to the investigation or prosecution of that criminal activity. A federal, state, or local law enforcement official must certify that the immigrant victim is, has been or is likely to be helpful in the investigation or prosecution of the crime. Some spouses, children, parents and siblings of some crime victims may also be granted a visa as derivatives of the U visa holder. U visa holders may apply for permanent residence after 3 years.

§ 1.17 Applicants for Lawful Status People who have submitted applications to adjust to lawful permanent resident status have permission to live in the U.S., and may sometimes obtain work authorization. However, until they submit the adjustment application, beneficiaries of family visa petitions do not generally have the right to work and live in the U.S. If found illegally in the U.S., these people may be subject to removal and deportation. (See Unit 10). These terms are explained in Unit 4. Documents that show a person is an applicant for lawful status may vary. A work authorization card or correctly marked I-94, or a stamped copy of an application form or next court appointment notice may show a person’s current status.

§ 1.18 Undocumented Immigrants Undocumented immigrants are people who are in the U.S. without legal permission. Many people enter the United States by crossing the border illegally. This is commonly referred to as “entry without inspection” or EWI. Others enter on a non-immigrant visa but don’t leave the U.S. when their permission to stay (marked on Form I-94) has expired. CIS refers to this type of person as an “overstay.” A person who entered with a non-immigrant visa may not have a valid visa if he disobeyed its terms, or obtained it by fraud. Undocumented immigrants may be removed from the United States through removal proceedings discussed above. In general, unless they obtain lawful status they cannot obtain work authorization, permission to live in the U.S., or permission to travel. Example 1.18: Tae-bak is an undocumented worker from Korea who has lived in the U.S. for five years. His mother is ill in Korea. He wants to know if there is some way to get permission to visit his mother and return to the U.S. Tae-bak is not eligible to apply for any lawful immigration status. Tae-bak cannot get permission to travel and return to the U.S. Permission to travel and to work is only given to people who have lawful status, or in some cases to people who have submitted an application for lawful status. If Tae-bak asks ICE or CIS for travel permission, ICE or CIS will turn down his request and probably put him in removal proceedings.

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Many undocumented people are eligible to apply for some way to immigrate. See Part Three, above. They may even unknowingly be U.S. citizens. See Unit 17. Or they may at least be eligible to apply for temporary status such as Family Unity or Temporary Protected Status. See § 1.16, above. Undocumented immigrants who obtain these forms of relief are sometimes entitled to permission to stay and work in the U.S. while the application is being considered.

PART FIVE: THE DEPARTMENT OF HOMELAND SECURITY § 1.19 What Is DHS?5 The primary mission of the Department of Homeland Security (DHS) is to prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, minimize the damage from terrorist attacks, and assist in the recovery from such attacks in the United States. The DHS is therefore responsible for: (1) border patrol (2) the detention and removal of aliens (3) immigration intelligence (4) immigration investigations and (5) immigration inspections. These immigration functions have been divided into separate entities within the DHS: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Citizenship and Immigration Services (CIS). Immigration and Customs Enforcement (ICE) is made up of about 20,000 employees and is charged with the enforcement of immigration and customs laws within the United States, among other investigative duties to protect borders and enhance public safety. ICE enforces federal laws governing border control, customs, trade and immigration. ICE has two main components—Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). Customs and Border Protection (CBP) is comprised of 60,000 employees and is responsible for curbing illegal immigration, stemming the flow of illegal drugs, protecting U.S. agricultural and economic interests, regulating and facilitating international trade, collecting import duties, and enforcing U.S. trade laws. Its priority mission is to keep terrorists and their weapons out of the U.S. Citizenship and Immigration Services (CIS) functions with about 19,000 employees and is responsible for granting immigration benefits. CIS is responsible for adjudication of immigrant visa petitions, naturalization petitions, asylum and refugee applications, family and employmentbased petitions, and the issuance of employment authorization documents. The DHS has the authority to administer, enforce, and issue regulations with respect to the granting or denial of visas by consular officers, and the authority to develop homeland 5

On November 25, 2002, President George W. Bush signed into law the sweeping Homeland Security Act of 2002 (H.R. 5005). This Act merged an estimated 22 federal agencies or agency components with over 170,000 employees into a new Department of Homeland Security (DHS). On January 22, 2003, the Senate confirmed former U.S. Representative and Pennsylvania Governor Tom Ridge, as the first Secretary of the new agency. On March 1, 2003, the DHS came into being.

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security training programs for consular officers from the Department of State. However, it does not have the authority to alter the employment status of diplomatic and consular officers, who remain employees of the Department of State. Some aspects of immigration law are handled by other governmental agencies. The Department of Justice, subject to the direction and regulation of the Attorney General, has jurisdiction over the Executive Office for Immigration Review (the Immigration Courts and the Board of Immigration Appeals). The Department of State manages the U.S. consulates abroad, which may issue immigrant and non-immigrant visas to noncitizens who are outside the United States. The care and custody of unaccompanied alien children is under the authority of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. An Office of Civil Rights has been established with the DHS to be responsible for reviewing, assessing, and reporting civil rights abuses, including racial and ethnic profiling, by employees and officials of the department. Reports of such abuses must be made to Congress annually. There is also an Office of Fraud Detection and National Security (FDNS) within CIS that is responsible for detecting and preventing both fraud by immigrants and fraud perpetuated against immigrants by unscrupulous immigration service providers. In addition there is the Office of the CIS Ombudsman, which is directly under the Secretary of DHS and reports to the Secretary. The function of this office is to field complaints, suggestions and criticisms about the functioning of CIS and to initiate changes that will make it function more efficiently. Practitioners should inform the Ombudsman’s office of processing problems encountered with their cases.6 More recently, an Office of Public Engagement has been established to form a liaison between DHS and “stakeholders” that serve immigrants, such as immigration attorneys, accredited organizations, and other entities such as ILRC that are dedicated to improving the lives of immigrants in the United States. This office encourages immigration practitioners and other interested parties to make suggestions that will help CIS function better.7 See Chart “Structure of the Department of Homeland Security,” Appendix 1-E. 6

The CIS Ombudsman can be contacted via email at [email protected]. Further information on this office can be found on the DHS website at: www.dhs.gov/dhspublic/index.jsp. (Click on DHS Organization.) 7 The Office of Public Engagement can be contacted by sending an email to: [email protected]. In addition, there are also different email addresses for the Office of Public Engagement for different regions of the United States. Go to www.uscis.gov and type Office of Public Engagement in the search section to obtain this information.

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Question for Discussion: The CIS may appear to be a very political institution. For example, the agency that formerly handled some of the adjudications currently handled by CIS (the Immigration and Naturalization Service, also known as the “INS”) approved over 50% of the applications for political asylum from Poland when the government was under Communist control. At the same time it denied over 96% of the applications for political asylum from El Salvador, which had a government supported by the U.S. Do you think that the fact that CIS is under the President’s authority has any effect on CIS policies? Are there any other CIS decisions which might be viewed as being “political”?

§ 1.20 The Structure of the DHS Immigration Agencies A.

Districts and Field Offices

CIS has divided the U.S. into Districts to serve immigrants and their families. Within Districts are various local offices, referred to as Field Offices. The local Field Offices are where people go for interviews and services with CIS. ICE might be housed in the same buildings as CIS Field Offices, however CIS Field Office Directors have authority over only the service functions. ICE handles the enforcement functions. ICE employees do not report to the CIS Field Office Director. However, often ICE personnel still operate out of Field Offices, and CBP employees, who are responsible for border issues, also have a presence in the Field Offices, in the Deferred Inspections unit. B.

National Customer Service Center

The CIS has a National Customer Service Center (NCSC) available via a toll-free “hotline” telephone number: 1-800-375-5283. The NCSC hotline provides basic eligibility and “how to” information, including hours of operation for CIS offices, lists of local civil surgeons, and listings of Application Support Centers [where people applying for CIS benefits must have their fingerprints taken]. People can also obtain CIS forms through this number or by calling the forms hotline, 1-800-870-3676. The CIS plans to expand the NCSC’s services in the future. C.

Website Address

The CIS also has a website, which can be found at: www.uscis.gov which contains useful information for practitioners and the general public alike. It is now possible to file some forms electronically and to check the status of a pending case online. The website tells you how to do so. In addition, CIS operates larger service centers that receive and process certain applications and “lockbox” locations for filing of applications.

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D.

Office of Border Patrol (CBP)

CBP’s border security mission is led at ports of entry by CBP officers from the Office of Field Operations, along U.S. borders by agents from the Office of Border Patrol and from the air and sea by agents from the Office of Air and Marine. The task of the Border Patrol is to patrol the borders with Canada and Mexico, and rural areas in neighboring states of the border, in order to stop unlawful entry of aliens. In reality, the Border Patrol may have stations hundreds of miles from any U.S. border. Recently Congress has been expanding the role of the Border Patrol. The Border Patrol now participates in drug interdiction; it has been given authority to arrest anyone committing a crime; and its officers are using more advanced weapons. CBP Border Patrol Sectors, and the areas of the country over which they exercise control, are listed in 8 CFR § 100.4(d). A Chief Patrol Agent heads each Border Patrol Sector. The CIS District Office and the CBP Border Patrol Sector are independent; neither can tell the other what to do. Both of them report to the Regional Commissioner.

§ 1.21 CIS, ICE & CBP Offices and the Saga of the “A-File” CIS Field Offices fulfill many functions. Each office is divided into different branches, or sections, which handle the different functions. For example, one unit may be responsible for adjustment cases, while another handles naturalization cases. An important part of your job is to discover which unit handles which function, and whether that unit is under CIS, ICE, or CBP. This way you will know where to go to get things done. You can save yourself a lot of time and energy if you know how to get around. In addition to the Field Offices, there are four CIS Service Centers: 1) the Vermont (Eastern) Service Center; 2) the Nebraska (Northern) Service Center; 3) the Texas (Southern) Service Center; and the California (Western) Service Center. Many applications are filed directly with the Service Centers. Affirmative asylum applications (by those who are not in proceedings before an immigration judge) are handled by designated Asylum Offices located in: Arlington, VA; Chicago, IL; Houston, TX; Los Angeles, CA; Miami, FL; San Francisco, CA; and Newark, NJ. (See Units 14 and 15 for more information on political asylum.) These offices are part of the CIS, but are entirely separate from the local CIS District Directors’ jurisdiction. They are centralized into a separate unit of CIS called the Refugee, Asylum, International Operations Directorate. There is another important reason to learn how CIS works: you may have to find your client’s A-file.

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The Saga of the “A-File” Whenever a person is arrested and placed in removal proceedings, or files an application for an immigration benefit, an “alien registration file,” commonly referred to as the “A-File” or (formerly) the “Service file” is created for that person. At the present time, only one file usually will exist for that person whether the file has been created by CIS or ICE or CBP. This is a holdover from the days when there was only one immigration agency. When the file is created, an alien registration number or “A-number” is assigned to the person. The A -number is an eight or nine digit number which begins with the letter A. The three DHS immigration agencies will knowingly only create and use one file and A-number for each alien. (A person may end up with more than one file or A-number by mistake, for example if the person has used different names when arrested by ICE.) The three immigration agencies track all cases by use of the A-number. Often, CIS, or ICE, or CBP may temporarily or permanently be unable to find the person’s A-file. This may be because a different agency of DHS or office has the file and hasn’t written this down correctly. This can be bad for your client, because if an immigration officer cannot locate the file, it is very difficult to convince the officer to take any action on the person’s case. So, for example, if you want the officer to decide an application or grant employment authorization, you very much want to locate the file. If you know how CIS or ICE or CBP work, you may be able to conduct your own search for the file by calling officials in other logical units until you find it. Of course, there are times when it is in the alien’s interest that the file is lost. This is especially true if the person could be deported, but ICE is no longer paying attention to him or her because there is no file to remind them. The agencies are currently in the process of moving to electronic format for applications and files. However, to date, physical A-files still exist. New applications and forms might have an electronic format, and might be scanned instead of printed into a physical file. However, for most, keeping track of the physical A-file will still be very important.

§ 1.22 How Does a Field Office Work? This is an example of how a typical Field Office might divide its tasks between different branches and units of the three DHS immigration agencies. 1. CIS-Citizenship Branch handles applications for naturalization to U.S. citizenship, and decides cases in which a person wants to prove that he or she already is a citizen. The CIS Service Centers, however, do the initial processing of all naturalization applications. Most naturalization applications must be filed at designated PO Box address depending on where

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the applicant lives, not directly with the Service Centers even though they do all the initial processing.8 2. CIS-Examinations or Adjustments Branch handles applications that a person can make in front of an immigration officer, such as adjustment of status applications. (If someone has already been placed in removal proceedings before a judge, they usually have to file the application with the judge instead of CIS.) Examinations Branches may contain different units to handle the different applications. For example, the Adjustment Unit generally handles applications for family-based adjustment of status. Although the applications are adjudicated at the Field Office where the person lives, the applications are filed with the National Benefits Center’s Chicago Lockbox, and not with each individual Field Office’s Adjustment Unit. The Examinations Branches of District Offices used to handle family and work-related visa petitions in addition to adjustment applications, but that is no longer the case. Now all family based, stand-alone visa petitions (I-130 visa petitions) must be filed at a Chicago Lockbox address.9 (See Unit 5.) The Chicago Lockbox then forwards the petitions to the appropriate CIS Service Center. If the service center thinks that there may be some problem with the petition—for example, if it suspects a married couple of committing marriage fraud—it will send the petition back to the Field Office for an interview or investigation. There, the Visa Petitions/Fraud Unit of the Examinations Branch may handle the interview. 3. ICE-Enforcement and Removal Operations Branch, or ERO is a part of ICE, not CIS, but may be located within the same Field Office. The ERO is in charge of aliens who have already been placed in removal proceedings (a Notice to Appear has been issued and the person will go before an immigration judge) or are otherwise facing removal. The ERO may accept bond money and order the person’s release from detention, and handles some applications for work authorization and extensions of permission to be in the United States. If the person is going to be removed, the ERO will arrange for transportation and travel documents. In short, the ERO handles most matters that involve taking a noncitizen into custody and their removal from the U.S. 4. ICE-Office of the Chief Counsel is the office of the trial attorneys who represent DHS against people in removal proceedings.

8

Go to www.uscis.gov and click on the forms menu, then search or scroll down to the N-400 and click on it. You will find yourself at a page with filing instructions for the form. 9 There are different PO Box addresses for the Chicago Lockbox depending on the applicant’s place of residence.

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CAUTION: Here, two ICE branches—ERO and Office of Chief Counsel—have control over the same person (anyone in removal proceedings). This is an excellent file-losing opportunity for ICE. 5. ICE-Investigations Branch conducts investigations of people under suspicion by ICE, conducts raids, and often is in charge of employer sanctions work. 6. CBP-Deferred Inspection may be in charge of people who are charged with being inadmissible and want to fight their case. If someone doesn’t pass screening upon entry into the U.S., they might be referred for a deferred inspection at a local office for further inquiry. 7. CIS-Legalization handles legalization, any remaining amnesty applications, and outreach. 8. CIS-Field Office Director. The head of the local CIS office is the Field Office Director. All Section heads and points of contact within a CIS office report to the Field Office Director. Often we go to the Field Office Director to negotiate about CIS policies, to ask for special relief for an individual when lower authorities will not give it, or to make complaints. The Field Office Director ultimately reports to a District Director, which may oversee more than one field office. The District Director is not directly involved with services of the Field Office, but focuses on management of the district. Nonetheless, in larger policy issues, the District Director is a useful point of contact. 9. Immigration Court or Executive Office for Immigration Review (EOIR) is not a part of DHS, but sometimes has its courtroom and offices in the same building as CIS District Offices. The EOIR is discussed in the next section.

§ 1.23 Immigration Court and the BIA: The Executive Office for Immigration Review The Executive Office for Immigration Review (EOIR) is the immigration court system.10 The EOIR has several parts. However, the two parts that are most relevant to us are: the immigration courts and the Board of Immigration Appeals (BIA).11 The immigration courts include immigration judges and their staff. These are the courts that hold removal hearings. At the immigration court, an ICE trial attorney (District Counsel) represents the DHS. A private attorney or BIA Accredited Representative (see Unit 13) may represent the alien. However, in many cases a person in removal proceedings before the immigration court is not able to find or pay for legal help and must represent himself or herself. 10

Formerly, the immigration court system was part of INS and the judges were INS employees. This system—where INS employed both judge and prosecutor—led to criticism that the immigration court should be more impartial and independent. In 1983 the court system was taken out of INS and became EOIR. EOIR is now a separate agency within the Department of Justice. The EOIR reports to the Attorney General. 11 You can look up other parts of EOIR by going to www.justice.gov/eoir/.

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The Board of Immigration Appeals is the Department of Justice’s administrative appeals court for immigration cases. It handles appeals from immigration court decisions, appeals of denials and revocations of I-130 family visa petitions, and appeals of K visa revalidation denials. For example, if either the alien or ICE disagrees with a final decision made by an immigration judge, he or she can appeal it to the BIA. That is, the party can ask the BIA to review the case and make its own decision about how the case should have been decided.

NOTE: The Court System and ICE Are Different and Have Different Files. Submit Your Documents to Both Sides! Sometimes it is difficult to remember that ICE and the EOIR are distinct agencies, but they are. If a person is in proceedings, the Immigration Court will start its own file on him or her. This file will only contain things that either ICE or you submit to the court. It might not, for example, contain everything in the A-file. Thus, if you submit a document to ICE, it does not automatically go to EOIR. Additionally, if documents were submitted to CIS before the person was put in court, they do not automatically go to the court. If you want the prior submissions to be part of the court’s record, you must submit the documents to the court and provide a copy to opposing counsel (Office of Chief Counsel for ICE). Neither ICE nor the alien may give documents to the EOIR without giving the other side a copy for review. 8 CFR § 1003.32(a). If you submit a document to Immigration Court or the BIA, you must submit a copy to ICE and prove that you did so. This is called “proof of service.”

PART SIX: THE IMMIGRATION ACT This unit has covered a lot of the basics of immigration law. We will close this unit by coming back to the beginning, and take a brief look at the Immigration and Nationality Act.

§ 1.24 The INA Our current immigration law is the Immigration and Nationality Act of 1952, as amended (INA). This is a law or statute which was passed by Congress in 1952. Once Congress has passed a law, it is free to pass other laws, which amend (change), the first law in basic ways. Since 1952, Congress has passed several other laws, which change the INA. One such law was the Immigration Reform and Control Act of 1986 (IRCA). Another was the Immigration Act of 1990. A more recent, major change is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Example 1.24: Before IRCA was passed in 1986, a U.S. employer could not be punished for hiring aliens who did not have special permission to work. IRCA added this “employer sanctions” program to the INA. Now employers face some penalties under the INA if they hire unauthorized workers. 1-27

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The INA is a book of laws about aliens and citizens. It covers at least five important things. We have discussed most of them in this unit. They are: 1. Who can become a citizen, and who already is one? 2. Who can immigrate, or become a permanent resident? What are the different ways a person can immigrate? 3. Who can come to the United States temporarily on a non-immigrant visa (e.g., student, tourist)? 4. Who can be removed from the United States? What are the grounds of deportation? What happens in a removal hearing? 5. Who can be admitted to the U.S.? What are the grounds of inadmissibility? What happens when someone presents themselves at the border? The INA also covers other subjects. These include the rights and duties of aliens (work authorization, travel permission, etc.); the employer sanctions and anti-employment discrimination programs; unusual status like Family Unity and Temporary Protected Status; and immigration violations that are criminal offenses.

§ 1.25 Agency Regulations The INA is a statute (law), written by Congress. Like many statutes, it is often written in general terms. It is hard enough to get Congress to agree to any law, without having it agree on details. Once Congress writes a law, it hands it over to DHS and EOIR to make up rules for exactly how they will enforce the law. These rules are the regulations.12 The regulations are found in Title (volume) 8 of the U.S. Code of Federal Regulations. This is written as 8 CFR. The regulations generally have the force of law. While DHS is the main agency that writes regulations to implement immigration laws, EOIR, Department of State and Department of Labor all create regulations to implement various immigration laws. DHS and EOIR gain a tremendous amount of control over the law by their ability to make the regulations. They can decide what form applications must be in, what rights aliens have at different points in the procedure, what evidence is acceptable, and some details about eligibility for benefits. If DHS or EOIR writes a regulation that seems to be in conflict with the statute, or goes beyond what Congress required, we can challenge this in court. The Department of State operates the U.S. consulates abroad, which may issue immigrant and non-immigrant visas to noncitizens who are outside the United States. Their regulations are 12

When the INS existed, the rules were created by the Department of Justice, under the Attorney General, because the INS was part of the Department of Justice. Now that the immigration laws are to be administered by DHS and EOIR, DHS and EOIR are responsible for creating the regulations. As mentioned above, generally the DHS and EOIR regulations parallel each other, but there are some significant differences.

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published at Chapter 40 of the U.S. Code. If your clients will immigrate through consular processing, you will want to know the rules set out by the Department of State. Filing Fees for Some Petitions/Applications For up-to-date information on current filing fees and the correct form to use, always consult the CIS website first at www.uscis.gov. Fees and forms change frequently. The filing fee amounts below went into effect on November 23, 2010 and remain current at this printing. I-130 I-485 I-485A I-601 I-751

$420 $1070 ($985 + $85 biometrics fee) $1000 (only for those submitting adjustment applications under INA § 245(i)) $585 $505 (plus a possible $85 biometric fee, see instructions) N-400 $680 (595 + $85 biometrics fee)

FOR FURTHER INFORMATION, see: Catholic Legal Immigration Network, Inc., Immigrants’ Rights Manual National Lawyers Guild, Immigration Law and Defense Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook Additionally, ILRC produces many in-depth manuals on various aspects of immigration law: www.ilrc.org

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APPENDIX 1-A

ANSWERS TO EXERCISES

ANSWERS to Exercise 1.3 1. Stella may be inadmissible, since she “has engaged in prostitution.” 2. Marta may be inadmissible, since she may have obtained a visa by “fraud or willfully misrepresenting a material fact.” 3. Laura may be inadmissible since she does not have a “valid unexpired immigrant visa” or other documentation to get into the United States. INA § 212(a)(7)(A)(i)(I). If she entered the U.S. illegally she would be inadmissible because she was “present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General.” INA § 212(a)(6)(A)(i). 4. Maurice may be inadmissible as a “practicing polygamist.”

ANSWERS to Exercise 1.5 1. Fidel may be deportable because he “knowingly ... aided” an alien to cross the border illegally. To be deportable for this, it matters if this occurred within 5 years of an entry. 2. Flavia may be deportable for 2 reasons: (a) She was convicted of a crime involving moral turpitude that has a possible sentence of a year or more. We need to find out if she committed this offense within five years of her admission to the United States. See INA 237(a)(2)(A)(i). (b) She also may be removed because her crime is an aggravated felony [a crime of violence with a sentence of a year or more-see INA 101(a)(43)(F)]. We need to find out if her crime was committed at any time after her admission. See INA 237(a)(2)(A)(iii). 3. Laura is inadmissible under INA § 212(a)(6)(A) for unlawful presence in the United States. She could be removed from the U.S. for this. Laura does not come within the grounds of deportability, because only people who were admitted are deportable, and she entered without inspection. 4. Martin is deportable under INA § 237(a)(1)(A) because he was inadmissible when he entered. He was inadmissible under a few grounds. He was inadmissible because he committed immigration fraud and didn’t have immigration documents. Also, he was inadmissible because

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he had active tuberculosis at the time, which is considered a disease of public health significance under § 212(a)(1)(A)(i)).

ANSWERS to Exercise 1.7: 1. Cecilia was not lawfully admitted. Because she has not been admitted, she will be charged with being removable because she is inadmissible. Because she is charged with being inadmissible, she will have the burden of proof. She entered without inspection and cannot prove that she has been living in the United States for two years without interruption, so she does not have a statutory right to have a regular removal hearing before an immigration judge. However, the DHS policy as of January 2006 is that she will be permitted to have a regular removal hearing because she has been in the U.S. for more than 14 days. If Cecilia was only here a week when she was arrested, she would be subject to expedited removal, because San Diego is within 100 miles of the border with Mexico, and expedited removal is now applied to those in the U.S. for 14 days or less who are apprehended within 100 miles of any land border. 2. Monique has not yet been admitted into the United States. Because she has not been admitted, she will be charged with being removable because she is inadmissible. Because she is charged with being inadmissible, she will have the burden of proof. Normally, a person who arrives at the border with false papers will face “expedited removal” and not have a right to a removal hearing. But because Monique said that she feared political persecution in her home country, she may be allowed to see an immigration judge if she passes a “credible fear interview” (see Unit 14 and 15 for more information on asylum). 3. Sonny was admitted to the United States. Because he has been admitted, he will be charged with being deportable. Because he is charged with being deportable, ICE will have the burden of proof. In this case, ICE will have to prove that Sonny is deportable for alien smuggling. Sonny has a right to a removal hearing before an immigration judge. All persons who have been admitted have a right to a removal hearing (except for some non-permanent residents with serious criminal convictions).

ANSWERS to Exercise 1.15: Question 1. Maurice’s mother may be able to file a visa petition for him. But Maurice may be inadmissible because he committed visa fraud. You need to see if that inadmissibility ground applies in his case, or if he can get a waiver of the inadmissibility ground. In addition, Maurice has been here for over ten years and may be eligible to apply for cancellation if he can show “good moral character,” and exceptional and extremely unusual hardship to his mother if he were deported.

Appendix 1-A-2

Extra-credit answer: Finally, since Maurice’s mother is a U.S. citizen there is a chance he inherited citizenship from her, like Teresa in Example 1.2-a. To find out about that you would interview Maurice about his family history to see if it fits within rules about acquiring citizenship. See Unit 17. Question 2. Estella may be able to apply for registry, since she has lived in the U.S. since January 1, 1972. She may also be eligible for cancellation of removal since she has lived here for over ten years. Question 3. If Ng is convicted of possession of cocaine for sale, he will be deportable. Question 4. Roberto may be eligible to apply for political asylum. Question 5. Iman might be eligible for cancellation of removal. There may be a problem, because a serious conviction could be a bar to cancellation of removal. We would have to know what he was convicted of, and then analyze whether it was a bar. See Chapter 11 for more information on the Cancellation of Removal. Question 6. Flavio may not be eligible for any immigration relief. Nonetheless, you would need to ask Flavio lots of questions to make sure he doesn’t qualify for any relief. See Unit 2 for information about the client intake.

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APPENDIX 1-B NOTE-TAKING GUIDE

PART 1:

OVERVIEW OF IMMIGRATION LAW -- PRESENTATION AND ROLE-PLAY EXERCISES

A. Basic Concepts Underlying Immigration 1. Introduction of Terms a. Concept of Borders b. Immigration and Nationality Act c. Who can Enter d. Citizens e. Aliens

2. Role-play #1 --

First Part: "Marta Gets a Visa" Second Part: "Coming to the United States"

3. Discussion of Role-play #1 a. Sarwan's Inspection b. Asmeer's Inspection c. Marta's Inspection

B. Who Falls Under the Grounds of Inadmissibility and the Grounds of Deportability 1. Introduction of Terms a. Grounds of Inadmissibility i. Marta's Admission Attempt -- Immigrant v. Nonimmigrant Intent ii. Admissible v. Inadmissible b. Grounds of Deportability

Appendix 1-B-1

2. Role-play #2 -- "María, Laura, and Esperanza at the Border" 3. Discussion of Role-play #2 a. María - Aiding an illegal entry (Ground of Deportability) b. Laura - Entry without inspection (Ground of Inadmissibility) c. Esperanza - Aiding an illegal entry (Ground of Deportability) 4. Introduction to Removal Process 5. Review C. Forms of Immigration Status and Becoming a Lawful Permanent Resident 1. Immigration Status - Discussion of Role-play Characters a. Sarwan - lawful permanent resident b. Asmeer - United States citizen c. Marta - Nonimmigrant with tourist (B) visa d. Laura – undocumented 2. Non-immigrants v. Immigrants 3. Lawful Permanent Residents a. Background b. Terminology c. Rights d. Becoming a Lawful Permanent Resident i.

Ways to get it

ii. Eligibility and disqualification for programs 4. Summary

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PART 2:

THE IMMIGRATION LAWS -- WHO MAKES THEM, WHERE YOU FIND THEM, WHO CARRIES THEM OUT

A. Who Writes the Immigration Laws 1. Separation of powers -- three branches of government a. Legislative b. Executive c. Judicial 2. Role of the INS in writing the regulations B. Where do you find the immigration laws? 1. INA 2. Code of Federal Regulations 3. Using them in your office (ordering information) C. Who carries out the immigration laws? Government agencies 1. Department of State 2. Department of Labor 3. DHS a. What is DHS? b. DHS -- part of the executive branch – 3 immigration departments c. Discussion d. Structure of DHS immigration departments? i.

Overall structure of DHS immigration departments

Citizenship & Immigration Services (CIS) Bureau of Customs & Border Protection (CBP) Bureau of Immigration & Customs Enforcement (ICE)

Appendix 1-B-3

ii. Immigration enforcement –CBP & ICE iii. CIS Districts e. DHS District Office functions - CIS Citizenship branch - CIS Examinations branch - ICE Deportations branch - ICE Investigations branch - CBP Deferred Inspection branch f.

ICE Office of the District Counsel

g. DHS filing system -- the "A" File 4. Immigration Court (EOIR) a. Separate court system b. Structure of EOIR

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Appendix 1-C-1

Appendix 1-D-1

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Appendix 1-E-1

UNIT TWO THE ADVOCATE/CLIENT PARTNERSHIP AND INTERVIEWING SKILLS

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This Unit Covers: 

This Unit Includes: § 2.1 § 2.2 § 2.3 § 2.4

The Advocate/Client Partnership: What’s in It for Us? ..................................... 2-1 Creating a Partnership with Our Clients............................................................. 2-2 Building and Presenting a Case in Partnership with Our Clients ....................... 2-7 The Client Meeting: Interviewing and Counseling Clients .............................. 2-12

PART ONE: THE ADVOCATE/CLIENT PARTNERSHIP § 2.1 The Advocate/Client Partnership: What’s in It for Us? The “traditional” image of the relationship between legal worker and client places the two people on an unequal footing. The legal worker is supposed to have most of the knowledge and is expected to do all the work. The client is supposed to lack the know-how and ability to help herself and needs someone to “take over.” This traditional image can do a real disservice to clients—and to their advocates. The client actually knows more than the legal worker about the facts of her case, while the legal worker knows more about the law and procedure. Working together, the legal worker and client can build a better case than either could do alone. The key is for the client to be actively involved in the case. In immigration cases our clients can contribute essential skills and knowledge. Consider that:   

The client has access to all the facts and details about her life that might contribute to the case. The client may have ideas which would not occur to us about what documents exist that would support his case and how to get them. The client may understand many facts about her country that we do not know and cannot find out easily by doing research. These could include anything from an analysis of why

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

The importance of including the client in all aspects of his or her case, and ideas for how to do this (Part One); The initial interview and interviewing skills (Part Two).

 

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a region is economically devastated to stories about attacks against people who attended a local church. The client can tell her story well because it is real to her. Very often clients’ own words and descriptions get their stories across in a more persuasive, dramatic manner than the words we might make up for them to use. The client understands what it is like to be a foreigner caught up in a case against CIS or ICE, facing possible deportation or the split-up of a family. If we listen to how the client feels we may be able to work with him both to reduce his and his family’s anxiety as well as to allow him to use his strong feelings to tell his story persuasively. The client will learn from the process if he or she is involved in it. By being involved in the process, he or she will gain confidence and be better able to raise her voice about issues that affect her. It is the client’s life and the client deserves the right to be involved in the preparation of and decision making for the client’s case.

If we treat our clients as partners and encourage them to take an active role in becoming their own advocates, we can make the legal case better, make our job easier, and learn from our clients as they learn from us. Additionally, clients gain voice, confidence, and skills that allow them to negotiate the legal landscape in the United States and help them become more civically and politically engaged.

§ 2.2 Creating a Partnership with Our Clients Imagine how you would feel at the beginning of a project if someone told you: “Your problem is too complicated for you to handle. I’ll take care of it from here.” You might feel relief that someone will take over for you, but at the same time you might feel as though you were unable to help yourself, unimportant to the solution to your own problem, and less personally involved in solving it. But suppose, instead, you are told: “I need your help to do an important job.” You might feel more involved in the work—and maybe even empowered to be so needed. The same thing can happen with our clients. When we tell a client that she is part of a team, she may feel more willing to think about the case and to do her share of the work. This is also helpful in difficult cases. If there is a delay or setback in the case, a client who feels like an equal participant in the case and the process is more likely to understand when things we cannot control do not go as planned. So how can we encourage our clients to work actively with us on their cases? Here are some suggestions gathered from advocates who have had success in getting their clients involved. A.

Clarify Your Respective Roles as Client and Advocate

Explain to the client that you consider his case to be a partnership effort and explain what this means in terms of what you can expect from each other. When you introduce yourself, explain your role in your agency and whether or not you are supervised by a lawyer, are BIA

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accredited, or have another arrangement. If you are none of the above, local laws may regulate what you need to tell a potential client. See Unit 13 on authorized practice of law.

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Let the client know that your main job as a legal worker is to assist him to evaluate his options according to his priorities and to present the best case possible. It is vitally important for you both to keep in mind that the client must ultimately make the final decisions regarding his case. The client should, therefore, understand that in order to help him do this, you will explain the law and the process to him and ask for his active participation in the preparation of his case. Let him know you will be relying on his work and ideas to get the job done; and be sure he understands what confidentiality is and how it works in a client-advocate relationship.

B.

Identify the Client’s Goals and Concerns

At the beginning of your representation, ask your client to articulate for you what her goals are in seeking your representation. This means going beyond simply asking about what type of immigration benefit the client seeks and trying to identify her larger goals, such as family unity, convenience with travel or work, etc. This will not only help you identify any conflicting goals that you need to discuss with her, it will also help you see if there are better alternatives that you can help her evaluate. Again, be sure to explain to your client the confidential nature of all of your conversations together. See § 2.2.D below. Also ask your client to articulate any particular concerns she may have about her case or her situation. This conversation can help you both develop trust; and it will let you know if there is anything that may hinder her ability to trust you or to participate fully as a partner in the case. It is very important to approach this conversation mindful of confidentiality. Clients sometimes have histories that make them uncomfortable or worry them, such as a child born out-of-wedlock, domestic violence or abuse, a criminal record, among others. Asking your client if there is anything that concerns her at the beginning of the case can help bring these often important facts out into the light. Example 2.2-a: Nick and Su come to see you in the spring. They got married a couple of years ago and they’d like to file 1-130s for Su and her 7-year-old daughter, Mi Suk, as soon as possible so that the family can continue to live together in the United States and Su can get a job. Su’s and Mi Suk’s visitor’s visas will expire at the end of the summer. As you listen to their situation and learn their reasons for coming to see you, you let them know it is important for you to understand their case holistically in the context of their larger life goals as a family, and you ask a few questions to accomplish this, such as:

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Finally, the client may need a type of assistance that you cannot provide, such as help accessing social or medical services, criminal defense, or clinical therapy (be particularly mindful of this last one as you work with clients who have experienced trauma; see § 2.4.B below). Discuss these with the client when appropriate, especially if they interfere with your ability to represent him. Provide the necessary referrals, and make sure your client understands what you can and cannot do as his legal worker or representative.

“Are you planning on living in the United States permanently, and will you be living in this state for the foreseeable future?” or “Do you have other family in the United States or abroad that you are interested in having close to you?” Su then shares that they do have a lot of family, although none of them wishes to immigrate to the United States; therefore, even though she and Nick will stay in the United States, she is planning on sending Mi Suk to school in Korea in the fall, so she can be close to her grandparents and learn the language.

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Having this information now allows you to help Su and Nick evaluate whether filing an I130 for Mi Suk or going to school in Korea at this time is the best option in light of the legal information you have access to such as the processing times, the process of consular processing versus adjustment of status, the revocation of a petition if no action is taken for 12 months after it is approved, etc. It also allows you to tell them in advance about the travel options for lawful permanent residents and about the risks of abandonment of residence if one remains outside the United States for an extended period of time. Through this mutual sharing of information, you and your clients can work best as a team to analyze their options and choose an optimal course of action. It also cultivates trust between you to go through these discussions together. Check back with your client about her goals and concerns throughout the course of your work together so she remains engaged in her case and thinking about how it will affect her and her family. This will help your client develop realistic expectations and confidence to communicate openly with you about things which you might otherwise not know to ask. C.

Put Your Client’s Rights and Responsibilities in Writing

It is important for the client-advocate relationship to be an empowering one for the client, not only where the client feels responsible for meeting certain obligations but also where she trusts that her case is in good hands. Some advocates make it clear that they will not accept the case unless the client is willing to make the commitment to share in the work and the responsibilities. They ask the client to sign a contract or retainer agreement, clearly outlying the client’s rights and obligations in the case. Unit 18 contains a sample representation agreement form that can be modified for use in your office. Here are some of the most important matters we recommend you put in writing for your client to review with you and sign at the beginning of your representation of her case: 1. The client’s obligation to keep you and the government updated with their current contact information. Let your clients know that you cannot represent them properly if you are unable to locate them. Clients should understand they are required to notify immigration authorities if their address changes; and that failing to do so could have repercussions on the success of their case. Therefore, clients need to notify you if they change their address, phone number, or email address. 2. The client’s responsibility to show up for all ICE and CIS or immigration court hearings, interviews, etc.—and on time. Let your clients know that their failure to show up on time

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for these could result in the CIS denying clients’ applications or the judge ordering the clients deported in their absence, which would possibly bar them from receiving relief from deportation (see Unit 10). Make sure your clients know that the courts and ICE may not forgive their failure to show up even for something that may seem like a serious emergency to them, like their child being ill.

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3. The client’s responsibility to show up for all meetings scheduled with you—and on time. It is important for both advocates and clients to respect each other’s time and efforts. Therefore, ask your clients to let you know in advance if they need to reschedule a meeting or if they are unable to make it to a scheduled meeting due to an emergency.

When representing two or more clients, such as a married couple or a parent and an adult son or daughter, you must explain what joint representation entails, what a conflict of interest is, and how it could affect your ability to represent them both. 5. Outline the legal and government fees for which your client will be responsible and any payment arrangement agreed upon. You need to tell the client what, if anything, he will be expected to pay for your services. Your office should have a policy about fee agreements. Even if your agency provides legal services at no cost, your retainer agreement should state this for the client. Clarifying this information does not only help the client plan accordingly, it also gives you an opportunity to discuss it in the context of rights and obligations.

PRACTICE TIP: Penalties for Failure to Appear in the Immigration and Nationality Act Make It Critical That You Make It Clear to Your Client What Cooperation You Require! Building a strong partnership with your client in which you each know what the other will be doing in support of the case can greatly assist you in ensuring that your client does not incur any of the serious penalties for non-cooperation with the DHS or the courts. For more information on the specific penalties in the law, see Unit 10 and the appendices in Unit 10, which includes information that can be given to your clients.

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4. The client’s rights in regards to your representation. Explain your obligations to the client so he or she understands them in the same context as their obligations to you. Let them know you will maintain a confidential file with copies of everything you submit on their behalf to the government, of which they can request copies. Outline some of the details regarding confidentiality (discussed below); and discuss with them the importance of having them share true and accurate information. Finally, explain under what circumstances you might end your representation of their case (such as if they fail to meet their obligations or if there is a conflict of interest); and what you need for them to do if they wish to terminate your services (namely to notify you).

D.

Establish Trust between You and Your Client and Empathize with Their Feelings

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In order for your client to collaborate with you in a client-advocate partnership, she will need to know that she can trust you. Not only should you explain to her the confidential nature of all of your discussions, you should also communicate to her that, as her legal representative, you are her ally and you empathize with her feelings. Immigrant clients may come to you with embarrassment about a criminal history or a personal story of abuse or trauma, or they may be afraid of having their closest relatives or friends learn something about them. Try to be empathetic towards your client’s situation and let her know you are on her side and do not judge her. Example 2.2-b: After your initial discussion with Nick and Su from the previous example, you explain to them the types of information you will need to know in order to evaluate their case and eventually prepare a family petition: you let them know it is important for you to know their history with previous marriages, any interactions with the police, etc. You emphasize that if there is anything they are unsure or worried about, they should feel comfortable sharing it with you in private. You must explain the concept of confidentiality to them and express with sincerity that you understand some things can be difficult to share. A few days later, Nick calls your office. He struggles as he tells you that he has a criminal conviction on his record and he begins by giving you an apologetic explanation. You reiterate with sensitivity that you understand and that you are glad he called, and you let him know that you need to ask about some of the details because some criminal convictions could prevent him from filing a family petition even though he is a U.S. citizen. He nervously explains he has a theft conviction on his record from 30 years ago. You then explain that such a conviction on his record such not adversely affect his petition. By being mindful of confidentiality, you earn Nick’s trust so you can best help him identify the risks, if any, and evaluate his options. Clients that resent or fear having to talk about things of which they are ashamed, such as a criminal record, or about things that are painful or infuriating, such as persecution or immigration detention, can have a particularly hard time opening up to someone they barely know. Feelings of guilt, shame, hurt, or injustice can create barriers to a productive clientadvocate partnership. Acknowledge your client’s feelings and try to empathize with him, whether the client expresses a sense that the system is unfair for punishing him a second time for something already dismissed in criminal court, for example, or a reluctance to speak about something embarrassing or painful that happened in his past. Let your clients know you understand and reiterate for them that you are on their side. Explain that part of your job is to help them voice those feelings in a persuasive manner that will gain the sympathy of an adjudicator; and connect their case to the legal requirements so they can begin to see why you need to ask them about these delicate matters and how they fit into their case. See § 2.4 below for more tips on how to work with vulnerable clients.

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Moreover, make sure your client knows she can trust you without fear that she or any family member will be arrested or deported. Warn her that you may ask questions about private, embarrassing or even hurtful or difficult subjects, and always explain why you are requesting that information. Emphasize that you need for her to be truthful and that only she possesses the information that will allow both of you to present a sympathetic story to immigration officials.

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Let her know you will ask for her written permission before discussing her case with anyone and have information release forms ready in case you need them.

§ 2.3 Building and Presenting a Case in Partnership with Our Clients A.

Explain the Theory of the Case and the Legal Procedures to the Client in a Way That She Can Understand

One of our main contributions as legal workers is that we understand the law and procedure and can explain it to the client. By explaining what the legal requirements are and what the case is about, we can help clients participate actively in their cases in a more informed way. A client who understands what she is trying to prove to the government can share suggestions for evidence or witnesses with her advocate. With this information, the client will be much better able to tell her story through her declaration, at an interview, or at a hearing. Example 2.3-a: Teresa is an elderly woman from El Salvador who did not go to school beyond the third grade. In 1982 she was arrested and tortured by the military because she was a Catholic lay teacher. After she was released, she stayed in El Salvador for five more years earning money so that she could send her four daughters out of the country. When all her daughters were safe, Teresa fled to the United States. She was caught by ICE and applied for political asylum. Although she can barely read, Teresa understood the issues involved in her case quite well. Through her legal worker, Teresa knew that the ICE attorney may argue that, because she stayed in El Salvador for five years after being tortured, she was not really afraid to return and should not get asylum. At her hearing for political asylum, the ICE attorney tried to attack her on this point and she gave a very moving explanation of how she stayed to protect her daughters even though she was afraid. In part because she understood the issues, Teresa won her asylum case.

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NOTE ABOUT CULTURAL HUMILITY: In order to cultivate trust in your client, you must be actively mindful and aware. For example, do not make assumptions about your client’s beliefs, customs, or even their identity. It is okay not to know something and it is often best to express this to your client and to ask him to explain himself, his culture, and his situation to you.

Since immigration law is complex, it may require some simplification and repetition before a client fully understands what will be involved in his or her case, particularly for those who have little education or legal experience. Think about how long it took you to understand some of the legal concepts that are prevalent in immigration law. Even for educated clients, the fact that immigration law is often arbitrary and illogical, not to mention unfair, can be difficult to comprehend.

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B.

Ask the Client to Work on the Case

There are at least three reasons to ask the client to work on the case: (1) It will save you time. This is a very valid reason, especially for those providing services for nonprofit organizations on tight budgets; (2) The client may do the work better, or at least gain a better understanding of the case by doing the work, thus strengthening the case; and (3) The client will gain confidence and skills, thus helping him or her navigate the system in the United States and hopefully become more civically and politically engaged. Here are some examples of client tasks: 1. Obtaining documents and contacting witnesses Once you have a basic picture of the client’s and his family’s life, based on your initial interview and their subsequent written explanations, you and your client can begin to ascertain what documents will be needed to support the case, and whom you should call on to be witnesses. Your client may have suggestions that had not occurred to you, so make sure to ask for her input in regards to evidence and witnesses. It is sometimes helpful to explain why a particular document is important and how it will be used to support the case. For example, if you want to obtain medical records of a family member that is not otherwise involved in the case to show hardship to that person, you need to explain why they are needed and ask your client to obtain them from the doctor or medical institution involved. Having your clients obtain records like these and others themselves will save you time and give them the opportunity to take some control over the case. Additionally, they may be able to obtain documents, such as foreign documents, more easily than we could. Prepare a checklist for both yourself and the client of whatever documents you and your client believe to be necessary and/or helpful to establishing the case, and be clear about when you need to receive those documents so that they can be submitted to the court on time. Ask your client to request each witness’ help, and give your client a deadline to make the contact so that you can interview the witness and get his or her statement, and determine his or her availability at the time of the final hearing. You may want to explain why you think a certain person should be a witness, and how his or her testimony can help the case. This may get the client thinking about other potential witnesses who could bolster the case.

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2. Writing a draft declaration

Having a client write a draft declaration has several advantages. It gives the client an opportunity to tell her own story in her own words and at her own pace. This is an important characteristic of an authentic and effective declaration, one that will move the adjudicator and establish your client’s credibility. In addition, clients will often reveal more facts in writing than they may have thought to reveal in person. Something about the solitude and privacy of writing encourages this. It will also help the client to think about his case and how he would present it. Additionally, for many clients, especially those with past experiences with trauma, writing may be a cathartic or therapeutic experience that can help the client be more open about his claim. This practice also should make your next meeting more efficient. Once you have read the draft, you will be able to ask more targeted questions, elicit more important information, clear up confusion, and eliminate discrepancies. When you and your client finalize the declaration that will be submitted to CIS or the courts, you may suggest words or phrases for legal purposes that are unfamiliar to the client. Make sure he understands them. When the client reads over the final version of the declaration you want it to sound familiar to him.

CAUTIONARY NOTE: It is generally not a best practice to submit your client’s draft declaration to the CIS without working on it with him. The declaration should contain the client’s story in his words and in a tone that is comfortable to the client; but the client may need your help to organize the story into a linear timeline that will help his credibility and to identify what parts are relevant or harmful to his case. Go over the facts and sequence of events several times to make sure that everything is correct and that the timeline makes sense.

3. Completing a draft of an application form (in the client’s own language) You can give the client a copy of any CIS application form, translated into her language. This manual contains several application forms translated into Spanish. The client can fill out the information herself before we complete the final version. Even though the application may not be complete or you may later prepare a clean and finalized copy for your client to sign, having the client begin to complete it will help in at least four ways. First, it will speed things up when the 2-9

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Many applications require the client to write a declaration (statement) about his experiences. After you explain the legal issues to the client, you may ask him to draft a declaration, or notes to be used in a declaration, before your next meeting. If the person cannot read or write, he can try to get a family member to help when appropriate, but explore the helpfulness of this with your client. The delicate nature of the content of a declaration is one of the reasons that it can be a good idea to have the client write a draft on his own, but it can also make it difficult or even impossible for a client to use the help of a friend or family member. Additionally, it is the client’s voice that should come through in a declaration and doing otherwise can raise questions about credibility.

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client comes in to meet with you. Second, the client will become familiar with the form and know what information she is giving. This is important because it is likely that at some point the client will be questioned about the form at a government interview or hearing. Third, it may help you teach the client a valuable skill. In our society people are expected to fill out many different kinds of forms. After filling out an immigration form, the client may feel more comfortable the next time she is handed a form.

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Fourth, this process will likely help you and your client complete a better application to send to CIS or the courts than if you and your client didn’t follow this process.

PRACTICE TIP: After you identify the immigration matter with which you will be assisting your client, it can be a good idea to start by giving the client a worksheet or questionnaire to complete as homework, so she begins to process and identify the information she will need to provide. This helps clients understand the legal requirements better before completing the actual forms. It also helps flag for clients any questions they might have or any evidence they might be able to obtain.

4. Organizing and keeping documents If a client hands you a big paper bag full of documents, thank him or her for bringing them and applaud him or her for doing the hard work in obtaining the documents. Yet, it is especially important to ask the client to put the documents in order, such as all phone bills arranged by year. Give the client a manila folder in which she can organize all her documents and immigration paperwork. Talk to the client about keeping documents in folders in a safe place. This too is a skill that the client can use in other areas of life. C.

You and the Client Should Stay in Touch and Take Joint Responsibility for Notices of Change of Address and for Appearances before the Government

Get into the habit of checking your client’s address and phone number every time you meet or talk; and always keep the contact information of a friend or relative approved by your client, in case you lose touch with your client. Make sure the client knows how critical it is to maintain regular contact with you and immediately tell you of any change of address or phone number. The client should know it is her responsibility to get any new contact information to you, ICE, CIS, and the courts. Check with ICE, CIS, and the immigration judge concerning the information that they have on the client’s address and on your representation. If the client changes his or her address, make sure to go through the appropriate process to change the address that the immigration court, ICE, and/or CIS has for the client. When you send in a change of address form, keep evidence that it was sent in your file.

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In addition to informing the client of any scheduled CIS or ICE interviews or court hearings, arrange with your clients for them to meet you early for any such appointments. That way, if they are late, they will still not miss their hearing. With out of town clients you may even have to ask them to come to town the night before their hearing. Highlight the importance of being present for appointments with any of the government agencies, and explain that if they miss an appointment with the government, their case may be denied.

D.

Practice for Interviews and Hearings by Doing Role-Plays

A good way to prepare your client as well as get her involved in thinking about the case is to practice for important interviews and hearings by role-playing (acting out a practice interview). The client should understand, however, that you will be acting as a government adjudicator and asking difficult questions to help your client practice. Let them know that the actual day of an interview or hearing will be different in that you will be there to support them and to act on their behalf when necessary. Example 2.3-b: When Esteban prepares his clients for interviews with CIS, he often asks them to go through a mock interview where he plays a CIS adjudicator and they must answer questions. Afterwards he and the clients discuss what problems they had. In the case of Teresa above, Esteban realized that she was extremely nervous and that it was difficult for her to talk about what she had endured. Esteban asked her to go through a few practice sessions, and in one of them asked a few other people to play the judge and ICE attorney. Before the first run-through, read the declaration together again. It may have been awhile since the declaration was prepared, and the details contained in it may be stale to the client by that time. Hearing the contents of the declaration will help refresh your client’s memory and clarify the way his story needs to be presented to the government. Confusion often happens around dates of events and the sequence of events; therefore you need to review them until the client is clear about them. If there are lots of dates and the client is having trouble remembering them, then it may be best for him not to mention dates at all or as little as possible. Tell your clients that if they can’t remember a specific date, it’s best to say so rather than trying to make one up to please whoever is asking the question. Making up dates can be disastrous because it can cause the adjudicator to think the client is lying. Also review the legal requirements with the client,

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If you or the client need to postpone a hearing or interview date, you must make a formal request far in advance. Make sure that the client understands the need for advance notification. Find out if the immigration court or CIS district office has special instructions on postponing such dates, and if so, make sure to follow those instructions. These requests should be formally made in writing and sent certified mail, return receipt. Just requesting the continuance or postponement does not mean, however, that it has been granted. Check in advance to make sure that it has been granted. If it hasn’t, your client must show up at the hearing or interview as originally scheduled.

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reminding him of the evidence in his case that corresponds to the different requirements. Understanding what must be proven during the hearing helps the client develop confidence.

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Don’t forget to inform your client that if the client does not understand a question, regardless of who asks it, he has the right and the duty to ask that it be repeated, and he must not ever answer a question unless he understands it; and that it is always better to say “I don’t know” or “I don’t understand the question” or “Can you please repeat the questions” than to make up an answer. Tell your clients that one way to buy time while they’re trying to think is to ask for a question to be repeated. You should tell your client key phrases to use if he gets stuck on a question. For example, in cases of clients with criminal records, the adjudicator may ask “Why did you use drugs?” For such questions, you can tell your client that if he gets stuck, he can say “I’m sorry that I did it and I regret my actions. I know I will never do it again.” With such a response, your client is maintaining his assertion that he has been rehabilitated. It is good to make your client aware of what kinds of statements he should avoid saying during an interview or a hearing. When practicing, think of ways to get your client to act in a way that comes across directly and persuasively. Sometimes it can be helpful to switch roles with the client, in order to demonstrate how the answers should be presented. However, you should be very sensitive to your client’s own style and remind him that the way you do things is not necessarily the most effective way for the client. The client will be nervous at an interview or in court; therefore you don’t want add to his anxiety by asking him to act in a way that to him seems unnatural. Another helpful practice is to explain the logistics and physical layout of the CIS office or immigration courtroom to the client. Some clients have benefited from observing an actual hearing in court when relevant. For those who cannot do so, you might want to draw on a piece of paper a diagram of where everyone will be sitting during an interview or hearing, including the adjudicator, interpreter, the government attorney, and any witnesses. The idea is to try to reduce as much of the uncertainty related to the interview or hearing as possible. Give the client time to ask you questions about the process.

PART TWO: INTERVIEWING SKILLS § 2.4 The Client Meeting: Interviewing and Counseling Clients Meeting with immigration clients can be a challenge. At first, obtaining the necessary information and establishing a comfortable relationship with your clients may be difficult. With time, however, you will learn to put your clients at ease quickly and get to the core of the case. Although there are several tasks to be accomplished during a client meeting, it can be helpful to think of your meetings as fulfilling two main purposes: client interviewing and client counseling. At the beginning of your work together, you may dedicate an entire meeting primarily to client interviewing, to give yourself time to analyze and do research before you

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advise the client on her case. However, generally speaking, the idea of a meeting is for a twoway exchange of information, both from the client to the legal worker and from the legal worker to the client. You will see below an outline of a few general things to keep in mind for all of your meetings, followed by tips on how to accomplish client interviewing and client counseling during your meetings. A.

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General Considerations for Client Meetings

2. Language barrier and the use of interpreters. You and your client must be able to speak freely. If you do not speak the same language as your client, consider whether or not an interpreter might be helpful. Some clients may have difficulty opening up to interpreters who are strangers to them; and people from the client’s culture can make the client feel more or less comfortable. If you and the client decide to use an interpreter, find someone who is fluent in both languages. This could be someone the client already knows and trusts, such as a family member. However, be sensitive to the fact that having family members at the interview may prevent some clients from speaking about delicate subjects, such as family history, domestic violence in the home, or previous arrests. Your agency might have staff members who can translate. You should compile a list of interpreters who work in your area. 3. Privacy and confidentiality. In order to speak comfortably, you should not be interrupted. Try not to take phone calls during a client meeting or be interrupted by coworkers. As much as possible, try to meet with your client in a quiet, private place where the client will not be overheard by others. Not only is this important for reasons of confidentiality, it will also make your client more comfortable sharing private information. Regardless of the setting, always remind the client that what he shares with you is confidential and will not leave your office. 4. Taking and recording notes. You will need a record of the interview. Appendix 2-A contains a sample form that you can use to see if the person may have a way to obtain legal immigration status. Appendix 2-B contains a sample intake form. Using this form allows you to keep a record of your conversation and reminds you of the crucial information you need to ask the client. Clients often feel more comfortable if you explain why you are taking notes in the interview. This is especially true if you use your computer (be mindful that this may create a barrier between you and your client). Please

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1. Using a meeting agenda. When your meetings with a client have a clear purpose, it will help you and your client stay on time and on task. Therefore, when you meet with a client, it is a good idea to bring with you an agenda that you can review with her at the beginning of the meeting. This will let her know what to expect and will clarify for her the purpose of your meeting, which may engage her more in her role as your partner in her case. If there are delicate subject matters to be discussed during the meeting, warn the client in advance to let her prepare mentally; and if there is something you will not be covering, let her know to put her at ease. You should also ask for her input so she can ask questions or express concern.

see § 18.3 of Unit 18 for information on how to use the Long-Term Option Sheets when interviewing your clients.

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5. Ending the Meeting. Before the client leaves your office, be clear on what your next steps are. Discuss what each of you will be responsible for accomplishing before you meet again. For example, give her a checklist of tasks or documents to be gathered, along with any useful instructions (such as instructions on how to request court records, directions to the court, etc.); or give her tips on how to practice for her interview or hearing. Set up another appointment or arrange a time to speak by phone. Leaving your client with a vague “I’ll be in touch with you …” makes it easy to lose track of the client. In addition, it leaves the client uncertain of what will happen next, and therefore does not help instill confidence or a sense of control. 6. Referrals. When you cannot help someone because you don’t have the skills or resources, it’s important to keep a list of resources in your area so you can refer the client to someone who can help him. B.

Client Interviewing: Collecting Information 1. The initial meeting

After you first introduce yourself and get to know your client, you will want to get some basic information about her. You will need to know the client’s name, address, phone numbers, and someone to be contacted in case of an emergency. Space to record this information is included at the top of the intake sheet. Next, you need to know why the person came to see you. At this stage, you mainly want to get the facts from the client so you can determine the nature of the case, decide whether or not you can represent the client, and identify what additional information you will require to move forward. Therefore, the goal of this initial stage of information gathering is for you to get the big picture and to screen for any red flags. But there is no need to get into the details at this point. Some of them may not even be relevant if your client ultimately decides to pursue an alternative route, including seeking representation elsewhere. Be mindful of the demands that these discussions put on the client. Example 2.4-a: Parul tells you that she needs your help to file a self-petition under the Violence Against Women Act. In order to determine whether she in fact qualifies for this benefit, you ask her to tell you what happened. You ask general, open ended questions to gather general information, such as “How did your husband treat you?” or you might gently help her move along by asking “And then what happened?” or “What happened after you moved out of the house?” Although you may need to meet with her at a later time to ask in more detail regarding the abuse and her feelings about it, so that she can prove she suffered abuse in a credible manner on her declaration, this information is not necessary at this point. It may be counterproductive to engage Parul in such a difficult conversation when you still need to cover many other tasks during your initial meeting, such as signing the retainer agreement and reviewing alternative options, if any.

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Additionally, many people will come to your office wanting a specific service, such as a visa petition for a family member. As explained above under § 2.2 of this unit, it is important to listen to the facts of the person’s life before you decide what kind of legal remedy will help most. You may be able to tell the person about other options for immigrating of which she did not know. Explain this to your client as you ask her to share her story, her goals, and her concerns more broadly.

This example shows that the legal worker needs to know many facts about a client, including the client’s current immigration status, her immigration history, all family relationships, and any criminal record. The legal worker should always ask about the citizenship of the client’s parents and grandparents since it is possible that if one of them was a citizen, the client also might be one. See Unit 17. In Appendix 2-A, you will find a checklist of possible questions that you should ask a client. Later in this manual, in Unit 18, you will find a section on identifying possible immigration remedies. If you decide to take the client’s case, the initial client meeting also sets the tone for your relationship with the client, hopefully as an advocate-client partnership. After this first meeting, both you and the client should understand clearly what to expect from one another. You can discuss this as you go over the retainer agreement you will ask your client to sign. You should also begin to establish trust with the client by asking about her goals and concerns and by addressing confidentiality. Review § 2.2 above for some suggestions on how to establish a partnership with your client. 2. Subsequent information-gathering meetings Once you and your client have decided on a course of action (see § 2.4.C below), you are ready to explore the facts of her story in more detail and to follow up on any red flags you have identified. For example, if your client’s case requires that her husband show he will suffer extreme hardship if his wife’s application were denied, you and your client should discuss the details. Successfully obtaining these types of details can largely depend on your client’s level of comfort with you and on how engaged she feels at this stage in the process. Therefore, make sure you have thoroughly counseled your client on the requirements involved in her case and that she understands why you are asking for any particular information (see § 2.4.C below). Keep in mind the messages you communicate through your choice of words and try to be sensitive and empathic.

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Example 2.4-b: Amita is from India. She has no legal immigration status because she overstayed her student visa. She comes to your office and says, “I really need work authorization. I want to apply for political asylum.” If you have read Unit 14 of this manual, you know that applying for asylum affirmatively can be risky unless the case is very strong. After interviewing Amita you learn that her mother was born in the United States. You can suggest that Amita consider having her mother file a visa petition (see Unit 4) or investigate whether Amita might have inherited U.S. citizenship from her mother (Unit 17). These may be better options, or at least affect Amita’s decision whether to file for asylum.

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PRACTICE TIP: Be mindful of the way you word the questions you ask of your clients. For example, make sure your questions are not interrogatory but are empathic instead:

Unit 2

Ask: Instead of asking:

“Were you afraid to reveal your marriage?” “Why did you lie about being married?”

Finally, a clear agenda can be very helpful for these meetings to help you and your client stay on task. As mentioned above, the agenda should give the meeting purpose by outlining for the client the topics you must discuss and explaining again the legal requirements he must meet. This engages the client, giving him a sense of control over his case and deepening your partnership with each other.

NOTE ABOUT INTERRUPTING YOUR CLIENTS: You may feel rude or disrespectful interrupting someone who is talking about something very personal; and to be sure, listening attentively and patiently is an important skill to practice when working with clients. However, keeping your client on task is also one of your responsibilities as the legal worker. Clients can oftentimes get distracted or misdirected with irrelevant information, and this can be counterproductive, especially if it is taking up the energy they need to continue with the discussion. Be careful to help your client stay on track if she begins to deviate from the topic at hand. One way to do this may be to say, “We can come back to [irrelevant information] later. But first tell me more about [facts pertinent to the legal requirements].” Let him know that you may interrupt him in order to help him focus on the relevant subject matter as outlined on your agenda. Done correctly, this can help develop trust between you and your client.

3. Working with vulnerable clients You may work with clients who have experienced trauma in the form of a violent crime, domestic violence, or persecution in their home country or in the United States, among other things. Furthermore, many immigration petitions require that applicants talk about difficult feelings and experiences in order to qualify for a particular benefit, such as U and T visas, asylum, petitions under the Violence Against Women Act, and any petition that requires a proof of hardship. Working with clients seeking these benefits can be particularly challenging. People who have experienced violence or other forms of trauma may have difficulty remembering events surrounding the trauma or difficulty talking about them. Furthermore, doing so may trigger reactions associated with the effects of trauma that you may not be equipped to handle and that may be harmful to the client. Below are some things to be aware of when working with clients who have experienced trauma. Giving Difficult Conversations a Productive Purpose. When you first meet with your client to have a conversation about the difficult facts of her case, review the agenda with your

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client and acknowledge up-front that you will need to ask him about painful events or feelings. Explain to him how this is relevant to prove his case by making the connection with the legal elements he must prove. Discuss the importance of credibility when asking your client to remember difficult details such as timelines, names, locations, etc. Remind him that articulating his feelings is an important way to humanize his case, bolster his credibility, and win the sympathy of the adjudicator. Let him know you will only ask him to discuss painful details to the extent that it is necessary to prove his case.

Assessing Your Client’s Emotional and Mental State and Reacting with Empathy. As your conversation moves along, assess your client’s ability to discuss traumatic memories and feelings with you. If you notice he reacts in a way that concerns you, such as by avoiding the conversation and shutting down or, on the other hand, becoming re-traumatized and overwhelmed, you may need to take a few steps back before continuing with that conversation. Acknowledge the difficulty involved in remembering and discussing past traumatic events and validate your client’s hesitation or overwhelmed feelings by telling him you understand. Proceed at his pace and with empathy, letting him know he is safe to express emotions, to cry, and to stop and take moments of silence. Make a box of tissues available. However, try not to let the client revisit trauma unnecessarily (see “Note about Interrupting Clients” above). Working with a Clinical Therapist. Because of the nature of your work together, the client may seek in you the type of support that is more appropriate for a therapist to provide. It is important for you to recognize that, as a legal worker, you are not equipped to help your client process trauma and heal any emotional or mental injury she may have suffered. Therefore, depending on your assessment of the client, you may want to suggest that she see a clinical therapist if possible. Sometimes clients are more willing to do this if the purpose of seeing a therapist is connected to their legal case, such as obtaining a psychological evaluation to submit as evidence. However, the purpose of therapy is different than that of obtaining such an evaluation (although oftentimes both can be accomplished by the same therapist). Clinical counseling can help the client manage the emotions that revisiting trauma arises in them and can help them heal. This, in turn, can equip the client with the proper tools to work on her case in partnership with you. Listening to Your Client and Self-Care. Bearing witness to a story of violence or other forms of trauma is often a difficult experience for you as the listener. However, it can have a powerful impact on your client’s ability to manage the emotions triggered by traumatic memories. Be careful not to dismiss your client’s feelings or avoid obtaining useful or necessary information because you rush things or avoid certain subjects. Try to be prepared with mechanisms to cope with your own feelings of discomfort, such as bringing your gaze down to your notes; and remember that it is okay to sit in silence with your clients for a few minutes as they gather the

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Giving a productive purpose to a difficult conversation can be an empowering experience for the client. Give him the opportunity to respond to this and to express any questions or concerns he might have. Based on your client’s reaction, you will be better able to respond. If he is not yet ready to continue on with the meeting, try to tailor additional chitchat to address the distress the client is feeling.

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strength to continue. Finally, be sure to take care of yourself when you work with clients who have experienced violence, abuse, and other forms of trauma. Watch out for signs of vicarious trauma or compassion fatigue in yourself and talk to others you trust about this. Try to prioritize activities you enjoy, such as time with your family and friends. Do not hesitate to seek professional help if you start experiencing intense feelings of helplessness or sadness. It is important to take care of yourself in order to stay healthy, avoid burnout, and be the best advocate for your client that you can.

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C.

Client Counseling

As we have discussed above, your job as the legal worker is to explain to your client what her legal situation is in a manner she can understand so that she feels comfortable making a decision and taking ownership of her case. In most cases, clients will be anxious for information about their cases. Try to give the client as much information as you honestly can. Understanding her case will help the client gain a sense of control over her situation. Later in this manual you will find examples of how to explain legal concepts in simple language. See Unit 11. Counseling your client involves thoroughly explaining the various options available to her. Outlining the requirements, the risks, and the benefits involved is a useful process to help clients identify their priorities and their concerns. When there are multiple options available, it can also be helpful to evaluate them by doing a comparative analysis of the requirements, risks, and benefits. Remember to ask the client for her input, questions, and concerns. If you do not know what law applies, don’t make up answers. Tell the client you need to research a question or ask someone with more experience because you want to provide accurate information and advice. In regards to the risks involved, clients are often nervous about the outcome of their case. Therefore, try to talk to your client about the likelihood of success to the extent this is possible, but make sure not to promise the client any result and to tell the client you are not sure what the ultimate result will be. It can be difficult to give clients a disappointing assessment of their case, but it is important for the clients to know they can trust you to be honest. Giving a client false expectations can not only lead to heartbreaking disappointment, it can also lead the clients to plan for relief that is unattainable and make them vulnerable to fraud by others. Additionally, advocates should explain to the client what the process will look like, outlining the different steps and the corresponding timeline. This explanation should include a clear description of what the client and the advocate will each need to do for each step and what the interview or hearing will be like. Explaining legal procedure also includes explaining and making sure the client understands the penalties for failing to comply with biometrics requirements, failing to report a change of address, or failing to appear timely for hearings. Don’t forget these important details, since, as we know, there are severe penalties for such failures. Finally, always remember to ask your client how she wants to proceed or what final decision she would like to make. Do not assume that because she has come to see you for help with a particular benefit that she is asking you to make decisions for her, even if the client might

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feel this way. It is important that the client-advocate partnership serve the client to feel empowered and in control of her life.

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PRACTICE TIP: It is best to explain the law and procedure orally and also to provide the client with a written explanation (in his or her own language if possible). Provide your client with a handout that explains the legal requirements, the risks and benefits involved, and the case process (with visual timelines and charts if possible). If there are several options, a chart outlining these factors can be useful to help clients evaluate their situation. Review it and discuss it with your client, taking notes on the handout if necessary. At the end of your meeting, you can suggest she take the handout home to study and that she can let you know if she has any questions or concerns about any of the information on there. She can also give it to others to share the information.

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=

APPENDIX 2‐A   

Appendix 2-A-1

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ANNOTATED CLIENT INTERVIEW CHECKLIST*    If the client has received any documents from the INS, CIS, ICE, or CBP make a copy for the file.    A.  CURRENT IMMIGRATION STATUS    The following questions will help you determine the client's current immigration status.  Be  sure to examine any immigration documents the client might have.    1. When did the person last enter the United States?    2. Did s/he enter through an immigration check‐point or port of entry?    3. Did he or she enter with a visa stamped in a passport?  (If so, make a copy):    a. What kind of visa was it?  b. Has the authorized stay on the I‐94 expired?   When?  c. Has the person, as far as she knows, violated the terms of her visa?  On what  date?    These questions will help you determine if the person is in the United States legally or  illegally and when their unlawful status began, which is extremely important for finding out  if any bars to immigration relief apply.  See Unit 3.  It will also help you decide if the person  is eligible to adjust her status.  See Unit 7.    4. Has the person filed any visa petitions with the INS/CIS? (Unit 5)    5. Did the person apply for an amnesty program under IRCA? (Unit 16)    6. Is the person in removal proceedings now?  If so, has she applied for relief from removal such  as:    a. political asylum (Units 14‐15)  b. cancellation of removal for persons who are not lawful permanent residents  (LPR) (Unit 11) ‐ former suspension of deportation  c. cancellation of removal for victims of domestic violence (Unit 11)  d. cancellation or suspension under NACARA for Salvadorans, Guatemalans and  persons from Eastern bloc countries. (Unit 11)  e. registry (Units 16)  f. adjustment of status [based on relationship to a U.S. citizen or LPR] (Unit 7) 

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g. cancellation of removal for persons who are LPRs  (Unit 12) ‐ former 212(c) relief  h. family unity (Unit 16)    7. Has the person ever been before an immigration judge in the past? (Unit 10)  If so, was  the person:   

Unit 2

a. Ordered deported or excluded (under pre‐IIRIRA law), or ordered removed?  → If ordered deported, excluded or removed, did the person leave the U.S.?  → If ordered and left, did the person return to the U.S. after that? When?    Illegally or legally?  b. Granted voluntary departure?  c. Allowed to remain in the U.S.?  d. Did the person apply for some relief?  e. Did the person attend all immigration hearings?    8. Has the person ever been ordered summarily removed by an immigration officer  (pursuant to IIRIRA)? (Unit 10)    9. Has this person ever applied for a benefit such as Deferred Action for Childhood Arrivals  (DACA) or Temporary Protected Status (TPS)?     10. Is the person eligible for citizenship through naturalization?  (Unit 17)  Has the person  filed an application?  On what date?    B.   

FAMILY RELATIONSHIPS  1.  Are or were any of the client's parents or grandparents U.S. citizens?  If yes, when did  that person live in the U.S.?  The client may be a U.S. citizen. (Unit 17)    2.  Does the client have a spouse or parent who received amnesty under one of the IRCA  programs?  The person may be eligible for Family Unity status.  (Unit 16)    3.  Is the person married or engaged to a U.S. citizen or LPR?  The person may be able to  immigrate through her spouse.  (Unit 4) 

  4.  Does the person have any children who are U.S. citizens?  If yes, how old are they?  A  son or daughter over 21 years old may be able to file a visa petition for the parent.  (Unit  4)    5.  Does the person have any brothers or sisters who are U.S. citizens?  If yes, how old are  they?  The client's siblings may be able to file a visa petition.  (Unit 4)   

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  C.   

WORK HISTORY  1. Is the person currently employed?  If yes, describe the job.  Proving stable (or any)  employment is usually an advantage in immigration cases.    2.  Is the person working without authorization from a DHS immigration service bureau?    3. Can a labor certification be filed for this type of job?  Would the employer be willing to file a  labor certification?  Labor certifications, especially for workers who do not have a college  degree, may be difficult to get.  Labor certifications are covered briefly in this manual at Unit  21. 

  D.   

OTHER REMEDIES  1. How long has the person lived in the United States?  What was the person's immigration  status during this period?  Document dates of all departures from the United States and  reasons for absences.  If a person has lived in the United States for a long time, she  might be entitled to discretionary relief such as:  voluntary departure (Unit 16);  cancellation of removal [formerly suspension and 212(c) (Units 11 and 12)]; or registry  (Unit 16).    2. Is the person afraid to return to her home country?  If so, why? The person might be  eligible to apply for political asylum and restriction of removal. (Units 14 and 15)    3. Is the person from a country that is currently experiencing political or social unrest?  If  so, has the government granted TPS to people from that country?    4. Has the person suffered torture or does the person fear torture upon returning to  his/her country of origin?  (Torture Convention remedy)   

Appendix 2-A-3

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6.  Is either of the person's parents a LPR?  The parent might be able to file a visa petition  for the child.  (Unit 4)    7.  Is the person a child who has been abandoned, abused, or neglected by a parent?  The  person might be eligible for permanent resident status as a “special immigrant juvenile.”   (Unit 4)    8.  Has the person been the victim of domestic violence ‐‐ either by a parent or spouse?   The person might be eligible to "self‐petition" for a visa or for cancellation of removal  under VAWA.  (Units 4, 7, and 11) 

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5. Has the person been a victim of a crime?  If so, did s/he suffer substantial physical or  mental harm as a result of the crime and were they helpful in the criminal investigation  or prosecution of the crime?  (The person may be eligible to petition for a U visa.)    6. Is this person eligible for Deferred Action for Childhood Arrivals (DACA)?   

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a. Was the person under the age of 31 as of June 15, 2012?  b. Did the person come to the United States before reaching 16 years of age?  c. Has the person continuously resided in the United States since June 15, 2007, up  to the present time?    d. Was the person physically present in the United States on June 15, 2012;  e. Did the person enter without inspection before June 15, 2012, or did the  person’s lawful immigration status expire as of June 15, 2012?  f. Is the person currently in school, has graduated or obtained a certificate of  completion from high school, has obtained a general education development  (GED) certificate, or is an honorably discharged veteran of the Coast Guard or  Armed Forces of the United States?  g. Has the person been convicted of a felony, “significant misdemeanor,” three or  more other “non‐significant misdemeanors,” or otherwise poses a threat to  national security or public safety? For more information about what conduct  might be covered, see www.uscis.gov/childhoodarrivals and www.ilrc.org.     E.   

POTENTIAL PROBLEMS  (See Unit 3)  The questions below all refer to grounds of inadmissibility, which could bar a person from  immigrating.  Make sure to explain the law to the person before asking this question.  Also,  make sure to explain why you are asking this question before you ask it.    1.  Has the person ever been arrested?  Has the person ever been convicted of a crime?  If  so, what was the offense and the sentence?  Help the person get all the court records  from the conviction.    2.  Has the person ever been ordered deported, excluded or removed?  If so, when?  Did  she leave the United States?  When did the person return?    3.  Has the person ever committed visa fraud or been accused of committing visa fraud?   Did he or she immigrate through a marriage that has ended?    4.  What is the person's annual income?   How many family members does she support?  Is  she capable of working?  If the person might immigrate through a family petition, what  is the petitioner's income and family size?   

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  [*This checklist was adapted by the ILRC from NILC's Immigrants' Rights Manual.] 

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5.  Did the person use forged, altered, or another person's documents to gain some  immigration benefit or to work?  Has the ICE started civil proceedings for document  fraud?    6.  Has the person ever helped another person enter the U.S. illegally? (alien smuggling)    7.  Did the person ever falsely claim to be a U.S. citizen for any purpose?    8.  Has the person lived in the United States without "being admitted" ‐ i.e., entered  without CBP or INS inspection?  If so, for how long?      9.  Has the person stayed longer than permitted on a nonimmigrant visa, or stayed after  violating the terms of a nonimmigrant visa?  If so, how, when and for how long? 

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APPENDIX 2‐B    SAMPLE CLIENT INTAKE FORM    Date ____________________      Referred by __________________________________    Name __________________________ Tel.(w)________________(h) _______________    Address ___________________________________ Date of Birth__________________    Nationality:  ______________________ Place of birth/   __________________________    1.  Where did you live before coming to the U.S.? _________________     2.  When did you move to the U.S.? ________    3.  a. Did you come to the U.S. before reaching your 16th birthday? _____________  b. Have you lived in the U.S. since before June 15, 2007?________________  c. Are you currently in school or have you graduated?  4. Were your parent(s) or your grandparents U.S. citizens?  ________________________    5. Have you applied for U.S. citizenship? (When/where?) ___________________________    6. Close relatives in the U.S      7.  Legal Status.    __________________________   _________________________    __________________________   _________________________    __________________________   _________________________    8.   List all entries to and exits from the U.S.  (Give dates, and whether or not you went through  INS or CBP inspection upon those entries.)     Entry 

Exit 

Inspected by Imm  Authorities? 

                            **(Make a copy of the visa and I‐94)   

Appendix 2-B-1

If yes, what status  (visa) did you have on entry? 

       

When did  authorized stay  expire? 

       

Name of  Employer 

       

Address of  Employer  

       

Type of  Employment 

       

Period of  Employment 

       

Work authorized?

       

  15.   Have you ever applied for permanent residency, asylum, amnesty, TPS, cancellation,  suspension,  Family Unity, Deferred Action for Childhood Arrivals (DACA) or any other  immigration benefit?  When and how?: ________    16. Have you ever had trouble with the police or been arrested in the U.S.?  If so when and for  what?  What sentence did you receive? _________________________________________    _____________________________________________________________________________    17. Have you ever had any contact with the INS, CIS, CBP, ICE or the Border Patrol?  If so, when  and what happened? ________________________________________________________    _____________________________________________________________________________   

Appendix 2-B-2

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9.  Have you applied for an extension of your visa? ____    10. If you last entered on a temporary visa, have you violated its conditions?  If so, explain  ____________    11.  Are you married?  ________________ When and where? _________________________    12.  Name of spouse, status, date married:  _______________________________________    13.  Name of previous spouse, status, and date marriage ended:   _____________________    14. Do you have children? ______        If so, provide the following information:      Children  Date and Place of Birth                14.  Employment in U.S.:  dates and type of employment, name & address of employer   

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18. Have you ever gone before an immigration judge?  If so, when and what happened?            ________________________________________________________________________    19. Have you ever been ordered deported, excluded, or been given voluntary departure?  If so,  did you leave and in a timely manner?   ________________________________________________________________________    ____________________________________________________________________    20. Do you have any reason to fear going back to your country?  Who do you fear and why?  ________________________________________________________________________    _________________________________________________________________    21 Have you ever been a victim of domestic abuse by a spouse, parent or child?  If so, did your  spouse, parent or child have U.S. citizenship status or lawful permanent residency?  ________________________________________________________________________    _________________________________________________________________    22.  Have you ever been the victim of a serious crime?  If so, did you report it to the police or  help with the criminal investigation or prosecution?  ________________________________________________________________________    _________________________________________________________________    23.  Have you been abandoned, abused, or neglected by a parent?  Are you currently under the  jurisdiction of a juvenile court (dependency, delinquency or probate guardianship)?  ________________________________________________________________________    ________________________________________________________________________    24.  What problems have brought you here to this office? What do you hope that the advocate  can do about those problems?  ________________________________________________________________________    ________________________________________________________________________    ________________________________________________________________________ 

Appendix 2-B-3

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UNIT THREE GROUNDS OF INADMISSIBILITY AND DEPORTABILITY

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This Unit Covers:   

The grounds of inadmissibility; The grounds of deportability; The requirements for good moral character

This Unit Includes: § 3.1 § 3.2

§ 3.12 § 3.13

§ 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26

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§ 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11

Overview of Admissibility, Deportability, Admission and Removal ................ 3-2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse ......................... 3-13 Alien Smuggling: Grounds of Inadmissibility and Deportability .................... 3-18 Visa Fraud ........................................................................................................ 3-23 Document Fraud: Ground of Inadmissibility and Deportability ...................... 3-26 Insufficient Documentation .............................................................................. 3-29 False Claim to U.S. Citizenship ....................................................................... 3-30 Likely to Become a Public Charge ................................................................... 3-36 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists ........... 3-58 Entry, Admission and Effective Dates ............................................................. 3-64 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 3-65 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 3-67 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted ..................................................................... 3-78 Failure to Attend Removal Proceedings ........................................................... 3-89 Past Removal or Deportation/Exclusion .......................................................... 3-90 Summary of IIRIRA Inadmissibility Grounds ................................................. 3-94 Grounds of Deportability (Except Those Related to Crimes) .......................... 3-96 Clients with Criminal Records ....................................................................... 3-100 What Is a Criminal Conviction? ..................................................................... 3-102 What Evidence Can the DHS Submit to Show a Conviction? ....................... 3-106 What Is a Sentence for Immigration Purposes? ............................................. 3-106 How to Analyze a Past Conviction: The Categorical Approach .................... 3-107 Inadmissibility and Deportability Based on Drug Offenses ........................... 3-115 Crimes Involving Moral Turpitude ................................................................ 3-119 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions ....................................... 3-122 The Moral Turpitude Ground of Deportability .............................................. 3-124

§ 3.27 § 3.28 § 3.29 § 3.30

§ 3.31 § 3.32

Firearms Offenses .......................................................................................... 3-126 Aggravated Felonies ....................................................................................... 3-128 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment ............................................................................................. 3-133 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration............................................................. 3-138 Clearing Up a Criminal Record ...................................................................... 3-139 The Good Moral Character Requirement ....................................................... 3-141

Maria went to Mexico and re-entered the United States without inspection, so she could help her brother Miguel cross illegally. CBP arrested Maria and Miguel. Both Miguel and Maria are inadmissible for entering the United States unlawfully, without admission or parole. Maria will also be inadmissible for alien smuggling.

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Patricia has two children and wants to immigrate her mother. Since Patricia earns only $9,000 a year, her mother may be inadmissible because she is likely to become a “public charge” unless Patricia can convince someone else to help her. Lee is convicted of selling drugs. He is inadmissible and deportable as a person with a drug conviction. Moreover, his conviction is an aggravated felony and makes him subject to other harsh penalties.

§ 3.1 Overview of Admissibility, Deportability, Admission and Removal We must understand the definition of deportable and inadmissible in order to help our clients immigrate or keep the lawful immigration status that they already have. The grounds of inadmissibility and deportability are a central part of the Immigration and Nationality Act (INA). The current law is shaped by landmark legislation that was enacted on September 30, 1996: the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Among other things, IIRIRA amended the INA to provide a new framework, and new penalties, used to assess entry, exclusion, deportation, and admission. See Subsection C for a discussion of how deportation and exclusion worked in proceedings begun before this legislation took effect, which may be useful as you try to understand case law, and clients’ cases, from that time period. It also is discussed more fully in Units 1 and 10. Please take a look at Appendix 3-F, page 1 (Chart on Admission and Removal Proceedings) as you read this section.

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A.

Removal Proceedings, Admission, Parole, and the Grounds of Inadmissibility and Deportability

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Removal proceedings under IIRIRA began on April 1, 1997. (Court cases started before April 1, 1997 remain in deportation and exclusion proceedings instead of removal proceedings). A key question in removal proceedings is whether the person has been admitted into the United States.

PRACTICE TIP: In 2003, the Immigration and Naturalization Service (INS) was broken up and its functions placed into several different agencies within the Department of Homeland Security (DHS). In this unit, because the grounds of inadmissibility and deportability come up before various agencies depending on the context, we will refer generally to DHS. In practice, however, you will need to identify the specific sub-agency with which you are dealing (i.e., CIS, CBP, or ICE).

1. General rules for noncitizens

Noncitizens who entered the U.S. with inspection, pursuant to a visa of some kind, have been admitted. INA § 101(a)(13)(A). If DHS brings them into removal proceedings, DHS has the burden of proving that the individual comes within a ground of deportability. See INA § 240(c)(3). On the other hand, noncitizens considered not to have been admitted to the United States are seeking admission. If challenged and placed in summary removal or regular removal proceedings, these people have the burden of proving that they do not come within one of the grounds of inadmissibility. See INA § 240(c)(2). One of the grounds of inadmissibility is being present in the U.S. without permission. The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are found at INA § 237(a). They are similar, but not identical. The differences between them can have a serious impact on your client’s eligibility for relief from removal. Often we will use the word “people” instead of “noncitizens” or “aliens” in this unit. It is important to understand, however, that U.S. citizens are never affected by any ground of inadmissibility or deportability. On the other hand, all noncitizens—including lawful permanent residents—are potentially subject to these grounds, and therefore can legally be refused admission to or removed from the United States. 3-3

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Our current immigration law divides noncitizens into two groups: those who are seeking admission and those who have already been admitted. Generally speaking, the terms “admission” and “admitted” are defined in INA § 101(a)(13). INA § 101(a)(13)(A) defines admission as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.” See INA § 101(a)(13).

2. The following people are subject to the grounds of inadmissibility  

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   

The undocumented (those who entered without inspection); Applicants for admission at the border, such as nonimmigrant visa holders, those eligible; for a visa waiver, and immigrant visa holders arriving for the first time;1 Applicants for adjustment of status; Parolees. See INA § 101(a)(13)(B); Alien crewmen. See INA § 101(a)(13)(B); Lawful permanent residents, including conditional residents, who fall within INA § 101(a)(13)(C).

A Note on Parole: DHS has the power to “parole in” persons who are outside the United States or at the border and are charged with being inadmissible. A person who is paroled in can physically enter the United States but is not considered “admitted.” Legally, she is still considered to be seeking admission, as if she were at the border applying for admission. DHS can grant humanitarian parole to bring in persons for humanitarian reasons, for example to permit them to obtain medical care in the United States. See INA § 212(d)(5). A person in the United States who is in the middle of applying for adjustment of status or for some other application can seek “advance parole,” which is advance permission to go outside of the United States and be paroled back in. See 8 CFR § 212.5(e). Some inadmissible persons who are detained at the border can be released from detention and come into the United States if DHS grants parole. See 8 CFR § 212.5. DHS’s position is that even after they are physically in the United States, all of these people are still deemed to be seeking admission. Thus, if they are placed in removal proceedings, they will be subject to the grounds of inadmissibility.

3. The following people are subject to the grounds of deportability     

Nonimmigrant visa holders within the United States following a lawful admission; People admitted as visa waiver entrants; Visa holder and visa waiver overstays in the United States; Refugees;2 Lawful permanent residents, including conditional residents, except those who fall within INA § 101(a)(13)(C).

1

A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent resident until and unless he or she is admitted at a U.S. border while the immigrant visa is valid, and within six months of the date the visa was granted. See 22 CFR §§ 42.72–42.64(b). 2 See Matter of D-K-, 25 I&N Dec. 761 (BIA 2012) (holding that refugees are subject to the grounds of deportability because they have been admitted to the U.S.)

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4. The special rules governing admission of returning lawful permanent residents under INA § 101(a)(13)(C)

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When lawful permanent residents travel abroad and then come home to the United States, they generally will not be considered to be “seeking admission” at the border, and will not be subject to the grounds of inadmissibility. There are six exceptions to this rule. Under INA § 101(a)(13)(C), a permanent resident returning from a trip outside the United States is seeking admission if he or she: 1. 2. 3. 4. 5.

has abandoned or relinquished permanent resident status; has been absent from the United States for a continuous period of more than 180 days; has engaged in illegal activity after departing the United States; has left the United States while under removal or extradition proceedings; has committed an offense identified in INA § 212(a)(2) (grounds of inadmissibility relating to crimes), unless the person was granted § 212(h) relief or § 240A(a) cancellation of removal to forgive the offense; OR 6. is attempting to enter or has entered without inspection.

Example 1: Marc is a permanent resident. In 2005 he travels to France for two weeks to attend a conference and then returns to the United States. He has tuberculosis, which is a health ground of inadmissibility. As a returning permanent resident, Marc is deemed not to be “seeking admission” at the U.S. border. Therefore, although DHS knows that he is inadmissible for tuberculosis, it cannot charge him with being inadmissible and place him in removal proceedings as a person “seeking admission” because his tuberculosis is not one of those things that turn him into an “applicant for admission.” Marc should lawfully re-enter the United States without a problem. Legally, Marc has not made a new admission. His tuberculosis is not one of the circumstances that would cause the government to treat him as an arriving alien. Example 2: What if Marc takes another trip and stays outside the United States for 190 days? In that case, when he returns he will be “seeking admission,” for having been absent for more than 180 days under INA § 101(a)(13)(C)(ii). DHS can bring him into 3

See Vartelas v. Holder, 132 S.Ct. 1479 (March 28, 2012), in which the U.S. Supreme Court held that INA § 101(a)(13)(C)(v) did not apply to LPRs with convictions that pre-dated April 1, 1997, the effective date of IIRIRA. These LPRs are covered under pre-IIRIRA law, in which they are not considered to be making a new admission upon return to the U.S. as long as the departure was “brief, casual, and innocent.”

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Lawful permanent residents who come within any of these criteria, except those who were convicted of an offense described in INA § 101(a)(13)(C)(v) before April 1, 1997,3 will be in the same position as other noncitizens seeking admission and will be considered “arriving aliens.” They will not be able to be admitted if they are found to come within a ground of inadmissibility.

removal proceedings and charge him with being inadmissible for his tuberculosis. As a defense, he can have it treated and cured or he can apply for a waiver. 5. False admission as a U.S. citizen compared to admission on a fraudulent visa A noncitizen who gains admission to the United States by pretending to be a U.S. citizen has not yet been “admitted,” because the person was not admitted and inspected as an alien.4 In most jurisdictions a noncitizen who has used a fraudulent visa (e.g., a fake green card or non-U.S. passport) has been admitted, even though the admission was not lawful.5 In Matter of Quilantan, the BIA held that the term “admission” for purposes of adjusting status only requires “procedural regularity.”6 The Ninth Circuit has applied this reasoning to hold that a fraudulent entry constitutes admission for purposes of eligibility for a waiver under INA § 212(h) as well.7 But note that case law is still unsettled as to whether a fraudulent entry constitutes an admission for other purposes of the INA. In fact, several courts have found that Quilantan does not apply to the definition of “re-entry.”8 Thus, a person who fraudulently entered could still be charged with illegal re-entry.

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B.

The Grounds of Inadmissibility and Grounds of Deportability

The grounds of deportability are contained in § 237(a) of the INA. [Until April 1, 1997, they were contained in former § 241(a) of the INA]. The grounds of deportability are a list of reasons that a noncitizen who has been admitted can be removed from the United States. A person who comes within a ground of deportability is deportable. The grounds of inadmissibility (formerly called grounds of exclusion) are contained in INA § 212(a). These grounds are a list of the reasons a noncitizen can be refused admission to and/or removed from the United States. A person who comes within a ground of inadmissibility is inadmissible. A person who does not come within any inadmissibility ground is admissible. The grounds of inadmissibility apply both at the border and in removal proceedings for persons seeking admission. But they are also relevant requirements to establish eligibility for

4

See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). Note that in Orozco v. Mukasey, the Ninth Circuit found that someone who had entered the United States using someone else’s permanent resident card had not been admitted as defined in INA § 101(a)(13)(A), but this case has since been vacated. 546 F.3d 1147 (9th Cir. 2008) (vacating previous published opinion). 6 25 I&N Dec. 285 (BIA 2010). 7 Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (“Addressing this issue of first impression in this circuit, we conclude that the plain meaning of the term ‘admission’ in § 1101(a)(13)(A), and thus the term ‘previously been admitted’ in § 212(h), refers to a procedurally regular admission and not a substantively lawful admission.”) 8 See Avalos-Martinez v. Johnson, __ F. App’x. __, 2014 WL 1285664 (5th Cir. 2014); Tamayo-Tamayo v. Holder, 725 F.3d 950, (9th Cir. 2013); Cordova–Soto v. Holder, 659 F.3d 1029, 1034 (10th Cir. 2011). 5

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many immigration applications, including adjustment of status, registry, the old amnesty programs, Temporary Protected Status (TPS), and non-immigrant visas.

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A person who comes within certain grounds of inadmissibility—generally the ones that focus on crimes—is also barred from establishing “good moral character” under INA § 101(f). Good moral character is discussed later in this unit. It is a requirement for non-permanent resident cancellation of removal, the Violence Against Women Act (VAWA), naturalization, registry, and voluntary departure. Generally the grounds of inadmissibility and deportability affect people who have committed or been convicted of certain crimes, have broken the immigration laws, have certain physical or mental problems, cannot demonstrate that they won’t need welfare, or are considered to be a communist, terrorist, or subversive. This manual will describe and give examples of some of the most common and important grounds of inadmissibility and deportability as well as the waivers available to overcome them. Certain grounds of inadmissibility and deportability, in certain situations, can be waived (forgiven) by DHS or an immigration judge. If DHS or a judge grants the person’s application for a waiver, the person will not be refused admission or removed. Waivers are discussed in Unit 6.

C.

A Short History Lesson: Exclusion and Deportation Proceedings before IIRIRA, Compared to Removal Proceedings under IIRIRA

It may be important to understand a portion of the system that was in place before several changes created by IIRIRA went into effect on April 1, 1997. This is helpful in understanding the case law before IIRIRA went into effect. In many instances, this case law is still the guide for establishing who is deportable and admissible. Also, some cases that were begun before April 1, 1997 will continue under the old system, in deportation or exclusion proceedings, instead of in removal proceedings. Under pre-IIRIRA law, the grounds of inadmissibility were referred to as “grounds of exclusion.” There is no real difference between the terms “grounds of inadmissibility” and “grounds of exclusion.” If you read court opinions about cases that started before 1997, they will

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NOTE: Guide to Ever-Changing Citations. Citations to the INA are tricky. In 1990, Congress changed the grounds of exclusion and deportation and created new cites for them. Cases from before 1990 will use different citations from 1990-1997 cases. IIRIRA changed citations again by moving grounds of deportability from § 241 to § 237, and moving some of the grounds of inadmissibility. This manual uses the current (IIRIRA) citations. For a chart showing the old and current citations for the Grounds of Inadmissibility/ Exclusion and the Grounds of Deportability, turn to Appendix 3-B.

refer to whether the person came within the grounds of exclusion or deportation, instead of grounds of inadmissibility or deportability. Before IIRIRA created removal hearings, there were two types of hearings: deportation hearings, in which INS had to prove the person was deportable, and exclusion hearings, in which the person had to prove that he or she was admissible. This is the same burden of proof found today in removal proceedings. The crucial difference between the old and new system is the difference between entry and admission. In pre-IIRIRA laws, whether the person faced the grounds of deportability or inadmissibility depended on whether the person made an entry into the United States—not whether the person was admitted. An entry is different from an admission. Entry includes a person physically coming into the United States legally or illegally, with or without inspection. It does not include a person who is formally stopped by DHS inspectors at the border or port of entry and refused admission. An admission is an entry after DHS inspection.

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Under the old law, a person who made an entry faced the grounds of deportation. Only people who were refused admission by INS faced grounds of exclusion. In practical terms, this change affects what happens to people who entered without inspection. Before IIRIRA, those people had an advantage: because they had made an entry, the INS had to prove that they were deportable. Under IIRIRA removal proceedings, people who enter without inspection have a disadvantage: since they have not made a lawful entry (admission) they are considered to still be seeking admission—even if they have lived in the United States for years. Under IIRIRA rules, this means that they have to prove that they don’t come within a ground of inadmissibility. Example 3.1: Mel and Sam entered the United States without inspection in 1990. The INS arrested Mel in April 1996. Because he had made an entry, he was placed in deportation proceedings and the INS had to prove that he came within a ground of deportation. The INS arrested Sam in April 1997, when removal proceedings were in effect. Lawful admission now is the test, not just entry. Because he had not been admitted, Sam was placed in removal proceedings in which he had the burden of proving that he did not come within a ground of inadmissibility. At this point you may wonder whether it really matters who has the burden of proof and whether someone faces the grounds of deportability or inadmissibility. In many cases, it makes a big difference, as you can see in the next section. Finally, if you are new to immigration law and feeling confused by this, take heart. This system has confused many people, including experienced practitioners.

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SKILLS NOTE: Read the INA (the “Act”) as You Read This Unit. The grounds of inadmissibility and deportability contain a lot of details. It is not possible to memorize them, and you should always read the statute (or law) to make sure you have it right. These grounds also are a perfect opportunity to practice using the statute.

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When you read this unit, please have a copy of the Act with you and use it. At some points, we will ask you to do review exercises that involve looking answers up in the Act. Even when we don’t do this, it is always a good idea to at least try to read what the Act says about a ground of deportability or inadmissibility. We recommend that you fix a tab or a sticky “post-it” marking the section where INA § 212(a) and INA § 237(a) begin, so you find them more easily.

D.

Burdens of Proof

Burden of proof is a complex and confusing subject, largely because the burden of proof shifts depending on the status of the person involved, and the situation he or she is faced with. The following is a brief synopsis of the differing burdens of proof.

For noncitizens found within the United States without being admitted or paroled, the government bears the burden of proving alienage.9 The evidence required to prove alienage is not specified by regulation. Even if the person has submitted an application for relief from removal, the information in that application cannot be held to be an admission of alienage.10 Once alienage has been established, the noncitizen must prove by clear and convincing evidence that he or she is lawfully in the U.S. pursuant to a prior admission, or is clearly and beyond a doubt entitled to be admitted to the U.S. and is not inadmissible as charged. 8 CFR § 1240.8(c). For noncitizens in removal proceedings, once alienage has been established, the burden of proof shifts to the noncitizen to show the time, place, and manner of entry.11 INA § 291.

9

8 CFR § 1240.8(c); see Murphy v. INS 54 F.3d 605 (9th Cir. 1995) (holding that the burden of proving alienage always remains on the government because it is a jurisdictional matter). 10 8 CFR § 1240.11(e).An application submitted to CIS prior to removal, however, can be used to establish alienage. 11 See also Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).

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1. The burden of proof on alienage falls on the government

2. The burden of proof under the inadmissibility grounds in INA § 212(a) General Rules for Noncitizens. Under INA § 240(c)(2), noncitizens who are subject to the grounds of inadmissibility, which includes those who are applying for adjustment of status under § 245, bear the burden of proving either: 1. they are “clearly and beyond doubt entitled to be admitted and not inadmissible under § 212” or, 2. they are lawfully present in the U.S. pursuant to a prior admission, by clear and convincing evidence.

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Lawful Permanent Residents and the Burden of Proof under the Inadmissibility Grounds. Despite the general rule governing the burden of proof for those deemed “applicants for admission” under IIRIRA, permanent residents who are subject to the grounds of inadmissibility as arriving aliens have more rights than other noncitizens. For example, under INA § 235(b)(2), a returning resident charged as an “arriving alien” has the right to a removal hearing under INA § 240. Furthermore, the U.S. Supreme Court,12 and more recently the BIA,13 have held that LPRs returning from a trip abroad are entitled to due process protections, meaning that they have the right to a full and fair hearing and the right to confront the evidence against them. In addition, the Supreme Court has held that if a returning lawful permanent resident is to be deprived of his status, the government may only do so in a proceeding in which the government is both the moving party and bears the burden of proof. Id. No statutory scheme invented by Congress can override these constitutional protections. 3. The burden of proof under the deportability grounds in INA § 237 For noncitizens who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the noncitizen is deportable. INA § 240(c)(3)(A); 8 CFR § 1240.8(a). “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” INA § 240(c)(3)(A). In addition, INA § 240(c)(3)(B) contains specific rules governing the type of evidence required to prove the existence of criminal convictions. The government bears the burden of proving both (1) that the noncitizen has a criminal conviction; and (2) that the conviction triggers a ground of deportability or inadmissibility. These rules, and case law governing the establishment of deportability based on a criminal conviction, are covered in § 3.20. Under the Supreme Court case, Woodby v. INS, 385 U.S. 276 (1966), the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. It’s not clear whether there is a difference between “clear and convincing” and “clear, unequivocal and 12 13

Landon v. Plasencia, 459 U.S. 21 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

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convincing,” but because the Woodby decision is constitutionally based, it should be the required standard of proof.

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What Does “Clear, Unequivocal, and Convincing” Mean? This standard is not readily defined. Practitioners should argue that this is a high standard that does not offer any room for ambiguity. Looking to case law can help us understand how the standard of proof for deportability has been applied in practice. For example, in Matter of Pichardo,14 the BIA held that the government failed to meet its burden of proof when the criminal court document offered to prove a firearms conviction did not specify that the weapon was a firearm, even where the respondent testified that he used a gun. In Matter of Vivas,15 however, the BIA held that where the government has made a prima facie case for deportability, the noncitizen may be required to submit evidence that rebuts the government’s case if the evidence in question is within the noncitizen’s knowledge and control. In Matter of Vivas, the respondent was a permanent resident who supposedly obtained his residence through a U.S. citizen spouse. However, the government produced a witness claiming that the birth certificate alleged to belong to the respondent’s spouse was actually hers, and that she had never met him. Under these circumstances, the BIA affirmed the immigration court’s decision finding the respondent deportable. Similarly, in Matter of Guevara,16 the BIA affirmed that once the government submits prima facie evidence of deportability, the burden of proof shifts to the respondent to rebut that evidence.

Circuit Split. There is a conflict in the Circuits over how the clear and convincing, or clear, unequivocal, and convincing standard for establishing deportability should be interpreted. In the Eleventh Circuit, the court affirmed the use of a document that contained several ambiguities to establish deportability for a firearms offense by clear and convincing evidence, reasoning that under the “substantial evidence” test the court had to affirm the BIA’s decision unless there is no reasonable basis for that decision.17 Contrast this decision with the BIA’s decision in Matter of Pichardo, above. The Second Circuit, in Francis v. Gonzales18 expressly disagreed with the Eleventh Circuit’s decision in Adefemi v. Ashcroft. According to the Second Circuit, the courts must reverse a finding of deportability where “any rational trier of fact would 14

21 I&N Dec. 330 (BIA 1996). 16 I&N Dec. 68 (BIA 1977). 16 20 I&N Dec. 238 (BIA 1991). 17 Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004). 18 442 F.3d 131, 138-39 (2d Cir. 2006). 15

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Matter of Guevara also held, however, that the government cannot meet its burden of proof solely based on the respondent’s assertion of his Fifth Amendment right to remain silent. In other words, where a noncitizen is subject to the deportability grounds, the government has to have submitted clear and convincing, credible proof of deportability, which the noncitizen then has the burden of rebutting, before the noncitizen’s silence can be used against him. Matter of Guevara; see also Matter of Carillo, 17 I&N Dec. 30 (BIA 1979).

conclude that the proof did not rise to the level of clear and convincing evidence.”19 Advocates should argue that in view of the statutory scheme as well as BIA precedent, courts of appeal should follow the reasoning in Francis v. Gonzales rather than Adefemi v. Ashcroft when interpreting the clear and convincing or clear, unequivocal and convincing standard for establishing deportability. Cases such as these, in which the interpretation of the burden of proof is at issue, should be referred to experienced attorneys or accredited representatives, as these types of cases are very complex. 4. The burden of proof in applications for discretionary relief Burden of proof also comes up in the context of applications for relief from removal. If the government successfully establishes deportability or inadmissibility, the next step in the removal hearing process is to determine if the person may be eligible for some form of relief from removal, and if so to apply for that relief. The burden of proof for determining eligibility for relief from removal is quite different from the burdens of proof for establishing deportability or inadmissibility, and should not be confused with them.

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Under INA § 240(c)(4)(A): An alien applying for relief or protection from removal has the burden of proof to establish that the alien: 1. satisfies the applicable eligibility requirements; and 2. with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion. In addition, the applicant must submit information or documentation to support the application, as required by law, regulation, or the instructions in the application form. INA § 240(c)(4)(B). Where the immigration judge instructs the applicant to provide evidence that corroborates otherwise credible testimony, that evidence must be provided unless the applicant shows he or she does not have it and cannot reasonably obtain it. INA § 240(c)(4)(B). Furthermore, 8 CFR § 1240.8(d) states: “If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” What this means in the context of different applications for relief from removal has been the subject of much litigation recently, in the Supreme Court, the Ninth Circuit, and around the country. See Part Three below for more details.

19

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The rest of this unit is divided into four parts. Part One will cover the grounds of inadmissibility or deportability relating to health issues, alien smuggling, visa and document fraud, and some miscellaneous grounds.

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Part Two will cover the grounds of inadmissibility relating to unlawful presence, removal, re-and entry, including the three and ten year bars. Part Three will cover the grounds of deportability (except for crimes). Part Four will discuss how crimes and criminal records affect the grounds of inadmissibility and deportability as well as good moral character.

PART ONE: THE GROUNDS OF INADMISSIBILITY -- HEALTH, ALIEN SMUGGLING, VISA AND DOCUMENT FRAUD, AND MISCELLANEOUS § 3.2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse

There are four grounds of inadmissibility related to health. Turn to INA § 212(a)(1)(A) in your copy of the Act. A.

Communicable Diseases: INA § 212(a)(1)(A)(i)

People who have certain communicable diseases are inadmissible. People who are inadmissible for contagious diseases and who have certain U.S. citizen or permanent resident relatives can apply for a waiver under INA § 212(g)(1). See Unit 6 of this manual. Skills Question: Look at INA § 212(a)(1)(A)(i). Does it contain any diseases? Who writes regulations about other diseases? Generally, the Department of Health and Human Services (HHS) decides which diseases or conditions make a person inadmissible. Previously, the only condition listed in the

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To see if a person applying for an immigrant visa will be inadmissible based on a healthrelated ground, DHS requires the person to take a medical exam given by a doctor approved by DHS (called a “civil surgeon”) or, in consular processing, a doctor approved by the United States consulate (called a “panel physician”). The applicant cannot go to any doctor; it must be a government-approved doctor from the official list. When the test results are ready, the doctor will give the person a sealed envelope containing the results to take to the DHS or consular appointment. The person must leave the envelope sealed. She can, however, ask the doctor to tell her the results of the test, and may request a copy from the doctor before the envelope is sealed.

Immigration & Nationality Act itself was “infection with the etiologic agent for acquired immune deficiency syndrome,” meaning anyone who was HIV positive. However, effective January 4, 2010, HHS through the Centers for Disease Control and Prevention (CDC) issued a final rule to remove HIV from the definition of “communicable disease of public health significance” and to remove HIV testing from the scope of the medical screening process for immigrants. Therefore, immigrants seeking admission are no longer inadmissible based solely on the ground that they are HIV positive and will not be required to undergo HIV testing as part of the required medical examination.

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Other diseases that are designated communicable diseases are listed in the HHS regulation at 42 CFR § 34.2(b). Active tuberculosis and sexually transmitted diseases such as gonorrhea and syphilis are also bases for inadmissibility. A person testing positive for these illnesses can have the disease treated and cured and then qualify for immigration. If an illness, such as tuberculosis, cannot be quickly cured, the person can apply for a waiver. In October 2008 the HHS further amended 42 CFR § 34.2(b), by adding two new categories of diseases that may trigger inadmissibility: (1) quarantinable diseases designated by Presidential Executive Order, and (2) diseases that qualify as a “public health emergency of international concern which require notification to the World Health Organization (WHO) under the revised International Health Regulations (IHR) of 2005.”20 These new categories, however, only apply to examinations performed in consular processing by “panel physicians” and will only take effect when HHS directly notifies panel physicians in the affected areas.21 B.

Failure to Prove Vaccinations: INA § 212(a)(1)(A)(ii)

IIRIRA created a ground of inadmissibility for failing to present evidence of vaccination against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization practices (ACIP). The ACIP has the power to recommend additional vaccinations. See INA § 212(a)(1)(A)(ii). Effective December 14, 2009, the CDC adopted the following criteria in deciding which ACIP-recommended vaccines that immigrants seeking admission must receive: 1. the vaccine must be an age-appropriate vaccine as recommended by the ACIP for the general U.S. population; and 2. the vaccine must do at least one of the following: a. the vaccine must protect against a disease that has the potential to cause an outbreak; or

20

See www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/technical-instructions-panel-physicians.html (last updated Dec. 5, 2013). 21 See 85 Interpreter Releases 2714 (Oct. 13, 2008); 85 Interpreter Releases 2830 (Oct. 27, 2008).

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b. the vaccine must protect against a disease that has been eliminated in the United States or is in the process of elimination in the United States.22

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The current vaccine tables for children and adults based on the ACIP recommendations for the U.S. population can be found at www.cdc.gov/vaccines/schedules/index.html. See Technical Instructions for Civil Surgeons and Panel Physicians, available at www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. For a CIS fact sheet on Vaccination Requirements see Appendix 3-J. The proof of vaccination may be waived if the person gets the vaccination, or if a civil surgeon or similar official certifies that the vaccination would not be medically appropriate, or if the vaccination would be contrary to the person’s religious or moral beliefs. See INA § 212(g)(2). This provision applies to visa and adjustment applications filed after September 30, 1996. C.

Mental or Physical Disorder: INA § 212(a)(1)(A)(iii)

Alcoholism can be a basis for inadmissibility under this ground, and drunk-driving convictions can serve as evidence of alcoholism. The “Technical Instructions for Medical Examinations of Aliens,” published by the CDC, lists alcoholism as a threatening mental or physical disorder that can serve as a basis for inadmissibility.24 However, these Instructions also state that alcohol dependence or abuse must be considered the same as any other mental disorder, and requires associated harmful behavior to be classified as a medically inadmissible condition.

22

For more information, see Centers for Disease Control and Prevention, “New Vaccine Criteria for U.S. Immigration,” (Nov. 2009), available at www.cdc.gov/immigrantrefugeehealth/pdf/revised-fact-sheet-fedreg-notice-vaccination-immigration.pdf; see also Appendix 3-J. 23 These Instructions can be obtained at: www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. 24 See www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html.

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People are inadmissible who have a mental or physical disorder and related behavior, which may pose a danger to themselves or others, or who have had such a disorder in the past that is likely to recur. See INA § 212(a)(1)(A)(iii). For example, this ground might affect people who have been committed to mental institutions for violent behavior; who have been diagnosed as sexual predators; or even who are suicidal. The Department of Health and Human Services (HHS) is in charge of issuing regulations to determine who comes within this definition. To date, no regulations have been issued. However, the Centers for Disease Control and Prevention has released Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-related Disorders for Panel Physicians.23 These instructions came into effect on June 1, 2010, and should be consulted in the event you have a client who may potentially have such a disorder. This ground may be waived if the person can post a bond. INA § 212(g).

CIS updated its policy guidelines on January 28, 2014 to require a medical evaluation for alcoholism if the applicant has a single drunk driving arrest or conviction within the last five years or two or more drunk driving arrests or convictions within the last ten years.25 This standard is much stricter than the previous one and shows that the government is taking alcoholrelated offenses much more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a panel physician or civil surgeon has made two findings: (1) that there is a diagnosis or mental disorder (alcohol abuse) and (2) current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. 9 FAM 40.11 N8.3. Note that under INA § 212(a)(10)(B), an “accompanying person” may be inadmissible. Under this section, if someone who is inadmissible and is certified to be helpless due to a physical or mental disability, sickness or infancy, the person accompanying him or her is also inadmissible if needed for the protection or guardianship of the helpless person.

Historical Note: Until 1990, homosexuals were defined as “sexual deviants” and were inadmissible. This ground was eliminated, and homosexuality is no longer a bar to admission.

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D.

Drug Addicts and Drug Abusers: INA § 212(a)(1)(A)(iv)

Drug addicts and drug abusers are inadmissible. Skills Question: Read INA § 212(a)(1)(A)(iv). Do you think it refers to past or present abuse or addiction? Why? Does it define what a drug addict or abuser is? Who makes the definition? This ground of inadmissibility applies to current, not past, abuse or addiction. We can say that because the statute punishes a person who is determined “to be” an abuser/addict, which is the present tense. (A person who has been an addict or abuser at any time since admission into the United States is deportable, however. See § 3.20.) It is important to note, however, that current drug abuse or addiction will include any use in the past year. Theoretically, a doctor first should decide if a person is a drug abuser or addict. The Code of Federal Regulations defines “drug abuse” as “the non-medical use of a controlled substance listed in § 202 of the Controlled Substances Act, which has not necessarily resulted in physical or psychological dependence,” and “drug addiction” as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 USC § 802) which has resulted in physical or psychological dependence.” 42 CFR §§ (g), (h).

25

See CIS Policy Update, Physical or Mental Disorder with Associated Harmful Behavior Ch. 7, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter7.html.

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The CDC has defined substance abuse and dependence in the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders.”26 This document indicates that a finding of substance dependence (drug addiction) or repetitively abusing substances (drug abuse), will only be made if the noncitizen “meets current DSM27 diagnostic criteria for substance dependence or abuse with any of the specific substances listed in Schedules I through V of Section 202 of the Controlled Substances Act.”

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The current CDC standards are a vast improvement over the past, when it considered any drug use that went beyond mere experimentation to be drug abuse. This question of drug abuse may come up in adjustment and removal proceedings in the United States, in addition to consular processing abroad. Advocates should be prepared to make sure that any finding of drug abuse or addiction is truly based on the criteria set forth in the CDC’s “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders,” rather than on speculation.

Example: Rebeca admitted to the panel physician she smoked marijuana two or three times, with the last occasion nine months ago. She is denied as a “drug abuser” but can reapply in three months’ time—because that will be the point at which she has been in “remission” for 12 months. She should arrange for random drug testing and take classes in her country while she awaits the expiration of the remission period, and have the test results sent directly from the testing facility to the panel physician. There is no waiver available for this ground of inadmissibility.

PRACTICE TIP: Persons whose blood tests reveal traces of marijuana or other drugs (which can remain in the blood for some time, even many months) may be held inadmissible. Warn your clients before they go to see a civil surgeon or to a visa appointment—especially teenagers and young adults! You may want to speak to the young person separately from the parents. Children 26

See www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-pp-ti.pdf. DSM stands for the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, which provides a common language and standard criteria for the classification of mental disorders. 27

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The standard for full “remission” for “drug abusers” under the DSM is a 12-month period of no substance use or associated harmful behavior. This was updated on June 1, 2010 from a prior three-year required remission period. In practice, sometimes the panel physician will make a finding of “drug abuse” even if the applicant admits to only abusing drugs on a couple occasions. The panel physician still retains discretion to require a longer period, and may suggest or require that the applicant undergo random drug testing, take drug abuse classes, etc., in order to meet the criteria for “remission.” When the remission period is over, the applicant must undergo a new medical exam before an immigrant visa can be issued.

that have been living within the United States and are sent back to their home country for consular processing must be thoroughly screened for this issue and prepared for the medical prior to departure. Should this issue arise, the child may end up separated from parents until they can show remission.

Exercise § 3.2 -- Health Grounds of Inadmissibility: Are the following people inadmissible? If not, why not? If so, why? Is there a solution? Answers are at Appendix 3-A.

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1. Since coming to the United States, Margaret began to use cocaine. She uses it “casually, just at parties once in a while.” She believes that she is not addicted to cocaine. 2. Teresa is a Christian Scientist and it is against her religion to be injected with vaccines. Her husband Tony is not a Christian Scientist, but he is afraid of needles. 3. Francois was tortured and later became extremely depressed and tried to commit suicide. He has since rebuilt his life and is no longer suicidal. 4. Antje received her first and only DUI two years ago.

§ 3.3 Alien Smuggling: Grounds of Inadmissibility and Deportability Noncitizens who in any way and any time help bring other noncitizens illegally into the United States are inadmissible. See INA § 212(a)(6)(E). A person who commits alien smuggling—even if there is no conviction—can be found deportable, if it occurred at the time of any entry, prior to any entry, or within five years of any entry. See INA § 237(a)(1)(E). Furthermore, a conviction for alien smuggling is an aggravated felony, unless it was a first offense for smuggling only a parent, spouse or child. See INA § 101(a)(43)(N). A.

Definition of Alien Smuggling

The statute defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter the U.S. (or to try to enter) illegally. INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i). These provisions are worded very broadly and include sending money to someone to pay a smuggler, as well as merely encouraging someone to enter the U.S. illegally. Bringing one’s own family members is alien smuggling if the situation otherwise meets the definition for alien smuggling. The courts have provided guidance on what types of scenarios meet the statutory definition. If you have a case where the person might have committed alien smuggling, it will be

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very important to review the applicable case law. There might be facts that support an argument that the situation does not meet the definition of alien smuggling. In Altamirano v. Gonzales, the Ninth Circuit reversed a finding of inadmissibility for alien smuggling where the petitioner was a passenger in a vehicle and knew that someone was hiding in the trunk.28 The court held that:

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The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because Altamirano did not affirmatively act to assist Martinez-Marin, she did not engage in alien smuggling. That she was present in the vehicle and knew that Martinez-Marin was in the trunk does not amount to a violation of § 212(a)(6)(E)(i).29 In Aguilar-Gonzales v. Mukasey, the Ninth Circuit also held that merely being present and acquiescing to another’s fraudulent use of a document is not an affirmative act to constitute alien smuggling.30 In that case, despite petitioner’s multiple refusals to allow her father to borrow her son’s U.S. birth certificate to smuggle two infants into the U.S., she finally agreed to accompany and allow him to use and present the birth certificate to immigration authorities because she feared that he would stop paying the mortgage on her house if she did not do so. The Ninth Circuit found that she had not committed alien smuggling.

In the Second Circuit, the court upheld a finding of alien smuggling where the noncitizen lied at the border about another person’s residency and the whereabouts of his passport, admitted to the border patrol officers that she previously agreed to accompany the other person at the Canadian border as he tried to enter the United States, and was aware the other person had previously been deported. Chambers v. Office of Chief Counsel, 494 F.3d 274 (2d Cir. 2007). These cases stand for the proposition that the statutory definition of alien smuggling requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get aliens across the border, or providing false information and documents to immigration authorities. Mere presence during the actual act of alien smuggling with knowledge that it is being committed is not enough, at least in the Sixth and Ninth Circuits. The Ninth Circuit has also found that an affirmative act constituting smuggling includes knowingly participating in a prearranged plan to bring people to the border and then meeting them on the U.S. side to transport them within the United States. Hernandez-Guadarrama v. 28

427 F.3d 586, 591-96 (9th Cir. 2005). Id. at 592. 30 534 F.3d 1204 (9th Cir. 2008). 29

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In the Sixth Circuit, the court reversed finding of inadmissibility for alien smuggling for a legal permanent resident who shared driving responsibilities with three friends, one of whom was an illegal immigrant, where the lawful permanent resident believed the illegal immigrant could travel back and forth across the border because he was in the process of applying for a green card. Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005).

Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). In that case, the petitioner picked up seven individuals in Mexico, drove them to a town near the border where they made arrangements with a smuggler to cross, and then met up with them again once they were within the United States to drive them from Arizona to Washington. The court also found, however, that mere harboring or transporting of others alone is not enough to constitute alien smuggling. See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).31 This finding is consistent with the Fifth Circuit, which stated, in Rodriguez-Gutierrez v. INS,32 that a conviction for illegally transporting undocumented immigrants does not trigger inadmissibility for smuggling because the statute only refers to aiding and abetting, not transporting. An old BIA case, Matter of M-, also found that transporting undocumented persons within the U.S. does not necessarily create inadmissibility for alien smuggling.33

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IMPORTANT NOTE: The aggravated felony smuggling ground does include transporting undocumented immigrants. See INA § 101(a)(43)(N) (referencing INA § 274(a)).34 However the definition of smuggling under INA §§ 101(a)(43)(N) and 274(a) is different from the definition in the inadmissibility and deportability grounds we are discussing here: INA §§ 212(a)(6)(E) and 237(a)(1)(E). These grounds only apply to people who have knowingly assisted, abetted, etc. the entry of an unauthorized person.

Smuggling may also include affirmative assistance provided after the person who was smuggled entered the country, even though the assistor had no intention to help the person enter in the first place. The Ninth Circuit held that alien smuggling includes an agreement by a family member to pay a smuggler after the person is already in the U.S., but before the smuggler releases or ceases to transport the person. Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007).35 In that case, the petitioner knew that his brother planned on crossing the border illegally, but did not agree to help him until he had crossed the border, but before the smuggler released and ceased to 31

In United States v. Lopez, the Ninth Circuit reversed a conviction under 8 USC § 1324(a)(2) because the evidence showed that the defendant did not aid and abet initial transportation but just transported undocumented aliens within the United States and did so only after the initial transporter had dropped the aliens off inside the country. Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995) (conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting); Matter of I-M-, 7 I&N Dec. 389 (BIA 1957) (transporting undocumented persons within the U.S. does not necessarily create inadmissibility). 32 59 F.3d 504, 509 n. 3 (5th Cir. 1995). 33 Matter of I-M-, 7 I&N Dec. 389 (BIA 1957). 34 INA § 274(a) includes “transporting;” see also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999); U.S. v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002). 35 See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (“We hold that although all of the elements of the “bringing to” offense [under 8 USC § 1324(a)(2)] are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border.”)

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transport him. Petitioner had collected money from his other siblings and arranged payment to the smuggler.

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Finally, a finding of alien smuggling does not just cover professional alien smugglers; it also applies to people who bring in their family members. Example 3.3-a: Maria went to Mexico and physically helped her younger brother cross the border without inspection. She is inadmissible as an alien smuggler. Example 3.3-b: Sandra arranged for her elderly mother to enter the United States illegally in 2007. Sandra contacted a coyote to bring her and helped pay for the expenses, although Sandra wasn’t there herself. Sandra is inadmissible as an alien smuggler.

WARNING! Before you concede that your client is inadmissible or deportable, make sure that she knew that the person she was helping or encouraging did not have the legal right to enter the U.S. If a violation was not made knowingly, then it does not trigger this ground. Also make sure that the acts do not involve merely harboring or transporting others within the United States or merely being present or acquiescing to the illegal entry of others as the person may have engaged in alien smuggling.

Who Is Inadmissible as an Alien Smuggler?

A person, who has knowingly encouraged, induced, assisted, abetted, or aided a person enter, or try to enter, the United States unlawfully is inadmissible. INA § 212(a)(6)(E). Unlike the deportation ground (discussed in Subsection C below), which is triggered only when committed during certain time periods (prior to the date of entry, at the time of any entry or within five years of the date of any entry), the inadmissibility ground will be triggered by an act committed at any time. Before 1990, only people who smuggled noncitizens in exchange for money were inadmissible. The post-1990 ground harshly imposes inadmissibility on people who have sympathetic reasons for helping family members enter the United States. You must inform your clients of the consequences of telling DHS that they helped family members or others to come in illegally. If the person is not eligible for a waiver you may need expert advice to fight the case, and community support to influence the DHS not to proceed against the person. A person who is inadmissible for alien smuggling also is ineligible to establish good moral character under INA § 101(f), which is a requirement for naturalization, cancellation of removal (for non-permanent residents), registry, and one of the forms of voluntary departure. See § 3.28. A narrow waiver is available for certain persons found inadmissible as alien smugglers. See Subsection D below. 3-21

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B.

C.

Who Is Deportable as an Alien Smuggler?

The deportation ground is a little better than the ground of inadmissibility, because it has a time limit. The person must have committed alien smuggling before, during, or within five years of any entry into the United States to be deportable. INA § 237(a)(1)(E). The word “entry” means coming into the United States legally or illegally, with or without inspection and authorization by an immigration officer. Advocates should not concede deportability unless they have confirmed that the client knew that the person whom they helped enter the United States did not have the legal right to enter, and the act itself meets the definition of alien smuggling, and that it occurred during the time periods enumerated above. Example 3.3-c: Ricardo was admitted to the United States in 2003 as a permanent resident, and has never left the United States since then. In 2009 he paid an alien smuggler to help bring his father up from Mexico. Ricardo committed alien smuggling, because he helped his father enter illegally. But he is not deportable, because he did it more than five years since his last entry into the United States in 2003.

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D.

Waivers and Exemptions

There are limited waivers for alien smuggling. The statute allows for a waiver for the purposes of humanitarian grounds, family unity, or the public interest, see INA § 212(d)(11), for two specific groups of people: long-time permanent residents who voluntarily left the United States and are otherwise admissible (see Unit 12); and noncitizens who are immigrating as immediate family members. There is also limited automatic exemption for people who qualify for a benefit called “family unity” (see Unit 16). A requirement for all of these waivers and exemptions is that the person must have smuggled only his or her parent, spouse, son or daughter. Example 3.3-d: In the example above, Maria smuggled her brother. We know that she cannot even apply for a waiver or exemption, because she did not smuggle a parent, spouse, son or daughter. She will not be eligible for one of the special waivers for alien smuggling. We will discuss these waivers and exemptions in detail in Unit 6. E.

Watch Out—Conviction for Alien Smuggling Is an Aggravated Felony!

A conviction of alien smuggling under INA § 274(a)(1)(A) or (2) is an aggravated felony, even if the “smuggler” was not paid and was helping a friend or relative, and even if no sentence was imposed. The only exception is for a first offense smuggling of a spouse, child or parent. See Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999), INA § 101(a)(43)(N), and the discussions in Subsection A above and in § 3.25. Example: Maria was convicted for the crime of smuggling her brother. She has an aggravated felony conviction. Even if she is a lawful permanent resident, this will make

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her ineligible for LPR Cancellation of Removal and therefore deportable with possibly no relief from deportation.

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Exercise § 3.3 -- Alien Smuggling: The following people are not citizens of the United States. Are they inadmissible? If so, why? If not, why not? Might there be a waiver or any solution? Answers are at Appendix 3-A. 1. Sami was living unlawfully in the United States and wanted to see his brother. Sami urged his brother to fly to Canada and then cross illegally into the United States. 2. Beatriz went to Mexico to help her husband Ramon, who was very ill, cross the border illegally into the United States. Is she inadmissible? 3. Joseph entered the United States in 1985 as a permanent resident and has not left the U.S. since then. In 1995 his mother became ill and he sent for her. Is he deportable? If he had helped his sister at the same time, would he be deportable? 4. Dante is convicted of alien smuggling when he brings two friends across the border. What consequences does a conviction have if he is trying to apply for LPR cancellation of removal?

Section 212(a)(6)(C)(i) of the INA states that: An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States, or other benefit provided under this Act is inadmissible. This language means that people who use fraudulent documents such as a forged U.S. passport or green card are inadmissible. People who “misrepresent a material fact” to DHS are also inadmissible. A.

Materiality

What does “misrepresenting a material fact” mean? Basically it means telling an important lie—a lie that could make a difference in the government’s decision. The lie does not have to actually influence the government’s decision; it only matters that it could have.36 Also note that the misrepresentation must be to a U.S. government official; misrepresentations made to 36

See Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA 2011) (It is “not necessary for the Government to show that the statement actually influenced the agency, only that the misrepresentation was capable of affecting or influencing the government’s decision”).

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§ 3.4 Visa Fraud

airline officials, for example, do not fall within this ground of inadmissibility.37 If the lie was not material (important to the case), the person is not inadmissible. Example 3.4: Estella immigrated through her U.S. citizen husband. During her interview, she told two lies to the consular officer when she got her immigrant visa. First, she told the officer that she had no other relatives living in the United States. Second, she told the officer that she and her husband were still married, when in fact they are divorced. The first lie was not material. The fact that Estella has other relatives in the United States would not have changed the officer’s decision. While this was a lie, it was not material in this case and therefore was not visa fraud.

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The second lie was material. If the officer had known Estella and her husband were divorced, he would not have granted the visa, which was based on the marriage. Estella committed visa fraud. CIS policies instruct officers to follow a “test” for materiality provided by the U.S. Supreme Court in Kungys v. United States, 485 U.S. 759 (1988). This test requires that for false statements to be material they must have been “predictably capable of affecting the decisions of the decision-making body.”38 The policies further instruct officers in applying this standard to consider whether either: 1) the alien is inadmissible, removable, or ineligible for the benefit sought under the true facts; or 2) the misrepresentation “tends to cut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she is inadmissible.”39 B.

Willfulness

A person will not be found inadmissible under INA § 212(a)(6)(C)(i) unless the misrepresentation was willful, meaning that it was “deliberate and voluntary.”40 This means that a misrepresentation cannot be based on “innocent mistake, negligence or inadvertence,”41 and that the person must know that the statement was false at the time she made it.42

37

See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). Appendix 3-I: USCIS Interoffice Memorandum, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, p. 17 (Mar. 3, 2009), available at www.uscis.gov/sites/def ault/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/section212_a_6_immi_natl_act_illegal_ violators.pdf. 39 Id; see also Matter of S- and B-C-, 9 I&N Dec. 436 (BIA 1961). 40 Matter of D-R-, supra, at 451 n.3. 41 Emokah v. Mukasey, 523 F.3d 110, 117 (2d Cir. 2008). 42 See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 834-38 (7th Cir. 2008); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). 38

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Individuals who are mentally incompetent, and small children incapable of forming an intent to deceive will not be inadmissible under this section, should applications made on their behalf contain misrepresentations.43 C.

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Silence or Omission

In determining whether a misrepresentation has been made, it also is necessary to distinguish between misrepresentation of information and information that was merely concealed by the alien’s silence. “Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA § 212(a)(6)(C)(i).” 9 FAM 40.63 N4.2.44 Example: Maria adjusted her status to become a lawful permanent resident through her U.S. citizen husband. When she first came to the United States, she used a visitor visa that she obtained, although she was already engaged to her husband and was planning to remain in the U.S. and become a permanent resident. However, upon her arrival to the U.S. the consular officer did not ask her how long she was going to stay, or whether she had any relatives in the U.S. He just looked at her passport and granted her admission. Maria has not committed fraud or misrepresentation, because she never told a lie to a consular or immigration officer. D.

Burden of Proof

   

There was no fraud or misrepresentation; or Any fraud or misrepresentation was not intentional or willful; or Any fraud or misrepresented fact was immaterial; or The fraud or misrepresentation was not made to procure a visa, admission, or some other benefit.46

43

Appendix 3-I, p. 22. Appendix I, cited above at p. 22. The only case on point presently regarding this issue is Singh v. Gonzalez, 451 F.3d 400, 409 (6th Cir. 2006), though the BIA and other circuits have cited to Singh favorably when distinguishing other situations involving imputation of parental intent. 44 See also Appendix 3-I, p. 20. 45 See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 46 Appendix 3-I, p. 19.

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Absent evidence that that the applicant used fraud or misrepresentation to obtain an immigration benefit, the applicant will have met the burden of proving she is not inadmissible under INA § 212(a)(6)(C)(i).45 Where evidence exists that would permit a reasonable person to conclude that an individual is inadmissible under INA § 212(a)(6)(C)(i), the individual has the burden of proving by a preponderance of the evidence any one of the following:

E.

Timely Retraction

An applicant who timely and voluntarily retracts a misrepresentation may use such retraction to eliminate the consequences, including inadmissibility.47 A retraction is only timely if it is made both within a short period of time and not in response to the fact that the individual is about to be found out by a DHS or consular officer.48 A waiver of inadmissibility for fraud or misrepresentation is available for people who have certain citizen or permanent resident relatives that can show that they would suffer extreme hardship if the person was removed. See INA § 212(i) and discussion in Unit 6. Applicants for adjustment of status under § 245(h) (special immigrant juvenile status) and VAWA will also be exempt from inadmissibility under INA § 212(a)(g)(C)(i).

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§ 3.5 Document Fraud: Ground of Inadmissibility and Deportability Section 274C of the INA defines document fraud and sets out rules for a civil hearing and penalties for people who commit document fraud. A person who by final order in a § 274C civil hearing is found to commit document fraud is inadmissible and deportable. See INA §§ 212(a)(6)(F), 237(a)(3)(C). Since there must be a final civil court order, this is very different from the ground of inadmissibility for visa fraud (§ 3.4) or for false claim to U.S. citizenship (§ 3.7), where the conduct itself triggers the ground of inadmissibility. A lawsuit first brought by advocates in 1996 prevented the DHS from enforcing the document fraud law for some years, and some people who were found inadmissible or deportable were able to reopen their cases. At this point, the DHS is able to enforce the law again. See Subsection C “Walters v. Reno Litigation” below for more information on the lawsuit. A.

What Is Document Fraud?

“Document fraud” is different from “visa fraud.” It is more narrowly defined and relates only to the misuse of documents and written articles, as opposed to making false oral statements. Under INA § 274C, it is unlawful for a person to knowingly forge or alter any document or to “use, attempt to use, possess, obtain, accept, or receive or provide” any such false document. It is unlawful to borrow someone else’s document for the purpose of obtaining any benefit under the immigration laws. This includes using a false or borrowed visa to enter the United States, or a false or borrowed Social Security card to complete an I-9 form to get a job. It is also document fraud for a noncitizen to use documents to board an airplane or other transport and then destroy the documents en route to the United States.

47

Appendix 3-I, p. 21. Appendix 3-I, p. 21, citing among other cases, Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949).

48

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In 1996, IIRIRA changed the law and added more actions that constitute document fraud, which particularly affect those who assist immigrants. The new section, INA § 274C(5), defines “falsely make” including:

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to prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted. B.

Not Inadmissible or Deportable without a “Final Order”

Section 274C of the INA defines document fraud, and it sets out rules for a civil hearing before an administrative hearing officer. The officer will issue a final order against a person if the person either (a) waives her right to the civil hearing, or (b) is found to have committed document fraud. This is a civil penalty (fine), not a criminal offense (although there are possible criminal penalties for this type of activity). For a person to be inadmissible or deportable under this section, it is not enough that the person committed document fraud—he must have been notified to come to the § 274C civil hearing and be the subject of a final order from that hearing.

Example 3.5-b: Sally obtained a fake social security card and used it to complete an I-9. In a civil § 274C document fraud hearing, the hearing officer issued a final order against her. Sally is inadmissible and deportable for document fraud. Does that mean your client has no problems if she confesses document fraud to DHS and there is no final order against her yet? No. The DHS might or might not choose to refer the person to a § 274C hearing. In addition, the person might be inadmissible for visa fraud. See § 3.4. C.

Walters v. Reno Litigation

A federal court found that the INS (now DHS) broke the law by making the notices for § 274C civil hearings impossible to understand. The INS notice contained a form for people to sign that would waive their right to a hearing on the document fraud, and have them admit fraud and pay a fine instead. The form contained unclear, technical language. Many people signed the waiver form and agreed to pay the § 274C fine, thinking that this was something like paying a traffic ticket and that paying the fine would clear up the matter.

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Example 3.5-a: Zola borrowed her sister’s border crossing card to enter the United States. Zola is about to immigrate through her U.S. citizen husband. She has never been the subject of a civil § 274C hearing. She is not inadmissible or deportable for document fraud at this time.

Because of the confusing language, they did not realize that they were technically admitting document fraud, accepting a final order, and making themselves deportable or inadmissible. After a federal district court judge ruled in 1996 that INS document fraud enforcement procedures were unconstitutional, a settlement was reached in the case. In February 2001, INS agreed to vacate all § 274C final orders issued against class members and to re-calendar, reopen or remand certain deportation proceedings. In 2001, INS indicated that it had finished vacating the final orders issued against class members and issued the procedures to re-open, re-calendar or remand class member’s deportation cases. Finally, class members who paid civil monetary penalties under § 274C had until August 21, 2003 to request a refund. For a copy of the Walters settlement agreement or for more information generally, contact the National Immigration Law Center (NILC) in Los Angeles at (213) 639-3900 or go to www.nilc.org. D.

Waivers

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Limited waivers exist for inadmissibility and deportability for § 274C document fraud. These waivers are discussed in detail in Unit 6. In general, the waivers provide that some lawful permanent residents and some people who will immigrate through a family visa petition can obtain a waiver of the document fraud ground of inadmissibility. They must have committed the offense only to help or support their spouse or child. See INA §§ 212(d)(12), 237(a)(3)(C)(ii). People who cannot qualify for these waivers might be able to clear up a document fraud problem with a waiver for visa fraud, if the document fraud they committed also constitutes visa fraud.49 For example, a person who used a false document and also made a false oral statement to a consular officer committed both types of fraud. See discussion in Unit 6. E.

Watch Out—a Document Fraud Conviction Might Be a Deportable Offense or an Aggravated Felony!

A conviction for falsely using, making, or altering a passport or other similar document can be a basis for deportation under two provisions. It is a deportable offense under INA § 237(a)(3)(B)(iii). It can also be an aggravated felony if a year’s sentence was imposed, unless the person showed that it was the first offense and was committed to aid a spouse, child or parent. INA § 101(a)(43)(P). This includes a conviction for using or making false documents. See § 3.16 for the conviction for document fraud deportation ground and § 3.25 for information on aggravated felonies.

49

This applies only if they have not received a final administrative order of document fraud under INA § 274C. See Unit 6.

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F.

Client Education

Clients should be advised not to engage in document fraud. Those clients who have false documents have a right to know that the DHS will prosecute them if it finds the false documents on them.

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§ 3.6 Insufficient Documentation Insufficient documentation under INA § 212(a)(7) is a separate ground of inadmissibility that should be distinguished from grounds involving fraud or misrepresentation. Unlike material misrepresentation under INA § 212(a)(6)(C)(i) or false claim to U.S. citizenship under § 212(a)(6)(C)(ii), there is no intent requirement. And unlike inadmissibility for document fraud under § 212(a)(7)(F), no ‘final order’ for violation of § 274C is required. A person is inadmissible under § 212(a)(7) for applying for admission without having proper documentation. Under § 212(a)(7)(A), immigrants who do not have “a valid unexpired immigrant visa, reentry permit, border crossing identification card or … a valid unexpired passport” or other documents needed for entry, are inadmissible. Note that the statute does not necessarily require a passport; a valid nonimmigrant visa or a border crossing identification card, for example, will also suffice.

Example: Elise presented herself at the border for admission, but the only document she had was an old California driver’s license. Elise could be found inadmissible under this provision. Example: Angel presented himself at the border with a fraudulent green card that he bought off someone in the street in Tijuana. He had no further documents with him. DHS can determine that Angel is inadmissible under this ground without formally charging him with document fraud under 274C.

50

See also 22 CFR § 41.104 (b).

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Under § 212(a)(7)(B)(i)(I), nonimmigrants who are seeking a nonimmigrant visa must have a passport valid for “for a minimum of six months from the date of the expiration of the initial period of the alien’s admission or contemplated initial period of stay” to avoid this ground of inadmissibility. That means, for example, that a non-immigrant seeking a three-month tourist visa must have a passport valid for at least nine months, allowing the applicant to return to her country of origin, or some other country.50

§ 3.7 False Claim to U.S. Citizenship Any person who falsely claims to be a U.S. citizen for any purpose or benefit under the INA, or under any other federal or state law is inadmissible under INA § 212(a)(6)(C)(ii) and deportable under INA § 237(a)(3)(D). This provision applies only to false representations of U.S. citizenship made on or after September 30, 1996. No conviction is required. This ground of inadmissibility is harsh, both because it is broadly written and because there is no waiver.51 The provision punishes people for claiming U.S. citizenship for entry into the United States, and for any other purpose under any federal or state law. Therefore, as written, DHS could apply these provisions to a broad range of scenarios, including someone who is under age and uses the U.S. passport of an older friend to get into a bar and have a drink, someone who votes in an election not realizing that she’s not permitted to vote, or even someone who came to the U.S. as a baby and believes herself to be a U.S. citizen.

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A.

What Constitutes a False Claim to Citizenship?

By its plain language, the false claim to U.S. citizenship ground enacted in 1996 requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not be available to a noncitizen under the INA or any other state or federal law. The U.S. government modified its position in August and September of 2013 to clarify that the person must have knowingly made the false claim to U.S. citizenship to fall within this ground. The noncitizen claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense. There are also two exceptions for false claims made by minors, discussed below. According to several Circuit Courts and CIS, the person to whom the false claim to citizenship is made does not have to be a U.S. government official, but can be for purpose of private employment, where the misrepresentation is on and I-9 Form or sworn statement.52 Courts have found the following acts to constitute false claims to U.S. citizenship:    

Falsely representing oneself as U.S. citizen to obtain a U.S. passport53 Using a false U.S. passport to enter the U.S.54 Using a false U.S. passport to obtain a state driver’s license55 Claiming U.S. citizenship on an I-9 form to obtain employment.56

51

While there is no specific waiver, someone inadmissible or deportable under this ground may still qualify for relief in removal proceedings, such as cancellation of removal. 52 Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010). 53 Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009). See also Jackson-Omier v. Gonzales, 246 F. App’x. 1 (1st Cir. 2007); Suarez v. Attorney General, 299 F. App’x. 153 (3d Cir. 2008). 54 Almendarez v. Mukasey, 282 Fed. Appx. 326 (5th Cir. 2008). 55 Lara-Rivas v. Mukasey, 270 Fed. Appx. 526 (9th Cir. 2008). 56 Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008).

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Some other examples of false claims to citizenship that the government may also charge include: oral statements made in response to questioning by an officer to obtain a benefit such as entry into the U.S., a signature on a voter registration card that specifically asked the question “Are you a U.S. citizen?” any false declarations of citizenship to obtain a credit card, bank financing, a mortgage, student financial aid, or health insurance, and any other declaration under oath or penalty of perjury, in writing or orally, that the noncitizen was a U.S. citizen in order to obtain a benefit under the INA or other state or federal laws.

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However, some limitations have been placed on the application of this provision. For example, one court found that a false claim of U.S. citizenship to a police officer was not made for any purpose or benefit under the INA, even though the individual in question was undocumented, because the assumption that anyone who is undocumented would be making a false claim for any benefit or purpose under the Act was too speculative. Castro v. Attorney General of the U.S., 671 F.3d 356 (3d Cir. 2012). In addition, in an unpublished BIA decision, a conditional resident’s purchase of a firearm by making a false claim to U.S. citizenship was not considered for “any purpose or benefit” under the Act because the person in question did not gain any benefit from the false claim, since he was eligible to purchase a firearm as a conditional permanent resident. See Appendix 3-K.

Example 3.7-b: Silvia always thought she was a U.S. citizen, until she finally learned she had been born in Mexico. Practitioners should argue that she is not inadmissible for any false claims to citizenship that she made because she did not know they were false. Example 3.7-c: Joaquin intentionally represented himself as a U.S. citizen at the border in San Diego on January 12, 2000 in order to gain admission to the U.S. Because he willfully misrepresented a material fact to a government official in order to gain a benefit under the INA and it took place after September 30, 1996, he is inadmissible both for misrepresentation of a material fact under INA § 212(a)(6)(C)(i) and for a false claim to U.S. citizenship under § 212(a)(6)(C)(ii). Example 3.7-d: Barbara used her cousin’s U.S. birth certificate to apply for a Social Security card and driver’s license in 1995. Barbara is not inadmissible for a false claim to U.S. citizenship because her false claim took place before September 30, 1996. She may have other problems, however. Does checking the box of an I-9 form that the person is “a citizen or national of the U.S.” constitute a false claim to citizenship?

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Example 3.7-a: Omid and Marianna each arrive at a U.S. port of entry. Marianna uses a false “green card” to claim she is a legal permanent resident, but Omid uses a false U.S. passport to claim he is a U.S. citizen. Both are inadmissible for misrepresenting a material fact under INA § 212(a)(6)(C)(i). However, Omid will face far harsher consequences for his false claim to U.S. citizenship under § 212 (a)(6)(C)(ii), as he will be permanently inadmissible. Marianna, on the other hand, will be able to apply for a waiver for her misrepresentation.

It depends upon the facts of the case, the I-9 Form used, and whether the person is subject to the ground of inadmissibility or deportability. Federal law requires that all employers verify the eligibility of their potential employee by, for example, completing an employment verification form, called the I-9 Form.57 The former I-9 form had a question with a check-off box asking whether the person was a “U.S. citizen or national.” Because the question on the I-9 form included both U.S. citizen and national, an applicant could argue that he was claiming to be a national. Absent evidence that the person specifically claimed that he was a U.S. citizen, signers argued (and could still argue if they signed this particular I-9 form) that they do not fall within this ground.

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As of April 3, 2009, a new Form I-9 was instituted, eliminating the ambiguity as to whether the person was indicating citizen or national when she checks the box. This revised form now has separate boxes differentiating between “Citizen” and “Non-citizen National” of the United States. Thus, checking the “U.S. citizen” box will have clearer consequences under this ground. Nonetheless, if your client checked the box on the prior form, it will be very important to review the case law in your circuit and compare the cases to the facts in your client’s case. While there are many cases (see below) finding that checking the box, coupled with testimony from the immigrant, is sufficient the find someone inadmissible or deportable under this ground, the BIA in an unpublished decision held that a woman who checked the U.S. citizen or national box on the former I-9 form did not trigger the false claim to U.S. citizenship ground inadmissibility to bar her adjustment of status.58 In that case, some of the factors the court considered in finding that she did not claim false citizenship were that she consistently testified that she claimed to be a U.S. national and not a U.S. citizen, she believed that by claiming that she was a national she was claiming that she was born in the U.S. but not that she was a U.S. citizen, and her limited English abilities accounted for her checking the box. At least two Circuit Courts rejected the argument that checking the box on the former I-9 does not trigger the inadmissibility removal ground because there was evidence showing that the person claimed to be a U.S. citizen on the I-9 form and/or the person could not prove that he claimed to be a national. For example, the Eighth Circuit, in Rodriguez v. Mukasey, held that a person who provided testimony that he had submitted several fraudulent documents such as a driver’s license and social security card (both of which he obtained by falsely claiming to be a U.S. citizen) in conjunction with the I-9 form was sufficient to prove a false claim to U.S. citizenship.59 The court rejected his argument that his checking the box on the I-9 form did not 57

8 USC § 1324a makes it illegal for almost any employer—public or private—to hire or continue to employ an unlawful or unauthorized alien. 8 USC § 1324a(b) requires employers to verify the eligibility of their potential employee. 58 Matter of [Name Withheld] [A number withheld] (BIA Apr. 27, 2007). See description of the case in Interpreter Releases, 84 No. 20 Int. Rel 1088 (May 14, 2007); see also Matter of James Ochieng Oduor, A 75 904 456 Dallas (BIA Mar. 15, 2005) (DHS, by providing a signed Form I-9 with the box checked confirming he was either a U.S. citizen or national, did not show by clear and convincing evidence that the respondent falsely misrepresented himself as U.S. citizen). 59 519 F.3d 773 (8th Cir. 2008).

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constitute substantial evidence to prove he represented himself as a citizen and specifically pointed out that “he did not testify and does not argue that he meant to indicate that he was national. Instead, he claims that he did not understand what it meant when he marked … [the box].” In this case, therefore, the totality of the circumstances, including admissions to an officer that he obtained fraudulent documents in another’s name, the circumstances surrounding his submission of the I-9 form, and his failure to provide evidence that he claimed national status led to the conclusion that he falsely claimed to be a U.S. citizen.

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Similarly, in Kechkar v. Gonzales,60 the Tenth Circuit held that a person who checked the “citizen or national” box on the former I-9 form had the burden to prove that he intended to claim status as a national and upheld the lower court’s finding that he did not have such an intention.

B.

Exceptions and Other Defenses for False Claim to U.S. Citizenship 1. Exception for minors

In the fall of 2013, the government announced that it will consider it as a separate and affirmative defense for minors if the person can show that she was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship.65 The noncitizen has the burden to show that she meets both of these criteria. DHS is currently working on procedures for applying this new exception retroactively. This policy update is not a change in statute but is an interpretation in line with case law that indicates that any misrepresentation must be made knowingly. This can impact those that have been ordered removed as well as those that have 60

500 F.3d 1080 (10th Cir. 2007). Appendix 3-I, at p. 27. 62 See Karaouni, 379 F.3d 1139 (9th Cir. 2004), cited in Appendix 3-I at p. 27. 63 See Matter of Odour, 2005 WL 1104203 (BIA Mar. 15, 2005); Matter of Soriano-Salas (BIA June 5, 2007), cited in Appendix 3-I at p. 27. 64 Appendix 3-I, p. 27. 65 Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 61

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CIS recognizes that merely checking the “citizen or national” box on the I-9 does not itself establish a false claim to citizenship, absent some evidence that the person intended to claim that he or she was a citizen.61 There needs to be some evidence that in checking the box indicating the applicant is a “citizen or national,” the person intended to claim that he or she was a citizen.62 However, if it appears the client had no idea what it meant to be a non-citizen national and intended to claim to be a citizen, then INA § 212(a)(6)(C)(ii) will likely be found to apply.63 CIS directs officers, therefore, to attempt to establish during an interview exactly what the individual intended to indicate by checking the box on the I-9.64 Advocates should therefore explore the defense that some evidence is needed to prove that the client intended to claim he or she was a citizen specifically. This argument has succeeded in some criminal prosecutions for false claims to citizenship.

received voluntary departure. This new guidance, when published and finalized, will make a big difference for people who claimed to be U.S. citizens when they were minors but who are otherwise eligible for immigration benefits. 2. Narrow exception to both the inadmissibility and deportability provisions There is an additional limited exception for certain children of U.S. citizens. The person must meet the following requirements to not be inadmissible or deportable for a false claim to citizenship: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.)

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See § 212(a)(6)(C)(ii)(II) and INA § 237(a)(3)(D)(ii). Effective Date: This change in the law is retroactive and cures false claims that took place on or after September 30, 1996. Note that this second exception is more limited and does not apply to children of lawful permanent residents or undocumented immigrants, or children with only one U.S. citizen parent, even if they really believed themselves to be U.S. citizens. However, a false claim to U.S. citizenship must be made knowingly. Anyone who truly believed he or she was a U.S. citizen should not be inadmissible in light of the policy update mentioned above, even if the person does not fall into this second exception.66 See discussion in Subsection 4 below. 3. Curing a false claim to citizenship with a timely and voluntary retraction A timely and voluntary retraction may cure a false claim to citizenship,67 as with visa fraud and other misrepresentations.68 Whether a retraction is timely and voluntary is based on the 66

Some practitioners have argued that if someone other than the minor indicated that the minor was a U.S. citizen by presenting invalid documents at the border, the child did not make a false claim to U.S. citizenship or engage in visa fraud, but rather made an entry without inspection. See Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds in 83 Interpreter Releases 775-776 (Apr. 24, 2006). 67 Appendix 3-I, p. 28. 68 FAM 40.63 N4.6 (“a timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for INA § 212(a)(6)(C)(i) ineligibility”); see also Llano-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.”)

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circumstances. It generally must occur before completion of the statement and be made of the person’s own volition, e.g., before discovery of the misrepresentation by the officer.

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The BIA held that a timely retraction was made where a person volunteered that he had entered the U.S. unlawfully before he completed his statement during an interview with an immigration officer at an airport. In that interview, he attempted to establish that he was lawfully residing in the U.S. Matter of M-, 9 I&N Dec. 118 (BIA 1960). The Ninth Circuit in an unpublished opinion found that a person made an effective retraction when after a border patrol officer asked for documentation of his citizenship, he promptly told the officer that he only had a work permit.69 The Court found that he understood little English and provided clear, consistent testimony that he claimed United States citizenship only because he misunderstood the primary inspector’s question. Many cases have held that a retraction will not be considered timely or voluntary, where it occurred long after the false statement was made or if the retraction was made after the person has realized that the claim had not deceived a DHS officer.70 4. Other limitations to finding false claim to U.S. citizenship A false claim to U.S. citizenship does not apply if someone else made the false claim on behalf of the applicant, such as a parent making the claim for a child.71

Advocates should also be aware that a conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved will have the additional consequence of being a crime involving moral turpitude triggering inadmissibility and/or deportability. See §§ 3.21–3.23. The BIA has also found that a false claim to citizenship may, 69

Olea-Reyes v. Gonzales, 177 F. App’x. 697 (9th Cir. 2006). Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (retraction after a year and where disclosure of falsity of statements was imminent not timely nor voluntary); Matter of Ngan, 10 I&N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Angeles-Robledo v. Attorney General, 183 F. App’x. 159 (3d. Cir 2006) (not effective recantation where person did not recant her claim to U.S. citizenship until her second interview in which she was confronted with third-party evidence of her falsity and where her traveling companion was the first to inform the border authorities that she was not a U.S. citizen); LlanosSenarillos v. United States, 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive). 71 Cable, Albright, Sec. of State, DOS-17342, 96 Stat. 239978 (Sept. 17, 1997) reprinted in 74 Interpreter Releases, p. 1483-85 (Sept. 29, 1997). 72 Appendix 3-I, supra, p. 28. 70

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NOTE: CIS may still find persons who made false claims to U.S. citizenship prior to September 30, 1996 inadmissible under INA § 212(a)(6)(C)(i), for misrepresentation, if the claim rises to the level of material misrepresentation to obtain an immigration benefit.72

but does not necessarily, bar a person from establishing good moral character under INA § 101(f).73 5. Options for false claim to U.S. citizenship The penalties of the false claim to U.S. citizenship inadmissibility ground are harsh. A person who falls within this ground is permanently inadmissible, as there are no waivers provided. The person only may seek the exercise of discretion if applying for a non-immigrant visa under INA §§ 212(d)(3)(A) or (B), or if in proceedings in the U.S., cancellation of removal might be an option. For those that are seeking non-LPR cancellation, a false claim to citizenship might also impact the applicant’s ability to demonstrate good moral character. A false claim to U.S. citizenship is not a bar to certain forms of relief such as asylum, withholding of removal, and a U visa.

§§ 3.2–3.7 Review Questions: The following people are not U.S. citizens or permanent residents and are seeking admission. Are they inadmissible? If so, under which inadmissibility ground? Why? For answers, see Appendix 3-A.

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1. Mario has been in several programs to help him with his addiction to cocaine. He has finally managed to beat his addiction and has not used drugs for the past six months. 2. Roberto brought a friend into the United States who was using a fake passport. He did not know that his friend did not have a lawful right to enter or that his friend’s passport was fake. Is he inadmissible for alien smuggling? 3. Rafael lied to CIS when he applied for a family visa through his permanent resident mother. He said that he was not married. Actually he was married, and therefore did not qualify for that type of family visa. 4. Terence bought a phony social security card at a flea market and used it to open a bank account and to say that he was a United States citizen on a job application.

§ 3.8 Likely to Become a Public Charge

NOTE: The law governing public charge, and especially affidavits of support, is complex. This section will summarize the law. For a more complete discussion, see Affidavit of Support and Sponsorship Requirements: A Practitioners’ Guide (National Immigration Law Center and Catholic Legal Immigration Network). To keep abreast of important new developments, practitioners should check the website of the National Immigration Law Center at www.nilc.org 73

Matter of Guardarrama, 24 I&N Dec. 625 (BIA 2008).

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(click on “Public Benefits”) and/or consult a regular newsletter such as the NILC Newsletter or Interpreter Releases. Information on how to order these publications is provided at the end of Unit 3. You may also go to the CIS website www.uscis.gov and type Affidavit of Support in the search box or go to the Department of State website.

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Noncitizens whom the government believes are likely to receive cash welfare or to need long-term care at government expense can be refused admission as being “likely to become at any time a public charge.” INA § 212(a)(4). The CIS issued a Fact Sheet on Public Charge,” last updated on November 15, 2013 that contains information on this ground of inadmissibility and deportability. See Appendix 3-H.74 There are two tests relating to public charge. Under the traditional, general test, officials shall “at a minimum” consider the person’s age, health, family status, assets, resources, financial status, education and skills, and can also consider an affidavit of support. INA § 212(a)(4)(B). This provision might apply to any noncitizen seeking admission into the United States or applying for status, including someone immigrating through a family member, diversity visa, or other means.

Appendix 3-C in this manual includes a copy of the 2014 version of the Poverty Income Guidelines and immigration requirements, as CIS Form I-864P. The CIS will continue to publish the currently applicable Poverty Income Guideline and the 125% figure each spring as Form I864P, available online at www.uscis.gov (under the Forms Menu). Note that there is a separate chart for calculating poverty guidelines for a fee waiver. The fee waiver process relies on a determination that a person falls under 150% of the poverty guidelines. Thus these charts are not interchangeable. The Department of Health and Human Services posts current and past Poverty Income Guidelines at www.aspe.hhs.gov/poverty/index.shtml. Part I of this section will discuss the traditional test for public charge, with a special focus on the effect of past receipt of public benefits. Part II will discuss the second public 74

This can also be found by going to the CIS website (www.uscis.gov) and entering “public charge” in the search box.

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An additional requirement added in 1996 applies only to persons immigrating through a family visa petition and in some cases, employment based petitions. Under this second test, most people immigrating through a family visa petition must have an affidavit of support Form I-864 submitted on their behalf, or they will be found inadmissible as a public charge. INA § 212(a)(4)(C). There are some exemptions and those who fall into these exemptions have to file form I-864W instead. See Subsection E below for a discussion of who qualifies for an exemption. Nonimmigrant visa holders (and most employment-based immigrants) also do not need to submit the I-864 affidavit of support. The I-864 affidavit of support requires the person to have a certain level of income or assets (for income, 125% of the Federal Poverty Income Guidelines), and it is legally enforceable.

charge requirement for family immigration, the Form I-864 affidavit of support. A copy of the Affidavit of Support can be found at www.uscis.gov under the Forms menu. Part I: The Traditional Test for Public Charge A.

Factors Considered

The traditional test to determine whether someone is likely to become a public charge is known as the “totality of the circumstances test.” This test considers several factors. The DHS or the Department of State takes into account the person’s age, health, family assets, resources, financial status, education and skills. It is important to note that, in making this determination, the officer is not supposed to rely on a single factor, including past receipt of public benefits. Rather, the officer needs to consider all of the factors in conjunction to determine whether the intending immigrant is likely to become a public charge. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” May 26, 1999, 64 FR 286289, document number FR 27-99.75

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B.

What Effect Does Receiving Public Benefits Have on “Public Charge” under the Traditional Test?

The May 1999 “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” specifically addressed how past receipt of public benefits may affect a person’s inadmissibility as a public charge: Past receipt of cash income-maintenance benefits does not automatically make an alien inadmissible as likely to become a public charge, nor does past institutionalization for long-term care at government expense. Rather this history would be one of many factors to be considered in applying the totality of the circumstances test. In the case of an alien who has received cash income-maintenance benefits in the past or who has been institutionalized for long-term care at government expense, a Service officer determining admissibility should assess the totality of the alien’s circumstances at the time of the application for admission or adjustment and make a forward-looking determination regarding the likelihood that the alien will become a public charge after admission or adjustment. The longer ago an alien received such cash benefits or was institutionalized, the less weight these factors will have as a predictor of future receipt. Also, the “length of time an applicant has received public cash assistance is a significant factor.76

75

“FR” stands for Federal Register. This document can also be accessed on the CIS website (www.uscis.gov) by searching for either “Public Charge Fact Sheet” or “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.” 76 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 286289.

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See also the April, 2011 CIS Fact Sheet on the Public Charge ground, reproduced in this unit as Appendix 3-H, which describes which types of public benefits will and will not trigger the public charge ground of inadmissibility.

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The basic issue is whether a person is likely to become primarily dependent on the government for subsistence, as shown by the receipt of cash benefits for income maintenance purposes, or long-term care at government expense. Some of the most important points include the following: With one exception, the DHS may not consider use of non-cash benefits (such as Medicaid or Food Stamps) by an immigrant as a basis for public charge. The exception is, if a person has received or is likely to receive long-term publicly funded institutionalization (such as placement in a nursing home or mental hospital), then the DHS can consider it as one factor in a public charge decision.



The DHS may consider the receipt of cash benefits in the public charge determination if they are received for the purpose of income maintenance. This includes programs such as Temporary Assistance for Needy Families (TANF), General assistance (GA), or Supplemental Security Income (SSI).



If the cash benefits for maintenance were received by an immigrant’s family members, these cannot be considered in the immigrant’s public charge determination unless the immigrant was relying on the cash benefits as his or her sole means of support.



One-time cash grants, and cash designated for other purposes such as child care or job training, are not considered in public charge decisions. Similarly benefits that are “earned” (such as Social Security retirement and veterans benefits) are not counted against the immigrant.



CIS and consulate officers cannot instruct or suggest that immigrants must repay past benefits received in order to be admitted.



There is no public charge test for naturalization.

The DHS issued this rule to make sure that immigrants who really need to accept public benefits will do so. Up to the issuance of these rules, many intending immigrants in desperate situations had been afraid to accept public benefits for fear that it would make them a “public charge” and bar them from immigrating. The DHS provided a critical guarantee in the Field Guidance that accompanies the rule. It stated that immigrants can safely rely on the proposed rules and Field Guidance and collect the public benefits listed there. If the rules change later, no one who accepted public benefits relying on this proposed rule can be penalized. More technical analysis on the interpretation on public charge is available. See links to government documents (www.uscis.gov) and advocates’ analyses at the National Immigration Law Center (www.nilc.org and click on “Public Benefits” and then “Public Charge”).

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

C.

Who Is Subject to the Public Charge Ground of Inadmissibility?

Almost all family immigrants are subject to the traditional public charge ground of inadmissibility and also must submit a legally binding I-864 Affidavit of Support. See Part II, below. Some groups of immigrants, including diversity visa applicants, and abused spouses and children who self-petition under VAWA provisions, do not need to submit form I-864, but may need to file form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. Note that VAWA applicants are permitted to use all public benefits, including cash welfare, without affecting the public charge determination, but they still must show that they are not likely to become a public charge. INA § 212(p). Finally, some immigrants are not subject to the public charge ground at all. These include noncitizens immigrating as refugees and asylees; special immigrant juveniles; victims of crime or trafficking in persons under the “T” and “U” visas; persons granted cancellation of removal, NACARA cancellation of removal, suspension, or adjustment of status; registry; and Cubans adjusting their status under the Cuban Adjustment Act.

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Part II: The I-864 Affidavit of Support This section will concentrate on the requirements for an I-864 affidavit of support. On October 20, 1997, the INS published an interim (temporary) regulations implementing the affidavit of support requirement and creating three new forms. In June, 2006, however, CIS and the Executive Office of Immigration Review (EOIR) published final regulations on affidavits of support, which made some significant changes to the original rules.77 The final regulations took effect on July 21, 2006, and applied to adjustment applications pending on that date regardless of when they were filed. A summary and analysis of the final rule are found at “Final Rule Regarding Affidavits of Support Issued by CIS and EOIR,” 83 Interpreter Releases 1296 (July 3, 2006) and “Analysis of Final Affidavit-of-Support Rule and Forms” by Charles Wheeler located at www.nilc.org/aosupp021.html. Under the final rule every person immigrating through a family member must either 1) submit a qualifying I-864 Affidavit of Support in order to meet the public charge requirement, or 2) if they are exempt from the affidavit of support requirement, submit Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. Form I-864W can be filed under the following circumstances: 1. People who can “self-petition” under the battered spouse, child or parent provisions (VAWA); 2. People who file as widows or widowers of U.S. citizens;

77

71 Fed. Reg’r 35732-57. The final rule is found at 8 CFR § 213a.

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3. People who already have earned or can be credited with 40 “qualifying quarters” of employment with social security payments; or 4. Persons under age 18 who become U.S. citizens at the same time that they become permanent residents, because of their parents’ U.S. citizenship.

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People who filed an application for adjustment of status and/or received a visa from a consular officer before December 19, 1997 did not have to file an affidavit of support or an I864W. While there are many improvements in the final regulation over the interim regulation, the requirements for Form I-864 Affidavits of Support still can seem quite unfair. The requirements punish low-income workers and prevent them from reuniting with relatives who may be able to help support their families. They impose liability and risk on the “sponsor” who signs the affidavit because the I-864 is a legally enforceable contract. American business interests want U.S. citizens and permanent residents to work for low wages, but this law punishes those same workers by forcing them to live apart from their closest family members. Advocates will continue to fight to get more generous interpretations of this law, or to get the law changed at some point. In the meantime, this requirement forces sponsors and advocates to work hard and creatively to help low-income families to be reunited with their loved ones.

A.

Who Can Submit the Affidavit of Support: See INA § 213A(f)(1)

The person who submits an affidavit of support (Form I-864) is called the sponsor. Under INA § 213A(f)(1), a sponsor must be a U.S. citizen, a U.S. national, or a permanent resident, of at least 18 years of age. The sponsor must live in the United States, a U.S. territory or possession, or reside abroad temporarily and establish that he or she will live in the United States on or before the intending immigrant obtains lawful permanent resident status. The petitioner (the U.S. citizen or permanent resident who has filed an immigrant visa petition on behalf of the non-citizen) must be a sponsor. No matter how low the petitioner’s income is, the petitioner must submit an affidavit of support on behalf of the intending immigrant. Example 3.7-a: Antonio works in the fields to support himself and his mother, who does not work because she has a disability. His mother is petitioning for Antonio. She must

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Subsection A below will discuss who can be a sponsor and sign the affidavit of support. Subsection B will discuss exactly how much the sponsor must earn, to meet the requirement of making 125% of the Federal Poverty Income Guidelines. Subsection C will discuss ways that the petitioner can meet the affidavit of support requirements even if he or she does not earn the required amount, by using assets or getting the help of co-sponsors or household members. Subsection D will discuss the serious legal responsibilities that a person takes on when he or she signs an affidavit of support. Subsection E will discuss the few groups of family immigrants who are not subject to the I-864 requirement.

submit an affidavit of support, even though she will have no income except for social security benefits, and even though he supports her. Exception. If the petitioner has died, in certain circumstances someone other than the petitioner may be able to act as a substitute sponsor and file the I-864. See Subsection E below. The sponsor must prove that he or she has “the means to maintain an annual income equal to at least 125% of the federal poverty line” for his or her own household plus the intending immigrant and his family members immigrating with him. Sponsors who are active in the Armed Forces only need to demonstrate 100% of the poverty line. Sponsors must state whether they have received public benefits. The CIS asks for this information to determine whether the sponsor is counting any cash benefits to meet the 125% income guideline. If the sponsor is receiving cash benefits, these cannot be used to meet the 125% income guideline.

Exercise 3.8a -- Review Questions: Of the following people, who can be a sponsor? See Appendix 3-A for answers.

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1. 2. 3. 4.

B.

A seventeen-year-old U.S. citizen who lives in Georgia. A forty-nine-year-old U.S. national who lives in Canada. A twenty-five-year-old non-citizen who is here on a student visa. A twenty-one-year-old lawful permanent resident who lives in Texas.

What the Sponsor Must Earn: Calculating the Number of People in the Household and 125% of the Poverty Income Guidelines

A sponsor signing an affidavit of support must demonstrate that he or she earns enough income to support the immigrant and the sponsor’s entire household at an income level which is at least 125% of the Federal Poverty Income Guidelines. Each year the federal government decides the amount of income that brings families to the official poverty level, and publishes this as the poverty income guidelines. A copy of the poverty income guidelines for 2014 along with a calculation of 125% of these guidelines (Form I-864P), is at Appendix 3-C. The federal government updates the guidelines each year in the spring. To obtain a current version of the Poverty Income Guidelines in the future, one can go to www.uscis.gov or www.aspe.hhs.gov/poverty/index.shtml. Memoranda and comments about the guidelines, the affidavit of support and public charge in general are found at the National Immigration Law Center website at www.nilc.org/overview-immeligfedprograms.html or by going to the NILC website at www.nilc.org and entering “public benefits” in the search box. The annual update of the poverty income guidelines for affidavit of support purposes do not go into effect until the first day of the second month after the date of publication in the 3-42

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Federal Register by the Department of Health and Human Services. It is also important to keep in mind that the DHS and the Department of State consider the poverty income guidelines in effect at the time the I-864 affidavit of support was filed, and not at the time of adjudication of the adjustment or immigrant visa application. For this reason, when filing the I-864 affidavit of support package, the poverty income guidelines (I-864P) should be included.

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Take a look at Appendix 3-C—use it while you work through the rest of this section. Example 3.8-b: Rebeca has a family of three (herself and two children) and wants to immigrate her husband. With him, she will have a family of four. She lives in Illinois. Using the 2014 Guidelines in Appendix 3-C, you should see that a family of four must earn $23,850 to meet the poverty line. 125% of that is $29,812. Rebeca will have to show income of $29,812 a year in order to be able to sponsor her husband by herself. Determining the Size of the Household that Must Be Counted in the 125%. In Rebeca’s case, it was easy to calculate that she had two children and would have a husband, and so had a family of four. Other cases may be more complex, however. The regulations provide that the following persons, in addition to the sponsor him or herself, must be counted as part of the household regardless of where they reside:

   

The sponsor’s spouse; The sponsor’s children under the age of 21, unless they are emancipated and were not claimed as dependents on the sponsor’s most recent tax return; The intending immigrant; All derivatives of the intending immigrant who are obtaining lawful permanent resident status at the same time or within six months; All dependents claimed on the sponsor’s most recent tax return; and All noncitizens previously included in an I-864 affidavit of support (for immigration on or after December 19, 1997), unless the obligation has ended.

8 CFR § 213a.1. It is important to note that this final rule reflects a reduction of the household size from the interim rule, and therefore, reduces the amount of necessary household income the sponsor needs to make to meet the poverty line. The previous (interim) rule used to require that the sponsor include all persons living at the same residence as the sponsor related by “birth, marriage, or adoption.” However, this is no longer the rule. Extended family members such as parents, siblings, aunts and uncles, and cousins and even sons and daughters who reside with the sponsor are only to be included if they are dependents of the sponsor and/or if they qualify as a “relative” and wish to be included to contribute their income and assets to the meet the required income level. See 8 CFR § 213a.1. “Relative” is defined as sponsor’s spouse, child, adult son or daughter, parent, or sibling. Example 3.8-c: Anne lives in Florida, and she wants to immigrate her husband Michel and his daughter Nicolette. Anne has two sons from a previous marriage. One son lives

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 

at home with her, while the other is a college student listed as a dependent on her most recent income tax return. She filed an old form I-134 Affidavit of Support for her father who immigrated in 1991 and an I-864 Affidavit of Support for her sister who immigrated in May of 2013. How many people are in Anne’s household, for purposes of calculating how many she must be able to support at 125% of the poverty income guidelines? How much money must she earn to meet the requirement?

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Anne must count herself, Michel and Michel’s daughter (listed on the current affidavit of support), and Anne’s two sons (one lives with her, and the other is a dependent on her tax return). She must count her sister, because she submitted an I-864 Affidavit of Support for her. She does not have to count the 1991 affidavit of support she filed for her father, because that was not an I-864 affidavit. Thus, in order to immigrate her husband and his daughter, Anne must meet 125% of the guidelines for a family of six. According to the chart at Appendix 3-C, the poverty guidelines for a family of six is $31,970; 125% of that is $39,962. Therefore, Anne will have to show an income of at least $39,962 before she can immigrate her husband Michel and his daughter Nicolette. Proving Income. The final rule places significant emphasis on the sponsor’s current income to meet the income requirement. The rule states that the “greatest evidentiary weight” will be given to the sponsor’s “reasonably expected household income” in the year the application is filed instead of the income reported on the most recent tax return. 8 CFR § 213a.2(c)(2)(ii)(C). The sufficiency of income is judged upon the income reported at the time the affidavit of support is submitted and not at the time that the application for adjustment of status or visa is decided. It is important to note that an affidavit of support with a projected income which meets the financial requirements may still be rejected if there are specific facts such as a material change in employment or income of the sponsor, or the number of aliens included in Form I-864, that would provide a reasonable basis for finding that the sponsor will not be able to maintain his or her income at the necessary level. If rejected, the intending immigrant may also be found inadmissible as likely to become a public charge. Tax returns serve merely as evidence to show that the sponsor will likely maintain his or her income in the future. Instead of filing the last three years of tax returns, as was required before, the final rule requires the sponsor to submit only the most recent federal tax return. Sponsors, however, must provide the total income reported for the last three tax years in the I864. If the sponsor was exempt from filing a tax return, he or she must provide a written explanation proving by a preponderance of the evidence that he or she was entitled to the exemption. A sponsor does not have to be employed and can use income from sources such as a pension, retirement benefits, interest income, dividends, unemployment or workman’s compensation, alimony, or child support to meet the income requirement. While receipt of cash public benefits to maintain income does not disqualify a person from being a sponsor, the sponsor cannot count any of these benefits towards income. Some examples of cash public benefits include Supplementary Security Income, and Medicaid. See the USCIS Public Charge Fact Sheet at Appendix 3-H.

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PRACTICE TIP: Helping Large Families to Immigrate. The more people immigrating, the greater the income that must be shown. One strategy is to split the family into different units for immigration. For example, if a mother wants to immigrate her husband and their five children, under the 2014 Guidelines the household must earn 125% of poverty income guidelines for a family of seven. Since the poverty income guidelines for a family of seven is $36,030, the sponsor must earn a total of $45,037. If three children immigrate now, and the family waits until later to immigrate the other two, the household only has to show income now to qualify for a family of five. Since the poverty income guidelines for a family of five is $27,910 and the sponsor must earn 125% of that, the sponsor’s income must be at least $34,887. Or, the family could find a second “joint sponsor” to submit an I-864 for the other two children. See next part. Or, if the children can be credited with 40 qualifying quarters of employment from their parent, they do not need to submit an I-864 at all. Instead, they must file form I-864W to show how they are exempt from the affidavit of support requirement. See Subsection E below.

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Exercise 3.8b -- Review Questions:

1. A household of three living in Texas. 2. A household of ten living in Nevada. 3. A household of six living in Hawaii. Of the following people, who would be counted as a member of the household, to calculate the 125%? 1. A grandmother and sister who have lived with the sponsor’s family for a year and who are not dependents. 2. A disabled brother who lives in an institution and is lawfully counted as a dependent on the sponsor’s tax return. 3. Someone who immigrated in 1995 and for whom the sponsor filed an affidavit of support at that time.

C.

How to Satisfy the Affidavit of Support Requirement if the Petitioner Does Not Earn Enough Money: Household Members, Co-Sponsors and Significant Assets

Some clients do not earn enough income by themselves to reach 125% of the poverty income guidelines. There are three other ways in which a sponsor may satisfy the 125% requirement:

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According to the 2014 Federal Poverty Income Guidelines, what is 125% of the poverty line required to support these households? See Appendix 3-A for answers.

1. Add household members’ income to the sponsor’s income; 2. Find a joint sponsor who meets the poverty guideline amount independently; and/or 3. Use “significant assets.” 1. Household income The income of the sponsor’s household members may be added to the sponsor’s income in order to reach the 125% poverty income guideline amount. See 8 CFR § 213a.2(c)(2)(i)(C)(1). The following people can be contributing household members:   

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 

The sponsor’s spouse if residing with the sponsor (note: if the spouse is the intending immigrant he or she need not reside with the sponsor); The sponsor’s children if residing with the sponsor; Any other relative78 residing in the household who is not a dependent and is at least 18 years old; Any dependents listed on the sponsor’s tax return for the most recent tax year; and The intending immigrant, subject to limitations (see below).

Previously, the household members must have resided with the sponsor for the last six months to be considered contributing household members. However, under the final rule, it is sufficient if the qualifying household member currently resides with the sponsor. In addition, if the intending immigrant is a spouse, he or she is not required to reside with the sponsor at all.79 To count the intending immigrant’s income, he or she must be residing with the sponsor, be the sponsor’s spouse, or be claimed dependent. The income must come from lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she obtains permanent resident status. Lawful employment means work performed while the worker had an employment authorization document (EAD). This is a big change from the previous requirements, and will create hardship for many intending immigrants who have been working, but without authorization. In addition, offers of employment are not enough to meet the intending immigrant’s proof of income. The household member whose income is to be counted must sign Form I-864A. This is a contract between the contributing household member and the sponsor. In that contract the household member agrees to accept “joint and several liability” for all of the sponsor’s obligations under the affidavit of support. In other words, the household member would be just as responsible as the sponsor if the sponsor were sued and had to pay money. See discussion of liability in Subsection D. The one exception to this rule is that if the intending immigrant is the

78

“Relative” is defined only to include the sponsor’s spouse, child, adult son/daughter, parent, or sibling. 8 CFR § 213a.1(2). 79 Of course, the intending immigrant spouse must intend to live with the sponsoring spouse after he or she immigrates.

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household member in question, he or she does not have to sign a Form I-864A contract with the sponsor, as long as he or she is immigrating alone (i.e., and not with a spouse or child).

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Example 3.8-d: Rebeca has two children and wants to immigrate her husband Rodolfo, who is living in Mexico. Her income of $24,000 is less than 125% of the poverty guidelines for a family of four, which is $29,812 (125% of $23,850). Rebeca’s 18-yearold daughter has always lived with her and earns $7,000 per year. Can they count her income? Yes, since Rebeca’s daughter is considered a relative, currently lives in the household, and is 18 years old, she can sign an I-864A contract with her mother and her income will be added. Their total income is $31,000, more than enough. Now let’s change the example a bit. Suppose that Rebeca’s daughter does not work, but Rebeca’s husband, the intending immigrant, is living in the household. Can he contribute his income?

Does a Contributing Household Member Have to Have Lawful Status in the United States? There is no requirement in the 2006 regulation that the household member must be a U.S. citizen or lawful permanent resident or have some form of lawful status. It may, however, be difficult to convince an undocumented household member to sign the I-864A contract with the sponsor, because it will be submitted and reviewed by CIS. What if a Contributing Household Member Is Working without Employment Authorization? Unlike the intending immigrant, there is no requirement that the income contributed by a household member come from lawful employment.80 However, the household member must show that he or she has paid taxes. When to File the I-864. CIS requires all applicants to submit the affidavit of support (I864) with their adjustment applications. People immigrating through consular processing must also file the I-864 with the State Department’s National Visa Center before they can complete the immigrant visa process. Under the final regulation, the sufficiency of the affidavit of support is 80

Note, however, if the household member committed document fraud to get a job—by using false documents or lying on an I-9 form—the person runs the risk of being found deportable and inadmissible for document fraud. See § 3.5.

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Maybe. An intending immigrant spouse, whether or not he lives in the sponsor’s residence, may add his or her income to the sponsor’s as a contributing household member as long as he is earning that income through lawful employment. This would require him to have an EAD. If he does, his income can be counted. Since Rodolfo is not bringing other family members to the United States he does not have to sign an I864A subcontract with Rebeca. If he were immigrating with another child, however, then he would have to sign an I-864A contract.

based on the income reported for the year the I-864 was submitted, not the sponsor’s income on the date the immigrant visa is adjudicated or on the date of the application for adjustment of status. Furthermore, officials must use the Federal Poverty Income Guidelines in effect at the time the affidavit is submitted, not at the time the affidavit is being reviewed. The Form I-864 was recently updated, and CIS currently requires filing on the latest form edition only. You can always check that you are using the most current edition by checking the form at www.uscis.gov.

3.8-c Review Questions:

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Of the following individuals, whose income may be counted as household income? See Appendix 3-A for answers. 1. The sponsor’s 18-year-old daughter who is independent (not claimed on her parent’s tax returns) and living on her own. 2. The sponsor’s 25-year-old daughter who has always lived with the sponsor. 3. The intending immigrant who does not live with the sponsor. 4. The sponsor’s sister who lives in a house next door to the sponsor. 5. The sponsor’s husband, who has lived with her for three years. If he is the intending immigrant and is immigrating alone, does he need to sign a Form I-864A? 6. The sponsor’s husband, who lives in Mexico. 7. A close friend who has been living with the sponsor for two years.

2. Joint sponsorship If the petitioner/sponsor does not make enough money to meet the requirements of the affidavit of support, then another person can also file an affidavit of support and become a joint sponsor. Under the final rule, in addition to the primary sponsor, two joint sponsors per family on a single family petition are allowed. 8 CFR § 213a.2(c)(2)(iii)(C). No one person may have more than one joint sponsor, but all family members do not have to have the same sponsor. The joint sponsor must meet the same requirements as the original sponsor, the petitioner. The joint sponsor must be a lawful permanent resident or U.S. citizen of at least 18 years of age who lives in the United States or a U.S. territory or possession. See INA § 213A(f). The joint sponsor must sign a separate affidavit of support, Form I-864. By signing the affidavit, the joint sponsor agrees to accept joint and several liability for the affidavit of support. This means that the joint sponsor will have exactly as much responsibility as the original sponsor under the affidavit of support. See discussion of liability in Subsection D. The joint sponsor must be able to meet the income requirement by him or herself. The petitioner’s income and joint sponsor’s income cannot be added together to meet 125% of the poverty income guidelines. (Compare this to the “contributing household member” described above. In that case, the income is added to the sponsor’s). The joint sponsor must make the income needed to support both his or her household and the intending immigrant at 125% of the 3-48

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poverty line. However, in a single family petition where there are two joint sponsors in addition to the primary sponsor, each joint sponsor need only include the person he or she is sponsoring as part of the household size (in addition to other members of the sponsor’s actual household), rather than everyone on the family petition. See next part.

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Example 3.8-e: Rebeca has two children and wants to immigrate her husband Rodolfo. Rebeca’s household income is less than 125% of the poverty line for her family of four. Rebeca tells you that she has a brother Esteban, a 30-year old lawful permanent resident who lives in Michigan. He makes $40,000 a year. Esteban supports his wife and three children. If he were willing, could Esteban become a joint sponsor for Rebeca’s husband? Yes. Esteban is a permanent resident over 18 years old who lives in the United States. He must make enough income to support six people (his own household of five people, plus Rodolfo) at 125% of the poverty income guidelines. Using the chart at Appendix 3C, we can calculate that this amount is $39,962. Esteban will qualify because he makes $40,000 per year.

Now, under the final rule, there is an additional option in cases where a sponsor cannot meet the income requirements to sponsor the intending immigrant and all of his or her derivatives. Each petition now can have up to two joint sponsors in addition to the primary sponsor, where previously only one joint sponsor was allowed. As noted above, a single joint sponsor must make the 125% of the income needed to support both his or her household and the intending immigrant and his or her derivatives. In many cases, there is no joint sponsor that can meet this threshold. With two joint sponsors, however, the household size can be reduced and therefore, the required income level will be less, since the intending immigrant and derivatives in a single family petition can be split between the two joint sponsors. Each joint sponsor then need only include those persons he or she is sponsoring (plus the joint sponsor’s actual household) in determining household size to calculate the necessary income to meet the poverty level. In other words, joint sponsors do not have to include every beneficiary of the family petition in calculating household size. Note, however, that no one individual on a petition can have more than one joint sponsor. Example: Kimora, the sponsor, resides in California and wants to immigrate her husband and four children from Japan. She already has one child in the United States. To meet 125% of the poverty guidelines for a family of seven, she needs to make $45,037. She does not earn enough. She has two friends, Miko and Sayako, who are willing to be joint sponsors, but when they calculate their own household size and add

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Family Petitions with Two Joint Sponsors. Under the old rules, people could submit separate family petitions for each beneficiary to meet the income requirements. This was because a sponsor or co-sponsor in some cases did not earn enough to support both the immigrant and his or her derivatives. Separate petitions were submitted for each beneficiary, so that two different people could sponsor each of the beneficiaries instead of finding one sponsor who met the income requirements to sponsor the principal beneficiary as well as his or her derivatives.

Kimora’s husband and four kids they each do not earn enough to meet 125% of the poverty level. However, Kimora’s joint sponsors could each sponsor different individuals in the family petition to reduce their household size and meet the required income level. Miko could sponsor Kimora’s husband and two of their children. She would then only have to show that she makes enough to support her own household plus three persons, whereas previously she would have had to sponsor five persons. Sayako could sponsor Kimora’s two other children and would therefore only have to show that she makes enough to support her own household plus two persons.

Exercise 3.8c -- Review Question: Mark supports himself and his mother. He wants to help his best friend Roger to immigrate Roger’s wife and her child. How much earnings would Mark have to show to be a joint sponsor for these two immigrants? What are the requirements regarding Mark’s age, immigration status, and place of residence?

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3. Significant assets A person who does not earn enough income can still meet the 125% test if he or she has enough “significant assets.” INA § 213A(f)(6)(A)(ii). Generally, there are two requirements: (1) the assets must be convertible to cash within one year, and (2) the net worth of the assets must be five times the difference between the sponsor’s actual income and the income the sponsor is required to have. There are two exceptions to this second requirement. First, if the sponsor is a U.S. citizen and the intending immigrant is the sponsor’s spouse or a child over 18, the value of the assets must be only three times the difference between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(1). Second, if the intending immigrant is an orphan to be formally adopted in the United States, the value of the assets only must equal the shortfall between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(2).81 Savings accounts, stocks and bonds, certificates of deposit, life insurance policies, real estate, and personal property, are examples of significant assets. See 8 CFR § 213a.2(c)(1)(iii)(B). A sponsor, joint sponsor, or household member can use significant assets to meet or help meet the 125% line. In addition, the intending immigrant’s assets can be counted—even if the immigrant is in another country. 81

Note also that some children of U.S. citizens, including adopted children, are exempt from the Affidavit of Support requirement if they would become U.S. citizens by operation of law immediately upon acquiring permanent resident status. See Subsection E.

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Example 3.8-f: Caroline, a U.S. citizen, has four people in her household (including herself) and wants to sponsor her husband, who is not yet part of her household. Caroline makes $20,000 in annual income. To make 125% of the poverty line for a household of five, she needs $34,887 in income. Caroline owns her house, which has a cash value (after the mortgage is paid off) of $60,000. Can she use ownership of this asset to make up the income she is short?

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Yes. The difference between 125% of the poverty line ($34,887) and Caroline’s income ($20,000) is $14,887. Her $60,000 worth of assets is more than three times the $13,763 difference, so she will qualify. What if Caroline’s house was only worth $20,000, but her husband had stocks and bonds in the home country that could be sold for a net gain of $40,000? Caroline could combine proof of her $20,000 in real property plus proof of her husband’s ownership of the stocks to show $60,000 in significant assets.

D.

Obligations of the Sponsor under the Affidavit of Support

The Form I-864 Affidavit of Support will be legally enforceable against the sponsor, as well as any joint sponsor or contributing household member. See INA § 213A(a)(1)(B), (b). (The Form I-134 Affidavit of Support, which was used for all immigrants before December 1997 and now may be used for non-family immigrants, is not legally enforceable against the sponsor). The following is a discussion of the responsibilities of the sponsor under the I-864. Government Suit to Recover Cost of Means-Tested Benefits. Any federal, state or local government can sue the sponsor to recover the cost of federal or state “means-tested public benefits” that were received by the immigrant during the period of enforcement of the affidavit of support. In fact, under the final regulation, CIS may disclose a sponsor’s social security number and the sponsor’s last known address to a benefits granting agency to help it obtain a reimbursement from the sponsor. Federal means-tested public benefits have been defined to include only Medicaid, the State Children’s Health Insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and SSI. Advocates should keep abreast of which state or local benefits will be designated as being recoverable under the affidavit of support. In

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PRACTICE TIP: Mix and Match to Get to 125%. Household income, joint sponsors and significant assets may be used in combination in order to reach the 125% mark. A joint sponsor can include income from members of his or her household, just like the first sponsor. Significant assets belonging to a sponsor, joint sponsor, household member, or the intending immigrant can be counted. For example, if Eric agrees to be a joint sponsor, he may use a contributing household member’s income to reach 125%. Both he and the contributing household member can use significant assets to help reach the amount.

practice, there have been few government actions to obtain reimbursements for these benefits.82 Note that government agencies cannot sue to collect reimbursement for benefits that the immigrant received more than ten years earlier. INA § 213A(b)(2)(C). The sponsored immigrant can sue the sponsor to be supported at a level equal to 125% of the poverty guidelines. See INA § 213A(a)(1)(B), (e)(1). There have been a few cases brought against sponsors by the sponsored persons and all have been former spouses. Most notably, a federal district court in Indiana upheld a sponsored person’s right to recover from her sponsor exhusband and awarded $19,000 in damages, plaintiff’s attorneys’ fees, and held that the sponsor had a continuing obligation to support the immigrant at the 125% level until the contract terminated. See Stump v. Stump, 2005 WL 2757329 (N.D. Ind. 2005). Based on this caselaw, sponsors who file affidavits of support for their spouses should be aware that they can be found liable to their spouses even after divorce.83

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Sponsors Must Notify the Government if They Change Their Address. If a sponsor moves, he or she must notify both the CIS and the state in which the sponsored immigrant resides within 30 days of changing address. The sponsor will do this by filing Form I-865; the form gives information about where it must be mailed. If the sponsor does not do this, he or she can be fined from $250 to $2,000, or up to $5,000 if he or she knows the immigrant has collected benefits. INA § 213A(d)(2). When Does the Sponsor’s Obligation Begin? The sponsor’s and joint sponsor’s obligations under the affidavit of support do not begin when the affidavit of support is submitted to CIS, but rather when the intending immigrant obtains lawful permanent resident status. This means that a sponsor may withdraw the affidavit at any time before the intending immigrant is granted permanent resident status. When Does the Sponsor’s Obligation End? See INA § 213A(a)(3). This section sets out how long the sponsor is obligated under the affidavit of support. The sponsor’s obligation ends when: 1. The sponsored immigrant becomes a U.S. citizen; 2. The sponsored immigrant is credited for 40 “qualifying quarters” of employment as reflected by social security payments;  A “quarter” refers to a quarter of a year, so the person will have to work at a certain wage for at least ten years to equal 40 quarters.  Beginning December 31, 1996, if the person receives any federal means-tested benefit during the quarter, the quarter doesn’t count.

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See, e.g., Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007). For more information on cases and arguments against continuing liability after divorce see Charles Wheeler, Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support, available at www.ilw.com/articles/2006,0110-wheeler.shtm. 83

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

A person under 18 can count all of his or her parent’s qualifying quarters since the day he or she was born, and a spouse or widower can count his or her spouse’s quarters earned since the date of the marriage. See Subsection E below for further discussion. 3. The sponsored immigrant ceases to be a lawful permanent resident and has left the United States; 4. The sponsored immigrant, the sponsor (see below), or the joint sponsor dies; or 5. The sponsored immigrant obtains a new grant of adjustment of status in removal proceedings as relief from removal. If the sponsored immigrant requires an affidavit of support for the new adjustment, only the sponsor(s) who filed new affidavits of support in conjunction with the new adjustment application will be obligated.

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The sponsor’s obligation does not end due to divorce, the immigrant disappearing and not communicating with the sponsor, or for other personal reasons. It does end if the sponsor dies, but the sponsor’s estate may have to pay obligations that arose before the sponsor died. See 8 CFR § 213a.2(e)(2)(ii).

Even after the sponsor’s obligation ends, the sponsor still is liable for debts that arose before the support obligation ended. For example, if Robert in the above example ends the obligation by becoming a U.S. citizen, Marie and her mother still will be liable for his Medicaid expenses from before he became a citizen, when the affidavit was in effect (as long as the government sues them within ten years of when he received the benefits). Many important issues about liability are not yet decided, and current policy might change. In reality, the affidavit of support has not been enforced with any frequency against sponsors. Advocates must keep abreast of developments and be honest with clients about what they do not know. Talking with a Potential Sponsor. When people help a family member to immigrate, they hope that things will go well. It is sad to imagine a husband simply refusing to work and suing for support, or a sister being injured and forced to collect public benefits. But bad scenarios are always possible. Sponsors, co-sponsors and contributing household members sign up for serious liability that may last for a few years or the rest of their lives. These people must understand the responsibilities involved in signing the affidavit of support. They have a right to information and time to consider before they sign.

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Example 3.8-g: Marie immigrated her husband Robert, with Marie’s mother filing an I864 Affidavit of Support as a joint sponsor. Five years later, Robert began drinking heavily and divorced Marie. Three years after that he was in an automobile accident and became unable to work. Marie and her mother will remain responsible for Robert under the affidavits of support, and may be forced to repay Medicaid for his medical expenses if the government so insists. Robert might even be able to sue to force them to support him at 125% of the poverty guidelines. Their obligation will not end until Robert becomes a U.S. citizen, works 40 qualifying quarters, loses lawful permanent resident status and leaves the United States, or dies.

A 2009 fact sheet about affidavits of support (in English) can be downloaded at www.nilc.org/sponsoredimms&bens-na-2009-08.html. This sheet provides a general overview of the affidavit of support requirements. You should make sure that your clients understand the requirements. Using their names and the name of the intending immigrant, you can describe who would be obligated under the affidavit. You may find yourself in a position known as a “conflict of interest,” where you care about one person’s interest more than the other, even though they both are looking to you for information. Imagine that your client is Rebeca and you really want to help her to immigrate her husband Rodolfo. To do this, she needs her brother Esteban to be a joint sponsor. Are you going to be careful to make sure that Esteban understands all the risks of the affidavit of support? If you were the advocate for the intending immigrant, you might want to urge Esteban to consult a different advocate or attorney to make sure that he wishes to take on this responsibility because Esteban’s interests may be quite different from the intending immigrant’s.

Exercise 3.8-d -- Responsibilities of an Affidavit of Support: Frank is a U.S. citizen sponsor and Frances is the sponsored immigrant. Decide whether the statement is true or false, and why. Answers in Appendix 3-A.

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1. If Frances collects TANF, the government has the right to sue Frank for the money. 2. When Frances was under 18 years old, her father worked for 14 qualifying quarters. Frances now must work 20 qualifying quarters before Frank will stop being liable on the affidavit of support. 3. Sixteen qualifying quarters is four years, if one works straight through. 4. Frank immigrated Frances as his wife but they then divorced. Frank is still liable under the affidavit of support. 5. If Frances refuses to work, she cannot sue Frank to maintain her at 125% of the poverty line. 6. Frances and Frank are still happily married. Frances becomes a U.S. citizen three years after immigrating through her husband. She is later injured and has to collect SSI and other benefits. Frank is not liable to pay back the government for these benefits.

E.

Exceptions to the I-864 Affidavit of Support Requirement for Family Immigrants: VAWA Self-Petitioners; Where the Petitioner Has Died; Citizenship under the Child Citizenship Act; and Those Who Have or Inherit 40 Quarters of Qualifying Income

Most people who immigrate through a family member must have a qualified I-864 Affidavit of Support filed on their behalf by the petitioner and, if needed, a co-sponsor. Some people are exempt from this requirement. Those who are exempt from filing the I-864 have to file Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption form. This form is used to establish that the person is not required to file an affidavit of support. 3-54

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1. VAWA self-petitioners A noncitizen who has been battered or abused by a U.S. citizen or permanent resident spouse, parent or child can file a “self-petition” under Violence Against Women Act (VAWA) provisions. These self-petitioners do not need to have someone submit an I-864 Affidavit of Support, but do need to file a Form I-864W. Unlike other family immigrants, they need only meet the general public charge test. INA § 212(a)(4)(C)(i)(III).

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2. Where the petitioner has died and the intending immigrant is the widow(er) If the intending immigrant was married to and not legally separated from a U.S. citizen at the time of the citizen’s death, the alien may file a petition on his or her own behalf, but must do so within 2 years of the citizen’s death. INA § 201(b)(2)(A)(i).84 The alien will be immigrating as the widow(er) of a U.S citizen and therefore does not need a substitute sponsor. This applies regardless of whether the U.S. citizen spouse dies before or after approval of the petition. Since the spouse immigrates as the widow(er) of a U.S. citizen, an I-864 does not have to be filed.

3. Children who automatically derive U.S. Citizenship when they become lawful permanent residents Some noncitizen children automatically become U.S. citizens on the date that they become lawful permanent residents, through the citizenship of the parent. This is subject to the requirement that the child must be in the legal and physical custody of the U.S. citizen parent in order to acquire U.S. citizenship. See the ILRC’s Naturalization and U.S. Citizenship: The Essential Legal Guide for more information on derivation of citizenship. Because these children will become citizens on the same date that they become permanent residents, and because U.S. citizenship would end any responsibilities of a sponsor submitting an I-864 Affidavit of Support, the government does not require them to file an I-864 as part of their family immigration. 8 CFR § 213a.2(a)(2)(ii)(E). However, they must file an I-864W.

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Widows/widowers of U.S. citizens are no longer required to have been married for at least two years to the citizen spouse to self-petition as a widow(er). See § 568(c) of the DHS Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 4142, 4186 (2009), which amended INA § 201(b)(2)(A)(i). 85 Under INA § 204(l), certain I-130 family petition beneficiaries are eligible who were in the U.S. at the time of the petitioner’s death and who continue to reside in the U.S. are automatically eligible to immigrate, despite the petitioner’s death. Those who do not fit within § 204(l) must ask DHS to reinstate the petition so they can immigrate. See 8 CFR § 205.1(a)(3)(i)(C).

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Death of Sponsor in Other Cases. In other cases where the sponsor dies, there is still an affidavit of support requirement. The final rule, however, allows the use of a “substitute sponsor” if a petitioner dies after the petition is approved but before the family member immigrates.85 A substitute sponsor must be the spouse, parent, mother-in-law, father-in-law, sibling, child (if over 18), son-in-law, daughter-in-law, grandparent, grandchild or legal guardian of the intended immigrant. See 8 CFR § 213a.1.

An alien orphan adopted by a U.S. citizen may also be exempt from the I-864 requirements depending upon factors such as whether the orphan is adopted abroad or in the United States and whether the U.S. citizen parent(s) saw the child before adoption. The laws on this are complicated. For a summary, see “Final Rule Regarding Affidavits of Support Issued by CIS and EOIR.” 83 Interpreter Releases 1296 (July 3, 2006). 4. Children born after visa acquired There is no affidavit of support requirement for children who are born after their immigrant parents receive the visa and accompany them to the United States. 8 CFR § 213a.2(a)(2)(ii)(D). 5. Persons who earn or can be credited with 40 quarters of qualifying income

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If the intending immigrant has earned or can be credited with 40 quarters under the Social Security Act (SSA), he or she is exempt from the requirement to file Form I-864 and only has to file Form I-864W. 8 CFR § 213a.2(a)(2)(ii)(C). An intending immigrant can acquire 40 qualifying quarters in the following ways: 1. Working in the United States for 40 quarters in which the intending immigrant received the minimum income established by the Social Security Administration; or 2. By being credited with quarters worked by the person’s spouse during the marriage or a parent during the time the person was under 18 years of age; or 3. A combination of the above. A “quarter of qualifying income” is three months of wages at a certain level for which money has been paid into the Social Security system. Why are people permitted to avoid filing an I-864 and instead just file an I-864W just because they have 40 quarters of qualifying income? Remember that an I-864 sponsor’s liability ends when the sponsored immigrant earns 40 qualifying quarters of work. See INA § 213A(a)(3), and discussion in Subsection D above. The government recognizes that it would be pointless for the immigrant and the government to go through the I-864 process, when the I-864 can never become enforceable because the person will have 40 credits of work at the moment of immigrating. How can a new immigrant already have 40 quarters of income? Remember that under SSA regulations, some people are able to claim quarters of work done by certain relatives as their own. Also, some people who have worked without authorization, using an invented or borrowed social security number, can later get credit for the quarters that they worked if they paid into the social security system at the time. And of course, people who were working here with legal employment authorization before they became permanent residents can claim their own credits. Thus, whether a person has earned and/or been credited with 40 qualifying quarters of income is important at either of two points in the process. First, if the person has the quarters at the time he or she applies for permanent residency, no I-864 is required. He must still file an I864W, Intending Immigrant’s Affidavit of Support Exemption. Second, if an I-864 was

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submitted, the sponsor’s obligation will end at the moment that the immigrant reaches 40 qualifying quarters.

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Claiming a Relative’s Income. As mentioned above, children can credit the quarters that their parents, including stepparents, earned from the date of the child’s birth until the date of the child’s 18th birthday. A spouse can credit the quarters earned by the other spouse from the date of the marriage. Thus, a 20-year-old daughter who is immigrating can claim all the quarters of work her mother and/or father have earned while in the United States and before she turned 18. The same is true of an immigrating wife who can claim as her own the quarters earned by her husband during the marriage. Example: Jerry and Paloma have been married for eleven years. The last 15 years, Jerry has been living and working in the United States as a permanent resident. He has petitioned to immigrate Paloma and Paloma’s 17-year-old son Luis. The family does not make enough income to meet the I-864 requirements. However, as Jerry’s wife, Paloma can credit Jerry’s last 11 years of work as her own.

Form I-864W: Intending Immigrant’s Affidavit of Support Exemption. The final regulation created this form for an intending immigrant to establish that he or she is not required to file Form I-864, the affidavit of support in his or her case. VAWA self-petitioners, applicants who have earned 40 quarters of coverage under Social Security, self-petitioning widowers, and applicants who fall within the Child Citizenship Act must complete this form. The form provides boxes to indicate which exemption the applicant is claiming. Depending upon the exemption, the applicant may or may not have to provide supporting documentation.

Claiming Credits for Work the Immigrant Did under a Bad Social Security Number. If a person who worked under an invented or borrowed social security number later obtains a legal social security number, she can fix her social security records to get her former work credits placed under her new number. In terms of avoiding the I-864 requirement, this will help applicants for adjustment of status, but not those in consular processing. A person who applies for adjustment of status receives work authorization upon filing the application. During the months or years she waits for the interview, she can work with SSA to get credit under the new number. But a person who goes through consular processing and who does not receive employment authorization before immigrating, will not have a chance to unscramble the records and claim her hours by the time of the consular interview. Nevertheless, if that person can work with SSA to claim the 40 quarters for hours previously worked under an invalid social security

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People in this situation do not have to file an I-864, but only an I-864W. This is because the moment Paloma immigrates, she can claim Jerry’s 40 quarters (10 years of work) and the obligations under the affidavit of support would terminate. Luis would not need to file an I-864, either. As Jerry’s stepson, he could credit all 15 years of Jerry’s work in the United States and so would easily have the 40 quarters.

number after they are admitted to the U.S. as permanent residents, then the Affidavit of Support obligation of their sponsor(s) will terminate. Receipt of Means-Tested Public Benefits. For any period beginning after December 31, 1996, a quarter will not be “qualifying” if during it the person received any “Federal meanstested public benefit.” INA § 213A(a)(3)(A).86

§ 3.9 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists The following are several of the less common grounds of inadmissibility.

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A.

Security and Political Grounds: INA § 212(a)(3)

This ground of inadmissibility defines a number of groups who are considered dangerous to United States security, including people engaged in espionage, sabotage, terrorist activity, people whose entrance would have “serious adverse foreign policy consequences, membership in Communist or totalitarian parties, Nazis, and people who have been involved in genocide.” IIRIRA amended the statute to make inadmissible a noncitizen “who, under circumstances indicating an intention to cause death or serious bodily injury, incited terrorist activity.” This provision is effective on enactment, and applies to incitement “regardless of when it occurs.” DHS refers to this ground as TRIG, which stands for the “Terrorism-Related Inadmissibility Grounds.” This provision may even apply to the spouse or child of a person who is determined to be inadmissible under this ground. See INA § 212(a)(3)(B)(i)(IX). There are a number of exceptions to this ground, which are described in the following subsection. In response to the attacks of September 11, 2001, Congress enacted wide-ranging legislation dubbed the “U.S. Patriot Act.” Among other things, the legislation:   



Adds new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorist activity, and spouses and children of aliens who are inadmissible under any of the terrorism-related grounds; Provides new unreviewable authority to the Secretary of State to designate any group, foreign or domestic, as a terrorist organization, upon publication in the Federal Register; Makes any fundraising, solicitation for membership, or material support (even for humanitarian projects) of groups that are designated terrorist organizations by the Secretary of State a deportable offense (without regard to whether such activities were in furtherance of actual terrorist activity); Makes solicitation of funds or other material support for groups not officially designated as “terrorist organizations” a deportable offense unless the person can prove that he “did

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For a more complete discussion of qualifying quarters, see Affidavit of Support and Sponsorship Requirements: A Practitioners’ Guide (National Immigration Law Center and Catholic Legal Immigration Network; go to www.nilc.org).

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 

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The Real ID Act of 2005, which came into effect on May 11, 2008, expanded the terrorism grounds seen in the Patriot Act in the following ways:  

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Expands the definitions of “terrorist activity” and “terrorist organization” thereby triggering the expansion of the terrorism-based grounds of inadmissibility and deportability; Broadens the terrorism-based grounds of inadmissibility in INA § 212(a)(3)(B) and makes anyone who “endorses or espouses” terrorist activity, anyone who has received “military-type training” from a terrorist organization, and anyone who is a member of a terrorist organization or has provided material support to a terrorist organization or a member of a terrorist organization inadmissible; Makes the terrorism-based grounds of deportability the same as the terrorism-based grounds of inadmissibility;

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not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity”; Places certain limits on retroactivity where a person previously provided material support to the humanitarian projects of a terrorist organization before it was designated as such by the Secretary of State; Provides that the Attorney General or the Deputy Attorney General (with no power of delegation) may certify an alien as a terrorist if they have reasonable grounds to believe that the alien is a terrorist or has committed a terrorist activity. In such cases, mandatory detention of a person so certified is required. Certified persons shall remain in custody irrespective of any relief from removal that they may be eligible for or granted. If the person is finally determined not to be removable, he or she may no longer be detained under this section; Allows the DHS to detain a suspected terrorist alien for seven days before bringing immigration or criminal charges. Aliens not charged within seven days shall be released; Provides habeas review of the detention and the basis for the certification; Provides judicial review by habeas in any district court otherwise having jurisdiction to entertain it. Decisions in any district will be based on the rule of law in the U.S. District Court for the District of Columbia, and all appeals will be made to the Court of Appeals for the District of Columbia; For any person with a final order for removal who is detained under this section beyond the removal period, the Attorney General must review such detention every six months. Continued detention is allowed only upon a showing that “the release of the alien will endanger the national security of the United States or the safety of the community or any person”; The Attorney General shall review the certification of any person every six months. If, in the Attorney General’s discretion, it is determined that the certification should be revoked the person may be released. Any certified person may request a reconsideration of their certification every six months and submit documents or evidence to support that request; Requires that the Attorney General must submit a report to Congress on the use of this section every six months.

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Makes anyone who is inadmissible in INA § 212(a)(3)(B) ineligible for asylum. Gives the Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, the sole, unreviewable discretion to waive inadmissibility based on a material support of or membership in a terrorist organization. 1. Exceptions and exemptions from the security and terrorism grounds

By statute, a spouse or child of a person who falls within the terrorism grounds will not be found inadmissible if he or she did not know or should not reasonably have known of the person’s actions, or the consular officer or Attorney General has reasonable grounds to believe he or she has renounced the person’s actions. See INA § 212(a)(3)(B)(ii).

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In addition, INA § 212(d)(3)(B)(i) authorizes the Secretary to exempt certain people from the terrorism-related grounds of inadmissibility. As of this writing, individuals are exempt who have helped the following groups: the Karen National Union/Karen Liberation Army (KNUIKNLA); Chin National Front/Chin National Army (CNF/CNA); Chin National League for Democracy (CNLD); Kayan New Land Party (KNLP); Arakan Liberation Party (ALP); Tibetan Mustangs; Cuban Alzados; Karenni National Progressive Party (KNPP); appropriate groups affiliated with the Hmong; and appropriate groups affiliated with the Montagnards. CIS has issued several policy memoranda that permit exceptions to be made for those who underwent military training by terrorist organizations under duress, those who provided material support under duress, and those who provided medical care to members of designated terrorist organizations.87 Persons charged under the security and terrorist grounds of inadmissibility and deportability need expert legal assistance. DHS may target people who are active in political movements that oppose the United States. It may target people who are not terrorists but who are linked to groups which the United States views as terrorist, such as guerrilla groups fighting U.S.backed governments. Clients arrested in political demonstrations might possibly be charged under this ground. For assistance in such a case, contact the National Lawyers Guild National Immigration Project at www.nationalimmigrationproject.org or by telephone at (617) 227-9727. It is important to check for updates at CIS for the latest on this issue. B.

Ineligible for Citizenship; Draft Dodgers: INA § 212(a)(8)

People who are permanently ineligible for U.S. citizenship are inadmissible. This ground refers exclusively to people who evade military service, including those who leave or remain outside the U.S. to avoid training or service in the Armed Forces in time of war or a period 87

See USCIS, Revised Guidance on the Adjudication of Cases Involving Terrorism-Related Inadmissibility Grounds (TRIG) and Further Amendment to the Hold Policy for Such Cases, available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/TRI-%20Hold-pm602-0051.pdf.

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declared by the President to be a national emergency. Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). It does not refer to those who are ineligible for U.S. citizenship for other reasons, such as people convicted of aggravated felonies.

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This ground does not apply to nonimmigrants who left the U.S. and are now seeking readmission as nonimmigrants. It also does not apply to people who merely failed to register with Selective Service because the definition of who is a draft evader is specifically defined in the statute. See INA § 212(a)(8)(B). In addition, the amnesty given by President Carter to people who avoided the draft during the Vietnam War applies to noncitizens and should exempt them from this ground. C.

Miscellaneous

Miscellaneous grounds are listed in INA § 212(a)(10). These include:    

Polygamists (see below); People who abduct children across international borders; Noncitizens who vote in an election in violation of any federal, state, or local law (see below); People who renounce their U.S. citizenship in order to avoid U.S. taxation.

D.

Polygamy

Persons coming to the U.S. to practice polygamy are inadmissible. Polygamy requires the belief and practice of having more than one spouse at a time. In other words, the person has to have the intent to practice polygamy. Example: Joe married to Sally and never divorced her. However they have not been together for many years. Joe then marries Kim in Las Vegas. Joe is not inadmissible under this ground because he doesn’t believe in the practice of polygamy, he just didn’t follow legal procedures of divorce. (In California, he does not have a valid marriage to Kim because one cannot get re-married until the present marriage is terminated.) This might cause other problems for Joe and Kim, if the relationships are the basis of any immigration status or benefit, but he is not inadmissible for polygamy. E.

Unlawful Voting: INA § 212(a)(10)(D)

Any noncitizen “who has voted in violation of any federal, state or local constitutional provision, statute, ordinance, or regulation is deportable under INA § 237(a)(6) and inadmissible under INA § 212(a)(10)(D)(i). Unlike the ground of inadmissibility and deportability for a false

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Two of the most common miscellaneous grounds, voting and polygamy, are discussed below:

claim to U.S. citizenship, this ground is retroactive and therefore applies to voting before, on, or after September 30, 1996. No conviction is required. If this ground is raised against your client, get expert help and tell the person to check the relevant laws against illegal voting. As with the false claim to U.S. citizenship ground, this is a harsh provision with no waivers, except for cancellation of removal under INA § 240A and a few other special forms of relief. 1. What constitutes illegal voting?

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The definition of unlawful voting in both INA § 212(a)(10)(D)(i) and INA § 237(a)(6) does not require guilty knowledge; it appears to include people who innocently believed that they were entitled to vote (a not uncommon occurrence). A consular or CIS official can consider whether it was a knowing violation where a knowing violation is required by the law violated. The key is that the person must not have merely voted, but also done so in violation of some federal, state or local law. Practitioners should identify and analyze the voting law that was violated, and determine if there was a requirement of guilty knowledge or some other specific intent.88 Nevertheless, the DHS may argue that violation of a law with no intent requirement, such as a regulation stating who can vote, will be a basis for a finding of inadmissibility or deportability. For example, 18 USC § 611 makes voting by an alien in a federal election unlawful, with no intent or knowledge requirement. A non-citizen, therefore, who voted in a federal election could be found removable even if she did not have any knowledge that she was prohibited from doing so. There is at least one federal case analyzing the illegal voting removal provision that practitioners should consult. In MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), the Ninth Circuit considered whether a woman was deportable for voting in violation of a Hawaii election law which provided that “any person who knowingly votes when the person is not entitled to vote” is guilty of a felony. While the Ninth Circuit did not explicitly hold that guilty knowledge or other specific intent is actually required to fall under the illegal voting ground, it held that a court must find that the noncitizen violated all of the provisions of the law at issue to be removable. The Ninth Circuit reasoned that the Immigration Judge erred by applying his own knowledge standard requiring that the petitioner merely be aware that it is practically certain that her voting would result in a violation of law. The Court held that the correct standard under the Hawaiian law at issue not only required that the petitioner knowingly voted, but also that she

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The election laws will differ depending upon location and type of election. For instance, some criminalize the actual act of voting even though the noncitizen did not know he was ineligible to vote, while others require an additional finding that the individual acted “knowingly” or “willfully.” California Election Code § 18560, for example, states: “Every person is guilty of a crime punishable by imprisonment in the state prison … who: (a) Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.” Therefore, in order to be found removable in certain circumstances in California, DHS has to prove that the person voted fraudulently.

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knew she was not entitled to vote. Because the woman was not aware that she was ineligible to vote, she was not deportable.

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The DHS might be persuaded to recognize the unfairness in targeting individuals who made an innocent mistake when voting and did not intend to do anything wrong even if the relevant election statute does not impose a mens rea requirement like that in MacDonald. For example, advocates reported that the Dallas District DHS office has requested trial attorneys to move to dismiss the Notice to Appear as “improvidently issued” in the case of voters who lacked fraudulent intent. 2. Exceptions and waivers for illegal voting a. Narrow exception to the illegal voting inadmissibility and deportability provisions Under INA §§ 212(a)(10)(D) and 237(a)(6)(B), some individuals who meet the following requirements will not be subject to the immigration and criminal consequences of having voted unlawfully. Note that this same exception applies to individuals who have falsely claimed to be U.S. citizens (see § 3.7):

Effective Date: This change in the law is retroactive and cures false claims and illegal voting that took place before or after the enactment of the relevant statutes. Example: Claudia’s mother told Claudia that she was a U.S. citizen. She grew up thinking that she was and when she was 22 she applied for a U.S. passport using the birth certificate her mother said was hers. In fact, the birth certificate was false and Claudia’s mother had lied to her all these years. Both Claudia and her mother were in fact undocumented. Claudia, thinking that she was a U.S. citizen, had voted. Claudia is still subject to the immigration penalties for unlawful voting because she doesn’t qualify for the narrow exemption. Unfortunately, there are no waivers for this ground. However, she should not fall within the inadmissibility ground for false claim to U.S. citizenship since CIS recognizes that a false claim to U.S. citizenship requires knowledge of the falsity. See § 3.7 and Appendix 3-G. b. Waivers for illegal voting Like false claim to U.S. citizenship, there is no inadmissibility waiver for illegal voting, apart from cancellation of removal under INA § 240A, and certain other special forms of relief, such as asylum, which can waive both the inadmissibility and deportability ground.

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1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States.

WARNING! Illegal Voting May Carry Other Possible Immigration Consequences. DHS could additionally charge the noncitizen with deportability and inadmissibility for false claim to U.S. citizenship by arguing that he would not have been capable of voting at all without the false claim. This would only be true if the person actually made a false claim to U.S. citizenship, i.e., signed a voter registration card asking “Are you a U.S. citizen?” and not if the person merely showed up at the polls to vote. See § 3.7. The act of illegal voting could also be considered a crime involving moral turpitude if there was a specific intent or guilty knowledge requirement involved. See § 3.21.

F.

Stowaways: INA § 212(a)(6)(D)

Stowaways are people who have boarded onto a ship or plane without permission. They are inadmissible under INA § 212(a)(6)(D).

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Stowaways may seek parole into the United States pursuant to INA § 212(d)(5), or adjustment of status under INA § 245(h) (special immigrant juvenile status).

PART TWO: IMMIGRATION VIOLATIONS RELATING TO UNLAWFUL STATUS AND REMOVAL Violating the immigration laws can be a basis for inadmissibility. IIRIRA created several grounds of inadmissibility related to being in the United States unlawfully, departing, and returning lawfully or unlawfully. This unit will summarize the current state of the law, but interpretations may continue to change. For more information about these laws, review developments in a publication like Interpreter Releases, memoranda published by the DHS giving its interpretation of the laws,89 and case law updates from the American Immigration Council at www.americanimmigrationcouncil.org.90

§ 3.10 Entry, Admission and Effective Dates A person who has been admitted to the United States is subject to the grounds of deportability, and a person who is seeking admission (who is either outside the United States, paroled into the United States, applying for adjustment of status, or who entered the United States

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See, e.g., Appendix 3-I, CIS Interoffice Memorandum, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual, (Mar. 3, 2009). 90 The American Immigration Council was formerly known as the American Immigration Law Foundation (AILF).

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without inspection or as a crewman) is subject to the grounds of inadmissibility.91 Pay attention to when each of the following sections uses words like entry, admission or parole. Some inadmissibility grounds only apply if the person remains in the United States. See INA § 212(a)(6). Other inadmissibility grounds only apply if the person has left the United States after a violation. See INA § 212(a)(9).

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It is also important to pay attention to the effective dates—when certain grounds imposed by IIRIRA and other legislation begin to apply. For example, you will see that in calculating “unlawful presence” for purposes of the three- and ten-year bars, we count only unlawful presence starting as of April 1, 1997. But other grounds where Congress has not been specific may apply before April 1, 1997 or may have to be resolved in litigation. Some of the most important and complex inadmissibility bars are the “three- and tenyear” and “permanent” bars based on unlawful presence. A chart of these grounds appears at Appendix 3-G. Appendix 3-G also contains a memorandum published by CIS on May 6, 2009 as an amendment to its “Adjudicator’s Field Manual” which describes in detail its interpretation of these grounds.92 A summary of all of the grounds that will be discussed appears at § 3.16.

§ 3.11 Unlawfully Present in the United States without Being Admitted or Paroled

Example 3.11: Sonia entered the United States without inspection in 1991 and has not left since. She is inadmissible due to her unlawful presence without prior admission. She could be removed for being inadmissible. Her sister Tania was admitted to the United States in 1991 on a visitor’s visa and has not left since. Tania is not inadmissible under this ground because she was lawfully admitted. (Note that Tania is deportable under INA § 237(a)(10)(B) because she is “present in the U.S. in violation of law,” and could be removed for being deportable. See Part Three of this unit.)

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Review § 3.1 for a detailed explanation of how the term “admission” is defined under INA § 101(a)(13). USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence (May 6, 2009). 93 Immigration advocates who practiced before April 1, 1997 will note that this ground of inadmissibility replaces the former “entry without inspection” deportation ground. 92

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This ground penalizes persons who entered without inspection and remain in the United States. Noncitizens who are present in the United States without being admitted or paroled, or who arrive at a place other than a designated port of entry, are inadmissible under INA § 212(a)(6)(A).93 Note that this ground is “cured” upon departure from the U.S., so it does not impact those who are immigrating through consular processing.

Tania’s friend George entered the United States by crossing the border undetected. Shortly thereafter he was apprehended by the Border Patrol and taken into custody. The DHS, looking at the circumstances of his case, granted George parole into the country on the basis of urgent humanitarian reasons. CIS will still consider George inadmissible, despite the fact that he has been paroled, because he arrived at a location other than an official port of entry.94 Exception for Those Who Are Eligible for Adjustment of Status under INA § 245(i).95 It is the official position of DHS that this ground of inadmissibility does not disqualify those who are present in the United States without being admitted or paroled from adjusting their status under INA § 245(i).96 The BIA has also upheld this position, finding that to hold otherwise would defeat the purpose of 245(i), a result that Congress is presumed not to have intended. See Matter of Briones, 24 I&N Dec. 355, 365 (BIA 2007).

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VAWA Exemption. VAWA self-petitioners are exempt from this ground of inadmissibility for adjustment of status under INA § 245(a).97 In other words, INA § 212(a)(6)(A) is effectively waived for approved VAWA self-petitioners who entered without inspection or are present without permission or parole.98 For more information about this, see the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants. Temporary Protected Status -- A Special Case: Certain grounds of inadmissibility do not apply to people applying for Temporary Protected Status (TPS) under INA § 244. CIS has found as a policy matter that § 212(a)(6)(A) should not apply at the time of seeking TPS.99 TPS grantees are considered to be in lawful status from the date they apply for TPS. INA § 244(f)(4). Nevertheless, they can still be considered inadmissible under INA § 212(a)(6)(A)(i) for purposes of qualifying for adjustment of status through a family or employment visa petition under INA 94

Adapted from an example in Appendix 3-I, CIS Interoffice Memorandum, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual, at 6 (Mar. 3, 2009). CIS no longer recognizes conditional parole or release under INA § 236, pending a decision regarding removal, as equivalent to parole for purposes of § 212(a)(6)(A)(i). See id. 95 See Unit 7 for information on adjustment of status under INA § 245(i). 96 See Louis D. Crocetti, Jr., Associate Commissioner, Office of Examinations, Memorandum to INS Officials (May 1, 1997), available at 2 Bender’s Immigration Bulletin 450, 452 (June 1, 1997); INS General Counsel Issues Important Opinion on EWI Eligibility for Adjustment, 74 Interpreter Releases 499 (March 24, 1997). 97 Adjustment of status is the process of obtaining an immigrant visa within the United States. See Unit 7 for more information on adjustment of status. 98 See INA § 245(a); see also Michael L. Aytes, Assoc. Dir. Dom. Opers., CIS, Adjustment of status for VAWA self-petitioners who is present without inspection, at 2 (Apr. 11, 2008). 99 See 8 CFR § 244.3. This regulation specifically exempts TPS applicants from grounds of inadmissibility under INA § 212(a)(4), § 212(a)(5)(A) and (B) and § 212(a)(7)(i). In a draft memorandum circulated in 2011, the CIS indicated that 212(a)(6)(A) and 212(a)(9) will not be applied to those seeking TPS. CIS indicated that to do so would be contrary to the statute. At this time, CIS is not requiring waivers for these grounds.

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§ 245(a) if they initially entered the U.S. without permission. In other words, the grant of a waiver of INA § 212(a)(6)(A)(i) for TPS eligibility does not waive that ground for § 245(a) adjustment purposes.100 In addition, the grant of TPS does not cure the person’s initial illegal entry for purposes of qualifying for § 245(a) adjustment, which requires, at minimum, that the applicant was “inspected and admitted, or paroled” into the US.101

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Discretionary Waiver for Legalization Applicants under INA §§ 245A and 210. DHS has the authority to grant a waiver of the grounds of inadmissibility under INA § 212(a)(6) for humanitarian, family unity, or public interest reasons, for applicants for legalization or Special Agricultural Worker status under INA § 245A or § 210.102 Additional Exemptions. In addition to these exceptions and waivers, inadmissibility under INA § 212(a)(6)(A)(i) does not make an individual inadmissible for purposes of:   

§ 3.12 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver A.

The Three- and Ten-Year Bars and the Family Hardship Waiver

The three- and ten-year bars for unlawful presence are found at INA § 212(a)(9)(B). These grounds of inadmissibility penalize people who stay too long in unlawful status in the 100

See Appendix 3-G: USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, pp. 49-50 (May 6, 2009). 101 Appendix 3-I, p. 8. There is a recent case out of the Sixth Circuit that found TPS status persons eligible to adjust under 245(a). At this time, though there is no indication that this will be accepted more broadly, there are strong arguments based on the TPS statute that it should be. Flores v. USCIS, No. 12-3549, 2013 WL 2397900 (6th Cir. June 4, 2013). In the Flores case, the Court held that the plain language of the TPS statute, INA § 244(c)(2) provided broad waivers of inadmissibility and that INA § 244(f) clearly states that TPS recipients are considered to be in lawful status for adjustment purposes. 102 See 8 CFR § 245a.2(k)(2), 8 CFR § 245a.3(g)(2), 8 CFR § 245a.18(c), and 8 CFR § 210.3(e). 103 Appendix 3-I, p. 9.

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    

Adjustment of status under INA § 245(h) (Special Immigrant Juvenile Status); Adjustment of status under § 902 of the Haitian Refugee Immigration Fairness Act (HRIFA); Adjustment of status under § 202(b) of the Nicaraguan Adjustment and Central American Relief Act (NACARA); Adjustment of status under INA § 249 (Registry); Change of status to V nonimmigrant status under INA § 214(q); Asylum and asylum adjustment under INA §§ 208(a)(1), 208(a)(2), 208(b)(2), 209. Family Unity under § 301 of the Immigration Act of 1990 (IMMACT 90); Some applicants for adjustment under the Cuban Adjustment Act of 1966.103

United States, leave, and then apply for admission. These grounds are only triggered when the person departs the United States. Noncitizens will be found to be inadmissible under § 212(a)(9)(B) if they (a) are unlawfully present in the United States for certain periods of time, (b) leave the United States, and (c) apply for admission back into the United States. These grounds apply to people who originally were admitted or paroled but then stayed past the expiration of their authorization; those who entered without inspection; and those who knowingly made a false claim of citizenship to obtain permission to enter.104 The Courts and the BIA have interpreted the statute to mean that only unlawful presence beginning on April 1, 1997 counts as part of the time period.105

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Fortunately, there is a waiver for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents. As you will see, these people face a difficult choice. Should they stay with their families in the United States and hope that when the time comes they will win a family hardship waiver or somehow be able to adjust status, or should they leave the United States to avoid gaining “unlawful presence”? As of March 2013, certain immediate relatives of U.S. citizens can apply for an unlawful presence waiver in the United States, before leaving to consular process. See Family Hardship Waiver subsection below. 180 Days/Three-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of more than 180 days but less than one year, and (b) then voluntarily depart the United States before any immigration proceedings commence, and (c) then apply for admission to the United States, are inadmissible for a period of three years from the date of departure. INA § 212(a)(9)(B)(i)(I). One Year/Ten-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of one year or more, (b) leave the United States voluntarily or by deportation/removal, and (c) then apply for admission to the United States, are inadmissible for a period of ten years from the date of departure or removal. INA § 212(a)(9)(B)(i)(II). Effective Date of April 1, 1997. Under current case law, this ground of inadmissibility does not start “counting” the period of unlawful presence until April 1, 1997. For example, a person who had been unlawfully present in the United States for several years but left on or before September 27, 1997 (180 days after April 1, 1997) will not be inadmissible under this ground.

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Appendix 3-G at 22; Matter of S--, 9 I&N Dec. 599 (BIA 1962). See In re Rodarte-Roman, 23 I&N Dec. 905 (BIA 2006); see also Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013) (superseding previous Ninth Circuit case, which vacated Ninth Circuit decision). Nevertheless, you should be aware that the date that unlawful presence counts from could change in a subsequent court case. 105

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Continuous Period. The 180 days or one year must be continuous. A person who is in unlawful status for four months, then leaves and comes back to new unlawful status for five months, still has not spent six months in continuous unlawful presence and does not come within the three or ten year bar.106 If, however, a person accrues several periods of unlawful presence during one single stay, interspersed with other periods of lawful presence, CIS will add the multiple periods together.107

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Example: John is admitted to the U.S. as a B-2 visitor on January 1, 2008 and his authorized stay expires on June 30, 2008. He does not leave, but marries Amanda, a U.S. citizen, and files for adjustment of status through her on November 1, 2008. While his adjustment application is pending, he is not accruing unlawful presence. His adjustment application is finally denied on April 1, 2010. His unlawful presence begins to accrue again upon the final adjustment denial.108 1. Must voluntarily depart for the three-year bar

2. Any departure can trigger the ten-year bar By contrast, the inadmissibility ground for one year of unlawful presence or more in the United States is triggered regardless of the circumstances in which the person leaves the United States (unless the person leaves pursuant to a grant of advanced parole, see below). It will include any departure from the United States whether the person decides to leave on his or her own or is required to pursuant to removal proceedings. INA § 212(a)(9)(B)(i)(II).109 3. Gap in the statute There is therefore a gap in the statute that helps a small number of clients. The State Department found that a person with more than 180 days but less than a year of unlawful presence who leaves the United States after being placed in removal proceedings (either through a

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Note, however, that the “permanent” bar to inadmissibility for those who attempt to enter illegally does add time periods together to equal a year’s unlawful presence. See § 3.13. 107 Appendix 3-G, p. 13. 108 See CIS Interoffice Memorandum (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/ Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 109 See also Matter of Lemus, 24 I&N Dec. 373 (BIA 2007); vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009).

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The inadmissibility ground for unlawful presence for more than 180 days but less than one year is only triggered when a person voluntarily departs from the United States before being placed in proceedings (whether or not under a voluntary departure grant). If the person is placed in removal proceedings, then receives voluntary departure from the judge or is ordered deported, and leaves after 180 days in the U.S. but prior to accruing one year of unlawful presence, the person does not fall under this provision.

removal order or a grant of voluntary departure) is not inadmissible under this ground at all.110 This creates the odd result that someone who was removed has more benefits under the statute than someone who voluntarily left either of his or her own volition or under a voluntary departure grant before proceedings were initiated. (Note, however, if the person attempted to return illegally after a removal, however, he or she would be inadmissible under the permanent bar discussed in the next section). 4. What is a “departure”?

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Note that leaving the United States under a grant of advanced parole, will not count as a “departure” under INA § 212(a)(9)(B)(i)(II) and will not thereby trigger inadmissibility. In the BIA’s decision in Arrabally and Yerrabelly, the BIA found that the purpose of INA § 212(a)(9)(B)(i)(II) does not apply to someone “who left and returned to the United States pursuant to a grant of advance parole.”111 Arrabally and Yerrabelly involved individuals with pending adjustment applications; however based on the reasoning in the BIA’s decision in Arrabally and Yerrabelly, any advanced parole departure should not trigger the unlawful presence bars. In an unpublished decision, the Administrative Appeals Office (AAO) found that this principle applied to a person in valid TPS status that left under advance parole, then applied for adjustment. The AAO found that an I-601 for unlawful presence was not necessary because the departure did not trigger an unlawful presence bar.112 5. Family hardship waiver Persons with certain U.S. citizen and lawful permanent resident family members can apply for a discretionary waiver of the three- or ten-year bar. The DHS or an immigration judge can grant a waiver to a noncitizen who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, if refusing admission to this person would result in extreme hardship to the citizen or permanent resident spouse or parent. INA § 212(a)(9)(B)(v). Note that this particular waiver is not available to a parent of a U.S. citizen or lawful permanent resident (unless the person also qualifies as the spouse, son or daughter of a U.S. citizen or lawful permanent resident). Also, the DHS will not consider hardship to the waiver applicant him or herself. Example 3.12-a: Sonia has lived illegally in the United States for seven months. Then, last week, she left to visit her home country. She later applies to immigrate through her permanent resident mother. Is Sonia inadmissible? Why or why not? If so, is a waiver available?

110

See 75 Interpreter Releases 543 (Apr. 20, 1998). Matter of Arabally and Yerabelly, 25 I&N Dec. 771 (BIA 2012) (clarifying the holding in Matter of Lemus). 112 A redacted copy of this decision is available through www.aila.org at AILA Infonet Doc. No. 12102242 (posted Oct. 26, 2012). 111

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Yes, Sonia is inadmissible and comes within the three-year bar. After April 1, 1997, she was unlawfully present in the United States for more than 180 days but less than a year before she left voluntarily. Because Sonia is the daughter of a permanent resident, she can apply for the family hardship waiver of the three-year bar. To qualify for the waiver, Sonia must show that her mother will suffer extreme hardship if the waiver is not granted. If the waiver is denied, Sonia cannot immigrate until she has lived outside the United States for three years.

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Example 3.12-b: Quan entered the United States as a visitor in January 2004 with permission to stay until June 1, 2004, but he never left. He was discovered, placed in removal proceedings, and finally removed on July 25, 2007. Later his U.S. citizen son became 21 years old and applied to immigrate Quan. Is Quan inadmissible? Why or why not? If so, is a waiver available? Quan is inadmissible and subject to the ten-year bar. Counting from June 1, 2004 (the day his presence became unlawful), he was in the United States for more than a year in unlawful status before he was removed.

Note that if Quan had not been discovered, and was not ordered removed, he could probably adjust status in the United States without triggering the unlawful presence bar. Because Quan initially entered with a visa, he was inspected and admitted and thus would qualify to adjust through an immediate relative in the United States even though he had overstayed his visa. The problem for Quan is that he was removed, and thus departed the U.S. before he could pursue this option. Previously, the family hardship waiver had to be filed from outside of the United States. As of March, 4, 2013, CIS allows an immigrant who is the spouse, child, or parent of a U.S. citizen (not an LPR), to file for a waiver before he or she leaves the United States. This is considered a provisional waiver, and uses Form I-601A. In order to apply for the provisional waiver, the noncitizens must: be an “immediate relative” of a U.S. citizen, have an approved Form I-130, have a pending immigrant visa application, show that refusal of admission will cause extreme hardship to a U.S. citizen spouse or parent, be physically present in the United States to file the application and take biometrics, not have been scheduled for an immigrant visa interview before January 3, 3012, and not be in removal proceedings.113 Note that this process is only 113

The regulations relating to the provisional waiver may be found at 8 CFR § 212.7(e).

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Unfortunately, if Quan’s son is his only lawful permanent resident or U.S. citizen relative, Quan will not qualify for the family waiver because it is not available to parents of U.S. citizens or lawful permanent residents. He will have to wait for ten years after the date of his removal to return. If, however, Quan’s wife or parent is a U.S. citizen or lawful permanent resident, Quan will be eligible for the waiver. He will have to show that the wife or parent will suffer extreme hardship if the waiver is denied. If the waiver is denied, Quan cannot immigrate until July 25, 2017.

available to those with U.S. citizen qualifying relatives, while the general waiver also applies to those who can show hardship to permanent resident parents or spouse. Additionally, the person cannot have any other ground of inadmissibility that needs waived. See Unit 6 for more information. The provisional waiver is a great development for those who can benefit because it takes away much of the risk of leaving to consular process without knowing whether a waiver would be granted. But it only helps a limited group of applicants at this writing. 6. Exceptions to unlawful presence Under the statute, certain periods of time will not “count” in calculating the period of unlawful presence.

Reading Skills. Turn to INA § 212(a)(9)(B)(iii). Under this section, unlawful presence does not accrue during times that the noncitizen:

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1. is under ___ years of age; 2. has a bona fide _________ application pending, unless the noncitizen works without authorization during that time; 3. is the beneficiary of __________ protection; 4. was battered or subjected to extreme cruelty by a spouse or parent, or a member of the spouse or parent’s family, where there was a substantial connection between _____ and the violation of the terms of the person’s nonimmigrant visa; or 5. was a victim of severe ______.

As your reading of the statute should have told you, under INA § 212(a)(9)(B)(iii), unlawful presence does not accrue for purposes of the three- and ten-year bars during times that the noncitizen: 1. is under 18 years of age; 2. has a bona fide asylum application or bona fide Asylee-Refugee Relative Petition pending, unless the noncitizen works without authorization during that time (the DHS stated in memoranda that the term “bona fide” will be defined generously, as an asylum application that has any arguable basis in law and fact);114

114

See Appendix 3-G, at, pp. 29-31.

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3. is the beneficiary of Family Unity protection under § 301 of the Immigration Act of 1990 (see Unit 16);115

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4. was battered or subjected to extreme cruelty by a U.S. citizen or permanent resident spouse or parent, or a U.S. citizen son or daughter or a member of the spouse of parent’s family, where there was a substantial connection between the battery or cruelty and the violation of the terms of the person’s nonimmigrant visa (see Unit 5); 5. is a victim of a severe form of trafficking in persons, where the individual can demonstrate that the trafficking is at least one central reason for their unlawful presence in the United States. B.

Other Cases When Unlawful Presence Is Not Counted

Other kinds of immigration status or procedures also affect unlawful presence for the three- and ten-year bars under INA § 212(a)(9)(B) and the permanent bar under INA § 212(a)(9)(C) (discussed in § 3.13 below). Some of these exceptions are policy determinations by CIS, rather than statutory exemptions, and are thus subject to change.

2. Voluntary Departure. The period during which the DHS, an immigration court, or the Board of Immigration Appeals (BIA) grants voluntary departure will not count as unlawful presence for the three- and ten-year bars. If the person granted voluntary departure fails to depart, unlawful presence begins as of the day the voluntary departure period expired. In addition, unlawful presence accrued prior to the grant of voluntary departure still counts against a person for the three and ten year bars. If a denial of 115

By CIS policy, this exemption has been extended to Family Unity under § 1504 of the LIFE Act Amendments of 2000, for both § 212(a)(9)(B) and the permanent bar. 116 Appendix 3-G, at 33-34. The policies further indicate that, except in cases of NACARA or HRIFA applications, persons filing the listed applications after being served with a Notice to Appear in removal proceedings will not be protected from accrual of unlawful presence.

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1. People Who Have Affirmatively Applied for Adjustment of Status (i.e., filed their applications for adjustment before CIS and not in removal proceedings). CIS policies indicate that properly filed applications for adjustment of status or registry under the following sections of law stop accrual of unlawful presence and toll that accrual until the application is denied, even if it is determined that the individual was ineligible for the benefit in the first place:  Registry under INA § 249;  Adjustment of status under: o (1) INA §§ 209, 245 and 245(i); o (2) NACARA § 202(b); o (3) HRIFA § 902; and o (4) Cuban-Haitian Adjustment Act of § 202.116

voluntary departure is reversed on appeal, the time from the denial to the reversal is not considered unlawful presence. Unlawful presence before voluntary departure was granted still counts.117 3. Authorized Stay for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant, “unlawful presence” is only counted after the expiration date on the person’s I-94 entry document. Unlawful presence does not begin, for example, on the date that the person does something to violate his or her visa, but only when there is a determination that he or she is no longer in status. INA § 212(a)(9)(B)(ii).118

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4. Application to Extend or Change Nonimmigrant Status. The statute indicates that unlawful presence is tolled (stopped) for 120 days for people who apply to extend or change their nonimmigrant status. See INA § 212(a)(9)(B)(iv)(III). However, given DHS backlogs, the DHS has interpreted the statute to mean that the clock is stopped for up to the length of time it takes the DHS to adjudicate a change or extension of status. This applies only to certain people who timely apply to extend or change their nonimmigrant status (e.g., extend a visitor’s visa). Although the statute states that this exception applies to the three year bar only, CIS policies indicate that it will extend the tolling protections to the ten-year and permanent bars as well, provided several requirements are met, including that (1) the non-frivolous request for extension or change of status was timely filed; (2) the individual has not engaged in unauthorized employment either before or during the pendency of the application; and (3) the individual’s status has not lapsed prior to the filing of the request.119 5. Lawful Permanent Residents. LPRs in removal proceedings do not begin to accrue unlawful presence until the issuance of a final administrative order by an Immigration Judge or the BIA terminating LPR status.120 6. Lawful Temporary Residents. Unlike conditional residents (see below), LTRs pursuant to INA § 245A(b) do not automatically begin accruing unlawful presence following the expiration of their temporary residence status. Rather, LTRs do not accrue unlawful presence until issuance of a notice of termination by DHS (but administrative appeals of this notice toll unlawful presence), or until the commencement of removal proceedings.121

117

See Appendix 3-G, at pp. 39-42, for additional information regarding the effect of reinstatements of voluntary departure, petitions for review, and motions to reopen. 118 Memo, Pearson, Exec. Assoc. Comm. (Mar. 3, 2000), available at 77 Interpreter Releases 316 (June 5, 2000). 119 See Appendix 3-G, pp. 35-38, for additional information regarding the effect of departure while EOS/COS applications are pending, motions to reopen, etc. 120 Appendix 3-G, at 44. 121 See Appendix 3-G, at pp. 22-23.

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7. Pending Applications for Legalization or Special Agricultural Worker Status under INA §§ 245A or 210, or § 1104 of the LIFE Act, if properly filed, will also stop the accrual of unlawful presence until a final administrative denial.122

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8. People with Family Unity Protection under both § 301 of the Immigration Act of 1990 (IMMACT 90) and § 1504 of the LIFE Act Amendments of 2000.123 9. Pending Applications for TPS. If properly filed, a TPS application will only cure unlawful presence retroactively until the time of filing if the application is approved. If the application is denied, unlawful status will have accrued since the time the previous authorized stay expired.124 10. Stay of Removal. Persons granted a stay of removal do not accrue unlawful presence during that period, including automatic stays granted as a result of motions to rescind an order of removal in absentia.125

12. Withholding of Removal or Deportation. Unlawful presence ceases during the period for which withholding of removal or deportation is granted.127 13. Withholding or Deferral of Removal under the Convention Against Torture (CAT) stops accrual of unlawful presence through the period of the grant.128 14. Deferred Enforced Departure (DED) commences authorized stay on the date specified and ends when the DED is no longer in effect.129 15. Satisfactory Departure granted under 8 CFR § 217.3 does not subject an individual to accrual of unlawful presence during the satisfactory departure period. Should the 122

Appendix 3-G, at 38. Family unity under § 301 of IMMACT 90 is a statutory exception under § 212(a)(9)(B) but only a policy exception for § 212(a)(9)(C); Family Unity under § 1504 of the LIFE Act Amendments of 2000 is a policy exception for both § 212(a)(9)(B) and § 212(a)(9)(C). 124 Appendix 3-G, at 38-39. 125 Appendix 3-G, at 42. 126 Appendix 3-G, at 42. 127 Appendix 3-G, at 42-43. 128 Appendix 3-G, at 43. 129 Appendix 3-G, at 43. 123

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11. Deferred Action or DACA. Individuals granted discretionary deferral of removal will not accrue unlawful presence during the period for which deferral is granted.126 Likewise, someone granted deferred action for childhood arrivals (DACA), will not accrue unlawful presence once the application is granted. If a person files for DACA prior to their eighteenth birthday, and the application is granted, CIS will consider that person not to have accrued unlawful presence.

individual remain following the expiration of this period, unlawful presence begins to accrue the day after expiration.130 C.

Time Periods That Do Count as Unlawful Presence 1. Time spent in removal/deportation proceedings does count as unlawful presence time unless the person has a valid non-immigrant visa during the proceedings, is renewing an affirmative application for adjustment of status in removal proceedings, or has a pending bona fide asylum application. A non-immigrant in removal proceedings does not accrue unlawful presence until the visa expires or the Immigration Judge orders the person removed, whichever comes first. An applicant who is renewing an affirmative application for adjustment of status does not accrue unlawful presence until a final administrative order of removal is entered.131 2. Conditional residents who do not timely file a petition to become lawful permanent residents will automatically become “unlawfully present” on the date the conditional status expires. In the narrow set of circumstances in which late filings by conditional residents are permitted, acceptance and approval of such a filing will cure unlawful presence back to the expiration of the conditional status.132

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3. Persons admitted due to false claim of citizenship are regarded by CIS as not admitted or inspected, and thus all time spent in the United States subsequent to such entry is regarded as unlawful presence unless some other authorization exists. D.

The Person Must Leave the United States in Order to Come within This Ground of Inadmissibility

The three- and ten-year bars only apply where the noncitizen seeks admission to the United States after departure or removal. Thus, it does not apply, no matter how long a noncitizen has been unlawfully present, if the person never departs the United States. Some people are eligible to immigrate through family members at their local DHS office, in a process called adjustment of status. Those people fortunate enough to adjust their status do not have to depart the United States, and so the three- and ten-year bars will not apply to them regardless of how much unlawful presence they have accumulated, so long as they haven’t left the United States. Others must leave the United States and go to a U.S. consulate in the home country in order to immigrate. By leaving the United States, they trigger this ground, and their unlawful presence will be counted against them. They must qualify for a waiver excusing such unlawful presence. 130

Appendix 3-G, at 43. Note, however, that if someone files a defensive application for adjustment of status in removal proceedings, meaning the application was never filed with CIS, the applicant does accrue unlawful presence in removal proceedings. See Appendix 3-G, at p. 45. 132 Appendix 3-G, at 23. 131

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Recently, the BIA held that departure with advance parole pursuant to an affirmative133 adjustment application will no longer trigger the unlawful presence bars. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).134 In that case, the BIA declared that departure with advance parole is not a “departure” within the meaning of INA § 212(a)(9)(B). Since this decision, those with TPS and DACA135 who previously accrued unlawful presence have also successfully traveled on advanced parole, returned, and adjusted status here in the United States without requiring waivers for unlawful presence. In a memorandum regarding parole in place, CIS indicated that it agrees with this interpretation.136

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WARNING: Those who depart but then re-enter or attempt to re-enter without lawful admission may be inadmissible under both INA § 212(a)(9)(B) and the “permanent” bar under INA § 212(a)(9)(C), which is discussed in the next section.

WARNING! If a person is removed and attempts to re-enter or re-enters the United States, he or she will be subject to the permanent bar discussed at § 3.14 below.

133

“Affirmative” means filed before CIS. This decision modified the BIA’s prior holding in Matter of Lemus, 24 I&N Dec. 373 (BIA 2007). 135 At the time of this manual’s writing, CIS has put a hold on DACA cases involving the application of Arrabally and Yerrabelly, so make sure to check for any updates or changes in government policy before clients travel. 136 CIS Policy Memorandum (Nov. 15, 2013), available at www.uscis.gov/sites/default/files/USCIS/Laws/ Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf. 137 Appendix 3-G, at pp. 17, 19. 138 Asylees adjusting status may apply for a waiver of inadmissibility for unlawful presence and other grounds under INA § 209(c). 134

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Departure with Refugee Travel Document. According to CIS, asylees who have secured valid refugee travel documents will trigger the three- or ten-year bars upon attempting to re-enter the country, if they had a prior period of unlawful presence before applying for asylum.137 Persons who reenter the U.S. as asylees with valid refugee travel documents will be permitted to reenter the United States, but will be inadmissible upon subsequent attempts to adjust status to lawful permanent resident.138 Following the logic of the BIA decision Arrabally and Yerrabelly, asylees should argue that their departure is not a departure that triggers unlawful presence for purposes of INA § 212(a)(9)(B).

Exercise 3.12 -- Three-Year and Ten-Year Bars: If the following noncitizens left the U.S. and now seek admission, will they be found inadmissible under the three-year bar or ten-year bar? Why or why not? Answers are at Appendix 3-A. 1. Andrea entered without inspection on May 1, 2006 and left voluntarily on January 1, 2007. 2. Andrea has a U.S. citizen sister and a permanent resident mother. Would she qualify for a family hardship waiver? Why or why not? 3. Sally lived illegally in the U.S. from January 1, 1995 to July 6, 1997. Then she went home to Canada. 4. Let’s say that Sally was removed on January 1, 1998. Is she inadmissible under the three-year or ten-year bar, or neither one?

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§ 3.13 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted A more severe ground of inadmissibility punishes people who have problems with their immigration status, leave the United States, and then re-enter or try to re-enter illegally instead of applying for admission. A noncitizen is subject to this ground if: A. He or she has been unlawfully present in the United States for an aggregate period of more than one year beginning on April 1, 1997139 and then enters or attempts to re-enter the United States without being admitted. See INA § 212(a)(9)(C)(i)(I); or B. He or she was ordered deported or removed (regardless of how much unlawful presence the person has), and then enters or attempts to re-enter the United States without being admitted after April 1, 1997. The DHS will count any unlawful re-entry after April 1, 1997, even if the deportation occurred before that date. See INA § 212(a)(9)(C)(i)(II). This bar is permanent, and does not expire after a period of time, unlike the 3 or 10 year bar. Those subject to this provision cannot even apply for a discretionary waiver of this ground until ten years after their last departure from the United States. INA 139

As noted above, the date that unlawful presence counts from could change in a subsequent court case. See, e.g., Carillo de Palacios v. Holder, 651 F.3d 969 (9th Cir. June 21, 2011), vacated by Carillo de Palacios v. Holder, 662 F.3d 1128 (9th Cir. Dec. 1, 2011), withdrawn and superseded by Carillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. Jan. 28, 2013).

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§ 212(a)(9)(C). Because this provision is so harsh, it has been dubbed the “permanent bar.” Notice that an important difference between the permanent and the three- and tenyear bars is that the person must enter or attempt to enter without admission to come within the permanent bar.

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Immigration advocates should see a red flag any time that a person says that he or she entered the United States illegally after April 1, 1997. If the person ever was deported in his or her life before that time, the new illegal re-entry triggers the permanent bar and destroys hope of immigration through a family petition, until the person has spent ten years outside the U.S. Once the ten years have passed, the person must ask for consent from DHS to reapply for admission before trying to enter from outside the United States or attempting to be readmitted from a country abroad. Consent from DHS does not authorize a person to be admitted or authorize a person to re-enter the United States without admission, but merely allows the person to apply for admission. A.

Parole and the Permanent Bar

B.

Exceptions to Unlawful Presence for the “Permanent Bar”

As noted in § 3.12, CIS has interpreted the term “unlawful presence” differently for the three- and ten-year bars and for the permanent bar in § 212(a)(9)(B). The following types of status are not considered “unlawful presence” for purposes of both the permanent bar and the unlawful presence bars in INA § 212(a)(9)(B) under current CIS policy:141 1. Unlawful Presence before April 1, 1997 does not count for either the three- and tenyear bars or the permanent bar. 2. People Who Have Affirmatively Applied for Adjustment of Status (i.e., filed their applications for adjustment before CIS and not in removal proceedings). CIS policies indicate that properly filed applications for adjustment of status or registry under the 140

Appendix 3-G, pp. 16-18. Remember, however, that the permanent bar can be triggered either by a year of unlawful presence prior to departure and illegal return, or by a prior deportation, removal, or exclusion order, if the noncitizen reenters to attempts to re-enter the U.S. illegally after April 1, 1997.

141

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By statute, INA § 212(a)(9)(C) punishes those who either accrue a year of unlawful presence or who have been removed, deported, or excluded from the U.S., then enter or attempt to enter the U.S. without being admitted. Parole is not an “admission” as defined in the INA. See INA § 101(a)(13)(B). However, CIS does not consider parole pursuant to INA § 212(d)(5) to be an illegal reentry without admission that will trigger the permanent bar. This is both because a person who is paroled into the U.S. has obtained official permission, and because a person with parole is still considered an applicant for admission. Therefore, reentry by parole does not trigger the permanent bar.140

following sections of law stop accrual of unlawful presence and toll that accrual until the application is denied, even if it is determined that the individual was not eligible for the benefit in the first place:  Registry under INA § 249;  Adjustment of status under: o (1) INA §§ 209, 245 and 245(i); o (2) NACARA § 202(b); o (3) HRIFA § 902; and o (4) Cuban-Haitian Adjustment Act of § 202.142 3. Voluntary Departure. The period during which the DHS, an immigration court, or the BIA grants voluntary departure will not count as unlawful presence for the three- and tenyear bars. If the person granted voluntary departure fails to depart, unlawful presence begins as of the day the voluntary departure period expired. In addition, unlawful presence accrued prior to the grant of voluntary departure still counts against a person for the three and ten year bars. If a denial of voluntary departure is reversed on appeal, the time from the denial to the reversal is not considered unlawful presence. Unlawful presence before voluntary departure was granted still counts.143

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4. Authorized Stay for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant, “unlawful presence” is only counted after the expiration date on the person’s I-94 entry document. Unlawful presence does not begin, for example, on the date that the person does something to violate his or her visa, but only when there is a determination that he or she is no longer in status. INA § 212(a)(9)(B)(ii).144 5. Application to Extend or Change Nonimmigrant Status. The statute indicates that unlawful presence is tolled (stopped) for 120 days for people who apply to extend or change their nonimmigrant status. See INA § 212(a)(9)(B)(iv)(III). However, given DHS backlogs, the DHS has interpreted the statute to mean that the clock is stopped for up to the length of time it takes the DHS to adjudicate a change or extension of status. This applies only to certain people who timely apply to extend or change their nonimmigrant status (e.g., extend a visitor’s visa). Although the statute states that this exception applies to the three year bar only, CIS policies indicate that it will extend the tolling protections to the ten-year and permanent bars as well, provided several requirements are met, including that (1) the non-frivolous request for extension or change of status was timely filed; (2) the individual has not engaged in unauthorized employment

142

Appendix 3-G, at 33-34. The policies further indicate that, except in cases of NACARA or HRIFA applications, persons filing the listed applications after being served with a Notice to Appear in removal proceedings will not be protected from accrual of unlawful presence. 143 See Appendix 3-G, at pp. 39-42, for additional information regarding the effect of reinstatements of voluntary departure, petitions for review, and motions to reopen. 144 Memo, Pearson, Exec. Assoc. Comm. (Mar. 3, 2000), available at 77 Interpreter Releases 316 (June 5, 2000).

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either before or during the pendency of the application; and (3) the individual’s status has not lapsed prior to the filing of the request.145

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6. Lawful Permanent Residents. LPRs in removal proceedings do not begin to accrue unlawful presence until the issuance of a final administrative order by an Immigration Judge or the BIA terminating LPR status.146 7. Lawful Temporary Residents. Unlike conditional residents (see below), LTRs pursuant to INA § 245A(b) do not automatically begin accruing unlawful presence following the expiration of their temporary residence status. Rather, LTRs do not accrue unlawful presence until issuance of a notice of termination by DHS (but administrative appeals of this notice toll unlawful presence), or until the commencement of removal proceedings.147 8. People with Family Unity Protection under both § 301 of the Immigration Act of 1990 (IMMACT 90) and § 1504 of the LIFE Act Amendments of 2000. 9. Pending Applications for Legalization or Special Agricultural Worker Status under INA §§ 245A or 210, or § 1104 of the LIFE Act, if properly filed, will also stop the accrual of unlawful presence until a final administrative denial.148

11. Stay of Removal. Persons granted a stay of removal do not accrue unlawful presence during that period, including automatic stays granted as a result of motions to rescind an order of removal in absentia.150 12. Deferred Action or DACA. Individuals granted discretionary deferral of removal will not accrue unlawful presence during the period for which deferral is granted.151 Likewise, someone granted deferred action for childhood arrivals (DACA), will not accrue unlawful presence once the application is granted. If a person files for DACA prior to their eighteenth birthday, and the application is granted, CIS will consider that person not to have accrued unlawful presence.

145

See Appendix 3-G, pp. 35-38, for additional information regarding the effect of departure while EOS/COS applications are pending, motions to reopen, etc. 146 Appendix 3-G, at 44. 147 See Appendix 3-G, at pp. 22-23. 148 Appendix 3-G, at 38. 149 Appendix 3-G, at 38-39. 150 Appendix 3-G, at 42. 151 Appendix 3-G, at 42.

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10. Pending Applications for TPS. If properly filed, applications for TPS will only cure unlawful presence retroactively until the time of filing if the application is approved. If the application is denied, unlawful status will have accrued since the time the previous authorized stay expired.149

13. Withholding of Removal or Deportation. Unlawful presence ceases during the period for which withholding of removal or deportation is granted.152 14. Withholding or Deferral of Removal under the Convention Against Torture (CAT) stops accrual of unlawful presence through the period of the grant.153 15. Deferred Enforced Departure (DED) commences authorized stay on the date specified and ends when the DED is no longer in effect.154 16. Satisfactory Departure granted under 8 CFR § 217.3 does not subject an individual to accrual of unlawful presence during the satisfactory departure. C.

Differences between Unlawful Presence for the Three- and Ten-Year Bars in INA § 212(a)(9)(B) and the Permanent Bar in INA § 212(a)(9)(C)

Because CIS interprets the unlawful presence statute as providing more generous exceptions and waivers for the three- and ten-year bars in INA § 212(a)(9)(B) than for the permanent bar in INA § 212(a)(9)(C), it is important to be aware of the following differences.155

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1. Certain exemptions from unlawful presence found in INA § 212(a)(9)(B) (such as battered women)156 are not deemed to apply to unlawful presence in INA § 212(a)(9)(C). CIS takes this position, holding that these “statutory” exemptions (listed under § 3.12 Exceptions to Unlawful Presence), apply only to the three- and ten-year bars, and not the permanent bar.157 2. Minors are not exempt from accumulating unlawful presence for the permanent bar, according to CIS policy and the U.S. Consulate in Ciudad Juarez. 3. Add periods together. The permanent bar will “aggregate” (add together) all the periods of unlawful presence beginning on April 1, 1997 to come up with more than one year. For the three- and ten-year bars, the DHS will only consider continuous unlawful presence of 180 days or one year. If a person was in unlawful presence from July to December 2006 then left and returned from February to November of 2007, she would not have a total of one year or more for the ten-year bar because there would be no 152

Appendix 3-G, at 42-43. Appendix 3-G, at 43. 154 Appendix 3-G, at 43. 155 The ILRC believes that some of the distinctions CIS makes between the definition of unlawful presence for INA §§ 212(a)(9)(B) and 212(a)(9)(C) are arbitrary and should be challenged. Nevertheless, unless someone challenges these interpretations, they will be difficult to overcome. 156 Under certain circumstances a person applying for benefits under the Violence Against Women Act will not be subject to the permanent bar. See the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants for additional information. 157 Appendix 3-G, at pp. 28-29. 153

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continuous one year period. However, she would have over one year unlawful status for the permanent bar, because the DHS would count the total time spent in unlawful presence since April 1, 1997. The term “aggregate” is part of the statutory language, therefore it would be difficult to challenge. D.

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Prior Deportations and the “Permanent Bar”

In addition to being triggered by a year of unlawful presence followed by departure and unlawful return to the U.S., the permanent bar can also be triggered by a prior deportation, removal, or exclusion order under § 235(b)(1), § 240, or any other provision of law, followed by an unlawful return to the U.S. INA § 212(a)(9)(C)(i)(II). According to DHS, even deportations that occurred before April 1, 1997 trigger the permanent bar, if the person makes or attempts an illegal re-entry after April 1, 1997. Again, many advocates disagree with this DHS position and argue that only deportations or removals after April 1, 1997 should count.158 The DHS position is that if a person was deported in 1990 and re-entered illegally in 1998, he would be subject to the permanent bar.

PRACTICE TIP: Remember that if the client was deported or removed and then re-enters illegally, she is subject to the permanent bar even if she had no unlawful presence before the deportation or removal.159

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E.

Waivers of the “Permanent Bar”

There are some narrow circumstances in which waivers to the permanent bar are permitted: 1. HRIFA and NACARA applicants can file a waiver of the permanent bar on Form I-601; the standard of adjudication is the same as if the applicant were filing form I-212. See 8 CFR § 245.13(c)(2) and 8 CFR § 245.15(e)(3). 2. Legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement Applicants. INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. 3. TPS Applicants. INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. However, this waiver does not serve a TPS grantee who applies for adjustment of status.

158

The statute does specifically apply to those who were “ordered removed under section 235(b) [expedited removal], section 240 [removal proceeding] or any other provision of law.” INA § 212(a)(9)(C)(i)(II). 159 Such an individual would also be subject to reinstatement of removal. See § 3.15 below.

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4. VAWA self-petitioners can apply for a waiver of § 212(a)(9)(C) on Form I-601 if they can establish a connection between the abuse suffered and the unlawful presence, the removal, and the subsequent illegal re-entry. 5. Asylee and Refugee Adjustment Applicants under INA § 209(c). This waiver can be filed on Form I-602, but the application can also be waived at the discretion of CIS. The waiver can be granted based on humanitarian reasons, to ensure family unity, or if it is in the public interest. 6. Nonimmigrants. It is possible, although not necessarily likely, for a nonimmigrant to be granted a waiver of § 212(a)(9)(C) under INA § 212(d)(3). The form for a waiver of inadmissibility for a nonimmigrant is form I-192. The nonimmigrant should make the application when applying for the nonimmigrant visa abroad.160 7. U visa applicants can apply for a waiver of § 212(a)(9)(C), and are eligible to adjust status notwithstanding § 212(a)(9)(C).

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8. Special Immigrant Juveniles are eligible for a waiver of § 212(a)(9)(C) for humanitarian purposes, family unity, or when it is otherwise in the public interest. See INA § 245(h)(2)(B). In addition to these exceptions, an applicant for non-LPR cancellation of removal under INA § 240A(b), will be exempt from the permanent bar if relief is granted. Section 240A(b) cancellation is likely to benefit only those who are subject to the permanent bar due to unlawful presence. Those who have a prior deportation order are likely to be subject to reinstatement of removal,161 and thus would not have a right to a hearing to pursue § 240A(b) cancellation of removal as a remedy. Non-LPR cancellation is discussed in Unit 11. F.

Registry

Registry under INA § 249 permits someone who has been residing continuously in the U.S. since January 1, 1972, possesses good moral character, and is not ineligible for citizenship and not deportable under INA § 237(a)(4)(B) to apply for adjustment of status to permanent residence. Applicants for Registry under INA § 249 are not subject to the permanent bar.

WARNING: Clients who have accumulated over a year’s unlawful presence since April 1, 1997 or who have been ordered deported any time in the past should not leave the United States and attempt to re-enter illegally. Many people want to return to their home country for holidays or because a loved one is ill and assume they can just re-enter illegally. They must realize that if

160 161

These exceptions are found in Appendix 3-G, at pp. 49-50. See § 3.15 below.

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they re-enter or attempt to re-enter the United States illegally, they could be subject to the permanent bar.

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WARNING! Minors and the Permanent Bar: While the three- and ten-year unlawful presence bars under INA § 212(a)(9)(B) include an exception for minors, there is no such exception under the permanent bar provisions at INA § 212(a)(9)(C). For some time, the U.S. Consulate in Ciudad Juarez was applying the exception for minors to the permanent bar provisions. However, in July 2008, it changed its policy and now finds that a minor with more than a year of unlawful presence in the aggregate who enters or attempts to enter the United States without inspection is subject to the permanent bar.162 The BIA has also held, in an unpublished decision, that there is no exception to the permanent bar for minors.163

G.

INA § 245(i) Adjustment and the “Permanent Bar”

Adjustment of status is the process by which someone applies for an immigrant visa within the United States, rather than at a U.S. consulate abroad. Normally, an applicant for adjustment of status through a family member or through employment must have been “inspected and admitted or paroled” into the U.S. in order to be eligible to adjust status. Except for immediate relatives,164 the applicant must also have maintained lawful immigration status prior to applying for adjustment. See INA § 245(a). INA § 245(i) is a special adjustment provision that allows those who are unlawfully present within the United States and who entered without inspection to adjust their status if a 162

See Practice Alert – Unlawful Presence Under INA § 212(a)(9)(C) Applied to Minors, (Aug. 18, 2008), posted on AILA InfoNet as Doc. No. 08081872. 163 In Re: Jose Reyes Ramirez-Zermeno, 2009 WL 773234 (BIA Mar. 10, 2009). 164 Immediate relatives are the parents, spouses, and minor children of U.S. citizens, and some battered women and children under VAWA.

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Example: Joaquin, a citizen of Mexico, entered the United States unlawfully in 1998 at age 5 along with his parents. The whole family stayed in the United States for over a year and then returned to Mexico in 2000. In 2003, Joaquin and his family returned to the United States again without inspection. Joaquin, who is now 15 years old, has a current priority date but is not eligible for adjustment of status. If he leaves the United States to consular process in Mexico, he will trigger the permanent bar because he has more than a year of unlawful presence in the aggregate, followed by an entry without inspection. The fact that he is 15 years old does not protect him from triggering the permanent bar under INA § 212(a)(9)(C). Note that some minors may be eligible for a waiver of the permanent bar if they are applying for one of the few kinds of relief where waivers are available, such as special immigrant juvenile status.

relative or employer filed an immigration visa petition or labor certification on their behalf on or before April 30, 2001, and if they pay a penalty fee.165 It is the official position of DHS that those persons described in both provisions of the permanent bar under INA § 212(a)(9)(C)(i) are ineligible for adjustment of status under INA § 245(i).166 The government’s position is based on the following BIA decisions. The BIA holds that there is no possibility to apply for admission to the United States and to adjust status in the United States before the ten years have passed if a person falls under this inadmissibility provision. It went so far as to rule that even a person who was previously ordered removed, received the Attorney General’s permission to reapply for admission prior to the passage of the ten years, and then re-entered the United States was still inadmissible under § 212(a)(9)(C)(i) and therefore ineligible to adjust status. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). It has since reaffirmed this holding in Matter of Briones, 24 I&N Dec. 355 (BIA 2007).167 In Matter of Briones, the person had not been previously deported, but triggered the permanent bar through the accrual of unlawful presence.

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Most courts have found either that the BIA’s interpretation in Matter of Briones is reasonable,168 or that they must give deference to the BIA’s interpretation of the law. The Ninth Circuit has since confirmed its deference to the BIA’s interpretation.169 Thus, unless a person is in a limited class of applicants that filed at a time such that their adjustment was already pending before the change in law, a 245(i) application for adjustment does not cure a violation of the permanent bar. A person can only adjust under 245(i) if they do not also have a permanent bar issue under INA § 212(a)(9)(C).

Exercise 3.13 -- The Permanent Bar: Are any of the following noncitizens subject to the permanent bar? Answers in Appendix 3-A. 1. Manny was removed in July 1997. He then re-entered without inspection. 2. Manny tried to enter without inspection, but he was caught at the border.

165

Those whose visa petitions or labor certifications were filed between January 15, 1998 and April 30, 2001 must also prove that they were physically present in the U.S. on December 20, 2000. See Unit 7. Derivative children and spouses also benefit from this provision. 166 Appendix 3-G, p. 20. 167 See also Matter of Lemus-Losa, 24 I&N Dec. 355 (BIA 2007), vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 168 See Mora v. Mukasey, 550 F.3d 231, 239 (2d Cir. 2008); Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th Cir. 2008). 169 Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (reversing the Circuit’s previous holding in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).

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3. Franny was unlawfully in the U.S. for 8 months after April 1, 1997. She went home to visit relatives and then re-entered without inspection. 4. Sammy was brought into the U.S. illegally in 2006, when he was 14. He voluntarily left to visit his grandmother for Christmas in 2008, when he was 16. Then he attempted to illegally re-enter the U.S.

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The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status”

The term “unlawful presence” is a “term of art,” meaning that it has a legal meaning that does not necessarily coincide with its common sense meaning. As we have seen in §§ 3.12 and 3.13, “unlawful presence” under § 212(a)(9)(B) is not even the same as “unlawful presence” under § 212(a)(9)(C), mainly because of the way CIS has chosen to interpret these statutory provisions. While CIS’s interpretations may be arbitrary, and subject to challenge, until and unless they are overturned by case law or subsequent CIS interpretation, practitioners need to be mindful of these differences.

1. For both the three- and ten-year bars and the permanent bar “unlawful presence” does not begin until April 1, 1997; however a person who entered the US illegally before April 1, 1997 is in “unlawful status.” 2. Children under 18 who entered without inspection or overstayed a visa have “unlawful status” yet are not unlawfully present under INA § 212(a)(9)(B), though they are unlawfully present under INA § 212(a)(9)(C). 3. People who have affirmatively applied for adjustment of status before CIS are not “unlawfully present” for either § 212(a)(9)(B) or § 212(a)(9)(C), yet an applicant for adjustment of status is not considered “in status” unless he or she has some other status, such as nonimmigrant visitor, through which to claim lawful status. See Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008).170

170

Matter of Rotimi actually discusses the term “lawful continuous residence” for LPRs applying for waivers under INA § 212(h), but the terms “lawful presence” and “lawful continuous residence” are similar if not interchangeable.

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It is also important to distinguish between “unlawful presence” that may trigger one of these bars and “unlawful status.” Some types of “unlawful status” do not trigger the unlawful presence bars, yet may preclude someone from eligibility for adjustment of status under INA § 245(a) for failing to maintain lawful status, and may have other immigration consequences. The best way to understand the differences between “unlawful presence” and “unlawful status” is through examples:

4. People with pending applications for asylum who have not worked without authorization are not “unlawfully present,” but are in unlawful status unless they have some other status, such as nonimmigrant visitor, which has not yet expired. See Matter of Rotimi, 24 I&N Dec. at 567. 5. Time during the period allotted for voluntary departure is not unlawful presence, but it is unlawful status. 6. A person with a nonimmigrant visa begins to accrue unlawful presence only when the date on the I-94 expires, the application for a stay or extension of status expires, or a CIS officer or immigration judge makes a determination that the status has been terminated. However, a nonimmigrant visa holder who works without authorization has violated the terms of his or her nonimmigrant status and is in unlawful status. 7. People with pending applications for legalization or special agricultural worker status under INA §§ 245A or 210, or § 1104 of the LIFE Act, if properly filed, are not unlawfully present, but are in unlawful status until and unless their applications are approved.

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8. People who are granted TPS status are not in unlawful status and do not accrue unlawful presence. People whose TPS applications are denied accrue unlawful presence during the application process, as well as after denial, unless they are in some other lawful immigration status.171 People who have been granted TPS are also considered to be in, and maintaining, lawful status as a nonimmigrant, by statute. INA § 244(f)(4). 9. Time during a stay of removal does not constitute unlawful presence, but is unlawful status. 10. People with deferred action or DACA do not accrue unlawful presence, but are in unlawful status. Although DHS has chosen not to try to remove them, they have no formal legal status. 11. People with grants of withholding of removal or deportation do not accrue unlawful presence during the period for which withholding of removal or deportation is granted, but are in unlawful status. They are removable but cannot be returned to their home countries because they would be persecuted. 12. People with grants of withholding or deferral of removal under the Convention Against Torture (CAT) do not accrue unlawful presence during the period for which withholding of removal or deportation is granted but are in unlawful status.

171

Appendix 3-G, pp. 38-39.

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13. People with Deferred Enforced Departure (DED) do not have unlawful presence but are in unlawful status.

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14. Time during a Satisfactory Departure period under 8 CFR § 217.3 is not unlawful presence, but is unlawful status. 15. Time in Family Unity Status is not unlawful presence, but it is an open question as to whether it is considered lawful status. See, Matter of Rotimi, 24 I&N Dec. at 567; YepezRazo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006).

§ 3.14 Failure to Attend Removal Proceedings Noncitizens who without reasonable cause fail to attend their removal proceedings are inadmissible for a period of five years following their subsequent departure or removal from the United States. INA § 212(a)(6)(B). This provision took effect on April 1, 1997. This only applies to removal hearings; it does not apply to noncitizens who failed to attend their deportation or exclusion hearings begun prior to April 1, 1997.172

Note that under IIRIRA and pre-IIRIRA law, noncitizens who fail to attend removal or deportation proceedings after receiving notice may be further punished in several ways, aside from this ground of inadmissibility. An immigration judge can enter an in absentia removal order against the person.175 Under current law, if someone receives an in absentia removal order and cannot show that lack of notice or “exceptional circumstances” prevented them from attending the hearing, they will be barred from applying for most kinds of relief for ten years. See INA § 240(b)(7). Oral notice of the hearing in the person’s own language or a language the person understands is required for this provision to apply. Exceptional circumstances are defined under INA § 240(e)176 as: battery or extreme cruelty to the person in removal proceedings or to any 172

Virtue, Acting Exec. Assoc. Comm., Memorandum, HQ IRT 50/51.2, 96 Act 043 (June 17, 1997). See Appendix 3-I, supra, p. 12; Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 174 Appendix 3-I, p. 13. 175 Appendix 3-I, p. 13. 176 Appendix 3-I, p. 13; see also Matter of N-B-, 22 I&N Dec. 590 (BIA 1999) (finding that reasonable cause is less stringent than the exceptional circumstances standard and holding that serious illness that required later surgery was sufficient to meet burden); Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989) (finding a properly documented illness a valid excuse for failure to appear). 173

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In order to establish inadmissibility, the person must have actually been in removal proceedings under INA § 240, initiated by the filing of a Notice to Appear (NTA) with the immigration court. 8 CFR § 1003.14(a). CIS concedes that all three criteria must be met for the person to be inadmissible under this ground: 1) the NTA was filed with the immigration court; 2) the record establishes that the person had notice of the proceedings and obligation to appear; and 3) the person failed to attend their removable proceedings without reasonable cause.173 CIS considers “constructive” notice adequate to establish notice in this context.174

child or parent of that person; the person’s serious illness; the serious illness or death of an immediate family member; or something equally serious that is beyond the control of the applicant. In cases that arose before IIRIRA, noncitizens must show that there was a “reasonable cause” to justify their failure to appear, which is a lower standard than the “exceptional circumstances” required by IIRIRA. If they cannot make this showing, they will be barred from relief for five years. INA § 240(b)(7). CIS policies indicate that “reasonable cause” is generally regarded as “something that is not within the reasonable control of the alien.”177 Ultimately, these policies direct the officer considering an application for admission, adjustment of status, or other relief, to make an independent determination based upon the “reasonable cause” standard after considering the evidence presented in the pending application.

§ 3.15 Past Removal or Deportation/Exclusion

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A.

Past Removal/Deportation Exclusion

IIRIRA increased the penalties for noncitizens who have been previously deported and applied them retroactively. See INA § 212(a)(9)(A). Before IIRIRA, a person who had been deported was inadmissible for five years, and a person who had been excluded was inadmissible for one year, following the departure from the United States. Under current law, the following persons are inadmissible for ten years following the departure from the United States: 1. People who were ordered removed based on being deportable or who left the United States after an order of removal was outstanding; and 2. People who were ordered excluded or deported (i.e., under the pre-IIRIRA deportation or exclusion proceedings). The law imposed a new, retroactive penalty on people in the second category, who at the time they were excluded or deported would have been inadmissible only for one or five years. Recognizing this, the DHS has stated that these people will have some advantage in terms of applying for a waiver. See discussion of waivers below and in Unit 6. Under IIRIRA, a person who is ordered removed for being inadmissible—whether subject to an expedited removal order or a removal order during removal proceedings initiated upon that person’s arrival in the United States—is inadmissible for a period of five years after the date of their removal. INA § 212(a)(9)(A).178 Anyone with a prior order is inadmissible for 177

Appendix 3-I, p. 14. Before IIRIRA, people who had been ordered “excluded” were inadmissible for only one year following the exclusion order.

178

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twenty years if he or she has been ordered excluded, deported or removed more than once. People who were removed and who have an aggravated felony conviction are permanently inadmissible.

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Exercise 3.15: Are these people inadmissible based on the grounds discussed above in this section? If so, why and for how long? (Answers in Appendix 3-A.) 1. Anna entered without inspection and was removed in June 1997 for being inadmissible. 2. Anna then entered without inspection a second time, and again was removed for being inadmissible. 3. Patricia entered with a tourist visa and overstayed. She was removed for being deportable in 2004. 4. Silvio was deported in 1994.

B.

Waiver

Order of Exclusion or Deportation before IIRIRA. DHS has stated that unless there are negative factors, it will grant the waiver if the person has already stayed out of the United States for five years past a deportation/removal, or one year past an exclusion/removal for inadmissibility,179 although the current bar that applies to them is ten years. In other words, DHS appears to be willing to give a break to people who already have stayed out at least as long as they were required to before IIRIRA passed. Note, however, that there is no time limit as to when DHS can grant a waiver. The applicant, therefore, should argue that DHS can grant a waiver of inadmissibility under this ground on the day after he was removed. Example: Manuel was deported in 2005 under an old Order to Show Cause. His U.S. citizen daughter wants to immigrate him. Manuel remains inadmissible for ten years, until 2015, under current law. However, DHS has said that it will be generous in granting waivers for people like Manuel who have already stayed out five years. 179

Before IIRIRA, people who had been ordered “excluded” were inadmissible for only one year. Under pre-IIRIRA law, the factors to be considered in whether or not to grant a waiver of the prior deportation or exclusion included the person’s character, hardship to family members, person’s length of residence in the United States, rehabilitation, and why and how recently the person was deported. See, e.g., Matter of Tin, 14 I&N Dec. 371 (Reg. Comm’r. 1973). These factors should still be applicable to applications for waivers of removal or deportation under IIRIRA.

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The DHS can waive this ground of inadmissibility, under INA § 212(a)(9)(A)(iii). The BIA has held that this waiver has to be applied for from outside the United States. See Matter of Torres-Garcia, 23 I&N Dec. 866, 873 (BIA 2006).

People who are in the United States—as opposed to outside the United States immigrating through a U.S. consulate—may not be able to apply for this waiver, however, because of the “reinstatement of removal” provision, see below. C.

Important Warning about the Permanent Bar and Automatic Reinstatement of Prior Deportation or Removal Order

IIRIRA added two provisions that pose an extreme danger to people who were deported or removed and then re-entered the United States without inspection. Advocates should be sure not to forget to analyze each case to see if the person comes under the reinstatement of removal or the permanent bar provisions:

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Reinstatement of Prior Removal or Deportation. If a person illegally re-enters after being deported or removed, DHS can simply “reinstate” the prior deportation or removal order and remove the person, without giving the person the opportunity to apply for any other relief such as cancellation, asylum or adjustment of status. Under the statute, someone subject to reinstatement is “not eligible and may not apply for any relief.” See INA § 241(a)(5). The only exception is if the person will apply for withholding of removal (like asylum), protections under the Convention Against Torture, or NACARA. Effective Date. Initially, courts around the country were divided on whether the reinstatement of removal provision should apply to deportations and/or illegal re-entries that occurred before April 1, 1997, the date the reinstatement provision became effective as part of IIRIRA. Subsequently, the U.S. Supreme Court held that reinstatement applies retroactively to all prior deportations and exclusions before and after April 1, 1997, and to all illegal entries after deportation or exclusion, whether before or after April 1, 1997. In other words, it does not matter when the person returned to the U.S., reinstatement still applies if they returned illegally any time after a deportation or exclusion order. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Because this is a ruling from the U.S. Supreme Court it is binding law throughout the country. Most Circuit Courts have ruled, however, that there is still an exception to reinstatement under Fernandez-Vargas for a person who, before the effective date of IIRIRA (April 1, 1997) had already taken steps to change status, such as applying for adjustment of status. For example, in Ixcot v. Holder, the Ninth Circuit made an exception to the reinstatement rule for someone who had filed for asylum before the IIRIRA effective date. 646 F.3d 1202 (9th Cir. 2011). The First, Seventh, Eighth, Tenth, and Eleventh Circuit Courts have ruled in the same way in cases with similar facts.180

180

See Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003); Faiz-Mohammed v. Ashcroft, 395 F.3d 799, 809-10 (7th Cir. 2005); Lopez-Flores v. DHS, 387 F.3d 773 (8th Cir. 2004); Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007) Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004).

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D.

Ninth Circuit Warning: Effect of Filing for Adjustment of Status under INA § 245(i) Prior to Reinstatement

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The Ninth Circuit now follows the BIA and most other circuits in prohibiting someone from applying to adjust status under § 245(i) if that person illegally re-entered after being previously deported, excluded, or removed. It used to be the law in the Ninth Circuit that if a person had filed an application for adjustment of status under the special adjustment provision in INA § 245(i) along with an I-212 waiver application prior to the initiation of reinstatement proceedings, DHS could not reinstate the prior removal order until the application for adjustment was adjudicated. Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). However, the Perez-Gonzales case was overturned by the Ninth Circuit in DuranGonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007).181 The Ninth Circuit now follows the BIA’s rule, which states that a person who was deported, excluded or removed, and who re-entered the United States illegally after deportation, is ineligible to apply for adjustment of status from within the United States because he or she is subject to the “permanent bar” provision in INA § 212(a)(9)(C). See discussion in § 3.12 above. This means that the person must seek permission to reapply for admission from outside of the United States, and can only do so after ten years have passed since his most recent departure from the United States. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).182

No! Miguel is subject to reinstatement of removal (in addition to having a fraud problem and a “permanent bar” problem). DHS may reinstate his prior deportation order when Miguel appears for his CIS interview or at any other time. In many districts, ICE arrests people in Miguel’s situation when they appear for their adjustment interview, reinstates the deportation or removal order, and removes them from the United States very quickly.

WARNING! Any person in the United States with a prior deportation must obtain legal counseling and understand all their options before approaching DHS. If you are not a highly skilled and experienced attorney or accredited representative, you should seriously consider referring out a case where the government might attempt to reinstate a prior removal or deportation order.

181

See discussion of this case in § 3.12(G) above. There are a few people who applied for adjustment together with an I-212 waiver after the initial PerezGonzales ruling and before the Ninth Circuit’s reversal that may still be ultimately approve for adjustment. Settlement negotiations are pending as of this writing. http://legalactioncenter.org/sites/default/files/1-1614%20Duran%20Announcemen.pdf (Jan. 14, 2014). 182

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Example: Miguel was deported in 1984. He came back to the United States with a fake visa in 1998. Now he wants to apply for adjustment of status through his U.S. citizen wife under INA § 245(a). Is it safe for him to do that?

Severe penalties apply to people who fail to attend their removal hearing or to depart under voluntary departure, or who disobey other laws relating to removal/deportation.

§ 3.16 Summary of IIRIRA Inadmissibility Grounds This is a complicated area of law. The key is to take each analysis one step at a time. Until you have mastered the grounds, look at every client’s situation and go through the list of elements that trigger each bar. Besides this outline, a chart of the three- and ten-year bars and the permanent bar appears at Appendix 3-G. A.

Unlawful Presence in the United States Not Following Admission or Parole: INA § 212(a)(6)(A) 1. In the United States in unlawful status. 2. Was not admitted or paroled. 3. Some exceptions for battered spouses and children.

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4. Adjustment still possible under INA § 245(i), VAWA application, asylee/refugee, and some other applications. B.

Three- and Ten-Year Bar: INA § 212(a)(9)(B) 1. Unlawfully in the United States for more than 180 days (three-year bar) or one year or more (ten-year bar) continuously, counting from April 1, 1997. Some time doesn’t count as unlawful presence, including: minors; certain applicants for asylum; family unity; NACARA beneficiaries; certain persons waiting for renewal of permission to stay; voluntary departure; adjustment applicants. 2. Can avoid the 3 year bar, if depart after being placed in proceedings. (Must be placed in proceedings before accruing a year of unlawful presence, because then the 10 year bar applies.) 3. Bars triggered by departure, unlawful presence does not get counted if never departs the U.S. Applies to those seeking admission after having departed the United States. 4. Discretionary waiver available for a son, daughter, or spouse of a U.S. citizen or lawful permanent resident, but not parents.

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C.

Permanent Bar: INA § 212(a)(9)(C) 1. Applies to people who re-entered or attempted to re-enter illegally after having been a) unlawfully in the United States for a total of more than one year after April 1, 1997 and depart voluntarily, or b) deported, excluded, or removed.

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2. Discretionary waiver not available for ten years, except waivers for HRIFA, NACARA, VAWA, legalization, asylee/refugee, TPS, some nonimmigrants & Special Immigrant Juvenile. D.

Failure to Attend Removal Proceedings, without Reasonable Cause: INA § 212(a)(6)(B) 1. If there was no reasonable cause to fail to attend, inadmissible for 5 years following subsequent departure or removal. 2. No waiver available, but can show reasonable cause.

E.

Past Removal or Deportation: INA § 212(a)(9)(A)

2. If order of removal was based on deportability from removal proceedings commencing on or after April 1, 1997, or person was deported or excluded under old law (preIIRIRA), the person is inadmissible for 10 years following the removal or departure. 3. For subsequent removal orders, the person is inadmissible for 20 years. 4. If the person has been removed and has also been convicted of an aggravated felony, he or she is inadmissible permanently. 5. Provision only applies if the person has physically left the U.S. after the order. 6. Orders of deportation and exclusion pre-IIRIRA may be waived at any time before admission in Attorney General’s discretion. A waiver for this ground does not cure the “permanent bar.” If the “permanent bar” applies, the person cannot seek a waiver until at least 10 years have passed since the person left the U.S.

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1. If order of removal was initiated at time of arrival (this concept only applies in removal proceedings under IIRIRA commencing on or after April 1, 1997), the person is inadmissible for 5 years following the removal or departure. This applies most often in cases where the person received an expedited removal order.

F.

Reinstatement of Prior Order of Deportation or Removal

This is not a ground of inadmissibility, but it is important to remember. If a person who was deported or removed re-enters the United States without permission, DHS may be able to reinstate the old order and remove the person without any further consideration. INA § 241(a)(5).

Exercise 3.16 -- Review Questions: (Answers in Appendix 3-A.) Are the following noncitizens inadmissible under any IIRIRA grounds discussed above? If so, explain which ground and why. If not, explain why not. Is a waiver available?

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1. Jaime entered the United States without inspection in 1989. He went home to Mexico on September 12, 1997. 2. Marcel entered the United States in 2000 without inspection. He returned home to Canada in August of 2006 to celebrate his upcoming 18th birthday. 3. What if Marcel was going to turn 19 instead of 18 in August 2006? 4. Roberta’s husband received amnesty, and Roberta has maintained Family Unity status for several years. It is April 15, 2007. 5. Consuela flew to the United States from the Philippines on a tourist visa in 2004. She overstayed her tourist visa and has never left the United States. Is she inadmissible now? 6. Tomas received a notice for a removal hearing but did not attend because he did not understand the notice. 7. Melanie was removed from the U.S. based on being inadmissible in 2003. She re-entered illegally in 2005. She was caught and was removed again. Now she wants to immigrate through her U.S. citizen husband. Is she inadmissible under more than one ground?

PART THREE: GROUNDS OF DEPORTABILITY § 3.17 Grounds of Deportability (Except Those Related to Crimes) We have already discussed grounds of deportability relating to document fraud (§ 3.5) and alien smuggling (§ 3.3). This unit will discuss other non-criminal grounds of deportability. They operate against people who have been “admitted” to the United States. A.

Removable for Being Inadmissible at Entry or Adjustment

A noncitizen who was inadmissible when he or she was admitted to the United States or adjusted status to permanent resident can be found deportable. See INA § 237(a)(1)(A). Example: In order to immigrate to the United States two years ago, Deepak fraudulently obtained an immigrant visa. If the DHS can show that Deepak obtained the visa by fraud, he can be deported, because at the time of entry he was inadmissible for visa fraud. 3-96

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Example: Sylvie is inadmissible because of a criminal offense, but does not disclose it in her application for adjustment of status to permanent residence. CIS does not notice that she’s inadmissible and grants her application to adjust status. She is therefore deportable because she was inadmissible at the time of her adjustment of status.

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Example: Gerry, a lawful permanent resident, was convicted of a criminal offense falling within a ground of inadmissibility. He later left the country to take a vacation abroad. When he returned from his trip, he was not questioned at the airport regarding the criminal offense and was permitted to re-enter the U.S. He later applied for naturalization and the mistake was discovered. Even though Gerry already made it back into the U.S., he is considered to have been improperly admitted since he was inadmissible upon making a new “admission” to the U.S. INA § 101(a)(13)(C). According to the CIS, he is no longer considered to be a lawful permanent resident under the INA because his unlawful admission caused his status to change when he returned to the U.S. and therefore he is ineligible for citizenship. INS Interpretations 318.2 and 318.3. Gerry cannot officially lose his status as a lawful permanent resident, however, until he has been found removable by an immigration judge or the Board of Immigration Appeals.

B.

Present in Violation of Law

A noncitizen who is in the United States in violation of the INA or “any other law of the United States” is deportable. INA § 237(a)(1)(B). This ground applies, for example, to someone who overstayed a visitor’s visa. C.

Violated Non-Immigrant Status

A noncitizen who is in the United States on a non-immigrant visa and does not obey the rules of the visa is deportable. See INA § 237(a)(1)(C)(i). Example: Martin has a tourist visa that requires him not to work. Martin takes a job. He is therefore deportable for violating the terms of his tourist visa. Example: Kwan has a student visa which requires him to be a full-time student at the University of Ohio. After a few months he drops out. Then he gets a job without getting student work permission. Kwan is deportable since he violated the terms of his student visa by dropping out and working without permission. An F-1 student who violates a term or condition of his or her status is also inadmissible for a five year period. See INA § 212(a)(6)(G)

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Some people in Deepak’s and Gerry’s situation, who are deportable because they were inadmissible for visa fraud or mistake at the time of admission, can obtain a waiver. INA § 237(a)(1)(H). See Unit 6.

D.

Marriage Problems

Many people immigrate through a U.S. citizen or lawful permanent resident spouse. DHS suspects that many of these marriages are fraudulent. A person who is caught participating in a fraudulent marriage is deportable. In addition, people who divorced from a U.S. citizen or lawful permanent resident spouse soon after marrying or entering the United States can be found deportable if they cannot prove that their marriage was valid. See INA § 237(a)(1)(G). Some people who immigrate through a U.S. citizen spouse before the second anniversary of the marriage become conditional permanent residents for two years before they can become regular lawful permanent residents. If they cannot fulfill the requirements to end conditional residency they can be removed. See INA § 237(a)(1)(D). See Unit 7 for more information. E.

Failure to Register and Falsification of Documents

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Failure to notify DHS of a change of address is a deportable act. See INA § 237(a)(3)(A). INA § 265 requires non-citizens to notify the DHS of each change of address within ten days of the change. This can be excused if the person shows that the omission was “reasonably excusable” or not willful. We have not heard of the DHS using this ground to remove someone, but it is a ground of deportability and it is possible that the DHS will use it, so non-citizens should make every effort to obey the rule. A person is also deportable if he or she is convicted of failure to register as an alien or a foreign agent. INA §§ 237(a)(3)(B)(i) and (ii). Again, this ground is rarely prosecuted or enforced. A person is deportable for conviction of falsification of documents. INA § 237(a)(3)(B)(iii). This involves a violation of, or an attempt or a conspiracy to violate 18 USC § 1546, a federal criminal law, (relating to fraud and misuse of visas, permits, and other entry documents). One court has held that an alien could be prosecuted under 18 USC § 1546(a) for possessing an authentic immigration document that was procured through a false statement.183 This ground of deportability should not be confused with the more common document fraud ground that depends upon a finding in a separate civil proceeding that the person has committed document fraud as defined in INA § 274C. Someone who is the subject of a final order for violation of INA § 274C document fraud is also deportable, but under a different ground, INA § 237(a)(3)(C). See § 3.5.

183

U.S. v. Krstic, 558 F.3d 1010 (9th Cir. 2009).

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F.

Public Charge Ground of Deportation

Under 1990 amendments, a person is deportable if she becomes a public charge anytime within five years of her last entry, unless she can prove that she became a public charge because of something that happened after entry. INA § 237(a)(5).

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Example: John is a permanent resident whose last entry into the United States was in 1989. In 1991, he was in an accident at work and became disabled. He collects SSI and other benefits, and he will never be able to work again. Is John deportable? No. John became a public charge within five years of his last entry. He is not deportable, however, because he can show that the cause of his becoming a public charge (his accident) is something that happened after his last entry.

G.

Violation of Condition of Entry

A person who received a waiver of one of the health grounds of inadmissibility that imposed certain conditions and does not comply with those conditions is deportable. INA § 237(a)(1)(C)(ii). The Department of Health and Human Services (HHS) must issue a certificate verifying that the person has failed to comply with the terms, conditions, and controls of the waiver. H.

Reinstatement of Prior Order of Deportation or Removal

This is not a ground of deportability or inadmissibility, but it is important to remember. If a person who was deported or removed re-enters the United States without permission, the DHS may be able to reinstate the old order and remove the person without any further consideration. INA § 241(a)(5). See discussion at § 3.14 above and in Unit 10. I.

Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility

Several important grounds of deportability are similar to grounds of inadmissibility. To review, the grounds of deportability include: 1. Alien smuggling under INA § 237(a)(1)(E), discussed with the ground of inadmissibility at § 3.3, above.

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In practice, very few people are removed on this ground because there are very strict requirements for a person to be considered deportable as a public charge. BIA case law also requires that the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, the public entity must demand repayment, and the alien must refuse to pay. See Matter of V., 2 I&N Dec. 78 (BIA 1944); Matter of Kowalski, 10 I&N Dec. 159 (BIA 1963); and Matter of C., 2 I&N Dec. 538 (BIA 1946). Compare this with the tougher and more commonly applied ground of inadmissibility for public charge discussed in § 3.7.

2. § 274C Document Fraud under INA § 237(a)(3)(C), discussed with the ground of inadmissibility at § 3.5, above. 3. False claim to U.S. citizenship under INA § 237(a)(3)(D) discussed with the ground of inadmissibility at § 3.6, above. 4. National Security and Terrorist grounds, under INA § 237(A)(4), discussed with the ground of inadmissibility at § 3.8, above. 5. Unlawful Voting contrary to federal, state or local laws under INA § 237(a)(6), discussed with the ground of inadmissibility at § 3.8, above.

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PART FOUR: CRIMES AND THE GROUNDS OF DEPORTABILITY, INADMISSIBILITY AND BARS TO ESTABLISHING GOOD MORAL CHARACTER

GENERAL APPROACH: Be Cautious, but Don’t Give Up Hope. This area of the law is extremely complex and constantly changing, and even small criminal convictions can have terrible immigration consequences. Still, it is possible that your client has some hidden defense arguments that you do not suspect, even if the case looks like a slam-dunk loser. In many cases skilled attorneys have won terrific and surprising victories in this area. The rule is, if you think there is any danger that a conviction will cause immigration problems, do not send the person to immigration authorities, and do not concede that the person is removable. If you need it, do get help in your analysis. Unless you are a real expert, often the best help that you can provide is (a) to refer the case out to an expert, and (b) at the same time, start the process of locating their criminal court records, which the expert will need to see. For a thorough analysis of the immigration consequences of crimes, refer to the ILRC’s Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws.

§ 3.18 Clients with Criminal Records People who have been convicted of certain crimes, or who have done certain “bad acts” without being convicted, can be removed. Problems with drugs, crimes involving moral turpitude (such as fraud, theft, or violence), prostitution, firearms, sexual crimes, and a host of other offenses can cause problems. Even very minor offenses can make the person inadmissible, deportable, or unable to establish good moral character. (The good moral character requirement is discussed in § 3.32.) In addition, a large group of other kinds of offenses, ranging from murder to alien smuggling to shoplifting with a suspended sentence of one year, have been designated as aggravated felonies. Many misdemeanor non-violent offenses qualify as “aggravated felonies.” Aggravated felonies carry the most severe immigration consequences. See § 3.27. If there is any chance that your client has been arrested or convicted of a crime, you must find out all the facts and analyze the case. Don’t rely on the client’s memory. Often people who 3-100

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go through the criminal court system do not understand or are not clearly told what has happened. Also, many people are embarrassed about criminal problems and may understate what really happened.

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You, or whoever handles the criminal part of the case, must obtain the facts and do the analysis. If possible, the best time to do this is before the client has any contact with any immigration authority. Getting the Facts. To properly analyze the case we need to see the client’s official criminal records. Tell the client that DHS will have the person’s complete criminal record. DHS will obtain this record by sending the person’s fingerprints to the FBI. We need to have at least as much information as DHS in order to prepare a defense. Three records are most important:

Doing the Analysis. To analyze a criminal case, we must answer three questions. 1. Is the person really inadmissible or deportable, or otherwise barred from relief by conviction of an aggravated felony? 2. Is a waiver available? 3. Can the person “vacate” or otherwise get rid of the conviction and clear up his or her record? Will DHS accept that the conviction no longer exists? This area of the law is complex. For one thing, both the Board of Immigration Appeals (BIA) and federal Circuit Courts of Appeals are constantly defining and redefining the immigration consequences of crimes, and some of these changes are applied retroactively to past

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1. Get a copy of the FBI report for yourself. Then you will know what DHS or the consulate will see. See instructions on FBI fingerprint charts, below and in Appendices 3-D and 3-E. 2. Client’s State Rap Sheet. Each state has a different procedure to obtain criminal records. We need state rap sheets because FBI reports are often wrong or do not contain enough detail. This document will ensure that you get your client’s entire criminal record in a particular state. 3. Get a complete copy of the record from the court where the client was convicted. You may have to call the court clerk first to get the requirements for obtaining this. In many states, Superior Courts handle felonies and Municipal Courts handle misdemeanors. If the client lives near the court, give the client a letter signed by him or her requesting the entire file and ask the client to go get the file. A sample letter is in Appendix 3-E. There is often a fee to obtain a copy of the entire file. Once you get the record, it will help to determine the immigration consequences of the conviction(s). In addition, if you or an attorney will try to clear up the criminal record, you will need a copy of the court papers. This last step is important. A representative cannot rely on just a rap sheet to assess whether or not a particular conviction might trigger immigration consequences. The court records are essential for properly analyzing any criminal disposition.

convictions. In addition, each state has its own criminal laws and ways of clearing up criminal records. If the client has been convicted in state court, we need to understand exactly how DHS views the laws of that state. Resources. Special books are available. See “For Further Information” at the end of this unit. In addition, it is a good idea to consult with a back-up center or an expert immigration attorney. If you need to get information about state criminal law and sentencing, it is sometimes possible to get information by calling the Office of the Public Defender in the county where the person was convicted.

PRACTICE TIP: Obtaining a Report from the FBI. Many immigration applications require an FBI record check on the person’s fingerprints. These applicants are scheduled to have their fingerprints taken at a designated Application Support Center (ASC).

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To get your own copy of the client’s criminal record, send a cover letter which includes a release from the client, completed FD-258 form, which will include the applicant’s fingerprints, and the correct fee payment (at this time the fee is $18.00) in the form of a certified check (no personal checks) or money order made out to the Treasury of the United States or credit card (fill out credit card payment form) to: FBI CJIS Division: Record Request 1000 Custer Hollow Road Clarksburg, West Virginia 26306 A sample application form and in depth instructions are provided at Appendices 3-D and 3-E. To check for updates in instructions, go to www.fbi.gov and search for “FBI Identification Record Request.” The FD-258 is the fingerprint card that applicants formerly submitted to the DHS prior to the institution of the Application Support Centers. There is a space on the form to indicate the reason for requesting the record. In this space the applicant should write something like “personal record check” but should not use the word “immigration.” The fingerprint card will not be returned with the FBI Identification Record. The FBI says that, upon receipt by the FBI, you should expect approximately thirteen weeks to process the request. In practice, FBI record checks have fairly quick turnaround time compared to getting records from immigration through FOIA. Sometimes records come back within a few weeks.

§ 3.19 What Is a Criminal Conviction? Many (but not all) of the criminal grounds of removal require the person to have been convicted of a crime. For example, a person is not deportable under the aggravated felony ground unless he or she has a conviction. If we can show that there is no conviction, the person is not removable. (Advocates should be aware that some grounds are triggered by conduct alone, but

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where a conviction exists, this will provide additional evidence for DHS that the person committed the conduct).

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Sometimes a person can be charged with a crime and go to court, but not receive a “conviction” for immigration purposes. This takes place in five contexts: Juvenile Delinquency. If the case was handled in juvenile court there is no conviction. Matter of C.M., 5 I&N Dec. 327 (BIA 1953); Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). Look for “juvenile court” or “juvenile” on the FBI or court record. Example 3.19-a: Andrea is 16. She was found guilty in juvenile court of theft. Because her case was handled in juvenile court, Andrea does not have a conviction. In many states a minor can commit an offense under the age of 18 but be transferred to adult court to face prosecution. If convicted in adult court, this generally will be a conviction for immigration purposes.184 However, you should contact an expert because there may be some arguments that it should not be treated as a conviction for purposes of immigration law. Note also that in applications for Deferred Action for Childhood Arrivals (DACA), a delinquency disposition might be considered in the exercise of discretion. See Unit 16.

Example 3.19-b: Frederick was charged with passing false checks. He was convicted at trial. His lawyer has appealed his conviction to a higher court. Depending on the circuit in which he lives, Frederick may or may not have a conviction for immigration purposes during the pendency of his appeal. (If he finally loses his case on appeal, then he will have a final conviction in all jurisdictions). 184

See Rangel-Zuazo v. Holder, 678 F.3d 967 (9th Cir. 2012). Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004); See also Planes v. Holder, 652 F.3d 991, 995-96 (9th Cir. 2011). 186 Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). 187 Abreu v. Holder, No. 09-2349 (2d Cir. May 24, 2010). 185

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Direct Appeal? If the case is on direct appeal, it still might count as a conviction. Advocates would argue that if a conviction has been appealed, the final decision has not yet been made and so the disposition lacks sufficient “finality” to be a conviction for immigration purposes. However, some federal courts have held that a conviction on direct appeal is a conviction for immigration purposes.185 The BIA has not addressed this exact issue, but it has held that an appeal that is permitted to be filed late is sufficiently “final” to be a conviction for immigration purposes.186 The Second Circuit Court of Appeals reversed this decision, but in an unpublished opinion.187 Check the law of the circuit that has jurisdiction over the immigration case to see how your circuit court has ruled. If you live in a jurisdiction where no decision has yet been made, an advocate can argue that a case on direct appeal is not a conviction for immigration purposes—although the outcome will be uncertain.

Alternative Programs. Some states have special programs that are alternatives to conviction. They are often for first offenders or minor offenses, and may be called a diversion, first offender, deferred adjudication, or other special state program. Under the Immigration and Nationality Act (INA), for a disposition to be a conviction, two events must occur: (a) a judge or jury finds the person guilty or the person admits guilt, pleads nolo contendere/no contest, or admits sufficient facts to support such a finding, and (b) the judge must order some form of punishment, penalty or restraint. INA § 101(a)(48)(A). The second part of the definition of conviction—imposition of punishment or restraint—will almost never be avoided because most criminal courts impose requirements or restrictions upon a defendant, which includes restitution and fines. (The Ninth Circuit has held, however, where a fine is suspended with no conditions it is not considered a penalty. See Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010)). A good test, nonetheless, is if no guilty plea, no nolo contendere plea, or no finding of guilt was made, there is no conviction.188 Some of these programs allow the offender to take alternate terms or classes without any finding of guilt while others require a plea or finding of guilt. Never concede that a special program resulted in a conviction without thoroughly researching the law of the state in which the person was convicted in, and if possible getting records or a transcript to make sure that a plea or finding of guilt actually was made.

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Example 3.19-c: Your client participates in a “pre-plea” diversion program where she does not plead guilty, and if she completes drug counseling and other requirements, the charges will be dropped. Her brother in another state participates in a “deferred adjudication” program where he does plead guilty, but if he completes drug counseling and other requirements he can later withdraw his plea and will no longer have any conviction under state law. For immigration purposes, your client does not have a conviction, but her brother does. See § 3.27. Note: In the Ninth Circuit (Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, Oregon, and Washington), a first conviction for certain minor drug offenses that occurred before July 15, 2011 will not be a “conviction” for immigration purposes even if the individual plead guilty, as long as some kind of state relief erased the conviction. See § 3.27, Subsection D. But if a person travels outside the Ninth Circuit (e.g., flies back into the United States at Miami), this rule will not be upheld. Conviction Vacated for Legal Error. In all jurisdictions, convictions for any offense that have been vacated by a judge due to legal or constitutional error should not count for any immigration purpose, although the Fifth Circuit has questioned this. Some people have had their convictions vacated due to ineffective assistance of counsel in violation of the Sixth Amendment of the Constitution. In particular, the claim is that defense counsel failed to advise them of the immigration consequences of their plea.

188

See Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Matter of Punu, 22 I&N Dec. 224 (BIA 1998) (en banc).

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Example 3.19-d: Emilio filed a petition for writ of habeas corpus in the state superior court where he was convicted of a criminal offense. In his petition, he argued that at the time he entered his plea his criminal defense attorney failed to tell him that the plea would make him deportable. The court reviewing his petition agreed and vacated his conviction for legal cause.

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Infraction? An infraction, municipal offense, or other minor offense that is less than a misdemeanor might not be considered a “conviction” for immigration purposes, if the procedure lacks basic constitutional protections given to defendants accused of crimes, such as the right to trial by jury, or the right to have guilt proved “beyond a reasonable doubt.”189 Example 3.19-e: Jose was convicted of petty theft, classified as a Class A violation under the criminal laws of Oregon. The prosecution of this offense involved a nonconventional criminal proceeding. Jose had no right to jury or counsel and the prosecution only had to prove guilt by a preponderance of the evidence instead of beyond a reasonable doubt. Because Jose’s offense was classified as a minor one and the constitutional safeguards that are normally present in a criminal proceeding were absent, the BIA found that Jose did not have a “conviction” of a crime for immigration purposes. See Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004).

It appears likely that if there is no right to a jury trial even on appeal, or if the prosecution’s burden of proof is less than “beyond a reasonable doubt,” the BIA will find that there is no conviction. Other factors that weigh against the disposition being a conviction are if the infraction cannot be used as a basis to support a sentence enhancement for a subsequent misdemeanor or felony conviction; if the infraction is punishable by no more than six months in jail; or if governing law states that the offense is not a “crime” or brings no legal liability.

NOTE: Because states differ widely in their definitions of quasi-criminal offenses and their procedures for adjudicating them, be sure to compare these procedures and definitions under the law of the state in which the offense occurred to those in Eslamizar and Cuellar. Consult with other advocates to see how local immigration authorities or judges are treating the disposition.

189

See Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004); Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012).

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Roberto was convicted of possession of marijuana in violation of a Wichita, Kansas city ordinance. The BIA found that this was a “conviction” because, although Roberto did not have a right to trial by jury during the first adjudication, he did have the right to appeal a finding of guilt and have a trial by jury on appeal. Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012).

§ 3.20 What Evidence Can the DHS Submit to Show a Conviction? Section 101(a)(3)(B) of the INA sets out rules for what evidence can be used to show that a conviction occurred. See also the list at INA § 240(c)(3)(B). Advocates who go to court do not want to simply admit that a conviction exists. Rather, we want to make the DHS produce good evidence of a conviction. In case you need to produce evidence of a conviction—for example, to prove that the conviction was for a less serious offense than what the DHS says—it is a good idea to try to follow these rules. A few examples are the original or a certified copy of:      

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

An official record of judgment and conviction. An official record of plea, verdict and sentence. A docket entry, from court records that indicates the existence of the conviction. Official minutes of a court proceeding or a transcript of a court hearing in which the court takes note of the existence of the conviction. An abstract of a record of conviction prepared by the court. Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of the conviction. Any document or record showing the conviction that is maintained by a jail or prison as their basis for holding the person.

The regulation at 8 CFR § 1003.41 contains a similar list, but goes further by adding a catchall category which states, “any other evidence that reasonably indicates the existence of a criminal conviction.…” This means that documents outside of the statute may be considered by the court as proof of existence of a conviction based on the circumstances of the case. Electronic documents must be authenticated or reliable to be admissible.190 However, whenever the government presents documents to prove a conviction which are not included in INA § 240(c)(3)(B), counsel should challenge the sufficiency of that evidence, and should argue that 8 CFR § 1003.41 is “ultra vires,” meaning that a regulation goes beyond the scope of the statute, and is therefore unenforceable.

§ 3.21 What Is a Sentence for Immigration Purposes? Immigration law has its own definition of what a criminal sentence is. This definition comes into play several times, but the most common are: (a) many offenses are aggravated felonies only if a sentence of a year or more is imposed (see § 3.28) and (b) an offense only comes within the petty offense exception to the moral turpitude inadmissibility ground if a sentence of six months or less has been imposed, and the potential sentence is a year or less (see § 3.25). For immigration purposes, any time that a judge orders the person to spend time in jail as a result of a conviction will count as a “sentence imposed.” INA § 101(a)(48)(B). This is even true if 190

See Matter of J.R. Velasquez, 25 I&N Dec. 680 (BIA 2012) for authentication requirements for documents listed in 8 CFR § 1003.41(d).

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the judge technically “suspends imposition of sentence” (does not impose a sentence) and instead just orders the person to go to jail as a condition of probation. If a judge imposes a sentence and “suspends execution” (does not make the person serve some or all of the time), the entire sentence the judge imposed still counts as the “sentence imposed.” Probation alone does not count as a sentence and advocates should be sure to distinguish this from a sentence of imprisonment. (However, under the law of a few states, such as Georgia and Texas, the term probation sometimes is used to refer to a sentence. Persons dealing with convictions and probation from those states should consult an expert to determine what sentence actually was imposed.)

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Example 3.21: Bernardo was convicted of misdemeanor fraud, his first offense. He was given three years of probation. Imposition of sentence was suspended and he was ordered to spend 100 days in jail as a condition of probation. Bernardo has a “sentence imposed” of 100 days. Therefore, he will qualify for the petty offense exception to moral turpitude inadmissibility because his sentence is less than six months. (Notice that the three years of probation has no effect.)

§ 3.22 How to Analyze a Past Conviction: The Categorical Approach In § 3.20 we discussed how the government must prove that a conviction occurred. In this section, we will discuss the rules for analyzing the elements of a prior conviction, and whether it will come within a removal ground. In most cases, an immigration judge will use what federal law calls the “categorical approach” to analyze whether a prior conviction comes within a removal ground or is a bar to relief. The categorical approach compares the criminal statute—not the defendant’s particular conviction—with the removal ground at issue. Under the categorical approach, an immigration or federal criminal court judge who is evaluating a prior conviction may consider only the minimum conduct required to violate the statute, and not the defendant’s conduct in the particular incident. This is a very important point. Note that the categorical approach works slightly differently depending upon whether the statute sets out just one offense or multiple offenses. For multi-offense statutes, see Part C, below In 2013 the Supreme Court reaffirmed and clarified how the categorical approach works, in two very beneficial opinions. See Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) and Descamps v. United States, 133 S.Ct. 2276 (2013). These opinions open up many new opportunities for clients.

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Josephine was convicted of misdemeanor theft, her first offense. She was sentenced to a year in jail, but the judge suspended execution of all of it and she did not have to go to jail at all. However, for immigration purposes Josephine has a “sentence imposed” of one year. Josephine does not qualify for the petty offense exception, because her sentence is greater than six months. Worse, depending on how “theft” is defined in her state, she might have an aggravated felony conviction.

PRACTICE TIP: Evaluating a criminal conviction to see if it causes an immigration consequence calls for a serious analysis of criminal and immigration law. This is an interesting area of law that can lead to awesome results for your clients, but it takes study. As always with crimes, the stakes are high. You would not want to miss an important defense, and you would not want to walk your client into a trap. If you are not already experienced in the categorical approach, or do not have the time and resources to learn about it, you should consider (a) referring the whole case out to an expert, or (b) having an expert consult with you just on analyzing the offense, even if you keep the case as a whole. Even if you will get expert help, however, it is a good idea to work through this section so that you are familiar with the terms and know what questions to ask. Finally it is very possible that the immigration judge, ICE attorney, or CIS officer will not understand the whole analysis, and you will need to advocate for it.

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A.

Step One: What Is the Federal “Generic” Definition of the Criminal Law Term in the Removal Ground?

The Immigration and Nationality Act (INA) contains dozens of criminal law terms. The grounds of removal contain terms such as prostitution, crime of domestic violence, child abuse, crime involving moral turpitude, controlled substance, firearm, etc. See INA §§ 212(a)(2), 237(a)(2). The definition of aggravated felony contains far more crimes: it is simply a long list of criminal law terms, including burglary, crime of violence, theft, sexual abuse of a minor, etc. See INA § 101(a)(43). Each of these criminal law terms used in the INA must have a specific, federal definition, often called the “generic” definition, which is a list of elements of the offense. For example, the Supreme Court defined generic “burglary” (which is an aggravated felony with a sentence of a year or a more) as “an unprivileged or unlicensed entry or remaining in a building or structure with intent to commit a crime.” Taylor v. US, 110 S.Ct. 2143 (1990). These elements in the generic definition are the legal standard to which your client’s conviction will be compared. For example, if the state burglary statute that your client was convicted of fails to require any of the elements in the above definition, your client has not been convicted of “burglary,” for any immigration purpose. Why have such exact “generic” definitions? As courts have pointed out, it would not be fair or accurate to just go by what an offense happens to be called under state law. For example, in California, shoplifting frequently is prosecuted as “burglary.” This is because, unusually, California defines “burglary” to include lawfully walking into an open store with intent to commit a crime. In Arizona, reckless driving with injury has been prosecuted as “assault with a deadly weapon,” because Arizona assault includes recklessness, and the car is considered to be the weapon. But the majority of legal authorities would not define shoplifting to be burglary or reckless driving with injury to be assault with a deadly weapon, and courts believe that Congress

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did not intend this either. Courts use generic definitions to ensure that the removal grounds employ the definition of the criminal law term that Congress intended.

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Having a generic definition also provides a lot of immigration defense opportunities, because if your client is convicted under a statute that does not meet the generic definition in any way, he or she is not removable or barred from applying for relief. This comparison between the criminal statute and the generic definition is the heart of the categorical approach. B.

Step Two: The Categorical Approach -- Compare the Criminal Statute to the Generic Definition

With some exceptions (see Part F), an immigration judge must use the categorical approach to evaluate a prior conviction. The judge will compare the elements of the criminal offense of which your client was convicted, to the elements of the federal, generic definition of the offense. If the minimum conduct sufficient to violate the criminal statute does not meet all the elements of the generic definition established for immigration purposes, then no conviction of that offense ever will trigger the immigration consequence, and your client wins, and wins big. 

Another way of stating this test is, if there is any way to commit the criminal offense that has been prosecuted that is outside the generic definition, the immigrant wins. Example 3.22a: The generic definition of “burglary” requires an unlawful entry into a building or structure. California burglary just requires an “entry,” regardless of whether it is lawful or unlawful. Thus the minimum conduct to commit California burglary includes a lawful entry. Because a lawful entry does not match the generic burglary definition, which requires an unlawful entry, the U.S. Supreme Court held that no conviction of California burglary ever is the aggravated felony “burglary”—even if a defendant actually pled guilty to an unlawful entry. Descamps v. United States, 133 S.Ct. 2276 (2013). As a matter of law, the conviction is not a “burglary” aggravated felony either as a ground of deportability, or as a bar to eligibility for relief.191 Therefore, an applicant for relief does not have to bring in documents to “prove” that his or her particular conviction is not a bar. 191

See Moncrieffe v. Holder, 133 S.Ct. 1678 (2013).

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

Your client wins regardless of the actual conduct in the case, or documents in his or her record of conviction. The immigration judge is not permitted to look at your client’s record of conviction: the test is the minimum conduct to violate the statute, not what happened in your client’s case. Your client wins whether defending against a charge of deportability, or attempting to qualify for relief or admission. See Moncrieffe v. Holder, cited above, (holding that where the minimum conduct to commit the offense does not meet the generic definition, the offense is not a bar to LPR cancellation).

Note that if the criminal statute lists multiple offenses, separated by “or,” there may be another step in the process. See Part C. How to Identify the Minimum Conduct to Commit an Offense. A great resource is state jury instructions. These often set out the minimum conduct to violate the statute, along with case citations to support that. If there are no jury instructions, other options are (a) doing legal research into criminal cases under that statute, and/or (b) calling criminal defense attorneys to get their help (especially easy if you have given them help in the past, or can in the future). You must have some evidence that there is a “realistic probability” that the statute is used to prosecute this minimum conduct.192 This may consist of published or unpublished cases showing that the conduct was prosecuted under the statute (jury instructions may provide such case cites), or documents from the client’s own case, if applicable.193 In some circuits, if the specific conduct is set out in the language of the statute, you do not need to present other proof.194 If nothing else is available, some advocates have submitted affidavits from criminal defense or prosecution lawyers stating that they have seen this conduct prosecuted under the criminal statute.

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C.

Extra Step: Divisible Statutes, the Record of Conviction, and the Modified Categorical Approach

What if the criminal statute under which your client was convicted sets out more than one offense? In that case, an immigration judge might be permitted to look at a restricted group of documents in your client’s record of conviction, to try to determine which offense the person was convicted of. This is called the “modified” categorical approach. Once the judge identifies the offense of conviction, he or she will apply the regular categorical approach and see if the minimum conduct to commit that offense matches the generic definition. Immigration authorities may use the modified categorical approach only if the statute is a true “divisible” statute. A “divisible” statute is a criminal statute that (a) describes different offenses by setting out multiple elements in the alternative, separated by the word “or,” and (b) at least one offense does and one does not meet the generic definition at issue. Example 3.22b: Statute A prohibits “assault with a rifle, knife, or brass knuckles.” The question is whether this is a divisible statute for purposes of the firearms deportation ground at INA § 237(a)(2)(C). In this particular statute, the rifle, knife, and brass knuckles all are “elements” of the offense, meaning that a jury would have to agree as to which of those three weapons was used in order to find guilt.195 Assume that in this

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Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007), cited in Moncrieffe. Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). 194 United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), Ramos v. U.S. Atty. Gen, 709 F.3d 1066 (11th Cir. 2013). 195 What if the statute sets out different terms separated by “or,” but a jury is not required to unanimously agree on one term in order to come to a guilty verdict? In that case, arguably these terms are not 193

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statute the definition of “rifle” meets the definition of firearm in the deportation ground, but knife and brass knuckles do not. Is this a divisible statute for purposes of the firearms ground?

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Yes. It meets both requirements for a divisible statute. First, it sets out multiple elements in the alternative, separated by “or.” It really sets out three separate offenses: assault with a rifle, assault with a knife, or assault with brass knuckles. Second, at least one offense does, and one does not, cause deportability under the firearms ground. Therefore, in this case the immigration judge may review certain documents from the person’s record of conviction, only to see if the conviction was for using a rifle, knife, or brass knuckles. What if the criminal statute doesn’t list separate elements in the alternative, but instead contains one broadly defined term, e.g., “weapon” rather than “rifle, knife, or brass knuckles”? That is not a divisible statute. Example 3.22c: Statute B prohibits “assault with a deadly weapon.” “Deadly weapon” is not further defined, but the offense has been held to include a rifle, knife, baseball bat, etc. Your client specifically pled guilty to assault with a rifle. Is your client deportable?

Finally, in the above example, what if another part of the statute specifically defined a “deadly weapon” to mean “a rifle, gun, or knife,” and a jury would have to unanimously agree as to which of those was used in order to find guilt? In that case the statute might be divisible. D.

Extra Step, Cont’d: What Documents Are in the Reviewable “Record of Conviction”? How May the Judge Use the Information?

The Supreme Court held that if a criminal statute is truly “divisible” (see Part C), an immigration judge may consult documents from the individual’s record, to see which of the elements listed in the criminal statute was the subject of the conviction. Then the judge will apply the minimum conduct test to those elements.196 This is called the modified categorical approach.

“elements” of the offense, and arguably this is not a true divisible statute. This new potential defense is described in a Practice Advisory, Descamps v. United States, at www.nipnlg.org. 196 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013); Descamps v. U.S., 133 S.Ct. 2776 (2013).

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No. There is no “or” separating different offenses that a jury must choose between. The statue sets out just one offense, even if the offense could be committed in many different ways. The judge must employ the minimum conduct test. Because Statute B could be committed with a non-firearm such as a baseball bat, there is no categorical match. A conviction under this statute never is a deportable firearms offense—either as a deportation ground or as a bar to relief such as non-LPR cancellation.

Which documents from your client’s criminal record can the immigration judge review? The rules on this can vary depending upon the Circuit Court of Appeals the immigration case is in. Generally, if the conviction was by guilty plea, this includes a written plea agreement, or a transcript of an oral plea colloquy; information in the criminal charge as long as there is sufficient proof that the defendant pled guilty to that charge; certain information from a court minute order or other official document that summarizes the plea; plus any document that the defendant or defense lawyer agreed provided a “factual basis” for the plea.197 If instead the conviction was by trial, the reviewable documents include similar official papers regarding the judgment, as well as certain jury instructions.198

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The record of conviction does not include several other documents from the criminal case, such as information from dropped charges, a police report, a preliminary hearing transcript, or a pre-sentencing or “probation” report, unless the defendant stipulated that these documents provided a “factual basis” for the plea. If the defendant did stipulate that, these documents probably are part of the reviewable record. The record of conviction does not include statements by the noncitizen (or anyone else) outside of the plea hearing. For example, the immigration judge in removal proceedings cannot simply ask your client about the offense to determine whether it was a deportable firearms conviction. Where the categorical approach applies, the judge may evaluate your client’s conviction only by using the official criminal court records discussed above. To see when the categorical approach does not apply, so that an immigration judge is permitted to ask your client about underlying facts of a conviction, see Part F. E.

Burden of Document Production under the Categorical Approach

Who has to produce the reviewable record of conviction to prove whether the conviction under a divisible statute is a removable offense? In at least some jurisdictions, this depends upon whether the question is deportability versus eligibility for relief or admissibility. In removal proceedings, ICE always has to prove deportability. If the basis for deportability is a conviction under a divisible statute, then ICE must produce the record. In an application for relief, there is some disagreement. The Board of Immigration Appeals and some courts have held that because the applicant has the burden of proving eligibility in general, the applicant also must produce documents to show that a conviction under a divisible statute is not a bar.199 However, courts might withdraw from this rule, in light of the

197

See generally Shepard v. United States, 544 U.S. 13 (2005). See generally Taylor v. United States, 495 U.S. 575 (1990). 199 See, e.g., Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009); Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc); see also 8 CFR 1240.8(d) (applicant must prove eligibility for relief in general). 198

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2013 Supreme Court decisions.200 Similarly, an applicant for a visa, adjustment, or admission at the border has the burden of proving admissibility. This issue might be decided the same way that an application for relief is.

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There are two instances where these general rules don’t apply. First, a permanent resident who returns to the U.S. from a trip abroad is not considered to be seeking a new “admission” to the U.S., and so is not required to prove admissibility, unless he or she comes within one of the exceptions listed at INA § 101(a)(13)(C). One of these exceptions is if the person is inadmissible under the criminal grounds. In this case, the government must prove that the exception applies, so therefore the government must produce the documents to prove that a conviction under a divisible statute makes the person inadmissible.201 See Units 1 and 10. Second, in some cases, if a respondent in removal proceedings formally admits to a specific allegation in the Notice to Appear (NTA) as to which offense under a divisible statute he was convicted of, then the government may no longer needs to prove that. For example, if the NTA charged, “You were convicted under Statute A of assault with a rifle,” and your client admits the allegation in the NTA during the plea section in removal proceedings, then the person is likely deportable. (This is not the case if your client simply discussed the facts during the removal hearing, rather than formally admitted an allegation in the NTA.)202 This is one of many reasons that one should ask the government to prove its own case in removal proceedings, rather than admitting and conceding to the NTA. See Units 10 and 19. When Does the Categorical Approach Not Apply?

Conduct, Discretion, and Other Factual Inquiries. The categorical approach governs how to analyze a prior conviction. If an immigration judge is considering a factual issue as opposed to a conviction, the approach does not apply. Several grounds of removal are based on conduct even without a conviction, for example, prostitution, or the government having “reason to believe” the person was a drug trafficker. Because these are factual inquiries about conduct, the categorical approach does not apply. (However, at least one court has held that where the only evidence of the conduct is a conviction, then the categorical approach does apply.)203 In addition, a judge may consider facts in making a discretionary decision. This includes facts about a prior offense that the judge could not consider during the phase of the case when the categorical approach applied. Example 3.22d: The immigration judge must use the categorical approach to decide whether conviction of Statute B, assault with an undefined “deadly weapon,” is a 200

See briefs arguing this in the pending case, Almanza-Arenas v. Holder, at www.ilrc.org/crimes. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011), Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012). 202 See, e.g., Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011), Pagayon v. Holder, 675 F.3d 1182 (9th Cir. 2011). 203 Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006). 201

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deportable firearms offense. Because the minimum conduct to violate Statute B does not involve firearms, the judge finds that the conviction is not of a firearms offense. Later the judge must make a discretionary decision in the case. Here the judge may consider underlying facts of the conviction, or anything else relevant to discretion. Your client may need to truthfully state that the offense involved a rifle. The judge may not use that statement to find that the conviction is of a deportable firearms offense. But the judge can use that fact as a negative factor in a discretionary decision.

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Crimes Involving Moral Turpitude (Minority View). In some areas of the country, the categorical approach does not fully apply to determining whether a conviction is of a crime involving moral turpitude. Instead, immigration authorities only partially apply the approach, under Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). At this writing, the Third, Fourth, Fifth, Ninth, and Eleventh Circuit Courts of Appeals have rejected Silva-Trevino, so that the regular categorical approach applies to moral turpitude determinations there, but elsewhere SilvaTrevino is in force. See further discussion of this issue at § 3.23. “Circumstance-Specific” Factors: Fraud over $10,000, Deportable Crime of Domestic Violence. A very few criminal law phrases that appear in the INA are hybrids, with part of the phrase subject to the categorical approach, and another part the “circumstancespecific” approach. In Nijhawan v. Holder, 557 U.S. 29 (2009), the Supreme Court considered the aggravated felony defined as a crime of “fraud or deceit” in which the loss to the victim/s exceeds $10,000. INA § 101(a)(43)(M)(ii). The Court found that “fraud” and “deceit” are generic crimes, and the categorical approach must be used. However, it found that the loss exceeding $10,000 is “circumstance-specific,” meaning that it has to do with the circumstances of the particular incident of fraud or deceit. Thus the categorical approach does control proving that the prior offense involved fraud or deceit, but does not control proving the $10,000 loss. Nijhawan did not mention the domestic violence deportation ground, and did not apply its new “generic versus circumstance-specific” approach to that or any deportation ground apart from aggravated felonies. However, the government is likely to argue that the same bifurcated approach should be used there: while a “crime of violence” is a generic crime that is subject to the categorical approach, the domestic relationship is circumstance-specific and can be proved by additional evidence. Bars to Relief Such as a Particularly Serious Crime, a Violent or Dangerous Offense, or a Significant Misdemeanor. Some bars to relief that are not based on removal grounds do not necessarily use the categorical approach. Examples are a “particularly serious crime” (a bar to applying for asylum and a basis for revoking asylee or refugee status); a “violent of dangerous” offense (which creates a strong presumption against granting an application for asylum or for a waiver under INA §§ 212(h) or 209(c)): and a “significant misdemeanor” (a bar to applying for DACA). In these cases an immigration judge or officer may take some notice of the circumstances surrounding the offense.

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Exercise 3.22 -- Review Questions: (Answers in Appendix 3-A.)

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1. A generic definition is: a. The legal elements that courts and the BIA use to define a criminal law term that appears in the Immigration and Nationality Act (INA). b. The summary of what your client actually did in the crime. c. Cheaper than a prescription definition.

2. The categorical approach compares the generic definition to: a. The minimum conduct required to commit the criminal offense for which your client was convicted. b. What your client actually did to commit the offense, as shown in the record of conviction.

§ 3.23 Inadmissibility and Deportability Based on Drug Offenses A.

Conviction of an Offense Relating to Controlled Substances

Possession of 30 Grams or Less of Marijuana. A noncitizen who has one or more convictions that relate to a single incident involving simple possession of 30 grams or less of marijuana, gets important benefits.204 The person is automatically not deportable or barred from establishing good moral character.205 The person is inadmissible for a drug conviction, but for this offense alone might qualify for a waiver of inadmissibility under INA § 212(h).See Unit 6. This benefit has been extended to related offenses such as being under the influence of marijuana, and possession or being under the influence of hashish.206

204

Matter of Davey, 26 I&N Dec. 37 (BIA 2012), Matter of Martinez Espinoza, 24 I&N Dec. 118 (BIA 2009). 205 See INA §§ 237(a)(2)(B) (deportation ground exception); 101(f)(3) (good moral character). 206 See Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993), Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005), and INS General Counsel Legal Opinion 96-3 (April 23, 1996).

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Drug convictions are extremely serious. A person who is convicted of any offense “relating to” controlled substances (illegal drugs) as they are defined under federal law is inadmissible and deportable. INA § 212(a)(2)(A)(i)(II), INA § 237(a)(2)(B). This includes “any state, federal or foreign law or regulation relating to controlled substances.” Even minor offenses such as being under the influence of drugs, or possessing a small amount of drugs, will make the person inadmissible and deportable. A few exceptions or defenses are available.

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Accessory-Type Offenses. Accessory after the fact and misprision of felony are offenses that relate to helping someone else who has committed a crime. The BIA has found that these offenses do not cause deportability or inadmissibility as controlled substance convictions, even if the crime that the other person committed related to drugs. See, e.g., Matter of BatistaHernandez, 21 I&N Dec. 955 (BIA 1997). This also might apply to similar offenses that may be called “tampering with evidence” or “hindering prosecution,” depending on the elements of the offense. The accessory-type offense carries two risks, however. The BIA held that if a one-year sentence is imposed, accessory after the fact (although not misprision of felony) is an aggravated felony.207 The BIA also held that these offenses are crimes involving moral turpitude if the underlying offense was. For example, the BIA would hold that helping a person who sold drugs (which is a crime involving moral turpitude) itself is a crime involving moral turpitude, while helping someone who only possessed drugs (which does not involve moral turpitude) is not. State Drug Lists That Are Different from the Federal Lists. Many states have a state list of controlled substances (illegal drugs) that contains some drugs that do not appear on the federal controlled substance list that is used in immigration proceedings. In those states, if the record of conviction of a controlled substance offense does not identify which controlled substance was involved, there may be no proof that the drug was one that is on the federal list, and the person may not be deportable.208 You or an expert should make a careful review of up-todate lists, however. New substances often are added to the federal list, although your state list also might change. Note that for purposes of inadmissibility, the BIA’s current rule is that the person must demonstrate that the conviction was for a specific controlled substance that is not on the federal list; a vague record of conviction is not sufficient. Is There Really a “Conviction”? If So, Is It Possible to Eliminate the Conviction? Some dispositions, such as delinquency findings or pre-plea diversion, are not “convictions” for immigration purposes. See § 3.19. Assuming a conviction exists, in most jurisdictions a drug conviction can only be eliminated for immigration purposes if a criminal court judge vacates the conviction because of a constitutional or other legal error, rather than by so-called “rehabilitative relief” after completion of probation. But see next section regarding an exception that applies within the Ninth Circuit Ninth Circuit Only: Eliminating a First, Minor Drug Plea from before July 15, 2011. Only in immigration proceedings held in states within the jurisdiction of the Ninth Circuit, a state’s rehabilitative relief may eliminate the immigration consequences of a first conviction for certain minor drug offenses, if the conviction occurred before July 15, 2011.209 The qualifying offenses are: simple possession, possession of paraphernalia, arguably giving away a small

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Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), and Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). While this holding appears open to challenge (see concurrence/dissent in Matter of Espinoza), it is being aggressively enforced. 208 See Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) and federal court decisions. 209 Nunez-Reyes v. Holder, 646 F.3d 684, 692-694 (9th Cir. 2011) (en banc).

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amount of marijuana, but not use or under the influence.210 This also applies to foreign relief for a first foreign conviction of these offenses.211 The BIA will not apply this beneficial rule in immigration hearings held outside of the Ninth Circuit.212 Also, even if rehabilitative relief is obtained under state law, if the individual violated conditions of his or her probation, or received preplea diversion before the event, this relief will not be effective for immigration purposes.213 For more information see practice advisory on Nunez-Reyes at www.ilrc.org/crimes.

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At Least Avoid an Aggravated Felony. A noncitizen who is deportable or inadmissible for a drug conviction still might be eligible for some form of relief, as long as the offense is not an aggravated felony. You may be able to help your client by proving that the conviction is not an aggravated felony. See discussion of drugs and aggravated felonies in § 3.28. B.

Drug Abuse and Drug Addiction

A person who at any time after admission has been a drug addict or abuser is deportable. INA § 237(a)(2)(B)(ii). This ground of deportability does not require a conviction. It does not frequently come up in removal proceedings, but it does present the potential for deportability if the client admits to having had a drug abuse or addiction any time after admission. A person who currently is a drug addict or drug abuser is also inadmissible under the “Health” grounds. INA § 212(a)(1)(A)(iii). This issue generally arises in DHS medical examinations. The definition of drug abuse and addiction are discussed at § 3.2.

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C.

Admits Committing a Drug Offense

People are inadmissible (but not deportable) if they admit committing any drug offense— even if they were never charged or convicted. INA § 212(a)(2)(A)(i)(II). The DHS rarely charges anyone under this ground, but it is still important to understand it and warn your clients. This must be a formal admission of a crime to an officer. See Matter of K, 7 I&N Dec. 594 (BIA 1957). If a DHS officer or any other person asks a client if he or she has ever committed a drug offense, the client should stop and ask to speak with a lawyer. One court held that an admission to a government-certified medical doctor in a visa medical examination that the person had used drugs was a formal “admission” for this purpose!214 Warn clients that any admission of a crime might be used against them. For more about the rules governing admissions, see § 3.25 for admissions of crimes involving moral turpitude.

210

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (possession); Cardenas-Uriarte v. INS, 227 F.3d 1132 (BIA 2000) (lesser offense); 21 USC § 841(b)(4) (giving away a small amount of marijuana); RamirezAltamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (possession of drug paraphernalia); (Nunez-Armendariz, above (not use). 211 Dillingham v. INS, 267 I&N Dec. 996 (9th Cir. 2001) (foreign offense). 212 Matter of Salazar, 23 I&N Dec. 223 (BIA 2002). 213 Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). 214 Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

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There is an important exception to this ground. If a charge has been brought to criminal court and the result was less than a conviction (for example, charges were dropped or conviction was vacated for cause), the person cannot be charged with being inadmissible for “admitting” the offense. Thus, under these circumstances, neither a guilty plea in the original criminal case, nor even a new admission of guilt made to an immigration judge, is a basis for inadmissibility as an “admission” of a controlled substance offense.215 D.

“Reason to Believe” That the Person Is or Was a Drug Trafficker

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A person is inadmissible (but not deportable) if the DHS has “reason to believe” that he or she is or ever was a drug trafficker. INA § 212(a)(2)(C). Drug trafficking requires a commercial element: it includes participating in the sale of illegal drugs, but not merely giving them away, or having a drug for your own use. DHS does not need a conviction to have “reason to believe” the person trafficked; it may rely on any probative and substantial evidence, such as police reports, witness statements, or the person’s own statements. The DHS probably will consider evidence from a juvenile delinquency disposition of drug sales in determining there is a “reason to believe” the person is a drug trafficker. This is true even though a juvenile delinquency disposition is not a conviction. See § 3.19. Under a harsh 1999 amendment, this ground also punishes the family members of the suspected drug trafficker. The spouse, son and daughters of a person who is inadmissible for drug trafficking under this ground also are inadmissible, if they benefited financially or in any way from the trafficking within the last five years. Applicants for benefits based on family abuse—such as VAWA—should avoid volunteering information about their abusive relative’s drug trafficking, so that they do not give DHS “reason to believe” they somehow benefited.

Exercise § 3.23 -- Drug Problems: Could any of the following persons be found deportable under controlled substance grounds? Inadmissible? Why? For answers see Appendix 3-A. 1. Brad was convicted of possession of one kilogram (1000 grams) of marijuana. 2. Martin was arrested in a drug bust. He was granted diversion in California in 1996, at a time when it was not necessary to plead guilty. He completed the diversion program successfully. 3. Regina pleaded guilty to possession of heroin. The case was handled in juvenile proceedings. 4. Kwan confessed to an immigration officer that he recently sold a friend some marijuana. 215

See, e.g., Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission), Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (where expungement eliminates offense for immigration purposes, an independent admission to immigration judge is not “admission” for inadmissibility).

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5. Manuel was arrested when he tried to sell an undercover cop some drugs. He got off on a technicality and was never convicted. An enemy of his gave DHS a copy of the police report describing the incident. 6. Susan was convicted of dealing drugs.

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§ 3.24 Crimes Involving Moral Turpitude Conviction of one or more crimes involving moral turpitude might cause deportability or inadmissibility under that ground. People who have made a formal admission of a crime involving moral turpitude may be inadmissible. See INA §§ 212(a)(2)(A)(i), 237(a)(2)(A)(i), (ii). A.

What Is a Crime Involving Moral Turpitude?

Felonies and misdemeanors, or even infractions, can be CIMTs. Recidivism (committing the same offense multiple times) does not create a CIMT. Instead, each conviction is considered separately to determine whether moral turpitude is involved. State court rulings on moral turpitude that govern impeachment or taking away licenses are not controlling for immigration.216 Only immigration cases, by the BIA or federal courts, are controlling. A crucial issue is whether the categorical approach, with its “minimum conduct” test (see § 3.22), will be used to evaluate whether an offense is a CIMT, or whether courts will look at the individual’s conduct. See discussion Part B. Generally, crimes have been held CIMTs in immigration cases if they require:

1. 2. 3. 4. 5.

216

Intent to defraud Theft with intent to permanently, not temporarily, deprive the owner Intent to cause or threaten great bodily injury Serious harm that is caused by a willful act or recklessness; For some offenses, either malicious or lewd intent.

Gonzalez v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d 374 U.S. 637 (1954).

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There is no set definition of crimes involving moral turpitude (“CIMTs”), and many legal cases involve battles over which crimes qualify. Cases cite vague definitions, such as “conduct that shocks the public conscience as being inherently base, vile, or depraved.” In Matter of SilvaTrevino, 24 I&N Dec. 687, 706 (A.G. 2008), former Attorney General Mukasey stated that moral turpitude requires “a reprehensible act with some form of scienter, whether specific intent, willfulness, or recklessness.” Importantly, under this definition, a crime committed through negligence is not a crime involving moral turpitude.

Thus, murder, rape, voluntary manslaughter, robbery, residential burglary and burglary with intent to commit larceny, theft with intent to permanently deprive the owner, arson, certain aggravated forms of assault, and forgery all have been consistently held to involve moral turpitude. On the other hand, crimes that involve none of the above elements have been held not to involve moral turpitude, including involuntary manslaughter (except where criminal recklessness is an element),217 simple assault, “breaking and entering” or criminal trespass, simple battery, “joyriding,” and various weapons possession offenses.

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Remember that it is always important to look closely at the elements of the criminal offense, and not just at what the offense is called or even the statutory language. See discussion at § 3.22(B). Different states may define the same offense differently. For example, some state laws define “shoplifting” as requiring an “intent to commit theft involving an intent to permanently deprive” the owner, while others include negligently taking an item out of a store after forgetting to pay for it. The first “shoplifting” is a CIMT, and the second isn’t. An assault, including a reckless assault, that causes bodily injury, but not great bodily injury, is not necessarily a crime involving moral turpitude.218 However, recklessness that causes or risks great injury may be a CIMT. Significantly, the BIA held that “recklessly endangering another person with a substantial risk of imminent death” in violation of Ariz. Rev. Stat. § 131201(A) is categorically a crime involving moral turpitude, even though Arizona law defines reckless to encompass a subjective ignorance of risk resulting from voluntary intoxication. Matter of Leal, 26 I&N Dec. 20 (BIA 2012). The BIA relied on the fact that recklessness requires the person to be aware of and consciously disregard a substantial and unjustifiable risk that this very serious result will occur. Arizona law provides that “a person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication” meets the definition. Ariz. Rev. Stat. Ann. § 13-105(9) (2006). If your state has a reckless driving statute that has a similar definition, it will likely be held a CIMT. Some examples of common offenses that have been held not to be CIMTs include: 

Theft with intent to steal property temporarily, such as joyriding.219



A battery that involves only a minor “offensive touching.” This is true even if it is battery against a spouse220 or if it causes injury.221 The same goes for assault.

217

The BIA held that where criminally reckless conduct is an element of the offense under the penal code, involuntary manslaughter is a crime involving moral turpitude. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (third degree assault statute that involved criminal negligence but not recklessness is not turpitudinous). Recklessness may not be an element of involuntary manslaughter under some state statutes, see, e.g., Calif. Penal Code § 192(b). 218 Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA1992); reaffirmed in Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). 219 See, e.g., Matter of V-Z-S, 22 I&N Dec.1338, fn. 12 (BIA 2000); Matter of R-, 2 I&N Dec. 819, 828 (BIA 1947)(“It is settled law that the offense of taking property temporarily does not involve moral turpitude”); Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir. 2007).

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

Simple driving under the influence is not a CIMT, even with multiple convictions.222 The BIA, however, found that a conviction for an Arizona offense of driving under the influence while knowingly prohibited from driving at all (i.e., on a suspended license) is a CIMT.223 If a person was convicted of two separate offenses—driving under the influence, and driving with a suspended license—this should not be a CIMT, even if the conduct involved for both offenses arose out of the same incident.



Working as a prostitute is a crime involving moral turpitude, but at least in some jurisdictions being the customer may not be. See § 3.24.



The BIA held that accessory after the fact (helping someone who has committed a crime escape arrest, prosecution, or punishment) is a CIMT depending upon whether the crime that the other person committed is. The Ninth Circuit held that accessory never is a crime involving moral turpitude, and the BIA has not yet ruled as to how it will treat accessory in cases arising within that Circuit.224

B.

How to Analyze a Conviction: Silva-Trevino versus the Categorical Approach

For over 100 years, immigration judges used what is now called the categorical approach to evaluate whether a prior conviction was of a crime involving moral turpitude (CIMT). Under this approach, if the minimum conduct to commit an offense is not a CIMT, then no conviction of the offense is a CIMT. See § 3.22(B). However, in the controversial opinion Matter of SilvaTrevino, 24 I&N Dec. 687 (AG 2008), a former Attorney General held that the categorical approach does not fully apply to CIMTs. 220

See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (minimum conduct to commit spousal battery under Cal. PC § 243(e) is not a CIMT); Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006). 221 See, e.g., discussion of Matter of Muceros, A42 998 610 (BIA 2000) Indexed decision, www.usdoj.gov/eoir/vll/intdec/indexnet.html, in Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010). 222 Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (en banc). 223 Matter of Lopez-Meza, supra, affirmed by Marmolejo-Campos v. Gonzales, 558 F.3d 903 (9th Cir. 2009) (en banc). The Ninth Circuit later held that merely having control of a parked car, without driving it, under these circumstances is not a CIMT. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003). 224 Compare Matter of Rivens, 25 I&N Dec. 623, 628-29 (BIA 2011) (at least outside the jurisdiction of the Ninth Circuit Court of Appeals, accessory after the fact, 18 USC § 3, is a CIMT if the underlying offense is) with Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (no conviction of accessory after the fact, Cal. P.C § 32, is a CIMT).

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If there is any doubt about whether or not your client falls within the crime involving moral turpitude removal grounds, you should not concede removability; instead you should argue that your client’s crime is not a crime of moral turpitude. If possible, you should check a chart of offenses showing which involve moral turpitude, if you have such a resource available for your jurisdiction. See “For Further Information” at the end of this unit. Go beyond the statutory text to jury instructions or other materials. Criminal law can be as surprising as immigration law, and you do not want to give up a possible defense.

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At this writing, the Third, Fourth, Fifth, Ninth, and Eleventh Circuit Courts of Appeals have rejected Silva-Trevino.225 In immigration cases arising in those circuits, immigration judges and officers must apply the full categorical approach to moral turpitude determinations. Elsewhere, the Seventh and Eighth Circuit Courts of Appeals deferred to Silva-Trevino226 and other Circuit Courts of Appeals have not yet ruled. In immigration cases arising in those circuits, immigration authorities will continue to apply Silva-Trevino, unless a federal court rules otherwise or another Attorney General withdraws the decision.227 In light of the recent Supreme Court decisions on the categorical approach, advocates are hopeful that all Circuit Courts of Appeals eventually will reject Silva-Trevino,228 but that does not help immigrants now.

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Silva-Trevino held that if a criminal statute is divisible as to moral turpitude, and the record of conviction is inconclusive as to which offense the person was convicted of (see § 3.22(C)), the immigration judge may decide to go beyond the official record of conviction and hold a factual hearing to determine what the person’s conduct was. If Silva-Trevino applies in your area, consult with experts and look to Practice Advisories229 on how to limit these hearings, especially in light of recent Supreme Court decisions. One argument is that Silva-Trevino stated that its test applies only if a statute is “divisible.” Since Silva-Trevino was published, the Supreme Court clarified that there is a strict and narrow definition of when a statute is truly “divisible.” See § 3.22(C). If the statute is not divisible, the immigration judge never should get to a Silva-Trevino fact-finding hearing. To check for updates on further developments regarding Silva-Trevino, go to www.ilrc.org/crimes or www.immigrationadvocates.org.

§ 3.25 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions A.

Inadmissible for One Conviction

A person who has admitted to or been convicted of just one crime involving moral turpitude (CIMT) is inadmissible. INA § 212(a)(2)(A)(i)(I).

225

Jean-Louis v. Atty Gen., 582 F.3d 462 (3d Cir. 2009), Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012), Silva-Trevino v. Holder, --F.3d-- (5th Cir. 2014), Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013), Fajardo v. US AG, 659 F.3d 1303 (11th Cir. 2011). 226 Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010); Godoy-Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012); but see Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010). 227 Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011). 228 See discussion of this argument in Moncrieffe Practice Advisory, pp. 11-12 (May 2, 2013, by IDP, NIP/NLG, and LAC/AIC), at www.nipnlg.org. 229 See the Moncrieffe practice advisory discussed in the preceding footnote, and see “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses,” pp., at www.ilrc.org/crimes. See also Tooby, Kesselbrenner, “Living with Silva-Trevino” at www.nipnlg.org.

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B.

Petty Offense Exception to the Inadmissibility Ground

There is an important exception to this rule, called the “petty offense exception.” See INA § 212(a)(2)(A)(ii)(II). A person qualifies for this exception, and therefore is automatically not inadmissible, if three facts are true:

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1. This is the first time the person has committed a CIMT (no conviction is required here); 2. The maximum possible sentence for the offense is one year or less; and 3. The sentence imposed in the person’s case was six months or less. Recall that immigration law has its own definition of sentence. To evaluate whether a sentence of at least six months was imposed, see § 3.21. Example 3.25-a: Bonnie and Clyde are arrested. Bonnie is convicted of fraud, a CIMT. It is a misdemeanor offense that has a maximum one-year penalty. This is her first offense. She receives a three-month sentence. Bonnie comes within the petty offense exception since it was her first conviction of a crime of moral turpitude, the maximum penalty for the offense was not more than a year, and the sentence imposed was not more than six months. She is not inadmissible.

NOTE: The petty offense exception does not cure deportability. It only applies to the CIMT inadmissibility ground.

C.

Youthful Offender Exception to the Inadmissibility Ground

A young person who was convicted as an adult may qualify for the youthful offender exception. The person will not be inadmissible if while under the age of 18 he or she committed only one offense involving moral turpitude, and the commission and release from any resulting imprisonment occurred over five years before the current application. INA § 212(a)(2)(A)(ii)(I). (Note that a young person whose case was handled in juvenile delinquency proceedings does not need this exception, since those proceedings do not result in convictions in the first place.) D.

Admission of a Crime Involving Moral Turpitude

A person who formally admits committing a crime of moral turpitude is inadmissible, even if there is no conviction. INA § 212(a)(2)(A)(i). This must be a formal admission of a crime, made to an officer. See Matter of K, 7 I&N Dec. 594 (BIA 1957). The DHS does not often use this ground, but your clients should be warned. If there is any reason to think that a DHS officer may 3-123

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Clyde is convicted of robbery, a CIMT. This is his first offense. The maximum sentence for that crime is five years. No matter what sentence he gets, Clyde cannot qualify for the petty offense exception, since robbery has a maximum possible sentence of five years. Clyde is inadmissible.

question your client about some specific incident, the client should get a lawyer’s advice and go to the interview with a lawyer. If the person is alone, he or she should refuse to answer questions. Example 3.25-b: Anna is questioned by a DHS officer in a secondary inspection interview at the airport. The officer tells her that he wants to ask her questions to see if she has ever committed a theft or drug offense. Anna should refuse to answer and ask to speak with a lawyer. Note that if the behavior that was admitted was the subject of a criminal court proceeding, and if that proceeding did not result in a conviction, the person should not be found inadmissible based on an admission. For example, if a person was charged with an offense but the charges were dismissed, or was convicted and the conviction was vacated, then the person should not be found inadmissible based on admitting facts about the offense—even if he or she later makes a formal admission of the crime to an immigration judge or officer.230

Exercise § 3.25:

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Unless the example says otherwise, assume this is the first offense for all of these people. Are any of them convicted of a crime involving moral turpitude? If so, do they fit within the petty offense exception to the inadmissibility ground? For answers, see Appendix 3-A. 1. Marco was convicted of robbery, by threat of death or great bodily injury, and sentenced to two years in prison. 2. Jorge was convicted of drunk driving. 3. Sammy was convicted of drunk driving and simple assault. 4. Esther was convicted of misdemeanor check fraud for which the maximum possible sentence is six months. She received a sentence of four months.

§ 3.26 The Moral Turpitude Ground of Deportability INA § 237(a)(2)(A)(i), (ii) provides two grounds of deportability based on conviction of moral turpitude crimes.

230

See, e.g., Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission), Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (where expungement eliminates offense for immigration purposes, an independent admission to an immigration judge is not an “admission” sufficient to establish inadmissibility).

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A.

One Conviction of a Crime Involving Moral Turpitude (CIMT)

A noncitizen is deportable for having been convicted of only one CIMT if he or she committed the offense within five years after the date of admission, and if the offense had a potential sentence of one year.231

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What Is an Admission? A non-permanent resident makes a new admission each time she enters the United States with inspection. INA § 101(a)(13)(A). The definition of “admission” is different for permanent residents who travel abroad, however. They do not make a new “admission” upon their return to the United States unless they come within certain categories. See INA § 101(a)(13)(C) and § 3.1(a). Adjustment of status to lawful permanent residency is an admission that starts the five-year period—sometimes. When Is Adjustment of Status a New Admission for This Purpose? In Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), the BIA held that the date of admission for purposes of the five years is the most recent admission pursuant to which the person is in the United States. For example, for someone who has been admitted to the U.S. on a temporary visa,232 remains in the U.S. and later adjusts status to permanent resident, the admission date is the first time she entered on the temporary visa, not the later adjustment of status date.



If a noncitizen never has been admitted to the United States (e.g., entered without inspection), his or her adjustment of status to permanent resident counts as an admission for this purpose. If a noncitizen was admitted to the United States and stayed in lawful status until adjusting to permanent residency, the adjustment is not a new “admission” and therefore does not re-start the five-year clock.233



If a noncitizen was admitted to the United States, fell out of status, and then adjusted to permanent residency, the BIA held that the adjustment is not a new admission. The five years started at the time of the first admission into the U.S.234



If a noncitizen was admitted to the United States, left the country for several years, then reentered without being admitted (e.g., entered without inspection) and later adjusts status, the adjustment of status is the admission date and re-starts the five-year clock.

231

A more generous rule applies to clients whose deportation cases began before April 24, 1996. See AEDPA § 436. To be deportable, they must have been convicted of a crime committed within five years of entry and had a one-year sentence imposed, not just have a potential one-year sentence. 232 As defined in INA § 101(a)(13), for example with a nonimmigrant visa. 233 See Matter of Alyazji, above; see also Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007); Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004). 234 See Matter of Alyazji, above; Aremu v. Dep't of Homeland Sec., 450 F.3d 578 (4th Cir. 2006) and Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005).

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The BIA in Matter of Alyazji provides some concrete examples of when an adjustment of status is a new admission and when it is not. Below are some examples to consider:

Example 1: Mateo entered the United States without inspection and adjusted status under INA § 245(i). His adjustment is a new “admission,” so that if he commits a moral turpitude offense within five years of the adjustment date, he could be deportable. Example 2: Sarita entered the United States on a border-crossing card in 2001, stayed here out of status for some years, and then adjusted status to permanent residency in 2006. Is Sarita deportable if she is convicted of a CIMT that she commits in 2007? No. The date of admission is 2001 for purposes of the five years, so that she committed the offense more than five years later. In fact, this is the situation considered in Matter of Alyazji. Potential One-Year Sentence. This refers to the possible sentence for the offense, not the sentence imposed. Unfortunately, many misdemeanors have a potential sentence of one year, which would cause them to be a deportable offense. In some states a plea to attempt to commit an offense has half the original potential sentence, so if you are advising a defender about a plea, suggest that.

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B.

Two Convictions of Crimes Involving Moral Turpitude (CIMTs)

A noncitizen is deportable if she has been convicted of two or more separate crimes involving moral turpitude, not arising out of a “single scheme of criminal misconduct,” at any time after being admitted to the United States. There is no requirement that the crimes have a certain sentence or be committed at a certain time since admission. The BIA interprets the “single scheme” exception to mean essentially that the two offenses must have been committed during the same incident. See, e.g., Matter of Islam, 25 I&N Dec. 637 (BIA 2011) (multiple stolen credit card transactions in different stores on a single day are not a “single scheme of criminal misconduct”).

§ 3.27 Firearms Offenses A.

What Is a Deportable Firearms Offense?

People who are convicted of any law relating to use or possession of a firearm (gun) or “destructive device” (bomb) are deportable under INA § 237(a)(2)(C), but are not inadmissible unless the offense is also a crime of moral turpitude or otherwise comes within the criminal inadmissibility grounds in INA § 212(a)(2). The deportation ground defines firearms and destructive devices according to 18 USC § 921(a). “Firearm” includes guns or firearms, frames and receivers, and silencers. “Destructive device” includes objects such as bombs, grenades, rockets or similar devices, or parts used to convert or create firearms or destructive devices. Under the categorical approach, this is the “generic definition” of a firearm or destructive device. If the state statute that your client was convicted under contains some firearms or explosives that are not covered in this definition, the offense might not be a deportable firearms conviction. For example, some state statutes are “divisible” in that they list elements in the alternative: assault with a firearm or knife.” If ICE cannot prove from the record of conviction

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that the offense actually involved a firearm, the person is not deportable. Or, the state definition of firearm might include a stun gun, BB gun, or blowgun. This would not meet the federal definition, because that includes only explosive-powered weapons. 8 USC § 921(a)(3)(A).

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Significantly, while the federal definition of firearm specifically excludes “antique” firearms (see 18 USC §§ 921(a)(3), (a)(16)), some state firearms offenses do not exclude them. Under the categorical approach, the minimum conduct to commit such a state offense would not match the federal, generic definition of firearm, so arguably no conviction under that statute would be a deportable firearms offense. See § 3.22(B). The Supreme Court specifically discussed this argument in Moncrieffe v. Holder. If your state law includes antique firearms, consider possible defenses described in Practice Advisories.235 B.

What Is a Firearms Aggravated Felony?

Possession of a firearm by an addict or an undocumented alien (where the criminal statute lists unlawful immigration status as an element of the offense) also is an aggravated felony. Possession of certain dangerous weapons such as a short-barreled rifle, a sawed-off shotgun, machine gun, or silencer is an aggravated felony if the record shows that one of these weapons was involved in the offense.

235

See “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses,” pp. 14-15 (by ILRC, May 2013) at www.ilrc.org/crimes, and Moncrieffe Practice Advisory, pp. 12-13 (May 2013, by IDP, NIP/NLG, and LAC/AIC), at www.nipnlg.org. 236 Matter of Vasquez-Muniz, 22 I&N 1415 (BIA 2002). 237 See Bautista v. AG of the US, --F.3d-- (3d Cir. Feb. 28, 2014). 238 See discussion of this under California law at Brady, “Moncrieffe and Olivas-Motta,” above, and see U.S. v. Pargas-Gonzalez, 2012 WL 424360, No. 11CR03120 (S.D. Cal. Feb. 9, 2012) (citing U.S. v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996) (reversing conviction under § 922(g)(1) where defendant owned a firearm but was not in possession at the alleged time)).

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Some firearm offenses are also aggravated felonies. Aggravated felonies under immigration law are discussed in the next section. Trafficking (selling) firearms or “destructive devices” (guns) is an aggravated felony. INA § 101(a)(43)(C). So is a state conviction of an offense that is analogous to a federal felony firearms offense. INA § 101(a)(43)(E). For example, the common offense “possession of a firearm by a felon” is an aggravated felony if the state statute has the same substantive elements as the federal offense.236 There are at least three defenses to this. First, the Third Circuit held that a state offense was not sufficiently analogous to the federal offense because the state crime lacked the federal “jurisdictional” element, e.g., crossing state lines.237 Second, if your state offense includes being a felon who “owns” rather than “possesses” a firearm or ammunition, some courts have held that this is not sufficiently analogous to the federal offense.238 Third, as always, if the definition of firearm or destructive device under your state law includes weapons that are not in the federal definition, this may be a defense.

A firearms offense that involves violence may meet the definition of a crime of violence in 18 USC § 16, and also may be a crime involving moral turpitude. A conviction for possessing without registering any of the listed dangerous weapons described above, such as short-barreled rifle, might or might not be held a crime of violence.239 If a sentence of a year or more is imposed, a crime of violence is an aggravated felony. INA § 101(a)(43)(F).

§ 3.28 Aggravated Felonies Aggravated felony is defined at INA § 101(a)(43). A person convicted of an aggravated felony after admission is deportable. INA § 237(a)(2)(A)(iii). Although there is no aggravated felony ground of inadmissibility, a person who is both convicted of an aggravated felony and removed is inadmissible for twenty years under INA § 212(a)(9)(A)(i). A.

Punishments for Conviction of an Aggravated Felony

Conviction of an aggravated felony brings terribly harsh immigration consequences. For example, an aggravated felon is: 

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      

Ineligible for release on bond and subject to mandatory detention during removal proceedings under INA § 236(c); Ineligible for asylum, although the person might be eligible for “restriction on removal” (also called withholding of removal) or the protections of the Convention Against Torture; Ineligible for § 240A cancellation of removal; Can be deported without a hearing before an immigration judge, if the person is not a permanent resident; Ineligible for a § 212(h) waiver of inadmissibility, in some cases. (This applies to some permanent residents. See Unit 6.) Once removed from the U.S. is permanently inadmissible and barred from returning to the U.S., although a discretionary waiver can be applied for. Permanently barred from establishing good moral character if the conviction was on or after November 29, 1990, and If removed and returns to the U.S. without permission, potential federal prosecution for illegal re-entry and a tough prison sentence under 8 USC § 1326(b)(2). Example: Marco has been a permanent resident for 20 years and has six U.S. citizen children. He is convicted of an aggravated felony, possession for sale of marijuana. It is extremely likely that he will be deported. The aggravated felony conviction bars him from applying for “cancellation of removal” for long-time permanent residents.240

239 240

See U.S. v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991). See ILRC’s manual, Remedies and Strategies for Permanent Resident Clients.

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IMPORTANT NOTE: Just because a crime is an aggravated felony does not necessarily mean that it will make a person inadmissible. This is because there is no specific “aggravated felony” ground of inadmissibility. Whether an aggravated felony will make someone inadmissible depends on whether the particular aggravated felony falls within one of the grounds of inadmissibility, e.g., crime involving moral turpitude. This may provide important defenses to lawful permanent residents who are deportable, but are not inadmissible.

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WARNING: Twenty-Year Prison Sentence for Illegal Re-Entry. A person who is convicted of an aggravated felony and removed, and then returns illegally to the United States can be sentenced to up to twenty years in federal prison just for the illegal re-entry. 8 USC § 1326(b)(2). An aggravated felony can be an offense as minor as selling $10 worth of marijuana. Warn your clients that they can encounter this severe penalty just for returning to the United States to join family or resume their job after being removed!

B.

What Is an Aggravated Felony?

The definition of aggravated felony is found at INA § 101(a)(43), which is a list of dozens of common-law terms and references to federal statutes. It covers a broad range of crimes, including some that might not appear to some to be especially egregious, such as non-violent misdemeanors. In case of doubt, you should read § 101(a)(43) carefully, and ask an expert for advice if necessary. Note that the person must be convicted of the aggravated felony to come within the definition. Post-conviction relief for legal or constitutional error will remove the penalties. (Post-conviction relief refers to reopening and vacating or making changes to the initial criminal conviction. Usually this is done by a criminal lawyer, and requires an assessment to determine if there were any errors in the initial conviction process or grounds to change the original disposition. See § 3.31 of this unit.) As a basic overview, here is a summary of the listed aggravated felony offenses in the INA:   

Murder Rape Sexual abuse of a minor (Warning: this has been held to include statutory rape in some jurisdictions, a common offense that may be punished as a misdemeanor)

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What we may think of as relatively minor crimes—for example, selling $10 worth of marijuana, shoplifting with a one-year suspended sentence, or “smuggling” one’s baby sister across the border illegally—are aggravated felonies. Advocates must be very careful in advising clients. For example, many people have been arrested right in their naturalization interview, upon renewal of their green card, or re-entry to the U.S. after a trip abroad because they had an old conviction for an offense that turned out to be an aggravated felony.

        

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 



Any offense generally considered to be “drug trafficking,” plus certain federal drug felony offenses and state statutes that punish exactly the same act (state “analogues”) (see further discussion at Subsection C, below) Trafficking in firearms, plus several federal crimes relating to firearms or destructive devices (e.g., bombs, grenades) and their state analogues (see § 3.24 above) Money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000 Fraud, deceit and tax evasion, including welfare fraud, if the loss to the victim or government exceeds $10,000 A “crime of violence” with a sentence imposed of at least one year, if it was not a “purely political offense” Theft, burglary, or receipt of stolen property with a sentence imposed of at least one year Any alien smuggling, harboring or transporting, except for a first offense in which the person smuggled was the parent, spouse or child Using or creating false documents with a sentence imposed of at least one year, except for a first offense committed for the purpose of aiding the person’s spouse, child or parent Commercial bribery, forgery, trafficking in vehicles with altered numbers with a sentence imposed of at least one year Bribery of a witness, perjury, with a sentence imposed of at least one year Various offenses such as demand for ransom, child pornography, RICO offenses punishable with a five year sentence, running a prostitution business, slavery, offenses relating to national defense, sabotage or treason, revealing the identity of an undercover agent, and failure to appear to serve a sentence if the underlying offense is punishable by a term of five years, or to face charges if the underlying sentence is punishable by two years, and Attempt or conspiracy to commit any of these offenses.

Note that driving under the influence is not an aggravated felony,241 but at various times both houses of Congress have passed bills to make a third drunk driving conviction an aggravated felony, if a sentence of a year or more is imposed. This might become law in the future. Categorical Approach. The beneficial categorical approach, where the person is evaluated based on the minimum conduct to commit an offense, applies to the great majority of aggravated felonies. See § 3.22. There are many cases finding that a particular state offense is not an aggravated felony under the categorical approach. Be sure to do thorough research into this, or refer the case to an expert who will. Sentence of One Year. You can see that some offenses are aggravated felonies only if a sentence of a year or more has been imposed, while others are aggravated felonies regardless of the sentence. For example, a burglary offense is an aggravated felony only if a sentence of a year

241

It is not a crime of violence because it can be committed by negligence. Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004). Federal courts have found that even reckless conduct is not a crime of violence, unless the recklessness inherently creates the risk that violence will be used.

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or more has been imposed, whereas murder, drug trafficking, and sexual abuse of a minor are aggravated felonies regardless of the sentence. For definition of sentence, see § 3.21.

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Misdemeanors, Foreign Convictions. Being convicted of a misdemeanor as opposed to a felony does not automatically protect against aggravated felon status. See, e.g., Matter of Small, 23 I&N Dec. 448 (BIA 2002) (sexual abuse of a minor). Many misdemeanors are aggravated felonies. Note, however, that a misdemeanor is subject to a different, more advantageous definition of a “crime of violence.” See § 3.29. Both state and federal convictions can be aggravated felonies, as well as foreign convictions if the person completed the resulting imprisonment within the last fifteen years. INA § 101(a)(43) (paragraph following (43)(U). Effective Dates. These offenses are held to be aggravated felonies, regardless of the date of conviction. However, effective dates do apply to some consequences of an aggravated felony. For example, to be a permanent bar to establishing good moral character as an aggravated felony, the aggravated felony conviction must have occurred on or after November 29, 1990.

Exercise 3.28 -- What is an Aggravated Felony?

1. Mary was convicted of her third driving under the influence conviction and is given a one-year suspended jail sentence. 2. Sam was convicted of possession for sale of marijuana. 3. Felix was convicted of assault with a deadly weapon and sentenced to six months. 4. Hans was convicted of two offenses for assault with a deadly weapon. He was sentenced to six months on one and 364 days on the other. 5. Franz was convicted of one burglary offense and sentenced to one year. 6. Gina was convicted of alien smuggling when she helped bring her baby sister illegally into the United States 7. Jose is 19. He was convicted of misdemeanor statutory rape because he had sex with his 16year old girlfriend.

C.

More on Drug Offenses and Aggravated Felonies

Many drug offenses—whether a state, federal, or foreign conviction—can be held to be aggravated felonies under either of two tests. See INA § 101(a)(43)(B). First, any “illicit trafficking” in a controlled substance is an aggravated felony. This requires some sort of commercial dealing, for example sale or possession for sale.

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Which of these persons appears to be convicted of an aggravated felony? Why or why not? Use the above list, or look up INA § 101(a)(43). Answers are Appendix 3-A.

Second, a state offense that is analogous to certain federal drug felonies is an aggravated felony. Some of these federal felonies don’t have to do with trafficking. For example, even a conviction for simple possession of a controlled substance can be an aggravated felony if (a) it involves flunitrazepam (a date-rape drug) or (b) it is a second possession offense that is punished as a recidivist drug offense.242 But apart from those, a conviction for simple possession is not an aggravated felony, because it neither involves trafficking, nor is it analogous to a federal drug felony.243 The reasoning here is that only where certain findings are made, a conviction of a second or subsequent simple possession offense can qualify as a felony under federal law. Example: Carla is a permanent resident charged with selling $40 of marijuana and a state felony for possessing cocaine. If she is convicted of the marijuana sale, she will have an aggravated felony conviction. This will make her immigration case almost impossible. If she is convicted of simple possession, it will not be an aggravated felony. This gives her a better chance to apply for relief in immigration court.

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Many state drug offenses that don’t involve trafficking are not analogous to federal offenses and so will not be held an aggravated felony under any circumstances. There is not a federal offense that covers being or driving under the influence of an illegal drug, being present in a place where drugs are used, or transporting drugs for one’s personal use. Conviction of these offenses may make the person inadmissible or deportable under the controlled substance grounds, but should not be an aggravated felony, even if the state offense is a felony. Offering and Soliciting. The Ninth Circuit held that the offense of soliciting (asking for) or offering a drug sale is not an aggravated felony. See, e.g., United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001). Outside the Ninth Circuit, wherever a conviction is or might be for soliciting, offering, or other actions other than selling or conspiring or attempting to sell, advocates should refer the case to an experienced attorney who may want to use this argument to prove that the offense is not an aggravated felony. Transportation. Transporting (carrying around) a drug for personal use also ought not to be considered an aggravated felony. It is not “trafficking” in the general sense, and there is not an analogous federal offense.

BEWARE OF ALL DRUG CHARGES! If your client is arrested and charged with a drug offense (or any offense), get in touch with the client’s defense lawyer yourself and find someone very expert in this field to advise the criminal lawyer.

242 243

Carachuri-Rosendo v. Holder, 560 U.S. 379 (2010). Lopez v. Gonzales, 127 S. Ct. 625, 630 (2006).

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D.

An Aggravated Felony Must Be a Conviction

A person must be convicted of an aggravated felony to suffer penalties. State and federal convictions are aggravated felonies, as are foreign convictions if the person completed the resulting imprisonment within the last fifteen years. Vacating the conviction or other appropriate postconviction relief that removes the judgment for constitutional or other legal error will remove the conviction for immigration purposes. See § 3.31.

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§ 3.29 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment The “domestic violence” deportation ground covers different forms of domestic violence or child abuse. See INA § 237(a)(2)(E). It applies to a noncitizen who has been convicted under any state or federal law of a “crime of domestic violence” or stalking, or who has been found by a civil or criminal court to have violated certain portions of a domestic violence protection order. A limited waiver of deportability is available for victims who also are convicted of abuse at INA § 237(a)(7). It also makes deportable a person who has been convicted of a crime of child abuse, neglect, or abandonment. In all cases the conviction, or the violation of the protection order, must have occurred after admission and after September 30, 1996.

Note that this is a deportation ground only, and there is no “domestic violence” ground of inadmissibility. However, because some domestic violence or child abuse convictions also might constitute crimes involving moral turpitude, they could cause inadmissibility under that ground. A.

Conviction of a Crime of Domestic Violence

The domestic violence deportation ground defines a “crime of domestic violence” as a crime of violence (as defined at 18 USC § 16) that is committed against a current or former spouse, co-parent of a child, person who has cohabitated as a spouse, or anyone who is protected under state, local, federal or tribal domestic or family violence laws. Because the federal definition of domestic violence incorporates local domestic violence laws, consult the relevant laws to see what other victims may be included. For example, some states protect current or former dating relationships, or anyone who lives in the household with the defendant, regardless of relationship. The offense must meet the definition of a “crime of violence” at 18 USC § 16, under the categorical approach. However, courts have held that the offense does not need to have the

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These kinds of convictions can have other immigration consequences beyond the domestic violence deportation ground. Conviction of rape or sexual abuse of a minor is an aggravated felony, regardless of sentence or felony/misdemeanor classification. An offense that is a crime of violence is an aggravated felony if a sentence of a year or more is imposed. See § 3.28. A conviction of spousal abuse may also be a crime of moral turpitude if the offense penalizes more than offensive touching, and child abuse might involve moral turpitude if committed with more than negligence.

domestic relationship as an element: it may be an offense with no such element (for example, assault with a deadly weapon) as long as there is sufficient proof that the victim and defendant had the required domestic relationship under state law. There are three main defenses against this deportation ground: The Offense Is Not a “Crime of Violence.” Crime of violence is defined at 18 USC § 16. Unusually in immigration law, there are different standards depending upon whether the offense is a felony or a misdemeanor. For a misdemeanor to be a crime of violence (COV) it must have as an element the use, or attempt or threat to use, purposeful, violent force. 18 USC § 16(a). A misdemeanor offense that can be committed with “offensive touching,” which includes many simple or common law assault and battery offenses, is not a crime of violence under this test. This is true even if the offense is committed against a spouse.244 (This may be true of a felony as well, although as discussed below, the standard is more complex.) When considering whether an offense is a crime of violence, look to cases and jury instructions. Do not merely look at the title, or even the language of the statute!

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Example: You see that the statutory definition of a battery in your state is a “willful and unlawful use of force or violence upon the person of another.” Reading this, it would seem that the offense is a crime of violence, because it has force or violence as elements. However, the jury instructions for this offense show force and violence are synonymous, and that the “slightest touching can be enough to commit a battery if it is done in a rude or angry way.… The touching does not have to cause pain or injury of any kind.” The instructions cite cases showing this. (If there were no jury instructions, you could find this out by researching criminal cases yourself.) Based on this, you can be sure that this misdemeanor is not a crime of violence, despite the statutory language. This is true even if in your client’s case, actual violence was used.245 See § 3.20. A felony can qualify as a crime of violence under a different test, which is an offense that by its nature carries a substantial risk that purposeful, violent force will be used in the course of committing the offense. 18 USC § 16(b). This is somewhat more difficult to predict. For example, the Supreme Court held that this includes residential burglary, which has no element of use of force, because of the inherent danger that the burglar would encounter the homeowner and use violent force.246 A crime of violence must carry the risk that purposeful, aggressive, violent force will be used; a risk that injury would be caused (e.g., by reckless driving) is not enough. 244

See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003). 245 See, e.g., text of Cal. PC § 242, 243(e) and jury instructions at 1-800 CALCRIM 841. 246 James v. United States, 127 S.Ct. 1586 (2007).

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Negligent actions are not crimes of violence, and most circuits have held that reckless actions are not—even if they result in injury.247

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There Is Not Sufficient Proof That the Offense Was Directed against a Protected Person. First, identify who is a protected person under the law of the jurisdiction where the conviction occurred. For example, some states protect current or former dating relationships, or anyone who lives in the victim’s household. If the offense was committed against a victim who does not have a protected relationship, it is not a deportable crime of domestic violence. This is true even if the offense is a crime of violence. (If you are fortunate enough to be advising a criminal defense lawyer, see if it is possible for the person to plead to a victim who clearly is not protected, for example the new boyfriend or a police officer.) Also, does the record establish that the victim had the requisite domestic relationship with the defendant under state domestic laws? Note that while some courts have said that only the documents available under the categorical approach may be used to prove the relationship (see § 3.22), the government may argue that any admissible proof can be used.248 In case of doubt, refer the person to an expert attorney and warn him or her not to approach immigration authorities.

PRACTICE TIP: A crime of domestic violence needs to both meet the definition of a crime of violence and be committed against a protected victim under statute. As long as the noncitizen pled to an offense that is not a crime of violence or that was committed against a victim that does not have the required domestic relationship, the offense cannot be termed a domestic violence offense, triggering deportability.

B.

Finding of Violation of a Protective Order

A person can become deportable under this ground without a conviction, as long as a civil or criminal court judge finds that the person violated certain provisions of a domestic 247

This is following Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligent drunk driving is not a crime of violence even if it results in injury). 248 See discussion of United States v. Hayes, 555 U.S. 415 (2009) in Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010).

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Third, Was the Offense Committed against Property and Not a Person? Where the offense was a crime of violence committed against property as opposed to a person, it should not be a crime of domestic violence. The deportation ground refers to a crime of violence “committed against a person.” INA 237(a)(2)(E)(i). For example, a conviction for slashing a car tire might be a crime of violence under 18 USC § 16, depending upon the elements of the offense, but it would not be held a deportable crime of domestic violence because the violence was against property and not a person.

violence protection order (e.g., a Temporary Restraining Order). INA § 237(a)(2)(E)(ii). The violation must take place after admission and after September 30, 1996. Advocates should carefully review the definitions in this provision. First, the deportation ground provides that “protection order” means any order issued for the purposes of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions). The order may be issued by a civil court, including in family or dependency proceedings, and probably juvenile delinquency proceedings. An order not relating to domestic violence—e.g., a gang injunction or an order to not go to a place of business—should not qualify. Second, a court must find a violation of a part of the order “that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.…” The BIA and courts have found that any violation of these provisions, even one that does not involve violent or threatening acts, will suffice to trigger deportation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). Thus, any violation of a “stay away” order (requiring one person to keep a certain distance away from another) can cause deportability

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Example: Martin has a stay-away order directing him to stay 100 feet away from his exwife’s house. After a visit with their child, he walks the child up the driveway toward the house, rather than dropping the child at the curb. A court finds that this violates the stayaway order. Martin is deportable for violating a section of a protection order that is intended to prevent threats, violence, or repeated harassment. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009). To form the basis of removal, the government will have to prove, by clear and convincing evidence, that a judge found that this type of provision of a domestic violence protection order was violated. There is no parallel inadmissibility ground to INA § 237(a)(2)(B)(ii). C.

Conviction for Stalking

A noncitizen who, after admission to the United States and on or after September 30, 1996, was convicted of “a crime of stalking,” is deportable under the domestic violence ground. INA § 237(a)(2)(E)(i). Unlike the domestic violence and child abuse provisions, this ground of deportation need not be committed against a victim protected under domestic violence laws. In Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), the BIA held that stalking requires the following elements: “(1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death,” and (4) either the individual was actually placed in fear of injury or death, or a reasonable person under the circumstances would have been, or both. In regards to the fourth element, the BIA found it unnecessary to decide the particulars of the element because the California stalking offense at

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issue (as well as the federal stalking statute) required that both the subjective and objective requirement be met for a conviction. D.

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Conviction of a Crime of Child Abuse, Neglect or Abandonment

A noncitizen is deportable for a conviction of a crime of child abuse, child neglect, or child abandonment, if the conviction occurred after admission and after September 30, 1996. INA § 237(a)(2)(E)(i). In Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512, 513 (BIA 2008), the BIA created a very broad definition of child abuse. It includes an offense against a person under age 18, by any person even if the person is not a parent or caregiver. It includes:

The BIA stated that this definition also includes conviction of at least some child endangerment offenses, which involve putting a child at risk of harm, even if the child is not harmed. The BIA stated that it will decide which child endangerment provisions are child abuse on a state-by-state basis. It found that recklessly placing a child in a situation where there was a reasonable probability that his life or health would be endangered, under Colorado Rev. Stat. 186-401(7)(b)(I), is a crime of child abuse. Matter of Soram, 25 I&N Dec. 378 (BIA 2010). Advocates should assume ICE will assert that almost any offense that has as an element that the victim was under age 18 is a crime of child abuse. In addition, the Board has held that an age-neutral offense (for example, battery with no requirement that the victim is a minor) can be charged as child abuse, if the record of conviction shows that the victim was under age 18. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). However, advocates have a strong argument that an age-neutral statute cannot be a crime of child abuse, because that violates the categorical approach’s requirement that the “minimum conduct to violate the statute” must meet the definition in the removal ground.249

249

See § 3.22(B) and see argument in “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Arguments” at www.ilrc.org/crimes.

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“any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.”

§ 3.30 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration A.

Prostitution and Commercialized Vice

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People who are coming to the United States to engage in prostitution or who within the last ten years have “engaged in prostitution” are inadmissible under INA § 212(a)(2)(D)(i). While no conviction is required for this finding, one or more convictions for prostitution will serve as evidence. This includes prostitutes and people who work with them in the business, but not customers.250 This provision will apply even if the person engaged in prostitution in a country where it is legal. 22 CFR § 40.24(c). The inadmissibility ground also reaches people who benefit from the proceeds of prostitution, and who come to the U.S. in order to engage in other forms of commercialized vice. A single act of prostitution does not amount to engaging in prostitution under this provision.251 Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain.252 Prostitution is limited to providing sexual intercourse, not other lewd acts, for a fee. At least one court held that if the only evidence of “engaging in prostitution” is a criminal conviction, then the conviction must be evaluated under the categorical approach, so that a statute that penalizes “lewd act” for a fee cannot be evidence of engaging in prostitution.253 Being inadmissible under the prostitution ground is a bar to establishing good moral character. INA § 101(f)(3). In addition, working as a prostitute constitutes a crime involving moral turpitude.254 Solicitation of a prostitute by a customer does not fall within the prostitution inadmissibility ground. The BIA has not yet decided if soliciting a prostitute is a crime involving moral turpitude, although the Ninth Circuit has held that it is.255 A waiver of inadmissibility (for prostitution or moral turpitude) might be available under INA § 212(h). A federal conviction of 8 USC §§ 1185 or 1328 for importing prostitutes or running a prostitution business involving noncitizen prostitutes is a ground of deportability. INA § 237(a)(2)(D)(iv). 250

Matter of R.M., 7 I&N Dec. 392 (BIA 1957). Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of T-, 6 I&N Dec. 474 (BIA 1955). 252 Matter of Gonzalez-Zoquiapan, above. See also State Department regulations at 22 CFR § 40.24(b). 253 See above footnote, and see Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006)(categorical approach applies where the only evidence of prostitution is a criminal conviction). 254 Matter of Gonzalez-Zoquiapan, above. 255 See Matter of Gonzalez-Zoquiapan, above; Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (a conviction for soliciting a prostitute as a customer is a crime involving moral turpitude). 251

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Conviction for certain offenses involving running a prostitution business is an aggravated felony, regardless of whether the prostitutes are noncitizens. INA § 101(a)(43)(K). It appears that the definition of “prostitution” applies here, so arguably the statute prohibiting this must relate to offering sexual intercourse, and not just a lewd act, for a fee.256 B.

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Total Sentence of Five Years for Two or More Convictions

People are inadmissible if they have been convicted of two or more offenses of any kind, and the total time of the sentences imposed (ordered) for those convictions add up to five years or more. For example, a person who was sentenced to two years for one conviction and four years for another would be inadmissible regardless of how much time he or she actually served. INA § 212(a)(2)(B). For the definition of sentence imposed, see § 3.21. C.

Traffickers in Persons

If the government knows or has “reason to believe” an individual has been involved in “severe” forms of human trafficking, the individual is inadmissible under INA § 212(a)(2)(H)(I). “Severe” trafficking refers to sex trafficking of persons under the age of 18, or trafficking of any persons who are forced by the traffickers to work as indentured labor or slaves. See discussion of these definitions, which also are used in T visas, at Unit 16.

Federal Conviction for High-Speed Flight from an Immigration Checkpoint. This conviction is a ground of deportation under INA 237(a)(2)(A)(iv).

§ 3.31 Clearing Up a Criminal Record In some cases, it is possible to erase a criminal conviction and clear up the person’s record. We have already discussed dispositions that do not equal a conviction in the first place, such as treatment in juvenile court or a pre-plea diversion. See § 3.19. This discussion is different: it concerns how to get rid of a criminal conviction once you have one. Practitioners often refer to this process as post-conviction relief. The discussion is not very detailed, since the law of each state is different, and state laws are different from federal law. You will need to research the law in your state. But you can keep a few principles in mind.

256

See, e.g., Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011).

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Money Laundering. A person whom the government has reason to believe has engaged or plans to engage in certain types of money laundering is inadmissible. INA § 212(a)(2)(I).

A.

Expungement and Other “Rehabilitative” Relief Usually Have No Effect on Immigration Consequences.

Different states provide different legal ways that a person can clean up his or her criminal record and “erase” a prior conviction even if there was no legal error in the conviction, and often based on the person successfully completing probation or meeting other requirements. These are known as forms of “rehabilitative relief.” In 1999 the BIA reversed 50 years of Attorney General precedent and held that “expungements” and other rehabilitative relief do not eliminate a conviction. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). See § 3.19.

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Many of your clients may have been advised in the past (or even recently) that an expungement will help them, or that deferred adjudication is safe because it is not a “conviction.” Be sure to advise all clients about this. With few exceptions discussed below, a person who was charged, and at some point pled guilty, has a conviction for immigration purposes—even if the state court or state law says that there is no conviction because the plea later was withdrawn pursuant to an expungement, deferred adjudication program, or diversion program. Exception: DACA. One exception to this rule is that CIS has stated that they may consider an expungement to eliminate a conviction in applications for Deferred Action for Childhood Arrivals (DACA). While an expunged conviction will not bar DACA relief, CIS reserves a lot of discretion in all DACA applications. Juvenile adjudications and expunged convictions might factor in the discretionary decision even though they are not criminal bars to eligibility. See Unit 16. Exception: Some Drug Offenses in the Ninth Circuit. In immigration proceedings arising within the Ninth Circuit, a plea to a single, minor drug offense from before July 15, 2011 might be eliminated by expungement or other rehabilitative relief.257 The BIA will not apply this beneficial rule in immigration hearings held outside of the Ninth Circuit.258 See discussion at § 3.23. B.

A Conviction Can Be Vacated or Erased by an Extraordinary Writ; This Requires the Help of an Attorney

Most courts will find that a conviction that is vacated for cause (because of constitutional or other legal error in the conviction) no longer exists for immigration purposes. These errors could include that your client’s constitutional rights were violated, when they were not properly warned of the real immigration consequences of a plea bargain, or other errors. The U.S. Supreme Court held that the Sixth Amendment of the U.S. Constitution requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010). However, even if your client’s rights were violated, it still may be difficult for them to find a federal or state vehicle (procedure) for challenging 257

See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) and see ILRC’s Practice Advisory on the effect of the Nunez-Reyes decision, available at www.ilrc.org/crimes. 258 Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

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the conviction. Writs of habeas corpus, writ of error coram nobis, motions to vacate, and other motions can be used to vacate convictions depending upon the jurisdiction and circumstances.

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Immigration authorities generally recognize that this procedure eliminates any conviction, including for a drug offense. However, the Fifth Circuit Court of Appeals has held that a vacated conviction still exists for immigration purposes.259 Vacating a conviction is an expensive and involved process. If your client has a drug conviction or any other convictions where there is no immigration solution you may want to refer him or her to a pro bono program or a private criminal attorney who is expert at criminal law to see if the conviction can be vacated as soon as possible. Do not delay in referring the case to such an expert! Because there are often strict timelines for obtaining post-conviction relief (for example, sometimes the convicting jurisdiction has to possess actual or constructive custody over the person) and this process can take some time, it must be pursued as soon as possible.

§ 3.32 The Good Moral Character Requirement

Good moral character has two components. First, the applicant must avoid being automatically disqualified by coming within one of the statutory bars to good moral character listed in INA § 101(f). Second, the applicant must convince the judge or examiner to make a discretionary decision that he or she really is a person of good moral character. INA § 101(f) provides that an applicant is statutorily barred from establishing good moral character if he or she comes within many of the inadmissibility grounds relating to crimes (e.g., moral turpitude, drug conviction or “reason to believe” the person is a drug trafficker, alien smuggling, prostitution, polygamy.) The person is permanently barred from establishing good moral character if he or she has been convicted on or after November 29, 1990 of an aggravated felony. In addition, a person is barred who has actually spent 180 days in jail for one or more convictions during the period for which good moral character must be shown is barred. Habitual drunkards and persons who have provided false sworn testimony to obtain immigration benefits also are barred. In addition to the statutory bars to showing good moral character, there are “discretionary bars” which may result in a failure to establish good moral character. At the end of INA § 101(f) 259

Renteria-Gonzalez v. DHS, 310 F.3d 825 (5th Cir. 2002); Gonzalez-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007).

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An applicant must establish “good moral character” in order to qualify for several forms of relief, including cancellation of removal for non-lawful permanent residents under INA § 240A(b), naturalization to U.S. citizenship, certain benefits under the Violence Against Women Act (VAWA), one of the forms of voluntary departure, and registry. Depending upon the relief sought, the person must prove good moral character for a certain period of time (three or five years for naturalization, ten years for cancellation of removal, etc.)

there is a “catch-all” provision which provides that a person who does not fall into a statutory ground enumerated can still be found to lack good moral character. While a false claim to U.S. citizenship, for example, is not listed as a statutory bar, such an act may indicate a lack good moral character under this provision.260 Federal regulation at 8 CFR § 316.10 provides a list of specific acts that can lead to a finding of a lack of good moral character under this catch all category. This includes willful failure to pay child support, commission of adultery where a “viable” marriage was destroyed as a result, and committing unlawful acts for which a person is not convicted. However, this regulation applies specifically to naturalization. In cancellation cases, the immigration judge may consider any negative factors in your client’s case as barriers to establishing good moral character.

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In determining whether the person has good moral character, the “standards of average citizens” in the community a person resides are applied. Since “community standards” change over time, so does the definition of good moral character. Documentation of what appears to be a person’s plain and ordinary life can be great evidence of good moral character. For example, letters from work supervisors and copies of paycheck stubs can show a steady, hardworking, productive member of society. In addition, letters from volunteer supervisors and teachers can also be used to document good moral character. Good moral character in cancellation of removal cases for permanent residents is discussed more fully in Unit 11. Special requirements for good moral character to qualify for naturalization are discussed more fully in Unit 17.

FOR FURTHER GENERAL INFORMATION, see: National Lawyers Guild, Immigration Law and Defense (West Group) Chapters 5, 6 American Immigration Law Association (AILA), Kurzban’s Immigration Law Sourcebook (www.aila.org, click on “Publications”) FOR UPDATES: American Immigration Council (AIC), Legal Action Center’s Litigation Clearinghouse Newsletter (www.americanimmigrationcouncil.org) National Immigration Law Center, Immigrants Rights Update (newsletter published eight times a year that covers changes in immigration law, regulation, and government policy, free of charge by subscribing via email at www.nilc.org by clicking on “Publications”) FOR INFORMATION ON CRIMINAL ISSUES, see: Brady et al, Defending Immigrants in the Ninth Circuit (formerly California Criminal Law and Immigration) (Immigrant Legal Resource Center, www.ilrc.org) Kesselbrenner and Rosenberg, Immigration Law and Crimes (West Group) Tooby, Criminal Defense of Immigrants; Aggravated Felonies; Crimes Involving Moral Turpitude; Safe Havens (www.nortontooby.com) 260

Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008).

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Immigration Advocates Network (IAN), Immigration and Crimes Resource Library (www.immigrationadvocates.org; note, membership required)

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FOR INFORMATION ON PUBLIC CHARGE AND AFFIDAVIT OF SUPPORT, see: National Immigration Law Center and Catholic Legal Immigration Network, Inc., Affidavits of Support and Sponsorship Requirements: A Practitioner’s Guide (National Immigration Law Center (NILC); www.nilc.org) National Immigration Law Center, Guide to Immigrant Eligibility for Federal Programs, 4th edition (www.nilc.org, click on “Publications”) FOR INFORMATION ABOUT HEALTH GROUNDS, see: Center for Disease Control (www.cdc.gov) “The Technical Instructions for Medical Examiners of Aliens” (www.cdc.gov) To order the NILC publications, fill out a Publications Order Form at www.nilc.org and then send it along with a check to NILC Publications, 3435 Wilshire Blvd., Suite 2850, Los Angeles, CA 90010 or call 213/639-3900.

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APPENDIX 3-A ANSWERS TO EXERCISES

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Exercise § 3.2 -- Health Grounds of Inadmissibility 1. The civil surgeon (CIS or U.S. consulate approved doctor) might find Margaret inadmissible or deportable as a drug “abuser” under INA § 212(a)(1)(A)(iii). However, to do this, the civil surgeon must adhere to the DSM criteria defining drug abuse. To fight this conclusion, Margaret might attempt to bring medical evidence to rebut it. 2. If Teresa’s religion forbids vaccinations, Teresa can provide evidence that the vaccination is contrary to her religion and avoid the inadmissibility ground for failure to provide proof of vaccines. Tony cannot avoid vaccinations simply because he is afraid of needles. 3. Earlier Francois might have been charged with being inadmissible for having a “mental or physical condition” that posed a threat to self or others because he wanted to kill himself. Francois has since recovered, and he should not be inadmissible because he does not presently pose a threat to self or others. He can bring proof of his rehabilitation (including letters from a therapist, proof of medication, letters of support from family members, etc.)

Exercise § 3.3 -- Alien Smuggling 1. Sami committed alien smuggling when he “urged” his brother to cross illegally, even though Sami did not physically or financially help him do it. He is inadmissible. Unfortunately, there is no alien smuggling waiver for smuggling brothers or sisters. 2. Beatriz committed alien smuggling when she helped her husband cross the border. Since she only helped her spouse, she might be eligible for a waiver. 3. Joseph is not deportable as an alien smuggler for helping his mother cross illegally, because he did not commit the smuggling within five years of his last admission. He is not even deportable for helping his sister: the key is that he did not commit smuggling within five years of admission. 4. Dante committed alien smuggling. Worse, he was convicted of alien smuggling, and that conviction will be held to be an aggravated felony. The only exception is a conviction for first offense smuggling of immediate family.

Appendix 3-A-1

Unit 3

4. Because Antje has a DUI conviction, she will need to obtain a medical evaluation assessing her for alcoholism. She will be found inadmissible only if the medical examiner determines that she is abusing alcohol AND that it is causing harmful behavior that is likely to recur.

Exercise Review Questions §§ 3.2 - 3.7 1. Despite having overcome his addiction, Mario may still be considered a “current” drug abuser or addict since he has only been drug-free for a short period of time. This is because he must show sustained, full remission of “addiction” before he can be cleared for travel to the U.S., according to the CDC’s “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders.” 2. Roberto did not know that his friend had a fake passport, so he is not inadmissible for alien smuggling. 3. A person who tells a material lie to obtain an immigration benefit is inadmissible. Rafael's lie was significant, because but for the lie he would not have qualified for the visa. 4. Terence has committed document fraud since he completed an I-9 form (a DHS document used to verify authorization for employment) using a false social security card. He also made a false claim to U.S. citizenship. Affidavit of Support Exercise § 3.8a -- Who can be a sponsor?

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1. 17- year-old who lives in Georgia cannot because a sponsor must be 18 years old or older. 2. 49-year -old U.S. citizen who lives in Canada cannot because a sponsor must reside in the U.S. 3. 25- year-old who is here on a student visa cannot because a sponsor must be a permanent resident or U.S. citizen. 4. 21- year-old LPR in Texas qualifies as a sponsor. Affidavit of Support Exercise § 3.8b -- Poverty Income Guidelines 1. A household of three living in Texas needs $24,737. 2. A household of ten living in Nevada needs $60,262 (a household of eight needs $50,112, and add $5,075 for each additional member). 3. A household of six living in Hawaii needs $45,962 (use the chart especially for Hawaii, at the bottom of the page). Affidavit of Support Exercise § 3.8b -- Determining Household Size 1. The new rule eliminates the previous requirement that all persons living at the same residence as the sponsor related by “birth, marriage, or adoption” must be included in the household. Now only those who are dependents of the sponsor must be included in the

Appendix 3-A-2

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household. Because the sister and grandmother are not dependents, they do not have to be included.

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2. The disabled brother counts, because any person lawfully listed as a dependent on the most recent tax return is counted. 3. A person will not be counted as a member of the household just because he or she immigrated in 1995 and the sponsor submitted an affidavit of support at that time. Only the I-864 Affidavit of Support has this effect, and this form was not used before December 19, 1997. (Previously, and in this case, an I-134 Affidavit of Support had to be submitted.) Note that if this person still resides in the household and is related by birth or marriage, he or she would be counted as part of the household on that basis – but not merely because of the old Affidavit of Support. Affidavit of Support Exercise § 3.8c -- Household Income 1. The independent daughter cannot be counted because she is neither living at home nor a tax return dependent. 2. The 25-year- old daughter living with the sponsor can be counted because she is a relative by birth and lives in her mother’s household. The intending immigrant can be counted, but only if he or she is the sponsor’s spouse or claimed dependent. Otherwise, the intending immigrant has to reside with the sponsor. Remember that the intending immigrant has to work with employment authorization in order to count his or her income.

4. The sponsor’s sister cannot be counted because she does not live in the household and apparently is not a tax return dependent. 5. The sponsor’s husband who has lived with her for three years can be counted if he is working with employment authorization. If he is immigrating alone, he does not need to sign the form I-864A, but he will have to submit proof of lawful income. 6. The sponsor’s husband who lives in Mexico does not count unless he is an intending immigrant and has lawful employment. If he is not the intending immigrant his income cannot be counted because he does not reside with the sponsor. If he does not have lawful employment, his income cannot be counted either. (His “significant assets” could be counted, however: see next section.) 7. The close friend living in the household does not count because she is not considered a relative.

Appendix 3-A-3

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3.

Affidavit of Support Exercise § 3.8d -- Joint Sponsorship 1. Mark has a household of two people: himself and his mother. He will be responsible for two intending immigrants: Roger’s wife and child. Therefore he must show 125% of the poverty guidelines for four people. The 2014 poverty guidelines show that $23,850 is the amount for a family of four. Mark must therefore earn $29,812, which is 125% of $23,850. Mark must also be at least 18 years old, a U.S. citizen or permanent resident, and reside in the United States or its territories or possessions. Affidavit of Support Exercise § 3.8f -- Responsibilities of an Affidavit of Support. 1. True. The county has the right to sue Frank for the money, as long as it was within ten years of Frances’s receipt of public benefits. See INA § 213A(b). 2. False. Frances gets to count the 14 quarters her father worked while she was under 18. But she must work 26 -- not 20 -- more quarters to reach the magic number of 40 quarters. 3. True. Four quarters times four years is sixteen.

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4. True. The divorce does not exempt Frank from liability. 5. False. The statute says that the immigrant can sue the sponsor to provide 125% of income. It is not clear whether “in kind” benefits (such as providing a place to live) would be counted toward the 125%. 6. True. The affidavit of support cannot make Frank liable for benefits Frances gets after she becomes a U.S. citizen. Exercise § 3.12 -- Three and Ten Years 1. Andrea is inadmissible under the three-year bar because she was in the U.S. in unlawful status for more than six months but less than a year since April 1, 1997 (she was here for eight months). 2. Andrea could not apply for the family waiver because of her sister, but she could because of her mother. You must be the spouse, son or daughter of a USC or LPR to apply. 3. Sally is not inadmissible under either the three-year or ten-year bar, because she did not have unlawful presence for six months since April 1, 1997. 4. Strange as it seems, Sally might not be inadmissible under either the three- or ten-year bar. Sally is not inadmissible under the three-year bar, because she did not leave voluntarily. She is not inadmissible under the ten-year bar, because she was not in the U.S. unlawfully for a year since April 1, 1997. (Note: if Sally ever tried to enter illegally after a removal, she would become subject to the permanent bar described in the next section.).

Appendix 3-A-4

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Exercise § 3.13 -- Permanent Bar 1. Manny is inadmissible under the permanent bar. Even if he was not in the U.S. for a period of over a year, he was removed before he tried to re-enter illegally.

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2. Manny still is inadmissible. The statute punishes attempts to re-enter as well as re-entry. 3. Franny should not be subject to the permanent bar, because she was neither unlawfully in the U.S. for more than a year after April 1, 1997, nor deported/removed. If she ever applies for admission, she will come within the three-year bar for having continuous unlawful presence of more than 180 days but less than a year before leaving voluntarily. 4. Sammy may be held subject to the permanent bar. He has more than a year of unlawful presence since April 1, 1997. The DHS asserts that the exceptions to counting unlawful presence time that apply in the three- and ten-year bars do not apply to the permanent bar. Thus while the fact that Sammy was under 17 the whole time would protect him from the three/ten year bars (if he had applied to immigrate legally), it will not protect him from the permanent bar after an unlawful entry. Advocates might challenge the DHS’s decision not to let the three- and ten-year bar exceptions to unlawful presence apply to the permanent bar. Exercise § 3.15 -- Past Removal or Deportation/Exclusion

2. Anna is inadmissible for 20 years because this was her second removal for being inadmissible. 3. Patricia is inadmissible for 10 years because of the removal for deportability. 4. Silvio is inadmissible for 10 years because of the deportation. Exercise § 3.16 -- Review Questions 1. Jaime is not inadmissible under the three- or ten-year bar because he was not unlawfully in the U.S. for six months after April 1, 1997. No other grounds apply. 2. Marcel is not inadmissible under the three- or ten-year bar because he does not have unlawful presence in the U.S., as defined for that bar. He was under 18 the entire time he was in the U.S. (His unlawful presence did count for purposes of the permanent bar, however, and if he reenters or attempts to reenter the U.S. illegally, he will be subject to the permanent bar for having been in unlawful presence in the U.S. for more than a year followed by an unlawful re-entry.)

Appendix 3-A-5

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1. Anna is inadmissible for 5 years because the removal was based on inadmissibility.

3. In that case, we assume that Marcel turned 18 in August 2005 and accrued almost a year unlawful presence before he returned home for his birthday. He would be inadmissible under the three-year bar. 4. The three- and ten-year bars do not apply to Roberta because the unlawful presence definition for purposes of the three- and ten-year bars does not include time spent in Family Unity status. Therefore if Roberta applies to enter legally, she is not inadmissible. 5. This is a trick question, since we will not study this ground until later in the Unit. It is to remind you that since Consuela has been admitted, she faces the grounds of deportability, not the grounds of inadmissibility. Consuela probably comes within the deportability ground of being present in the U.S. in violation of law. See INA § 237(a)(1)(B). (If she left the United States, she would become inadmissible under the ten-year bar due to her unlawful presence.) 6. Tomas will be found inadmissible for failing to appear at a hearing, unless he can convince the judge that his failure to understand the notice was an exceptional circumstance and get his case reopened. (As was mentioned in § 3.14, Tomas also might have been ordered removed in absentia and therefore is ineligible for several forms of relief for ten years).

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7.

Melanie is inadmissible for being removed twice, which bars her from entry for twenty years. That ground, however, at least contains a waiver she can apply for immediately. She furthermore is inadmissible for entering illegally after removal, which is a permanent bar where a waiver only can be applied for after ten years.

Exercise 3.21 -- Generic Definition and Categorical Approach 1. The answer is a. Courts and the BIA identify a “generic” definition of the criminal law terms in the INA, e.g. “crime of child abuse.” It has nothing to do with what your client did. 2. The answer is a. The categorical approach compares the generic definition with the minimum conduct to commit to violate the criminal statute. It has nothing to do with what your client did, only with the statute he or she was convicted of. If the criminal statute sets out several offenses, in some cases the record of conviction can be consulted to see which of those offenses the person was convicted of, but then the immigration judge will consider the minimum conduct to commit that offense. Exercise § 3.23 -- Drug Problems 1. Brad’s conviction falls into both the inadmissibility and deportability grounds because he has a drug conviction. This conviction is not an aggravated felony because it is a first simple possession conviction. Note, however, if Brad was convicted of possession for sale, this would be an aggravated felony as drug trafficking. The government also might charge that it has probative and substantial “reason to believe” that Brad is a drug trafficker, since the amount of marijuana was so large.

Appendix 3-A-6

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2. Martin does not have a drug conviction, because California diversion before 1997 was an example of a state alternative program that does not result in a conviction for immigration purposes because no guilty plea was taken.

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3. Regina does not have a conviction, because her case was handled in juvenile proceedings. 4. Kwan may be inadmissible because now DHS has "reason to believe" that he is a drug trafficker. He also might be inadmissible for having formally “admitted” a drug offense. Kwan is not deportable, because he does not have a drug conviction and has not been found to be a drug abuser. 5. Manuel is not deportable or inadmissible for having a drug conviction. But DHS or immigration judge may have "reason to believe" that he is a drug trafficker, based on the police report. If so, he will be held inadmissible if he is subject to the grounds of inadmissibility. 6. Susan’s conviction falls under both the inadmissibility and deportability drug related grounds. Moreover, conviction of drug trafficking is an aggravated felony, which brings more severe problems. Exercise § 3.25 -- Moral Turpitude Inadmissibility Ground

2. Drunk driving is not a crime involving moral turpitude. 3. Neither drunk driving nor simple assault should be held a crime involving moral turpitude. However, an immigration judge might apply Silva-Trevino to mean that he or she can hold a fact-finding hearing to see if the conduct was just offensive touching, or very serious violence. 4. The check fraud is a crime involving moral turpitude if it really involves the element of fraud. Esther comes within the petty offense exception, however. It is her first offense, with a maximum sentence of one year, and she received a sentence of less than six months. Exercise § 3.28 -- Aggravated Felony 1. The United States Supreme Court held that drunk driving with a one year sentence imposed is not an aggravated felony as a crime of violence. But Congress may push to make drunk driving an aggravated felony as a “crime of violence,” or simply a deportable offense. Advocates should keep abreast of developments.

Appendix 3-A-7

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1. Marco is inadmissible because robbery is a crime involving moral turpitude and he does not come within the petty offense exception. [Plus, he might be deportable, if he committed the offense within five years of an admission. Most important, the conviction is an aggravated felony (robbery with more than a one year sentence).]

2. Possession for sale of a controlled substance is an aggravated felony because it is a drugtrafficking offense. 3. No. This is a crime of violence with only a six month sentence. 4. No. These are two crimes of violence, but each carries less than a one year sentence. A crime of violence must have a year sentence to be an aggravated felony. 5. Yes. Burglary with a one year or more sentence is an aggravated felony (assuming this “burglary” offense matches the federal definition of “burglary.”).

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6. Yes, unfortunately. Unlike document fraud, conviction of alien smuggling is an aggravated felony even without a one year sentence. The only exception is for smuggling a parent, spouse or child "and no other individual." See INA § 101(a)(43)(N). Advocates should lobby Congress to change this completely unreasonable category. Advocates should warn federal public defenders about this dangerous ground. 7. The BIA and most courts are likely to hold that Jose has an aggravated felony conviction. The Ninth Circuit Court of Appeals has held that this conduct is not sexual abuse of a minor. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1017 (9th Cir. 2009) Advocates should research the pertinent law in their Circuit. In this case, an advocate may have to warn Jose not to have contact with immigration authorities.

Appendix 3-A-8

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APPENDIX B: Charts on Grounds of Inadmissibility and Deportability Good Moral Character Bars, and Waivers under AEDPA/IIRIRA Ground

Section

IIRIRA

Health Grounds Communicable disease Vaccination Physical or mental disorder that may pose threat Drug abuse or addiction

§ 212(a)(1) § 212(a)(1)(A)(i) § 212(a)(1)(A)(ii) § 212(a)(1)(A)(iii) § 212(a)(1)(A)(iv)

Criminal Related Grounds

§ 212(a)(2) § 212(a)(2)(A)(i)(I) § 212(a)(2)(A)(ii) § 212(a)(2)(A)(i)(II) § 212(a)(2)(B) § 212(a)(2)(C) § 212(a)(2)(D) § 212(a)(2)(E)

Crime involving moral turpitude --youth, petty offense exceptions Drug conviction 2 convictions/5-year sentence “Reason to believe” drug trafficker Prostitution and commercialized vice Asserted immunity from prosecution

GMC

Waiver**** Yes (g)(1) Yes (g)(2) Yes (g)(3) No

X

Yes (h)

X X X X

Yes (h)* Yes (h) No Yes (h) Yes (h)

No

Public charge

§ 212(a)(4)

213 (posting bond)

Labor certification, medical students

§ 212(a)(5)

Immigration violations

§ 212(a)(6), (9) § 212(a)(6)(A)** § 212(a)(6)(B) § 212(a)(6)(C) § 212(a)(6)(D) § 212(a)(6)(E) § 212(a)(6)(F) § 212(a)(6)(G) § 212(a)(9)(A) § 212(a)(9)(B) § 212(a)(9)(C)

Documentation requirements

§ 212(a)(7)

Undocumented, no valid visa

Ineligible for citizenship

§ 212(a)(8)

Miscellaneous

§ 212(a)(10)

Polygamists Accompanying Excludable Alien International Child Abduction Unlawful Voters Former Citizens who Renounce Citizenship to Avoid Taxation

Appendix 3-B-1

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Security, terrorism, related grounds, and § 212(a)(3) participants in Nazi persecution or genocide

Present without permission or parole Failure to attend removal proceedings, 5 year bar Visa fraud or misrepresentation Stowaways Alien smugglers Civil penalty for document fraud Student Visa Abuser, 5 year bar Ordered previously removed, 5/10/20 year bars Unlawful presence, 3/10 year bar Unlawful presence after previous immigration violation, 10 year bar

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***

Yes (i)

X

Yes (d)(11) Yes (d)(12) Yes, (9)(A)(iii) Yes, (9)(B)(v) Yes, (after 10 years), (9)(C)(ii)

Yes (k)

Only available for simple possession of less than 30 gram of marijuana. 212(c) may be available in some circumstances. ** Exception for Certain Battered Women and Children. *** This ground of exclusion does not apply to good moral character per se, but there is also a bar for one who has given false testimony to get or retain immigration benefits. 101(f)(6) **** Note that some waivers impose requirements such as having certain USC or LPR relatives, having committed the offense only to help certain USC or LPR relatives, living in the U.S. for a certain period of time, etc. Analyze each waiver carefully.

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*

Appendix 3-B-2

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Grounds of Deportation under IIRIRA, IMMACT, and Pre-1990 Law Ground

IIRIRA

IMMACT 1990

Immigration violations Inadmissible/Excludable at entry Entered without inspection Present in violation of the law Violated status Termination of conditional residency Alien smuggling

§ 237(a)(1)(A) § 237(a)(1)(A) ---§ 237(a)(1)(B) § 237(a)(1)(C) § 237(a)(1)(D) § 237(a)(1)(E)

§ 241(a)(1)(A) § 241(a)(1)(A) § 212(a)(1)(B) ---§ 241(a)(1)(C) § 241(a)(1)(D) § 241(a)(1)(E)

RAW does not maintain required

----

§ 241(a)(1)(F)

§ 237(a)(1)(G)

§ 241(a)(1)(G)

Criminal Offenses

§ 237(a)(2)

§ 241(a)(2)

Crimes involving moral turpitude Aggravated felony High speed flight Drug conviction Drug abuser or addict Firearm convictions Miscellaneous crimes (espionage, Selective Service, sabotage) Domestic violence, stalking, child abuse Violations of protection orders

§ 237(a)(2)(A) § 241(a)(2)(A)(i)(ii) § 237(a)(2)(A)(iii)§ 241(a)(2)(A)(iii) § 237(a)(2)(A)(iv) ----§ 237(a)(2)(B)(i) § 241(a)(2)(B)(i) § 237(a)(2)(B)(ii) § 241(a)(2)(B)(ii) § 237(a)(2)(C) § 241(a)(2)(C) § 237(a)(2)(D) § 241(a)(2)(D) § 237(a)(2)(E)(i) § 237(a)(2)(E)(ii)

---------

§ 241(a)(1) § 241(a)(2) ---§ 241(a)(9)(A) § 241(a)(9)(B) § 241(a)(13) (for gain) § 241(a)(20) agricultural employment § 241(a)(9)(B)

§ 241(a)(4) § 241(a)(4) ---§ 241(a)(11) § 241(a)(11) § 241(a)(14) § 241(a)(17) -------

Failure to register as an alien, conviction for falsification of documents

§ 237(a)(3)

§ 241(a)(3)

Security and related grounds, Nazis, engaged in genocide

§ 237(a)(4)

§ 241(a)(4)

§§ 241(a)(6),(7) (19)

Public charge

§ 237(a)(5)

§ 241(a)(5)

§ 241(a)(8)

Unlawful voting

§ 237(a)(6)

-----

Appendix 3-B-3

§§ 241(a)(5), (15),(16)

----

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Marriage fraud

Pre-1990

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Appendix 3-C-1

APPENDIX D Obtaining Criminal Record Checks

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Be sure to tell all applicants that Department of Homeland Security (DHS) will have a copy of any criminal records that exist. Any applicant who might have a conviction should try to obtain at least the copy of the court “docket” from the court where the case was held. It is best, however, to obtain a copy of the entire court file. In addition, we recommend that such applicants obtain a copy of the state summary of their criminal history. This shows all arrests, convictions and other dispositions that the client received in the state in which he or she lives. If they have been arrested in several states, applicants can request the state summaries in each of those states.  FBI Criminal Record Check: DHS will automatically receive a copy of the applicant’s FBI file, which DHS obtains using the fingerprint chart that the applicant hands in. For this reason, it is very useful for the applicant to obtain his or her own copy of the FBI record. To obtain FBI records, send:  FBI Instruction Sheet: The FBI Instruction Sheet for obtaining criminal records is attached in Appendix E-1 and available on the FBI website at: http://www.fbi.gov/aboutus/cjis/background-checks/submitting-an-identification-record-request-to-the-fbi

 FBI Checklist: The FBI provides a helpful checklist for those requesting records, which is attached at Appendix E-3 and is also available at: http://www.fbi.gov/aboutus/cjis/background-checks/fbi-identification-record-request-checklist  Proof of Identity: Obtain your proof of identity, which consists of a set of your fingerprints (original card, no copies), with your name, date of birth and place of birth. Fingerprints should be placed on a standard fingerprint form (FD-258) commonly used for applicant or law enforcement purposes. NOTE: The FBI will send back any fingerprint requests that refer to “Immigration” or “Naturalization” as the reason for requesting prints. You should say you are requesting the prints to verify your record. Fingerprint form available at: http://www.fbi.gov/about-us/cjis/background-checks/standardfingerprint-form-fd-258. FD-258 is attached in Appendix E-3 along with accompanying instructions attached in Appendix E-4.  Payment: Include $18 in the form of a certified money order or certified check payable to the Treasury of the United States, or you may pay by credit card using the form attached in Appendix E-6. NOTE: personal or business checks and cash are not accepted.

Appendix 3-D-1

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 Application Form: A copy of the application form is attached in Appendix E-2 and is also available at: http://www.fbi.gov/about-us/cjis/background-checks/applicantinformation-form .

 Mail: Mail all the above items to: FBI CJIS Division – Record Request 1000 Custer Hollow Road Clarksburg, West Virginia 26306  Processing: Allow approximately 13 weeks for processing.  State Criminal Record Check Check your own state’s criminal justice website for instructions on how to obtain criminal records, as they may have forms available online, similar to California’s, described below: (California):1

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In many states, such as California, the state summary records may be even more useful than the FBI records. They often are more complete than FBI records (e.g., someone whose FBI record shows no conviction may find a few convictions on their state summary record). Moreover, DHS usually does have access to the state records. We are not sure how often DHS requests a copy of the state records, but we know that they can get them in at least some states like California, if not all states. The only disadvantages to getting the state records instead of the FBI records are that the state records may not show out-of-state convictions, and do not reflect prior deportations. The California Department of Justice provides an automated service for criminal history background checks. Beginning July 1, 2005, all fingerprint submissions must be transmitted electronically by Live Scan digital submissions. To obtain a client’s California rap sheet, the client has to do the following:  Fill Out Request for Live Scan Service Form: Your client can obtain the form at fingerprint service locations, or at the following website: http://ag.ca.gov/fingerprints/forms/bcii_rr_8016.pdf. The client should check “Record Review” at the top of the form.  Get Fingerprints Taken: The person should bring the completed form to where fingerprinting services are offered. These services are available at most local police departments, sheriff's offices, or any public applicant Live Scan site. To find a listing of sites and fees, see Applicant Live Scan Sites.2 NOTE: If living outside California, you must submit rolled fingerprints on paper fingerprint cards and pay all appropriate fees. For information on how to submit a request from out of state go to: http://ag.ca.gov/fingerprints/security.php 1 2

For further information see: http://ag.ca.gov/fingerprints/ For a complete list of Live Scan Sites see: http://ag.ca.gov/fingerprints/publications/contact.htm

Appendix 3-D-2

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 Pay Fee: Applicants must pay a $25 fee to the California Department of Justice. NOTE: Applicants should request the copy of their CA criminal record for “record review” and should NOT say that it is for “immigration purposes.”

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 Present Valid Photo ID: Applicants must present valid photo identification when being fingerprinted. Expired identification information will not be accepted.

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Appendix 3-D-3

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  Appendix 3-E-1

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Appendix 3-E-2

Unit 3

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Appendix 3-E-3

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Appendix 3-E-4

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Appendix 3-E-5

Request for Criminal Court Record

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NOTE: If possible, call ahead to the court where the person was convicted and find out the requirements for obtaining a record of the conviction. Then ask your client to bring a letter like this one to the Court Clerk to obtain the records.

REQUEST FOR RECORDS TO:

Clerk or Record Department Criminal Court

DATE: RE:

Request for Record of Conviction

My name is

. I was born on

.

I appreciate receiving the copy as soon as possible. If you cannot give it to me today, please send it to this address:

If you have any further questions please contact me at: phone number and email address.

Sincerely,

Appendix 3-E-6

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I believe that on or about I may have been convicted in this court of a criminal offense. I hereby request a complete copy of the entire court record on my case. I am willing to pay a fee for copying.

APPENDIX 3-F UNIT 3 -- GROUNDS OF INADMISSIBILITY AND DEPORTABILITY NOTE-TAKING GUIDE

Chart on Admission and Burden of Proof in Removal Proceedings and Pre-IIRIRA Proceedings Removal Proceedings Admission

Standard

Burden of Proof

Admitted

Grounds of Deportability

ICE

“Seeking Admission”

Grounds of Inadmissiblity

Person

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Who is “Seeking Admission”? 1.

Noncitizens in the U.S. who entered without inspection (“EWI”).

2.

Noncitizens in the U.S. who were paroled in.

3.

Noncitizen crewmen with C or D visas.

4.

Noncitizens arriving at a Border or a Port of Entry a. Exception: LPR’s returning from a trip abroad are not “seeking admission” at a border or port of entry, unless they come under section 101(a)(13)(C) exception (gone for over 180 days, inadmissible for crimes, etc.) ******

Former Law: The Pre-IIRIRA Deportation and Exclusion Proceedings

Entry

Standard

Entered (includes EWI)

Grounds of Deportation

INS

Did not make an entry (stopped by INS at border or port of entry)

Grounds of Exclusion (same as inadmissibility)

Person

Appendix 3-F-1

Burden of Proof

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PART ONE: GROUNDS OF INADMISSIBILITY: Health, Alien Smuggling, Fraud, Public Charge A.

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HEALTH GROUNDS – INA § 212(a)(1)(A) 1. Communicable diseases -- INA § 212(a)(1)(A)(i) 2. Failure to prove vaccinations -- INA § 212(a)(1)(A)(ii) 3. Mental or physical disorder which may pose a danger to themselves or others -- INA § 212(a)(1)(A)(iii) 4. Drug addicts and drug abusers -- INA § 212(a)(1)(A)(iv)

B.

ALIEN SMUGGLING: 1. Inadmissible under INA § 212(a)(6)(E) 2. Deportable under INA § 237(a)(1)(E) a. Smuggles prior to entry, at time of entry, or within 5 years of entry

C.

VISA FRAUD -- INA § 212(a)(6)(C): 1. Use fraudulent documents or “misrepresent a material fact” 2. Waiver of inadmissibility -- INA § 212(i) (Unit 6) USC/LPR spouse or parent will suffer extreme hardship

D.

DOCUMENT FRAUD -- INA § 212(a)(6)(F), INA § 237(a)(3)(C) 1. 2. 3. 4.

Grounds of inadmissibility & deportability refer to INA § 274C for definitions Actions constituting document fraud -- INA § 274C(a) Not Inadmissible or Deportable without a “Final Order” -- INA § 274C(d) Walters v. Reno Case a. INS 274C hearing waiver forms too confusing; unconstitutional b. Contact National Immigration Law Center at (213) 639-3900, www.nilc.org for copy of the Walters settlement agreement.

5. Waivers (Unit 6) a. Some LPRs and some family immigrants who committed the offense only to help or support their spouse or child. INA § 237(a)(3)(C)(ii), INA § 212(a)(6)(E)(ii)

Appendix 3-F-2

Unit 3

3. Waivers and Exemptions (Unit 6) -- Some permanent residents, people immigrating through family, and people who qualify for Family Unity. All must have smuggled only his or her parent, spouse, son or daughter. 4. Conviction May Be an Aggravated Felony -- INA § 101(a)(43)(N)

b. Persons granted asylum or withholding of removal -- INA § 274C(d)(7) 6. A Document Fraud Conviction is an Aggravated Felony -- INA § 101(a)(43)(P) a. One year sentence imposed. b. Exception: first offense if committed to aid his or her spouse, child or parent. E.

FALSE CLAIM TO U.S. CITIZENSHIP -- INA § 212(a)(6)(C)(ii), INA § 237(a)(3)(D) 1. 2. 3. 4.

Ground of inadmissibility and deportability. Make false claim to get benefits under federal, state, or local law. Applies to false citizenship claims made on or after September 30, 1996. Exemption for 1) certain minors; 2) certain children of U.S. citizens; 3) noncitizens who did not make the claim knowingly. 5. Not a bar for applying for asylum, withholding of removal, or U Visa relief. F.

PUBLIC CHARGE GROUND OF INADMISSIBILITY -- INA § 212(a)(4)

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1. Two provisions under IIRIRA: a. In general, consider “at a minimum” person’s age, health, family status, assets, resources and financial status, and can also consider an affidavit of support. INA § 212(a)(4)(B). b. But family immigrants must have a qualified affidavit of support to avoid public charge. INA § 212(a)(4)(C). 2. “Sponsor” Signs Affidavit of Support -- INA § 213A(f)(1) a. Sponsor must be a U.S. citizen, national or permanent resident of at least 18 years of age, and live in the U.S. or a territory or possession. b. Sponsor must meet 125% of the Poverty Income Guideline; active members of armed forces only need to meet 100% c. Petitioner must be a sponsor 3. Prove 125% of the Poverty Income Guidelines a. Fed Government publishes Poverty Income Guidelines; 125% provided at form I864P (see Appendix 3-C). b. Household unit includes: sponsor, sponsor’s spouse, sponsor’s children under the age of 21 unless emancipated, claimed dependents, intending immigrant(s), and individuals whom the sponsor had previously signed an affidavit of support for immigration on or after December 17, 1997, unless the obligation has ended.

Appendix 3-F-3

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4. How to satisfy the income requirement if the petitioner does not make enough income to meet the 125% of the poverty income guideline amount

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a. Household IncomeSponsors may add the income of household members whom:      

Are considered relatives, which only includes the sponsor’s spouse, child, adult son/daughter, parent, or sibling and who is not a dependent, is currently residing with the sponsor, and is at least 18 years old. Dependents listed on the sponsor's tax return for the most recent tax year; Household member who contributes income must sign an I-864A subcontract with sponsor accepting joint and several liability. Intending immigrant can be a contributing household member if: S/he is residing with the sponsor or is the sponsor’s spouse or claimed dependent and the income is derived from lawful employment in the United States or from some other lawful source. Intending immigrant does not have to sign an I-864A subcontract if immigrating alone (only if there are others following to join).

 

--Joint sponsor(s) must sign a separate I-864 accepting joint and several liability. --Joint sponsor(s) must be at least 18 years old, be a resident of the U.S. or territory or possession, and have legal status as a U.S. citizen or LPR.

c. Significant Assets Assets may be used to reach the 125% poverty line amount if:    

They are convertible to cash within one year. The net worth of the assets is five times the difference between the sponsor’s income and the poverty line for the sponsor's household. If the sponsor is a U.S. citizen and the intending immigrant is the sponsor’s spouse or a child over 18, the value of the assets must be only three times the difference between the sponsor’s income and the required amount. If the intending immigrant is an orphan to be formally adopted in the U.S., the value of the assets only must equal the shortfall between the sponsor’s income and the required amount.

Appendix 3-F-4

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b. Joint Sponsorship Another person who reaches the 125% poverty income amount independently for his or her own household, plus intending immigrant(s), may be a joint sponsor. Up to two joint sponsors per family on a single family petition are allowed. No one person may have more than one joint sponsor, but all family members do not have to have the same sponsor.

5. The Affidavit of Support is a Binding Contract -- INA § 213A(b)-(e) a. The federal government, any state or subdivision or the sponsored alien can sue the sponsor. b. Sponsor may be required to reimburse federal or state government if the sponsored alien collects public benefits. c. Sponsors must notify the DHS and the state in which the sponsored non-citizen resides within 30 days of the sponsor changing his or her address. d. Liability ends when     

Immigrant naturalizes and becomes a U.S. citizen Immigrant credited with 40 “qualifying quarters” of employment Sponsored immigrant dies Sponsored immigrant ceases to be a lawful permanent resident and has left the U.S. Sponsored immigrant files a new application for adjustment in removal proceedings as a defense to removal. Only the sponsor(s) of the new adjustment application are liable. Previous sponsors under the original application for adjustment or an immigrant visa are not liable.

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Sponsor’s obligation does not end because of divorce or other personal reasons. 6. Exception from Affidavit of Support Requirement for the following persons: a. Battered Spouses and Children and for Widows/Widowers; b. Where the U.S. citizen sponsor/petitioner has died and the intending immigrant is the widow(er) as long as they were married for at least 2 years before the death. c. Children who automatically derive U.S. citizenship when they become lawful permanent residents. d. Persons who earn or inherit 40 quarters of qualifying income. Note: These persons must still file form I-864W, Intending Immigrant’s Affidavit of Support Exemption.

Appendix 3-F-5

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PART TWO: IMMIGRATION VIOLATIONS RELATING TO UNLAWFUL STATUS AND REMOVAL Note:

Family Unity waiver for all of these grounds

A.

Unlawful Presence in the United States Not Following Admission or Parole INA § 212(a)(6)(A) 1. 2. 3. 4.

B.

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In the United States in unlawful status, counting from April 1, 1997 Were not admitted or paroled Some exceptions for battered spouses and children This is not a bar to adjusting under INA § 245(i) (Unit 7)

Three and Ten Year Bar -- INA § 212(a)(9)(B) 1. Unlawfully in the United States for more than 180 days (three-year bar) or one year or more (ten-year bar), counting from April 1, 1997. 

2. Depart voluntarily (for three-year bar only) 3. Apply for admission 4. Discretionary waiver available for parent or spouse of USC or LPR C.

Permanent Bar -- Illegal Re-Entry after Immigration Problems – INA § 212(a)(9)(C) 1. Unlawfully in the United States for a total of more than one year and depart voluntarily, and enter or attempt to enter without admission or 2. Removed or deported at any time, and enter or attempt to enter without admission. 3. Permanently barred, discretionary waiver not available for ten years. 4. Caution: Automatic reinstatement of removal under INA § 241(a)(5) if removed and then enter or attempt to enter without admission. 5. Unlawful presence starts on April 1, 1997 Pre-April 1, 1997 deportation counts if unlawful re-entry occurred on or after April 1, 1997. Note, however, that anyone who has been ordered deported or

Appendix 3-F-6

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Some time doesn’t count as unlawful presence: minors, applicants for asylum who don’t work illegally, NACARA applicants, people with Family Unity, and some persons waiting for renewal of permission to stay, e.g. extension of tourist visa, applicants for adjustment.

removed regardless of when he/she re-entered may be subject to reinstatement of removal. 6. 3/10-year bar exceptions (minor, asylum applicant, Family Unity) don’t apply D.

Failure to Attend Removal Proceedings Without Reasonable Cause -- § 212(a)(6)(B) 1. Non-citizens who without reasonable cause fail to attend their removal proceedings are inadmissible for 5 years following subsequent departure or removal.

E.

Past Removal or Deportation/Exclusion -- INA § 212(a)(9)(A)

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1. When statute says “removal,” it includes past deportation or exclusion in preIIRIRA law. 2. If person was ordered removed based on inadmissibility, the person is inadmissible for 5 years following the removal. 3. If person was ordered removed based on deportability or if person was ordered deported or excluded under earlier law, or if the person left the U.S. while an order of removal was outstanding, the person is inadmissible for 10 years following the removal or the departure. 4. Can be waived in Attorney General’s discretion. 5. Caution: Automatic reinstatement of removal under INA § 241(a)(5). 6. Questions for Discussion a. Anna entered without inspection and was removed in June 1997 for being inadmissible. b. Anna then entered without inspection a second time, and again was removed for being inadmissible. c. Patricia entered with a tourist visa and overstayed. She was deported for being deportable in 1991.

PART THREE: GROUNDS OF DEPORTATION A.

DEPORTABLE FOR BEING INADMISSIBLE AT ENTRY OR ADJUSTMENT

B.

PRESENT IN VIOLATION OF LAW -- INA § 237(a)(1)(B)

C.

VIOLATED NON-IMMIGRANT STATUS -- INA § 237(a)(1)(C)(i)

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D.

MARRIAGE PROBLEMS (See Unit 6) 1. Failure to remove conditional resident status, INA § 237(a)(1)(D).

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2. Divorced from USC or LPR spouse two years after marriage or entry into U.S. can be found deportable if they cannot prove that their marriage was valid. INA § 237(a)(1)(G). E.

DEPORTABLE AS A PUBLIC CHARGE Deportable if becomes a public charge anytime within five years of her last entry, unless she can prove that she became a public charge because of something that happened after entry. INA § 237(a)(5).

PART FOUR: OVERVIEW OF DEALING WITH CASES INVOLVING CRIMINAL RECORD Read manual for detailed analysis of crimes. A.

OVERVIEW OF CRIMES

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1. Lesson #1: NEVER GUESS Which conviction might have less serious immigration consequences?     

Simple assault in a bar; broke someone’s jaw, ten month jail sentence Sale of $5 marijuana, no jail sentence Conviction for helping sick grandmother cross the border illegally so she could see a doctor Misdemeanor statutory rape (where an 18 year old and a 17 year old were discovered by her parents having consensual sex) Violent Rape

2. Categories of crimes: Aggravated felonies, Deportable, Inadmissible, Good Character

Moral

a. Aggravated Felony brings harshest penalties   

Almost no hope of staying in the U.S. Illegal re-entry after conviction of aggravated felony and deportation. Brings a potential 20-year prison sentence. 8 USC § 1326(b)(2). Dozens of major and minor offenses are aggravated felonies Example: any drug trafficking offense, crime of violence or theft offense with one-year sentence

Appendix 3-F-8

b. Other crimes may make deportable, inadmissible 

Advantage is, a waiver might be available.

c. Good Moral Character 

B.

Requirement for cancellation of removal, naturalization and one type of voluntary departure.

STRATEGIES TO HELP DEAL WITH CRIMINAL RECORD 1. Not a conviction     

disposition in juvenile delinquency court a case on direct appeal alternative dispositions, like diversion with no guilty plea infractions conviction vacated for legal error

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2. Erase conviction with Post-Conviction Relief in criminal court a. Vacation of judgement (completely erase any conviction). b. Expungement, or other “rehabilitative” relief will only work in a limited number of cases: first conviction simple possession or lesser offense such as under the influence of a controlled substance in the Ninth Circuit. c. Pardon eliminates moral turpitude, aggravated felony. 3. In some cases, the person can apply for a waiver, cancellation of removal, or other immigration relief. a. This is very difficult for persons convicted of aggravated felonies. C.

HOW TO OBTAIN CRIMINAL RECORD 1. Get a copy of the FBI report for yourself. 2. Get a copy of the client’s state rap sheet to ensure that you see client’s entire criminal record. Each state’s procedures differ. 3. Complete copy of the record from the court where the client was convicted. Instructions and sample letters are in Appendices 3-D and 3-E.

Appendix 3-F-9

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NOTE-TAKING GUIDE FOR OPTIONAL 60-MINUTE SESSION ON GROUNDS OF INADMISSIBILITY AND DEPORTABILITY RELATING TO CRIMES A.

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WHAT IS A CONVICTION?

Not a conviction: 1. Juvenile court a. Family Unity IIRIRA exception for violent acts. 2. Case on Appeal 3. Alternative disposition such as diversion (depends on state law) a. Infractions b. Conviction vacated for legal error B.

DRUG OFFENSES 1. Drug conviction -- deportation and inadmissible

2. Conviction of trafficking = Aggravated Felony. In some circuits, second or subsequent conviction for simple possession = Aggravated Felony. 3. Formal, knowing admission of drug offense - inadmissible 4. "Reason to believe" is or was drug trafficker - inadmissible 5. Drug addiction/abuse - deportable, inadmissible C.

CRIMES INVOLVING MORAL TURPITUDE (CMT) 1. Moral turpitude offenses defined by elements in the criminal statute violated. Likely CMT if statute includes elements such as theft with intent to deprive permanently, fraud, intent to commit bodily harm, often sexual offenses, recklessness or malice. Simple battery, simple drunk driving is not CMT. 2. Inadmissible if convicted or formally admits elements of one CMT. 3. The Petty Offense Exception to Ground of Inadmissibility INA § 212(a)(2)(A)(i)(I). a. First time committed CMT; b. The maximum possible sentence = one year or less; and

Appendix 3-F-10

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a. In Ninth Circuit only, “rehabilitative relief” works on first conviction of simple possession or lesser offense such as being under the influence or possession of drug paraphernalia. Otherwise must vacate the conviction for cause to get rid of it.

c. The sentence imposed in the person's case was six months or less. 4. The Moral Turpitude Ground of Deportability INA § 237(a)(2)(A)(i), (ii) a. One Conviction i.

crime was committed within five years after admission and had a potential sentence of one year.

b. Two or More Convictions after admission i.

Not "single scheme of criminal misconduct"

5. Moral Turpitude Crimes Might be An Aggravated Felony a. Crime involving theft, burglary, robbery, violence, receipt of stolen property, etc. with sentence imposed of a year or more b. Fraud, deceit, money laundering involving $10,000 c. Check INA § 101(a)(43) carefully

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D.

FIREARMS CONVICTIONS 1. One conviction for possession, use, etc. basis for deportability, but not inadmissibility 2. Several exceptions:  

firearms "enhancement" in some states divisible statute

3. Trafficking in firearms, and certain federal offenses and state analogues, are aggravated felonies. State conviction for “felon in possession of a firearm” or “’illegal alien’ in possession of a firearm” often is aggravated felony. E.

DOMESTIC VIOLENCE -- INA § 237(a)(2)(E) 1. Conviction of: “Domestic violence crime” (“crime of violence” against current or former spouse, co-habitant), 2. Court finding of violation of protection order 3. Conviction of stalking, or of child abuse, neglect or abandonment. a. Conviction or violation must occur on or after Sept. 30, 1996. b. Please note, this may also be a CMT.

F.

AGGRAVATED FELONIES INA § 101(a)(43) 1. Punishments for Conviction of an Aggravated Felony

Appendix 3-F-11

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2. What is an Aggravated Felony? Some important examples include:       

G.

murder, rape, child molesting drug trafficking trafficking in firearms a "crime of violence" with one year sentence theft or burglary with one year sentence alien smuggling, except for a first offense in which the person smuggled was the parent, spouse or child false documents with one year sentence, except for a first offense in which the person smuggled was the parent, spouse or child

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HOW TO OBTAIN CRIMINAL RECORD 1. Get a copy of the FBI report for yourself. 2. Get a copy of the client’s state rap sheet to ensure that you see client’s entire criminal record. Each state’s procedures differ. 3. Complete copy of the record from the court where the client was convicted. Instructions and sample letters are in Appendices 3-D and 3-E. CLEAR UP CRIMINAL RECORD 1. "Expungement" or other “rehabilitative” relief will only work in limited situations, and currently only in the Ninth Circuit. 

In Ninth Circuit removes first conviction for simple possession and some other minor drug offenses. See Lujan-Armendariz, 222 F.3d. 728 (9th Cir. 2000).

2. Vacating the Conviction for legal error will eliminate it. I.

THE GOOD MORAL CHARACTER REQUIREMENT -- INA § 101(f) 1. Establish for certain period (e.g., 5 years naturalization) 2. Two Components: a. Statutory Eligibility b. Discretion 3. Statutory Bars a. Grounds of inadmissibility:  

moral turpitude; drug offense; "reason to believe" trafficking alien smuggling; prostitution; polygamy Appendix 3-F-12

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H.

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b. Served 180 days or more in jail for a conviction during the period for which good moral character must be shown. c. Habitual drunkards, gambling d. Persons who have provided false sworn testimony to provide immigration benefits. e. Convicted of aggravated felony (permanent bar if convicted on or after 11/29/90).

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APPENDIX 3-G CHARTS ON THE “THREE AND TEN YEAR BARS” UNDER INA § 212(A)(9)(B) AND THE “PERMANENT BAR” UNDER INA § 212(A)(9)(C).

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THE “THREE AND TEN YEAR” BARS TO ADMISSION UNDER INA § 212(a)(9)(B) Noncitizens who have unlawful presence in the U.S., leave the U.S., and then apply for admission to the U.S. Waiver Available

When Person Can Apply for Waiver

3/10 Bar Does Not Apply

Not Needed

N/A

Three Years

Yes. Must Show Extreme Hardship to USC or LPR Spouse or Parent.

Immediately

Ten Years

Yes. Must Show Extreme Hardship to USC or LPR Spouse or Parent.

Immediately

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Person Unlawfully Present for 180 Days or Less, Who Voluntarily Left the U.S. Person Unlawfully Present More Than 180 Days But Less Than One Year Who Voluntarily Left the U.S. Person Unlawfully Present in the U.S. One Year or More

How Long Person Must Remain Out of the U.S.

Periods when presence in U.S. does not count toward the 180 days or one year unlawful presence for purposes of the three and ten year bars (See Unit 3 for more details): By Statute:      

Any time in the U.S. before April 1, 1997 Minors under the age of eighteen Asylum applicants, unless the applicant worked without authorization Family Unity beneficiaries Certain battered women and children Certain victims of trafficking

Appendix 3-G-1

By CIS Policy – Three- and Ten-Year Bars ONLY: 

Nicaraguan and Cuban NACARA applicants, spouses and children (3/10 year bars do not apply)

By CIS Policy – Three- and Ten-Year Bars and the Permanent Bar:

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   

          

People who have affirmatively applied for adjustment of status Time Granted for Voluntary Departure People in Nonimmigrant Visa Status Authorized Change/Extension of Status for Nonimmigrants: Tolled by statute for 120 days if the person did not work without authorization. Tolled by CIS policy until the extension/stay has been adjudicated or a CIS officer or IJ determines status has been violated. Lawful Permanent Residents in Removal Proceedings. Lawful Temporary Residents. Pending Applications for Legalization or Special Agricultural Worker Status Family Unity Beneficiaries Pending Applications for Temporary Protected Status (TPS) Stay of Removal. Deferred Action Withholding of Removal or Deportation. Withholding or Deferral of Removal under the Convention Against Torture (CAT) Deferred Enforced Departure (DED) Satisfactory Departure

Note: The 180 days or one year must be continuous for the 3/10 year bars. If the person leaves the U.S., the count starts over. (This is not the rule for the Permanent Bar.) Note: The 3/10 year bars might not apply to persons unlawfully present between 180 days and a year who left the U.S. after the INS issued a Notice to Appear.

Appendix 3-G-2

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THE “PERMANENT BAR” TO ADMISSION UNDER INA § 212(a)(9)(C)

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Noncitizens who commit immigration violations, leave the U.S., And then enter or attempt to enter the U.S. illegally Waiver Available

At least 10 years

Yes. No Specific Family Relationship Required.

When the Person Can Apply for Permission to Reapply for Admission and Waiver Ten Years After the Person Last Left the U.S.

At least 10 years

Yes. No Specific Family Relationship Required.

Ten Years After the Person Last Left the U.S.

What is counted as part of the one year unlawful presence in U.S. for purposes of the permanent bar No time before April 1, 1997 is counted Minors not exempt All time after April 1, 1997 is added together to reach the one year Exceptions & Waivers See exceptions by CIS policy above Waivers available for NACARA, HRIFA, Asylum, TPS, Legalization Applicants & Certain VAWA applicants.

Appendix 3-G-3

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Person Unlawfully Present in the U.S. for One Year or More, in the aggregate, After April 1, 1997, Who Enters or Attempts to Reenter the U.S. Without Being Admitted Person Who Has Been Ordered Removed and Who Enters or Attempts to Reenter the U.S. On or After April 1, 1997 Without Being Admitted

How Long the Person Must Remain Out of the U.S.

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Appendix 3-H-1

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Appendix 3-H-2

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Appendix 3-I-1

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Appendix 3-I-2

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Appendix 3-I-3

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Appendix 3-I-4

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Appendix 3-I-6

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Appendix 3-I-8

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Appendix 3-I-9

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Appendix 3-I-10

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Appendix 3-I-11

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Appendix 3-I-12

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Appendix 3-I-13

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Appendix 3-I-14

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Appendix 3-I-26

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Appendix 3-I-32

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Appendix 3-I-38

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Appendix 3-K-1

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Appendix 3-K-2

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=

UNIT FOUR1 FAMILY VISAS: QUALIFYING FAMILY RELATIONSHIPS ELIGIBILITY FOR VISAS AND THE STATE DEPARTMENT VISA BULLETIN

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This Unit Covers:   

Who can immigrate through a family visa petition; What kind of petition may be used; How to use the State Department Visa Bulletin to get an idea of how long the person may have to wait before immigrating.

This Unit Includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13

Overview of the Family Immigration Process: A Two-Step Process ................. 4-1 The Immediate Relative Category and the Definition of “Child” and “Spouse” ...................................................................................................... 4-6 K Visa ............................................................................................................... 4-13 Petitions under the Preference System: Definition of Siblings and Sons and Daughters ................................................................................... 4-15 The Preference Categories................................................................................ 4-16 Derivative Beneficiaries ................................................................................... 4-22 How the Preference System Works .................................................................. 4-24 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ............................................................... 4-26 Advising Your Client about When a Visa May Become Available ................. 4-32 Child Status Protection Act (CSPA) ................................................................ 4-33 The V Nonimmigrant Visa ............................................................................... 4-43 When Is a Visa Petition Terminated or No Longer Good? .............................. 4-46 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings .......................................................................... 4-53

§ 4.1 Overview of the Family Immigration Process: A Two-Step Process The next four units will discuss how people can immigrate through family members who are United States citizens or lawful permanent residents. 1

See Appendix 4-E for a Note-Taking Guide.

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Gina is a lawful permanent resident of the United States. She recently married Juan, a citizen of Mexico. Juan has a 10-year-old daughter named Soledad. Can Gina help Juan and Soledad obtain legal status in the United States?

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United States citizens and lawful permanent residents can help certain family members immigrate to the United States. This is a two-step process. The first step is the family visa petition. The second step is the application to become a permanent resident. Each step involves different legal and factual issues.

A.

Step One: The Petition

In order for a person to immigrate to the United States through a U.S. citizen (USC) or lawful permanent resident (LPR) relative, the USC or LPR relative first has to prove to the U.S. government that their foreign national relative is eligible to immigrate to the U.S. through a family relationship. In other words, the USC or LPR must petition the U.S. government to allow the foreign national to apply for an immigration benefit. Therefore, the USC or LPR relative is called the “petitioner” and the foreign national relative is called the “beneficiary.” The form that starts the immigration of a family member is filed by the USC or LPR relative and it is called the “Petition for Alien Relative,” Form I-130, often referred to as the “visa petition.” Only a U.S citizen or permanent resident can file a family-based visa petition on behalf of a family member.

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Two facts must be established in support of a visa petition: 1. The petitioner and the beneficiary have the family relationship required for the petition (for example, parent and child), and 2. The petitioner has the immigration status required for the petition—either U.S. citizenship or lawful permanent or conditional resident status.

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If these elements are proved, CIS must approve the visa petition and step one will be completed. Generally, the relatives prove their relationship by submitting official documents such as birth and marriage certificates. See Unit 5. But some cases may be more complex. A married couple, for example, must show not only that they are legally married but also that the marriage is bona fide (legitimate) and not a fraud or sham established for immigration purposes. See Unit 5. Some children may have to submit extra documents to show that they qualify as the child of the parent under immigration law. These include stepchildren, adopted children, orphans, and children born out of wedlock. Also, an adopted child cannot petition for his biological birth parents or birth siblings.

PRACTICE TIP: Where the I-130 petition is filed depends on where the petitioner resides and whether the Form I-130 is being filed alone or concurrently with the beneficiary’s Application for Permanent Residence on Form I-485 (if the beneficiary is an immediate relative; see § 4.2 below). See Unit 7 for more information on Adjustment of Status. You must check the most recent version of the Form I-130 instructions on the CIS website (www.uscis.gov/i-130) to determine the exact address and any other filing instructions.

When the visa petition on Form I-130 is filed, the beneficiary is categorized according to the relationship that qualifies him or her for an immigrant visa. For example, relatives who fit the definition of a “child” or “spouse” of a lawful permanent resident fall under the category 2A. These categories are discussed in more detail in the sections that follow, but generally speaking, 2

See Aytes memo, “Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) Under the Adam Walsh Child Protection and Safety Act of 2006,” of February 8, 2007, which can be found at www.uscis.gov/files/pressrelease/AdamWalshAct020807.pdf.

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NOTE: The Adam Walsh Child Protection and Safety Act may prohibit certain petitioners from successfully filing visa petitions for any family member if the petitioner was convicted of a “specified offense against a minor,” unless CIS determines that the petitioner poses no risk to the beneficiary. The “minor” must have been under 18, and the convictions specified are broadly defined, involving primarily sexual or related offenses.2

they each represent a queue or waiting list of foreign nationals on behalf of whom their U.S. citizen or lawful permanent resident relatives have filed visa petitions. The reason for these waiting lists is that the number of people who can immigrate each year is limited by the law. Therefore, after the visa petition is approved, some foreign national relatives must wait on the waiting list until an immigrant visa becomes available to them. B.

Step Two: Application to Immigrate

Once the relative’s petition comes to the front of the waiting list he or she can proceed to step two and apply to immigrate. The end goal is referred to as becoming a lawful permanent resident, immigrating, obtaining an immigrant visa, or obtaining a green card. The terms are often used interchangeably, and basically they all mean the same thing: the person becomes a lawful permanent resident of the United States and gains the right to live and work in the United States permanently. How soon the beneficiary gets to the front of the waiting list and can apply to immigrate depends on which waiting list he or she is in. In other words, it depends on which category of relatives eligible for family visas he or she belongs to. For example, spouses, parents and unmarried children of U.S. citizens are considered “immediate relatives” and they do not have to wait in line. They can immigrate quickly.3 If such a beneficiary is physically present in the U.S. and eligible for adjustment of status, he or she can apply for permanent resident status at the same time as the visa petition is filed or as soon as the visa petition is approved. This is because immediate relatives always have immigrant visas available to them.

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However, because other relatives of U.S. citizens and lawful permanent residents have a limited number of visas available to them, they must wait for such availability, which can often take several years. These relatives are organized into groups referred to as “preference categories” and they are categorized according to the relationship that qualifies them for an immigrant visa. Under this “preference system,” these beneficiaries may have to wait for several years, after the visa petition is approved, before they can actually immigrate.4 See § 4.4. When applying to immigrate, the applicant must prove that he or she is admissible as an immigrant. An applicant is admissible if he or she does not fall within a ground of inadmissibility.5 But an applicant who is inadmissible can still sometimes immigrate if CIS agrees to waive (forgive) the ground of inadmissibility.6 Otherwise, the inadmissible applicant cannot immigrate.

3

See § 4.2. See §§ 4.4–4.10. 5 See Unit 3. 6 See Unit 6. 4

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Thus, three facts must be established at step two: 1. That the visa petition is still valid (petitioner-beneficiary relationship still exists and the petitioner still has the required immigration status); 2. That an immigrant visa is now available for the beneficiary/applicant and he or she does not have to wait any longer; and 3. That the beneficiary/applicant is not inadmissible, or if she or he falls into a category of inadmissibility, that she or he can obtain a waiver of the inadmissibility ground.

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Special rules apply to married couples. Some people who immigrate through their marriage must go through a third step to immigrate. Under the Immigration Marriage Fraud Amendments, applicants who have been married for less than two years by the time they apply for permanent resident status obtain something called conditional permanent residency, which is valid for two years. The married couple must then file a joint petition to remove that conditional status before the end of the two years.7

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7

See Unit 7.

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C.

Adjustment of Status versus Consular Processing

People can immigrate in one of two ways: by applying for immigrant visa processing in another country at a U.S. consulate (also called “consular processing”) or by applying for adjustment of status to permanent residency at a CIS office in the United States.

§ 4.2 The Immediate Relative Category and the Definition of “Child” and “Spouse” A.

Who Is an Immediate Relative?

Certain people can immigrate as the immediate relative of a U.S. citizen. Immediate relatives can immigrate very quickly. As soon as the visa petition is approved, the person may begin the application to immigrate, because visas are always available for immediate relatives of U.S. citizens. Visa availability never delays immigration for immediate relatives, but the application process itself may take several months, depending on how busy the CIS or consulate office is. Under § 201(b) of the Act, the following people qualify as immediate relatives: Category IMMEDIATE RELATIVE

Beneficiaries Covered by This Category Spouse of a USC “Children” of a USC (“child” as defined in the INA. See below) Parents of USC’s, when USC’s are over 21

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Example 4.2-a: Alfredo is married to a U.S. citizen. Laura has a U.S. citizen son who is 30 years old. Kwan is 12, and his father is a U.S. citizen. All of these people may immigrate as immediate relatives. A separate visa petition must be filed for each immediate relative; and immediate relatives cannot include “derivative beneficiaries” in their visa petitions. Therefore, for example, if the beneficiary spouse of a U.S. citizen petitioner has a child, the U.S. citizen petitioner must file a separate immediate relative visa petition on behalf of that child. This is one reason why it is important to understand the rules about which relative qualifies under which category, such as who is considered a child and who is considered a spouse.

“One-Step” Adjustment Applications: Immediate relatives who qualify for adjustment under 245(a) or 245(i) can often submit the I-130 along with the adjustment application. See Unit 7 for a discussion of adjustment.

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B.

Who Is a “Child”?

In all immigration work, remember that “child” is a term with special legal meaning.8 Learn to associate the word “child” with the technical legal definition. To be a child the person must meet two important criteria.

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1. The person must be unmarried and under 21 years of age A person who is divorced or widowed at the time of petitioning is considered unmarried. Example 4.2-b: A daughter who is 21 years old when the petition is filed is not a child under the Act and cannot be petitioned for as an immediate relative. (She may, however, be able to immigrate as a “daughter” through a preference petition. See § 4.4.) A married 19-year-old daughter is not a child. But a 19-year-old divorced daughter is a child under the Act. However, note that if the CIS or the immigration court find that the divorce was sought purely for purposes of obtaining an immigration benefit, they may deem the petition and corresponding application fraudulent and may thus deny them.9

2. The person must have a child-parent relationship that CIS recognizes Obviously, natural-born children who were born in wedlock are considered children under the immigration laws. But other children, such as stepchildren, adopted children, adopted orphans, and children born out of wedlock, may qualify. These other children must meet specific

8 9

See INA §§ 101(a)(39), 101(b)(1). See Matter of Aldecoatalora, 18 I&N Dec. 430 (BIA 1983).

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NOTE: The Child Status Protection Act (CSPA), effective August 6, 2002, allows some children of U.S. citizens who turn 21 while a parent’s visa petition is pending to immigrate as if they were still children, even though at the time of adjustment or consular visa processing, they no longer meet the definition of a “child” under the Act because they are over 21 years of age at that time. For example, in the case of a naturalizing LPR petitioner, the age of the child locks in on the date of the parent’s naturalization. If the child is under 21 on that date, the petition will convert into an immediate relative petition and remain as such until the child immigrates. The CSPA rules are complicated, especially for the children of lawful permanent residents. See § 4.10. The National Defense Authorization Act (See INA § 329A) also allows some children to maintain immediate relative status after turning 21 if they are children of deceased USC or LPR members of the armed forces who died “as a result of an injury or disease incurred in or aggravated by combat.” The child must have been under 21 and unmarried at the time the parent died and must selfpetition within two years of the parent’s death.

requirements. The requirements are discussed in detail in the reference books listed at the end of this unit. Here is an overview of these other categories: Stepchildren. A common situation involves stepchildren. This rule is simple: Under INA § 101(b)(1)(B), a stepchild is a child for immigration purposes if the marriage that created the stepparent-stepchild relationship took place before the child became 18 years old. Example 4.2-c: Gina, a lawful permanent resident, marries Juan. Juan has a 10-year-old daughter, Soledad. Can Gina petition Soledad as her child? Yes. Since Juan and Gina married before Soledad reached the age of 18, Soledad is Gina’s child for immigration purposes. Soledad became Gina’s stepchild as of the date of Gina and Juan’s marriage. However, where the marriage creating the stepchild relationship has been terminated by death, divorce or legal separation, the Board of Immigration Appeals (BIA) has ruled that the petitioning stepparent must prove that a stepparent-child relationship continues to exist as a matter of fact.10 Adopted Children Generally. Certain children adopted while under the age of 16 who have also at some point resided with the adoptive parents for two years and who have also been in the legal custody of the adoptive parents for two years may qualify as children under the Act.11 The two years residing together and two years legal custody requirements do not need to be fulfilled at the same time. In addition, the burden is placed on the parent to establish primary parental control during the two-year period of joint residence.12 There are two exceptions to these requirements.

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First, if the same adoptive parents adopt a brother or sister of an adopted child, the parents must meet the same requirements for the second child, but adoption may take place while he or she was under the age of 18, rather than under 16 years. Second, the Violence Against Women Act of 2005, § 805(d) removed the two-year custody and residency requirements for abused adopted children by allowing adopted children to obtain permanent residency even if they have not been in the legal custody of, and have not resided with, the adoptive parent for at least two years, if the child has been battered or subject to extreme cruelty by the adoptive parent or by a family member of the adoptive parent.

10

See Matter of Breier, 8 Immig. Rptr. B1-57 (BIA 1997); Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981); Matter of Mourillon, 18 I&N Dec. 122 (BIA 1981)(step-siblings). 11 INA § 101(b)(1)(E), 8 CFR § 204.2(d)(2)(vii). 12 See Matter of Marquez, 20 I&N Dec. 160 (BIA 1990). This is particularly important if the adopted child is a relative of the adoptive parents. CIS will closely examine whether the biological parent has truly given up “parental control” to the adoptive parents, or whether the adoption is a “sham” for immigration purposes.

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Children Adopted Abroad/Hague Adoptions. On April 1, 2008, the Hague Adoption Convention went into effect. This is an agreement between the United States and many other countries governing international adoptions. The Hague Convention changed the rules under which U.S. citizens can adopt children from the other countries that are signatories to the Convention.13 U.S. citizens who wish to adopt a child from one of these countries must be careful to comply with the rules of the Convention or their adoption will not be recognized by CIS.14 A child adopted from a Hague Convention country by a U.S. citizen that is a habitual U.S. resident qualifies for visa status as an immediate relative.15

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If a child is adopted from a non-Hague Convention country, this adoption is classified as an “Orphan Adoption” and different rules apply (see “Adopted Orphans,” below).

NOTE: If your client is adopting a child from a Hague Convention country then the client must make sure that he or she is in compliance with the Hague Convention as well as adoptions laws of the country in which the adopted child resides.

Adopted Orphans. Orphans adopted while under the age of 16 by a U.S. citizen may qualify as children under the Act.16 “Orphan” under the INA has a different meaning from common usage and does not necessarily require that the child’s birth parents be deceased. In order for a child to meet the definition of “orphan,” the adopting parent must obtain a valid home study before adopting and meet many other requirements.17 If the same adoptive parents adopt a brother or sister of an orphan, the second child must meet the same requirements but can be considered an orphan if the orphan petition is filed while he or she is under the age of 18.

13

22 CFR § 42.24. The current list of Hague Convention member countries can be found on the U.S. Department of State’s website at: http://adoption.state.gov/hague_convention/countries.php. 15 INA § 101(b)(1)(G). 16 INA § 101(b)(1)(F). 17 See 8 CFR § 204.3. 18 See INA §§ 101(b)(1)(A), 101(b)(1)(D), and 101(b)(2). 19 See INS Cable HQ 204.21-P, 204.22-P reprinted in Interpreter Releases, January 2, 1996. 14

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Children Born Out of Wedlock. The immigration laws historically have referred to certain children as “illegitimate” if their parents were not married at the time of the children’s birth. Partly in response to criticism that this language was insensitive, Congress changed the INA’s definition of “child” by replacing the words “illegitimate child” with “child born out of wedlock” and “legitimate child” with “child born in wedlock.”18 The legacy INS sent instructions to the field on this change in the definition of “child” and “father.”19 While advocates should use this new language in visa work, the change does not appear to affect substantive law—with the possible exception of some effect on the definition of an orphan. Whether a child who was born out of wedlock is later “legitimated” remains relevant under the law. Note that citizenship and naturalization law still uses the terms “illegitimate” and “legitimate.”

If a child’s parents are not married at the time of birth, he or she is considered a “child born out of wedlock.” A child trying to immigrate through his or her mother is no problem. But if the child tries to immigrate through the father, the family must meet certain conditions.20 They must prove that the father has established a bona fide relationship with the child before the child reaches the age of 21. To do this, the father must have shown “an actual concern for the child’s support, instruction and general welfare.”21 The family also must prove that the father is the natural father. Example 4.2-d: Geraldo has a daughter Eliza. He and Eliza’s mother never married. Geraldo lived and worked in the United States for years, but he always sent money to Eliza’s mother for her upbringing in Mexico. He visited her every year when he returned to Mexico, and they sometimes wrote letters to each other. Everyone in the village knows that Geraldo is Eliza’s father. Geraldo’s mother in Mexico is a devoted grandmother to Eliza and often cares for her. Geraldo has become a permanent resident and wants to petition for Eliza, who is 16. To prove that they have had a bona fide relationship, he will submit copies of money-order receipts, copies of letters, and affidavits of friends, neighbors and others to show the emotional and financial support he provided to Eliza as her father. (If instead of waiting in Mexico, Eliza had come to the United States illegally to stay with her father, they would submit documents about Geraldo and Eliza’s relationship in the United States, as well.) To prove that he is Eliza’s natural father, Geraldo will submit her birth certificate listing him as father or some other proof.

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In other cases, the family may prove that the child has been “legitimated” under the law or that the child should not have been considered illegitimate in the first place, because the laws of the particular country where he or she was born do not distinguish between children born in or out of wedlock.22 Note, however, that some countries have passed laws to eliminate discrimination against children born out of wedlock but still require a marriage of the parents for the child to be considered legally “legitimated.”23 If relying on a foreign country’s “legitimation” laws, it is critically important to research the current law of that country or consult with an expert.

PRACTICE TIP: Always ask clients specifically to disclose to you all children they may have inside or outside of marriage. Some people are not aware that children born out of wedlock are also “children” for immigration purposes, or sometimes the existence of these children may be a sensitive issue, and so the parents fail to list them on their immigration petitions and applications. They should be told that if they fail to include any such children on petitions filed with CIS, it will be more difficult later to claim these children for immigration purposes.

20

INA § 101(b)(1)(C), (D). 8 CFR § 204.2(d)(2)(iii); see also Matter of Pineda, Int. Dec. 3112 (BIA 1989). 22 See, e.g., Matter of Patrick, Int. Dec. 3076 (BIA 1988). 23 See Matter of Hines, 24 I&N Dec. 544 (BIA 2008). 21

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C.

Who Is a “Spouse”?

Heterosexual couples who are legally married and have a bona fide marriage relationship are spouses under the Act. See Unit 5.

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Same-Sex Spouses. The INA does not define the word “spouse” in terms of the sex of the parties. However, because immigration law is federal law, CIS follows the federal definition of “spouse.” Until recently, the federal Defense of Marriage Act (DOMA) had specified that a “spouse” could only be a person of the opposite sex. This prevented bi-national same-sex couples from filing immigrant visa petitions based on marriage. In June of 2013, the historic Supreme Court ruling in the case of U.S. v. Windsor struck down DOMA, declaring it unconstitutional; and the CIS has, therefore, begun approving visa petitions for same-sex spouses, announcing that it will use the same criteria as for heterosexual couples.24 To this end, CIS has stated that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. Therefore, couples who do not currently live in a state or country that recognizes same-sex marriage need to obtain a lawful marriage in another state or country so long as the laws of that place permit out-of-state residents to marry there. Furthermore, under ICE’s Prosecutorial Discretion policy, ICE officers are to identify individuals in removal proceedings who are low on the agency’s enforcement priorities and to terminate proceedings against such persons. The agency has issued guidelines stating that family relationships and marriage to a U.S. citizen or lawful permanent resident were to be considered as factors in determining low priority cases for removal. DHS clarified in August 2011 that this included gay and lesbian families.

After the 2013 U.S. Supreme Court decision in U.S. v. Windsor, which opened the way for same-sex couples to file marriage-based immigration petitions on behalf of the foreign spouse by striking down the Defense of Marriage Act, transgender individuals in heterosexual marriages 24

U.S. v. Windsor, __U.S.__ (June 26, 2013); see also “Implementation of the Supreme Court Ruling on the Defense of Marriage Act” on the CIS website. 25 USCIS Policy Memorandum, “Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update AD2-02),” April 13, 2012.

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Transgender Spouses. In the case of Matter of Lovo-Lara, the BIA held that a marriage is valid for immigration purposes so long as it is considered a valid heterosexual marriage between two people of the opposite sex according to the law of the state where the marriage was celebrated. The petitioner in that case had undergone sex-reassignment surgery and had therefore been able to change her sex under the law of the State of North Carolina. The CIS had initially stated it would approve I-130 petitions only where the transgender spouse had undergone sex reassignment surgery and the surgery had resulted in a legal change of sex under the law of the place of marriage. Therefore, a heterosexual married couple including a transgender individual would not only need to prove the validity of the marriage for a marriage-based petition, the couple would also need to show that the marriage was a heterosexual one.25

should no longer be subjected to any special requirements or conditions in order to prove that their marriage is in fact a “heterosexual” marriage. Familiarity with the April 2012 USCIS Policy Memorandum regarding the adjudication of benefits for transgender individuals may still be helpful in matters concerning ways of documenting a change of gender identification for purposes of requesting that the same be reflected on immigration documents. This memorandum clarifies that sex reassignment surgery is not necessary and it acknowledges a broader range of clinical treatments and other steps that can result in a legal change of gender under the various laws of the states. Widows and Widowers. The Immigration Act of 1990 added a new definition of “spouse” to allow widows and widowers who had been married to a U.S. citizen for at least two years to remain immediate relatives. However, as of October 28, 2009, the INA has been amended to eliminate the two-year requirement. Therefore, the widow or widower of a U.S. citizen, who was not legally separated from the U.S. citizen at the time of his or her death, will continue to be considered an immediate relative for two years after the U.S. citizen’s death, or until the time he or she remarries, whichever comes first.26 Persons widowed before October 28, 2009 and who did not have a pending I-130 petition but otherwise met the above stated criteria could file a self-petition via Form I-360; however, such a petition must have been filed by October 28, 2011.27 Note that the widow or widower will need to file a Form I-360 as a self-petitioner rather than filing Form I-130.28

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Example 4.2-e: Jacqueline married a U.S. citizen in June of 2008. Her husband died on February 1, 2010. Jacqueline may immigrate as an immediate relative until January 31, 2012, or until she remarries, whichever comes first. The fact that she was only married to her U.S. citizen husband for less than 2 years is no longer a barrier. Additionally, under INA 204(l), as of October 28, 2009, applicants who become widowed after the I-130 had already been filed by the now-deceased U.S, citizen spouse are able to continue with the immigration process as self-petitioners. The I-130 filed by the now deceased U.S. citizen spouse is automatically converted into an I-360 self-petition under INA 204(a)(1)(A)(ii).

Exercise 4.2: Mario is a 50-year-old U.S. citizen. He comes to your office and wants to help the following members of his family immigrate. Which of them would qualify as immediate 26

INA § 201(b)(2)(A)(i). See new INA § 201(b)(2)(A)(i). 28 See P.L. 111-83§ 568(c)(2)(B) and INA § 204(a)(1)(A)(iii); see also USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010 included in this manual as Appendix 4-C. See § 1.12 below for information regarding beneficiaries who become widows or widowers after the I-130 petition had already been filed. 27

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relatives? Do you need more information about any of them? What questions would you ask? (Answers are provided at Appendix 4-A.) 1. 2. 3. 4.

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Mario’s mother His two daughters, one by his wife and one by another woman he never married His sister His wife

Let’s say that Mario is 19 years old. Can he still petition for his mother? Gina is a permanent resident. Her stepdaughter, Soledad, qualifies as Gina’s “child” under the Act. Can Soledad immigrate as an immediate relative? Why not?

§ 4.3 K Visa A.

The Fiancé(e) Petition (the K-1 Visa)

For a U.S. citizen to file a K-1 visa petition for a fiancé(e), an I-129F must be filed at the Service Center with jurisdiction over the petitioner’s residence. If the petitioner and fiancé(e) live outside of the United States, the I-129F must be submitted to the Service Center with jurisdiction over the petitioner’s last place of residence in the United States. The K-1 fiancé(e)’s unmarried children under the age of 21 can be included in the petition and enter the U.S. with the fiancé(e) parent. Children of K-1 fiancé(e)s are designated as “K-2” visa holders. K-2 visa holders can adjust status and become permanent residents as long as they still qualify for the K-2 visa, meaning that they must be unmarried and under 21 at the time the adjustment application is filed.

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The “K-1” petition allows a U.S. citizen (but not a lawful permanent resident) to petition for a fiancé(e) to enter the United States in order to marry the U.S. citizen petitioner. This is not an immediate relative visa petition. In fact, it is a nonimmigrant visa petition that allows the fiancé(e) to enter the U.S. for a limited time and purpose: to marry the U.S. citizen within 90 days of arrival. To qualify for this visa, the couple must show that they have met at least once in person within the past two years, that they intend to marry, and that they are legally able to marry. Under certain circumstances, the government will waive the requirement that the couple actually have met in person within the past two years. For example, if it is an arranged marriage, customary within that culture, then the government may waive the requirement that the couple have met within the past two years. If the couple does not get married within 90 days, the fiancé(e) will be required to leave the United States, and if the fiancé(e) does not leave the United States, she or he will be removed. The only exception is if the couple gets married after the 90 days and the same petitioner submits a new I-130 petition, the fiancé(e) may then adjust using the I-130 instead of the fiancé petition.

Two other laws affect U.S. citizen petitioners directly. The International Marriage Broker Regulation (IMBRA) provides that alien fiancé(e)s and spouses coming to the U.S. with K visas must be provided any information regarding the petitioner’s past criminal activity and other K petitions previously filed by the petitioner. When filing the I-129F, petitioners now must provide information regarding certain criminal convictions, which will be shared with the beneficiary prior to the issuance of a K visa. The petitioner for a K-1 fiancé(e) visa must also request a waiver if the petitioner has filed two or more K-1 visa petitions at any time in the past or had a prior K-1 petition approved within the last two years.29 The second new law is the Adam Walsh Child Protection and Safety Act, which prohibits a U.S. citizen petitioner from filing K nonimmigrant visa petitions for fiancé(e)s, spouses or minor children if the petitioner was convicted of a “specified offense” against a minor, which is listed in the statute, unless CIS determines that the petitioner poses no risk to the beneficiary. After the marriage, the alien spouse must apply for adjustment of status to permanent residency, filing the application with the CIS in the United States. The couple does not need to file an I-130, however, as long as the marriage occurred within 90 days of the beneficiary’s admission to the U.S.30 The government will grant the alien spouse conditional residence status for two years, by which time, the couple will have to apply to remove the conditional status so that the alien spouse can remain in the United States.31 B.

Petitions for Spouses and Children of U.S. Citizens (the K-3 and K-4 Visas)

On December 21, 2000, the Legal Immigration and Family Equity Act (LIFE) became law. Among other provisions, LIFE created a new nonimmigrant visa category for the spouses and minor children of legal permanent residents (the V visa—see § 4.11 for more information), and also expanded the availability of K visas to include spouses and minor children of U.S. citizens residing abroad. Spouses and minor children (unmarried and under 21) of U.S. citizens residing abroad are able to request the K visa under the same conditions as fiancé(e) petitions are currently processed.

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Example: Vijay, who is a U.S. citizen, recently traveled to India to get married. He just returned to the United States to file immigration papers for his new wife. While waiting for an I-130 approval notice, he can file a K-3 visa petition for his new wife who will then be allowed to travel to the United States where they will be able to apply for her green card, instead of waiting for her to go through consular processing in India. In order to obtain a K-3 visa, the U.S. citizen spouse must have submitted an I-130 Relative Petition and received the Notice of Action (I-797) from the CIS indicating that the Service has received the petition. The U.S. citizen spouse can then file an I-129F and all 29

See INA § 212(d)(2)(C). See INA §§ 101(a)(15)(K) and 214(d) and 8 CFR § 214.2(k). 31 See INA § 245(d), INA § 216. See Unit 7. 30

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supporting documents with the Service Center where the underlying I-130 petition is already pending. Use the address on the most recent receipt or transfer notice.

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However, for petitions filed from abroad, contact the U.S. embassy or consulate nearest your residence for current filing instructions. In addition to allowing spouses of U.S. citizens to enter the United States to apply for adjustment of status, Congress created a K-4 visa to allow the under 21 and unmarried children of K-3 eligible applicants to enter the United States as well. Example: Vijay’s new wife has a 12-year-old daughter. Vijay can request a K-4 visa to bring his wife’s daughter (i.e., Vijay’s new stepdaughter) into the United States.

§ 4.4 Petitions under the Preference System: Definition of Siblings and Sons and Daughters Family members who do not qualify as an immediate relative or fiancé(e) may be able to immigrate another way, through the preference system. Unlike an immediate relative, the beneficiary of a preference petition may have to wait for some period of time between approval of the visa petition and immigrating. The waiting period is discussed in § 4.8–4.9. Before discussing preference petitions, we must define two new categories of family members: “sons and daughters” and “siblings” (brothers and sisters). A.

Who Is a Son or Daughter?

A son or daughter is a person who once qualified as a child but now may be over 21 or married.

Did Soledad ever qualify as Gina’s “child”? Yes. Since Soledad once qualified as Gina’s child, she now can qualify as her daughter. B.

Who Is a Sibling (Brother or Sister)?

Siblings are persons who were once “children” with at least one parent in common either by adoption or by blood relation. However, an adopted child cannot file a visa petition for his or her biological siblings or parents if the adoption is one that meets the definition of “adopted child” under the immigration laws. After such an adoption, the biological siblings or parents can immigrate through the adopted child only if no immigration benefit was received due to the

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Example 4.4-a: Gina and Juan marry when Soledad is 10 years old. Soledad qualifies as a child under the stepchild rule discussed above. Years later, when Soledad is 30, she wants to immigrate through Gina. She is not a child because she is over 21. Can she qualify as Gina’s “daughter”?

adoption, the adoption has been legally terminated, and the original parent-child relationship has been lawfully reestablished. Example 4.4-b: Suppose that when Soledad was age 30, Gina left Juan and had another child, Fidel, with another man. Years pass. Now Fidel is 30 years old and Soledad is 60. Are Fidel and Soledad siblings under the INA? Yes, they qualify as siblings because both Soledad and Fidel once were children with the same mother, Gina. It does not matter that they were not children at the same time or that Soledad was a stepchild and Fidel a child born out of wedlock. At one time, they both qualified as Gina’s “children” under the Act. Example 4.4-c: A U.S. citizen married couple adopts Lim, born in China. They petition for her as their child and she immigrates, later becoming a naturalized U.S. citizen. When Lim grows up, she travels to China and meets her birth parents and biological siblings. Lim wants to petition for her natural sister. Can she? No. Although Lim and her sister have the same biological parents, Lim’s adoption canceled her ability to file visa petitions for her birth parents and her biological siblings.32 If Lim had not immigrated through her adopted parents but had immigrated another way, and her adoption was ultimately terminated, she might have been able to petition for her natural parents and siblings.

§ 4.5 The Preference Categories

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People who immigrate through a preference visa petition will fall into one of four categories. These categories are set forth at INA § 201(b). The preference categories are: Preference Category FIRST PREFERENCE (F1)

Beneficiaries Covered by This Category Unmarried sons and daughters, 21 years of age or older, of U.S. citizens.

SECOND PREFERENCE:

(2A)

Spouse and unmarried children (under 21) of LPRs

(2B)

Unmarried sons and daughters (over 21) of LPRs. If an unmarried son or daughter of an LPR marries, he or she loses eligibility to immigrate as the son or daughter of an LPR.

32

See INA § 101(b)(1)(E); Matter of Xiu Hong Li, 21 I&N Dec. 13 (1995); Matter of Li, Int. Dec. 3207 (BIA 1993); Matter of Kong, 17 I&N Dec. 151 (1979).

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THIRD PREFERENCE (F3)

Married sons and daughters (of any age) of USCs

FOURTH PREFERENCE (F4)

Siblings of USCs, when USCs are over 21. The petitioner must be at least 21 years old. Both siblings must at some time have been the children of one common parent.

A.

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Conversion of the Petition to a New Category

In most circumstances where a child ages out by turning 21, where there is a change in the beneficiary’s marital status, a change in the petitioner’s immigration status or a change in the relationship between the petitioner and beneficiary through marriage or the termination of a marriage, the petition may stay alive in a new category, and the beneficiary may retain his or her priority date. The basic rule is: If the new petitioner-beneficiary relationship will support a family petition, the beneficiary retains the petition and priority date but they now qualify under a new preference category, which means that they now must wait in a different line for their immigrant visa. Here are some of the ways in which petitions (and the beneficiaries they pertain to) jump from one preference category to another: 1. From 1st preference to 3rd preference (and vice versa) The single daughter or son of a U.S. citizen marries while waiting for her or his 1st preference priority date to become current. Because a U.S. citizen can petition for her or his married daughter or son in the 3rd preference, the 1st preference petition converts to a 3rd preference petition. If the beneficiary then divorces during the long wait for a current date, he or she again converts—this time back to the 1st preference.

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2. From preference 2A to 2B The child of an LPR (2A preference) reaches the age of 21 while she awaits a current priority date. Her petition converts to 2B preference and he or she retains the priority date. Note, however, that this child may be protected by the Child Status Protection Act (CSPA), so you should always calculate the “CSPA age” of the child to see if they qualify to remain under the 2A preference category. See § 4.10.

3. From immediate relative to 3rd preference

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The child of a U.S. citizen (an immediate relative) marries, thus becoming a 3rd preference. He or she retains the original petition, and the priority date is set by the date of her original petition.

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4. From preference 2B to first preference The petitioner naturalizes so that the beneficiary is now the son or daughter of a U.S. citizen. A beneficiary could move from 2B to First Preference and then to Third Preference upon getting married. See Practice Tip below.

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5. From preference 2A to immediate relative The petitioner naturalizes so that 2A spouses and unmarried children under 21 become immediate relatives. This allows them to escape the preference quotas and potentially process immediately their applications for green cards. In addition, for certain beneficiaries, it may allow them to adjust status—an option they may not have had as 2A beneficiaries. See discussion at § 4.10, Section B when, under CSPA, a beneficiary might opt to retain his or her 2A classification so that they can keep their derivative beneficiaries under their petition (which they cannot do if their petition converts into an immediate relative petition).

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LPR Parent of Child Chart

NOTE: It used to be that an immediate relative child who turned 21 would automatically convert to 1st preference. However, under the Child Status Protection Act (CSPA), effective August 6, 2002, the beneficiary remains an immediate relative even after turning 21, unless he or she prefers to convert to 1st preference. See § 4.10 below.

If, however, the newly created petitioner-beneficiary relationship will not support a family petition, the beneficiary loses the petition and priority date. See § 4.12 below on automatic revocation of visa petitions.

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6. Child or daughter/son of an LPR (preference 2A or 2B) marries If the child or daughter/son of an LPR marries, he or she has nowhere to go in the preference system. He or she loses her petition and priority date. When and if her parent naturalizes, the newly naturalized parent can file a new petition and the wait begins again. Note: If the parent naturalizes first, before the child or daughter/son married, then the marriage converts the petition to a new category, and the beneficiary retains the petition and the priority date.

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PRACTICE TIP: If an LPR parent petitions his unmarried son/daughter and the son/daughter then marries, that petition is revoked, the son/daughter is no longer eligible to immigrate through the LPR parent, and the priority date is lost. However, if the LPR parent naturalizes after petitioning for his unmarried son/daughter but before the son/daughter marries, the son/daughter becomes either an immediate relative or a first preference beneficiary (depending on whether or not he or she is 21). If the son/daughter then marries, they will fall under the third preference category for “married sons/daughters of U.S. citizens.” Throughout all the changes, the beneficiary would retain the petition validity and the priority date, which would determine her place in each new waitlist. The key is to compare the date the parent naturalizes with the date of the marriage of the son/daughter. If the naturalization date comes first, the petition is alive. If the child or daughter/son married first, the petition and priority date are lost.

1. 2. 3. 4. 5.

Relative Carmen is an LPR who wants to petition for her husband. Joaquin would like to immigrate through his son, an LPR. Martin, who is 35 and a USC, wants to petition for his brother. Martin also wants to petition for his uncle and cousins. John, who is single and 20 years old, would like to immigrate through his USC mother. He has delayed getting his birth certificate to you. Will his next birthday have any effect on the petition?

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Exercise 4.5: Can any of the following people file an immigrant visa petition for their relatives? If so, is it a preference or an immediate relative petition? What preference category? Answers are at Appendix 4-A. The chart at the beginning of this section may help you check your work. Once you think you understand the system, however, try to memorize the preference categories as stated above and see if you can find the correct answer to the following examples without looking them up.

6. Michelle is an LPR who wants to petition for her 25-year-old son Jacques, who is unmarried. 7. Jacques hopes someday to marry his girlfriend, Renee. Would that affect the visa petition Michelle wants to file? 8. Michelle becomes a USC. What kind of petition could she file for Jacques now? What if he marries Renee? 9. Zoila is a lawful permanent resident who wants to petition for her married daughter. Zoila is about to apply for U.S. citizenship. Will Zoila’s becoming a U.S. citizen help her daughter immigrate? 10. Sofia is a U.S. citizen who is 18 years old. Her mother would like to immigrate.

§ 4.6 Derivative Beneficiaries People who immigrate under the preference system have an important right: their spouse and children can immigrate along with them, so the family will not be split up. INA § 203(d). The principal beneficiary is the person immigrating under the preference system. The spouse and children who immigrate with him or her are the derivative beneficiaries. There is a very easy way to see if someone can immigrate as a derivative beneficiary. Simply ask two questions: 1. Will the principal beneficiary immigrate through a preference visa petition? 2. Does that person have a spouse or child?

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If the answer to both questions is yes, the spouse and/or children qualify as derivative beneficiaries. Example 4.6-a: Ramona, a U.S. citizen, files a visa petition on behalf of Rafael, her son. Rafael is married and has two sons, one is 18 years old and the other is 25. When the time comes for Rafael to apply for lawful permanent resident status, who can apply along with him? First ask: Will Rafael (the principal beneficiary) immigrate on a preference visa petition? Yes, he will immigrate as a third preference immigrant because he is the married son of a U.S. citizen. Then ask: Does Rafael have a wife or any children? Yes, Rafael has a wife and an 18year-old child. They can immigrate as derivatives. His 25-year-old son is not a “child” under the Act because he is over 21. Therefore, the elder son cannot immigrate as a derivative beneficiary, unless he is helped by the Child Status Protection Act (CSPA). Derivative beneficiaries depend on the status of the principal beneficiary. The I-130 petition is not filed on behalf of the derivative, but rather on behalf of the principal beneficiary.

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This is often the only way for a derivative to immigrate through a family petition, because derivatives do not often qualify on their own as principal beneficiaries. For example, there is no category for “nephews or nieces” of U.S. citizens, so they must immigrate as derivative children of the sibling of a U.S. citizen, who is the principal beneficiary.

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A major exception is where a principal beneficiary in the 2A category has a child who could also be the principal beneficiary in a separate 2A petition filed by the petitioner, as the petitioner’s own child, independent of the principal beneficiary parent. It is often a good idea for petitioners to file separate 2A petitions for their spouse and their children, especially where the petitioner is likely to naturalize in the near future. See the Practice Tip, below. Each family member must file his or her own separate application for an immigrant visa or adjustment of status at the second and final step in the immigration process. They also must prove their family relationship to the principal beneficiary. Example 4.6-b: Rafael’s mother filed just one I-130 visa petition, for Rafael. When Rafael immigrates, he, his wife, and his younger son each must submit an application for lawful permanent residency. Plus, his wife must submit a marriage certificate and his son a birth certificate to prove that they are Rafael’s relatives—just as they would do if Rafael had filed a visa petition for them. If a 2A derivative beneficiary (child) turns 21 before obtaining their lawful permanent resident (LPR) status, the person might “age out” and no longer qualify as a derivative beneficiary at the time his or her parent obtains their LPR status. That is, unless the Child Status Protection Act (CSPA) prevents that (see § 4.10). If the CSPA does not prevent the person from aging out, the petitioner should file a separate I-130 on behalf of that son or daughter, under preference category 2B. The beneficiary in the 2B classification will retain the priority date of the principal beneficiary parent from the 2A petition (referred to as recapturing a priority date) to avoid being placed at the end of the waiting list.33 There are no derivative beneficiaries of immediate relative visa petitions. Anyone who immigrates as an immediate relative must qualify in his or her own right and the petitioner must file separate visa petitions for each person.

PRACTICE TIP: Submitting a separate family petition, even if the relative would qualify for derivative status, may be advisable. For example, in the case of a family where one spouse is petitioning for his or her foreign spouse and children, if the principal beneficiary spouse dies before the visa process is completed, the petitioner must file new petitions for the deceased 33

See § 1.8 below for an explanation of priority dates.

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Example 4.6-c: Steve is a U.S. citizen who files an immediate relative petition for his wife, Marie. Marie’s six-year-old daughter Lisa cannot immigrate as a derivative beneficiary of the petition. Steve must file a separate immediate relative visa petition for Lisa as his stepchild.

spouse’s children. Recapturing the original beneficiary’s priority date may be problematic. The same is true if the principal beneficiary divorces the petitioner. An LPR, especially one who is planning to naturalize, should submit separate family petitions for a spouse and children. Once the petitioner has naturalized, a beneficiary spouse becomes an immediate relative, and any children who were derivatives of the spouse’s application are no longer eligible as derivatives since immediate relatives cannot have derivatives.

Exercise 4.6: Who in the following families can immigrate as principal and derivative beneficiaries? Follow the two-step analysis for each question: 1) Will the principal beneficiary immigrate in the preference system? 2) Does that person have a spouse or children? The answer to question one, for example, is: 1. Roberto is the brother of a U.S. citizen. He has a wife and 6-year-old son. a. Yes. Roberto is a fourth preference because he is the brother of a U.S. citizen. b. Yes. His wife and 6 year old son qualify as spouse and child, so they can be derivative beneficiaries. Other answers are at Appendix 4-A. 2. Marta is the daughter of a U.S. citizen. She has a husband, a married 19-year-old son, and an unmarried 21-year-old son. 3. Li is the wife of a lawful permanent resident. She has a 3-year-old daughter from a previous marriage. [Note: Is there another way Li’s daughter could immigrate?] 4. Susanna is the unmarried 20-year-old daughter of a U.S. citizen. She has a baby girl.

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§ 4.7 How the Preference System Works Probably the first question a visa client will ask you is when he or she will be able to immigrate. As discussed above, immigration through a family petition is usually a two-step process. The first step is submitting a visa petition, and the second step is applying for the immigrant visa and permanent resident status. The process is different for immediate relatives than for beneficiaries under the preference category system. This is because preference visa categories are subject to a quota system, through which there is a limited number of visas available each year for each of the preference categories. Because of these limitations, there are often more people who file petitions than there are visas available, resulting in long waiting periods for prospective immigrants. No such quota exists for visas for immediate relatives and, therefore, they are not subject to the same wait lists. Once the visa petition is approved, an immediate relative beneficiary may go to step two and apply for an immigrant visa. A preference petition beneficiary, however, must wait until a visa is available under the preference system before going on to step two. The date that the preference visa petition is filed with CIS is called

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the priority date. The priority date determines when the prospective immigrant can immigrate. Its function is equivalent to a number on a waitlist. Earlier priority dates are further up on the waitlist for an immigrant visa or green card. Understanding how the preference system works will help you analyze visa cases.

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The Preference System. When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third, and fourth preference categories. (See § 4.13 for a discussion of persons immigrating through the Diversity Program, or Employment Visas.) CIS can approve an unlimited number of preference visa petitions each year. But not everyone with an approved petition will be able to immigrate. Only a certain number of people who are born in each country can immigrate to the United States each year under the family preference system. Each time someone immigrates to the United States under the preference system, one visa is charged to (subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list or “visa backlog.” As far as theory goes, that is about all you need to know. The more people who want to immigrate from a country each year over its visa allotment, the longer the waiting list for that country will be. For that reason, someone from France or Uruguay may be able to immigrate much faster than someone with a similar visa petition from Mexico or the Philippines. Example 4.7-a: Only 30,130 people can immigrate to the United States from any one country each year. Each year many thousands more people from Mexico apply to immigrate to the United States. For this reason, Mexican nationals face a wait of several years to immigrate through the preference system. Each year, a far smaller number of people apply to immigrate to the United States from France. For that reason, many applicants from France have a relatively short wait.

One of the most important changes in the Act was to allow extra visas for the second preference category, and especially for the spouses and “children” (unmarried and under 21) of permanent residents, under category 2A. In the past, this category has had a wait of 10 to 12 years for some countries. Under the current system, the backlog is currently 1-2 years even for countries with the biggest preference backlog, such as Mexico and the Philippines. The backlog for unmarried sons and daughters of permanent residents under preference category 2B is approximately 7-8 years (except for the Philippines and Mexico, which have a backlog of approximately 10 and 20 years, respectively).

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Changes in the System under the Immigration Act of 1990. The Immigration Act of 1990 set up a complicated system for how many visas go to each preference category. (If you are interested in how the numbers of visas available actually get distributed, look at the chart in Appendix 4-B.)

§ 4.8 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate Each month the U.S. State Department issues a Visa Bulletin.34 With the right information, you can consult the State Department Visa Bulletin to see if your client is eligible to immigrate. For example, below is the visa bulletin for March 2014. As you can see, it lists the preference categories in the left-hand column and then shows the priority dates that are current for each category. Note the four countries that are assigned their own queues of chargeability. Everyone else goes into the queue for all other chargeability areas. See more information below.

When a backlog exists, predicting exactly when the client will be able to immigrate is impossible. But the Bulletin may be used to make a very rough estimate of when the client might be able to immigrate in the future. To do this you need to know the following information about the intending immigrant:

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1. 2. 3. 4. A.

The priority date of the visa petition The country of chargeability The preference category How fast the preference category has been advancing in the last 2-3- years Priority Date

As explained above, the date that the I-130 visa petition is filed with the CIS becomes, upon approval of the I-130, the beneficiary’s “priority date” in the preference system.35 That 34

The Visa Bulletin can be accessed through the State Department’s website at http://travel.state.gov/visa/b ulletin/bulletin_1360.html. 35 22 CFR § 42.53(a).

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date establishes the person’s place in line to wait for a visa and to determine when the person can immigrate. The priority date is the date that the CIS received the petition and accepted the fee, not the date that the petition was approved. This is only fair, because in some cases the petition might not be approved for several months or even years after filing it.

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Example 4.8-a: Ana filed a petition for her sister Elsa on May 2, 2010. The petition was approved on July 9, 2010. Elsa’s priority date is May 2, 2010.

PRACTICE TIP: Shortly after (usually a few weeks) the petitioner files the I-130 at the CIS Regional Service Center, he or she should receive a receipt notice on Form I-797. It is possible, however, that CIS will reject the filing for an error and return the packet with a notice that describes the error. The approval notice takes longer, up to two to three years in some cases, with the time dependent on the kind of petition.

B.

“Recapturing” Old Priority Dates

In a limited number of situations, immigrants take advantage of earlier priority dates: 1. Western Hemisphere nationals who established a priority date prior to January 1, 1977 may use that date in any other visa petitions Before 1977, people who had a U.S. citizen child or another potential way to immigrate through a family member could register and obtain a priority date. Some of these people who had U.S. citizen children may carry so-called “Silva letters” as beneficiaries of the lawsuit Silva v. Bell, 605 F.2d 978 (7th Cir. 1979). Other people may have had a parent or spouse immigrate before 1977 and, as a result, may qualify for an earlier priority date. Old Western Hemisphere priority dates show up increasingly rarely. When they do, however, the pre-1977 priority date can be used in any family preference category.

2. Children who were 2A derivative beneficiaries (discussed in § 1.6) but now have turned 21 and are NOT protected by the CSPA age calculator They may nevertheless be able to use the priority date of their parent’s I-130, where the parent was the principal beneficiary, upon the filing of a new I-130 under preference category 2B, in which they—the children—are now the principal beneficiary. Example 4.8-c: Gina is an LPR who files an I-130 petition for her husband under the 2A preference category. Since their child, Soledad, is only 10 years old, Juan and Gina, believe that she will be able to immigrate as a derivative with her father before her 21st 4-27

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Example 4.8-b: Eduardo had a U.S. citizen child and registered with a U.S. consulate on June 1, 1976. He never immigrated. Now his brother is a U.S. citizen and has filed a 4th preference for him. Eduardo can use his old priority date of June 1, 1976.

birthday; hence they do not want to spend the money to submit a separate I-130 for her. Juan’s priority date is May 1, 2012. However, visas advance slowly and in the year 2012 Soledad turns 21 before she can complete consular processing and immigrate. On June 1, 2014, Gina submits a new I130 for Soledad. Fortunately, under 8 CFR 205.1(a)(3)(ii)(E), because Soledad was a derivative beneficiary of a 2A petition filed by Gina, she can retain the filing date of the petition for the principal beneficiary (her father). So, she can “recapture” the priority date of May 1, 2012—not the date of filing, June 1, 2014.36

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3. Supreme Court will consider whether CSPA allows conversion and/or retention of priority dates for derivatives in all preference categories The BIA in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), ruled that § 203(h)(3) of the INA allowed derivative beneficiaries of I-130 petitions filed under preference category F2A to automatically convert into the F2B category without having to file another visa petition. However, the BIA also clarified that the CSPA only allowed “conversion” (recapturing) of priority dates for F2B preference beneficiaries that had aged out of F2A eligibility as derivatives, in the scenario described in the paragraph above. In other words, individuals who were derivative beneficiaries in I-130 petitions filed under any other preference category may not recapture the priority date from those petitions upon the filing of a new petition where they are now the principal beneficiary. The Ninth Circuit disagreed in the case of Cuellar de Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012), finding that the CSPA applied to all preference categories in which a derivative child “aged out,” despite the fact that a different petitioner, the child’s parent, would be required. Cuellar de Osorio involved derivative beneficiaries in the F3 and F4 preference categories. By the time the principal beneficiary (married son/daughter of U.S. citizen and sibling of U.S. citizen) were eligible to immigrate, a derivative child had “aged out.” The principal beneficiary parent, subsequently filed a new visa petition for the child, but the government would not permit retention of the old priority date from the first petition to use with the second. This case was consolidated with a nationwide class action, Costelo v. USCIS, 695 F.3d 1003 (9th Cir. 2012), and the Supreme Court has granted certiorari in this case and is expected to hear oral arguments in 2014.37 However, note that on November 21, 2013, the CIS issued a memorandum stating that “[while Cuellar de Osorio] remains pending before the U.S. Supreme Court, Matter of Wang remains in effect and binding on USCIS … [which] upon a final determination by the US Supreme Court … will evaluate whether any modifications in USCIS policy are necessary.”38 Furthermore, the CIS stated in the same memo that it will reject as improperly filed any applications for adjustment of status filed on the basis of a priority date being current which was improperly recaptured under the policy articulated in the memo. Those applications that have already been accepted as properly filed will be held pending by CIS until 36

See 8 CFR § 205.1(a)(3)(ii)(E). Note that Soledad might still qualify as a “child” under the Child Status Protection Act (CSPA). See § 1.10 below, which describes how the CSPA works. 37 Available at www.legalactioncenter.org/lac-docket-volume-iii-issue-3. 38 USCIS Policy Memorandum, Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Pending a Supreme Court Ruling on Maryorkas v. Cuellar de Osorio. November 21, 2013.

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the Supreme Court decides Cuellar de Osorio. Therefore, until the Supreme Court issues such a decision, applicants should not rely on this case from the Ninth Circuit to seek to recapture a priority date for a former derivative beneficiary under any other preference category other than F2A.

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For “recapturing” an earlier priority date, the visa petition must not have been revoked (See § 4.12, below on revocation). If however the petition has not been revoked, the CIS deems the approval of the new petition to be a reaffirmation of the initial petition and reinstates the priority date from the original. See FAM 42.83.

PRACTICE TIP: To request the acquisition of an old priority date, send a letter requesting the earlier date with an explanation of the reason you believe the beneficiary is entitled to that date. You can send the request as a cover letter with the I-130 or, if necessary, later while the petition is pending or to the National Visa Center after the petition has been approved by CIS and forwarded.

C.

Country of Chargeability

Sometimes a question comes up about the country to which the person’s visa will be charged. This can make a tremendous difference, since the visa backlog from one country may be a few months, while the wait may be several years from another. As a general rule, the person’s place of birth is the country or territory to which a visa will be charged. This is true even if the person has become a citizen of another country. Example 4.8-d: Enrique was born in Mexico but has acquired citizenship in Guatemala. His country of chargeability is Mexico.

D.

Preference Category

This is the category of the visa petition, for example second preference 2A for the immigrating spouse of a lawful permanent resident.

39

See INA § 202(b), 22 CFR 42.12.

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In some situations, an exception may apply and immigrant applicants can “cross-charge” to a different country. For example, family members who are immigrating together and who were born in different countries may be able to cross-charge all of their visas to the country with the shortest waiting list.39

How to Read the Visa Bulletin: Look at the Visa Bulletin for Family Sponsored immigrants below.

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First, notice the date at the top. This shows the month to which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month and most of the information in the bulletin changes from month to month. So checking the new visa bulletin each month is important. Along the left side of the bulletin chart are all the categories of preference visas. Across the top is a list of countries called the “areas of chargeability.” The first category says “All Chargeability Areas Except Those Listed.” Known as the “worldwide” category, it includes all countries not separately listed. For example, Argentina does not have a separate listing in the bulletin. Therefore, a person from Argentina should use the numbers listed in the “All Chargeability” column. The countries that fall into this category usually have the smallest backlogs and thus the shortest waiting periods. If the person is from a country that has its own separate listing, such as India or Mexico, he or she must consult that column of information. If you draw a line across from the relevant preference category and down from country of chargeability you will find a date. That is the priority date of persons from that country, and in that preference category, for whom visas are available now. The rule to reading the Bulletin is: If your client’s priority date falls before the date listed, a visa is now available and she can immediately apply for lawful permanent resident status. If your client’s priority date

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falls on or after the date listed, no visa is available to her that month and she must wait longer.

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Example 4.8-e: Look at the Visa Bulletin above. Pretend today is March 2014. Sarwan, who is single, was born in India in 1981. On April 5, 2006, his permanent resident mother filed a second preference visa petition for him. The petition was approved in 2013. The priority date for second preference 2B visa petitions from India on the chart is September 1, 2006., Sarwan’s priority date of April 5, 2006 is before the priority date listed in the Visa Bulletin. Therefore, Sarwan is eligible to immigrate now. Louise was born in Haiti. On January 1, 2004, her U.S. citizen sister filed a visa petition for her. The priority date for fourth preference petitions for all chargeability areas is November 8, 2001. Louise is not eligible to immigrate now, because her priority date falls after the date in the Visa Bulletin. Sometimes, categories show the letters “C” or “U” instead of a date. The letter “C” means that the category is current and there is no waiting for a visa, no matter when the petitioner filed the petition. The letter “U” means that the category is unavailable. All the visas in that category and country have been used up for the current fiscal year. Some visas may become available at the end of the year or the beginning of the next year’s accounting in October (CIS operates on a fiscal year basis, beginning every October 1st). Until then, the person cannot immigrate no matter when his or her visa petition was filed.

TO ORDER THE STATE DEPARTMENT VISA BULLETIN: You can receive the monthly State Department Visa Bulletin. There is no charge. To be placed on the Department of State’s E-mail subscription list for the Visa Bulletin, send an e-mail to the following address: [email protected] and in the message body type: Subscribe Visa-Bulletin. To be removed from the Department of State’s e-mail subscription list for the Visa Bulletin, send an e-mail message to the following address: [email protected] and in the message body type: Signoff Visa-Bulletin.40

Unit 4

Exercise 4.8: The following people have come to your office. It is March 2014. Visa petitions filed on their behalf have been approved. They want to know if they are eligible to immigrate to the United States now. Use the visa bulletin above to advise them. (See answers in Appendix 4A.) 40

The Visa Bulletin can also be accessed through the State Department’s website at http://travel.state.gov/v isa/bulletin/bulletin_1360.html. Additionally, a recorded message with visa cut-off dates can be heard at: (202) 663-1541. The recording is normally updated by the middle of each month with information on cutoff dates for the following month.

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1. Oscar was born in Nicaragua and is the beneficiary of a third preference visa petition filed on February 2, 2003. 2. Joel was born in the Philippines. He is the beneficiary of a fourth preference visa petition filed on April 4, 1993. 3. Marta was born in Mexico and is the beneficiary of a second preference visa petition filed by her husband on September 15, 2013. 4. Fatoumata was born in Mali and is the beneficiary of a second preference visa petition filed by her husband on July 3, 2012. 5. Kim was born in Korea and is the beneficiary of a first preference visa petition filed on October 3, 2006. 6. Julio was born in Mexico and is the beneficiary of an immediate relative visa petition filed on November 13, 2012. (This is a trick question!) 7. Ravi was born in India and is the beneficiary of a third preference visa petition filed on February 22, 2003.

Questions for Discussion 4.8: Sonia, a lawful permanent resident, comes to your office. She wants to file a second preference visa petition for her husband, Jose. Both of them were born in Mexico. Assume that it will take five or more years for Jose to immigrate. When Sonia hears this, she demands that you explain to her why that would be. She says that her neighbor Teresa who also has a green card was able to help her husband immigrate in less than two years. 1. Practice explaining in simple language how the visa preference system works and why this visa involves such a long wait. What questions might you ask Sonia about Teresa to try to explain the difference? 2. What advice would you give Jose and Sonia?

Unit 4

§ 4.9 Advising Your Client about When a Visa May Become Available Predicting exactly when a visa will become available for a person waiting to immigrate under the preference system is impossible. The priority dates in the Visa Bulletin do not advance consistently because the number of people who apply in a particular preference category can vary from month to month (the number is simply unpredictable), the number of people who are on the waiting list who still want to immigrate is unknown, and the number of derivative beneficiaries is unpredictable. The dates in one category may jump ahead three months over one month of “real time” or they may stand still or even go backwards. Review past Visa Bulletins and read the comments in the State Department mailing to get an idea of where a preference category may be moving. However, no one can guarantee exactly what will happen. You must explain this uncertainty to clients. With experience, rough estimates

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can be made, but changing worldwide visa demands or changes in the law can create drastic changes.

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You can only make rough estimates of when a client will be able to immigrate when there is a backlog. This is because no one knows exactly how many people are on the waiting list. Some may have died, changed preference categories, or changed their minds. Some may have had children, adding to the number of derivative beneficiaries ahead of you.

PRACTICE TIP: Your client may have more than one family member who can file a petition for her/him. In general, when the wait between the time of filing and the time the priority date becomes current is long, consider advising your client to ask more than one family member (and perhaps all who can) to file a petition. Long waits coupled with life’s uncertainty can result in loss of the ability to immigrate after many years of waiting through, e.g., death or divorce. Filing two or more petitions is a relatively inexpensive insurance policy against future loss of a petition and priority date. In addition, if the petitions are in different categories, the beneficiary can also hedge her or his bets about which category will advance more quickly.

§ 4.10 Child Status Protection Act (CSPA) The Child Status Protection Act (CSPA) went into effect on August 6, 2002. It was created to help with the problem of children “aging out” of their eligibility to immigrate when they turn 21. This section describes how CSPA works. A.

Children of U.S. Citizens

Such a beneficiary as is described above might prefer to convert to 1st preference if he or she has a child of her own. This is because an immediate relative petition does not include derivative beneficiaries, meaning that if the parent immigrates as an immediate relative, her child cannot immigrate with her. Instead, the child would have to wait until the parent becomes an LPR and then can petition for her. This could take years. However, all preference petitions can 4-33

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Children of U.S. citizens benefit the most from CSPA. If their parents file I-130 visa petitions for them before they turn 21, they will never age out. They will remain immediate relatives indefinitely, even though they are no longer children as defined in the INA. The age that matters is the age of the child at the time the petition was filed. If that age was under 21, the child will qualify to apply for permanent residence as an immediate relative regardless of his or her age when he or she applies. Before the CSPA was enacted, their petitions would have converted automatically into 1st preference petitions when they turned 21. By remaining immediate relatives, these beneficiaries will be able to immigrate more quickly, because they do not have to wait for a priority date to become current. While these beneficiaries must remain unmarried, there is no time limitation regarding when they must actually apply for adjustment or an immigrant visa.

have derivative beneficiaries, so if the parent immigrates, through her own U.S. citizen parent, as a 1st preference immigrant, her child can immigrate with her. Fortunately, the CSPA allows the immediate relative beneficiary to opt out of remaining an immediate relative upon turning 21. If she wants, she can convert to 1st preference, and therefore when she immigrates her child will be able to immigrate with her as a derivative beneficiary. The BIA has held that the CSPA also allows for applications for adjustment or immigrant visas by those former immediate relatives who aged out before the CSPA became effective, if they have not yet filed an application for adjustment of status application or an immigrant visa, no matter how long ago the visa petition was filed and approved.41 Example 4.10-a: Paula, a U.S. citizen, filed an I-130 for her daughter Isabel on June 7, 1997. The petition was approved on December 2, 1997. Isabel did not file for adjustment of status and then turned 21 on January 5, 2000. The petition was at that time converted to first preference. Since the BIA has recognized that visa petition beneficiaries like Isabel should qualify for CSPA, Isabel files an adjustment application on August 1, 2013, though she was then 34 years old. Isabel should be considered an immediate relative and be allowed to adjust her status, so long as her petition has not been revoked (see below, section on revocation). B.

Children of LPR Parents Who Naturalize While the Petition Is Pending

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Under the CSPA, if an LPR parent petitions for a child, and then naturalizes before that child turns 21, the child will remain an immediate relative even if he or she turns 21 before he or she can immigrate. The age that matters is the age of the child when the LPR parent naturalizes. If that age was under 21, the child will qualify to apply for permanent residence as an immediate relative regardless of his or her age when he or she so applies. Sometimes an LPR petitioner will file only one I-130 for his or her spouse and assume that their children will immigrate in derivative status. Keep in mind that when these parents naturalize, they will need to file a separate I-130 petition for each child, since the children will lose their derivative status. What happens to those children when they turn 21? Under the CSPA, we believe that if the children are under 21 when the LPR parent naturalizes, they should remain immediate relatives, even if the parent doesn’t file new petitions for them until after they turn 21. This is because the petition that should count for the CSPA should be the original one filed by the LPR parent for the spouse that included the children. However, the CSPA is not totally clear on what happens to children in this situation. To be on

41

See In re Avila-Perez, 24 I&N Dec. 78 (BIA 2007). See also Neufeld memorandum, “Revised Guidance for the Child Status Protection Act (CSPA), issued April 30, 2008, which can be found at: www.uscis.gov/files/nativedocuments/CSPA_30Apr08.pdf.

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the safe side, you should make sure that separate petitions for the children are filed before they turn 21. That way, they will be sure to retain their status as immediate relatives after they turn 21.

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Like other children of U.S. citizens, if the petitioner’s child has a child of his or her own, he or she might not want to remain an immediate relative after turning 21, because he or she would not be able to bring the child in as a derivative beneficiary. Again, CSPA allows the beneficiary to opt out of classification as an immediate relative if he or she wants to. C.

Married Children of U.S. citizens (Third Preference Category) Whose Marriage Is Terminated

If the marriage of a married child of a U.S. citizen is terminated before the child turns 21, the child becomes an immediate relative. (Otherwise, if the child is over 21 when the marriage ends, then their 3rd preference petition converts into a 1st preference petition). The age that matters is the age of the child when the marriage is terminated. If that age was under 21, the child will qualify to apply for permanent residence as an immediate relative regardless of his or her age when he or she so applies. It is not clear under the CSPA whether married children who are under 21 years old and are the children of U.S. citizens are eligible to opt out of converting to immediate relatives if they divorce. Obviously, if they have dependent children, they may prefer to move into the first preference category upon turning 21 so that their children can derive status and immigrate with them. D.

Children of LPRs and Derivative Children Beneficiaries

Before CSPA, the children of LPRs who turned 21 would convert from the 2A to the 2B preference category. Derivative beneficiaries, such as, the children of 4th preference (brother/sister of USC) beneficiaries, would age out and lose their ability to immigrate altogether before CSPA. The CSPA changed this, but it is much less generous, and much more complicated, for the children of LPRs and other derivative beneficiaries than it is for the children of U.S. citizens.

Following the formula outlined below, you must deduct the time the petition was pending from the beneficiary’s actual age on the date a visa became available. The number you come up with is the “CSPA age” or “calculated age.”

42

INA § 203(h)(1)(A)-(B).

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You have to look at the biological age of the derivative beneficiary at the time the visa becomes available. If the beneficiary is over 21, he or she still might qualify, depending on how long the I-130 was pending.42

The formula is as follows: Step One: Calculate the time the petition was pending: Time between - the petition’s filing date and - the petition’s approval date

The CSPA itself does not define what  “pending” means, but the CIS and the  State Department have decided that it  means the time between the filing  date and the approval date. 

Step Two: Subtract - The time the petition was pending (time from Step One), - From the beneficiary’s actual age … on the date the visa becomes available (NOT his current age, but his age at the time the Visa Bulletin indicated that his priority date was current, or the “visa availability date”)

The date the visa becomes available is either: (a) the first day of the visa bulletin month on which the priority date becomes current, or (b) the petition approval date, whichever occurs later.1   See the note below, “Watch Out 

This calculation applies both to the principal beneficiaries of 2A petitions for children of LPR’s or for the derivative beneficiaries of any petition under the preference categories. The age you get from this formula is the CSPA age; and if it is under 21, the beneficiary may continue to qualify as a “child” under the INA. 1. Caveat: The one-year requirement

Unit 4

The CSPA “calculated” age has an expiration date and is not valid indefinitely. In order to be protected by the CSPA age, an individual must “seek to acquire” lawful permanent resident status within one year of the visa availability date (the date when the priority date became current). Example: A 2A beneficiary you represent already turned 21 and her priority date becomes current on October 1, 2014. You then calculate her CSPA age, and you see that it comes out to 18 years of age. However, this beneficiary does not have another three years of protection under the CSPA, as her CSPA age would suggest. Instead, she must comply with the one-year requirement and must seek to acquire status as a lawful permanent resident before October 1, 2014. For those who are going to adjust their status, the clearest and safest way to comply with the “sought to acquire” provision is to file the I-485 adjustment application within one year of the priority date becoming current. For those who are going to immigrate through consular processing, this means that the beneficiary should either submit a completed form DS-230/DS260 to NVC (see Unit 6) or, for derivative beneficiaries of a principal beneficiary submit a Form

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I-824 or an adjustment application to the Service Center that processed the I-130 within one year of the priority date becoming current (see Unit 5).

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PRACTICE TIP: If a person is a derivative beneficiary, the important date to take action and seek to acquire residency is within one year from when the priority date becomes current for the principal beneficiary. This means that the derivative beneficiary should NOT necessarily wait to take action to apply to immigrate until after the principal parent beneficiary immigrates, which may occur more than one year after their priority date became current. If the beneficiary is then over 21 and has not “sought to acquire” residency within the one year time period, it will be then likely be too late to do so.

If the beneficiary did not file the I-485 or consular processing documents within one year, it is possible that other actions may be sufficient to meet the “has sought to acquire” residency requirement, such as seeking legal counsel.43 Example 4.10-b: Pedro, who is an LPR, filed an I-130 for his son Samuel on October 8, 2008. It was approved exactly one year later, on October 8, 2009. It is now November 1, 2013, the priority date is now current, and Samuel is now 21. Samuel is in the United States and intends to apply for adjustment of status (see Unit 7). Since the CIS took one year to approve the petition, you can deduct one year from his current age. For purposes of immigrating, therefore, he is only 20, and he can still immigrate as a 2A beneficiary, even though he is really over 21. However, if he doesn’t file his adjustment application before November 1, 2014, he will lose the right to immigrate in the 2A preference category, and will automatically become a 2B beneficiary. Since the priority date for 2B is not current, he’ll have to wait longer to immigrate. The same rule applies to derivative beneficiaries in other preference categories.

43

See unpublished BIA decision In re Kim, A77 828 503 (BIA Dec. 20, 2004).

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Example 4.10-c: Jane, a U.S. citizen, filed a third preference petition for her married son Mark on August 1, 2007. It was approved three years later, in August of 2010. Mark’s wife Wanda and minor daughter Diana were derivatives. It is now November 1, 2013, Diana is 22, and the priority date is current. Under the CSPA, if you deduct Diana’s age of 22 from the 3 years that the petition was pending, the number you get is 19. Therefore, Diana can remain included in Mark’s petition as long as she files for adjustment or consular processing before November 1, 2014. If she fails to file before November 1, 2014, Diana will lose her derivative status, and the only way she will be able to immigrate is through a separate petition filed by her father or mother after they have immigrated.

E.

Recapturing a Priority Date When the CSPA Fails to Protect a Derivative Beneficiary

Section 203(h)(3) of the Immigration and Nationality Act (INA) provides that if a derivative beneficiary is not protected by the CSPA (for example, because they failed to comply with the one-year requirement to “seek to acquire” status), the beneficiary’s I-130 petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition. However, in the case of Matter of Wang, 25 I&N Dec 28 (BIA 2009), the Board of Immigration Appeals (BIA) agreed with the CIS’ interpretation of the law, stating that the retention of a priority date is limited to when the same petitioner files a new I-130 for the same beneficiary in the same preference category. In other words, the retention of the priority date only applies to F-2A derivatives who were first included as derivative beneficiaries in an I-130 petition filed by their lawful permanent resident parent on behalf of their other parent, who was the principal beneficiary. When that derivative beneficiary child ages out, the petitioning LPR parent can file a new I-130 on his or her behalf; and the now adult son or daughter of an LPR may “recapture” or “retain” the priority date of the initial I-130. The BIA held that this protection does not apply to derivatives in other preference categories, such as children of the sons and daughters of U.S. citizens in the third preference category or children of the siblings of US citizens in the fourth preference category.

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However, the Fifth and the Ninth Circuit Courts of Appeal disagreed with the BIA in the cases of Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011) and Cuellar de Osorio v. Mayorkas (9th Cir. 2012). Those courts found that the protection found in the INA § 203(h)(3) applies to all derivatives, not just F-2As. The CIS appealed the decision in Cuellar de Osorio, which was consolidated with a national class action regarding the same issue, requesting certiorari to the Supreme Court. The request for certiorari, or judicial review, was granted and oral arguments in the case are likely to be heard in 2014. Meanwhile, on November 21, 2013, the CIS issued a memorandum stating that “[while Cuellar de Osorio] remains pending before the U.S. Supreme Court, Matter of Wang remains in effect and binding on USCIS … [which] upon a final determination by the U.S. Supreme Court … will evaluate whether any modifications in USCIS policy are necessary.”44 Furthermore, the CIS stated in the same memo that it will reject as improperly filed any applications for adjustment of status filed on the basis of a priority date being current which was improperly recaptured under the policy articulated in the memo. Those applications that have already been accepted as properly filed will be held pending by CIS until the Supreme Court decides Cuellar de Osorio. Therefore, until the Supreme Court issues such a decision, applicants

44

USCIS Policy Memorandum, Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Pending a Supreme Court Ruling on Maryorkas v. Cuellar de Osorio. November 21, 2013.

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should not rely on this case from the Ninth Circuit to seek to recapture a priority date for a former derivative beneficiary under any other preference category other than F2A.

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Therefore, it will be important to keep an eye on that litigation to know which derivatives will be protected by INA § 203(h)(3) in the future. Example: In 1994, Abdoulaye, a U.S. Citizen, filed an I-130 for his sister, Fanta, in which she included her child, Bintou, as a derivative beneficiary. However, Bintou aged out and was not otherwise protected by the CSPA. According to the cases of Khalid and Cuellar de Osorio, once Fanta becomes an LPR through Abdoulaye’s petition, she may then file an I-130 petition under preference category 2B on behalf of Bintou, who would be the principal beneficiary of that petition. Bintou could recapture or “retain” the priority date of the I-130 petition her uncle filed on behalf of her mother in 1994, since she was at that time a derivative of that original petition. However, until the U.S. Supreme Court issues a decision on the matter, the CIS will not grant an adjustment of status application for Bintou based on this I-130 application filed by Fanta. F.

New Processing Procedure

The CIS adopted a new procedure for the processing of I-130s. It may be advantageous for beneficiaries who would otherwise age out in spite of CSPA. Instead of processing I-130s prior to the availability of a visa, CIS will process them as the visa numbers become available. As a result the amount of time the petition is pending is longer. This amount of time is then subtracted from the actual age of the applicant at the time the visa number is available (the date the priority date becomes current). As a result, an applicant who would otherwise have aged out may be able to retain 2A or derivative status. However, note that in the case where the Visa Bulletin regresses, the I-130 will usually have been approved when the visa first became available; and any time that the beneficiary waits for a new visa availability after that will not be counted as part of the time the visa petition was pending. See the note below, “Watch Out for Visa Regression!”

However, under the new procedure, Luisa’s petition should be pending so long as there is not a visa number available, in this example, three years. Now the three years the petition was pending will be subtracted from Luisa’s current age of 22 so that her age under CSPA is 19, thus allowing her to still qualify for a 2A visa.

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Example 4.10-d: Julio, a lawful permanent resident, filed a petition for his daughter Luisa in December of 2008. If the petition were approved one year later, one year would be subtracted from Luisa’s age at the time the visa number is available. However, if it takes three years for her priority date to become current, and Luisa was 19 at the time the petition was filed, she would be 22 at the time the visa number becomes available. Since her petition was only pending for one year, she could deduct one year from her actual age, and would be considered 21 for the purposes of CSPA. Thus, she would age out.

G.

Watch Out for Visa Regression!

Sometimes the Visa Bulletin moves backward rather than forward. For example, you may have a priority date of August 8, 2010. The Visa Bulletin for August 2011 showed a current priority date for your preference category of March 2010, so your priority date was not current then. The next month, in September 2011, the Visa Bulletin moved forward and showed a current priority date of November 3, 2010. Your priority date then became current! As the blurb next to the calculation chart above shows, this means that your visa availability date would be September 1, 2011 (the first date of the Visa Bulletin month where your priority date became current). However, in December 2011, the Visa Bulleting moved backward, or regressed, and shows a current priority date for your preference category of June 12, 2010. Your priority date is no longer current and it doesn’t become current until July 2012, when the Visa Bulletin shows a current priority date of October 2010. So what happens to your CSPA age? What is the “visa availability” date you must use when calculating your CSPA age?

Unit 4

1. Your CSPA Is “Locked-In”: If you had already “sought to acquire” LPR status by filing your I-485, DS-260, or I-824 before the Visa Bulletin regressed, your CSPA age is locked-in and you need not worry. You cannot adjust status or consular process at this time, because your priority date is not current (that is, there is no immigrant visa available for you at this time). However, when it becomes current again, your CSPA age will be the same as it was when you filed your I-485, DS-260 or I-824. The CIS or the State Department will hold onto your application until a visa becomes available for you again. 2. Caution, You May Age-Out: If you had not “sought to acquire” LPR status by the time the Visa Bulletin regressed, you may age out! The CIS treats this situation as if the Visa Bulletin had never become current. Therefore, it calculates the age of the beneficiary with the latest visa availability date (in the example above, that would be July 1, 2015, because that was the Visa Bulletin month when the priority date became current again; in other words, when the visa became available again). Since the second step of the CSPA calculation is to subtract the time the petition was pending from the beneficiary’s actual age on the date the visa becomes available, the longer the visa availability date gets pushed back after the I-130 has already been approved, the higher the likelihood the CSPA calculation will fail to bring the CSPA age under 21. Therefore, it is very important to try to “seek to acquire” LPR status as soon as the priority date becomes available, to minimize the risk that the Visa Bulletin will regress before the beneficiary has a chance to file the I-485, DS-260 or I-824. This is why the beneficiary should not wait until the priority date becomes current, in order to prepare the appropriate forms and assemble the supporting documents to move on to the next step. H.

Relief for Filipinos/Opt Out Provisions under CSPA § 6

For complicated reasons, the first preference category is now backlogged much further than the second preference 2B category for beneficiaries from the Philippines. Therefore, when

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their parents naturalized and these sons and daughters over 21 moved from 2B to first preference, they actually extended the time they needed to wait for their visa to become current. The CSPA allows beneficiaries in this situation to elect whether they want to automatically convert to the first preference or opt out and stay in the 2B category. CSPA § 6, amending and adding INA § 204(k). The CIS advises that persons seeking to opt out file a request in writing with the District Office that has jurisdiction over the beneficiary’s residence. This request must be submitted by the beneficiary him or herself not the petitioner. The Officer in Charge of the CIS Office will provide written notification of a decision to both the beneficiary and the Department of State’s visa issuance unit. Once the beneficiary’s request is approved, the beneficiary’s eligibility for family-based immigration will be determined as if the beneficiary’s parent never naturalized. The age of the child on the date of the parent’s naturalization remains his or her age for CSPA purposes.45 Of course, if the children were under 21 at the time the parent naturalized, then they would become immediate relatives upon their parents’ naturalization and would be able to immigrate immediately. Though this part of the CSPA was designed to remedy a dilemma faced by people from the Philippines, in reality it is not limited to nationals of the Philippines. I.

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Children of Asylees and Refugees

The spouse and unmarried children of refugees and asylees may enter the United States as derivatives. Before, if the child turned 21 before the parent was granted asylum or refugee status, the child could not be a derivative beneficiary of the parent. In certain situations, the CSPA allows such children to be derivative beneficiaries. There are several groups of children whose status could be affected by the CSPA. These groups are: 1. Unmarried Child in the United States and under 21 When the Parent’s Asylum Application Is Filed, and Included in That Application: If an unmarried child who is living in the U.S. was included on her parents’ asylum application and that application was filed at any time, but no decision on the application was final until on or after the CSPA effective date of 8/6/02, the child will be able to derive asylee status and later adjust her status to that of a lawful permanent resident, even if she later turns 21. It doesn’t matter whether she turns 21 before or after the approval of the asylum application or before or after she applies for adjustment of status.

45

See Memorandum from Joe Cuddihy, Director of International Affairs, USCIS, on § 6 of the Child Status Protection Act (Mar. 24, 2004).

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2. Unmarried Child in the United States and under 21 When the Parent’s Asylum Application Is Filed, but NOT Included in That Application: If an unmarried child who is living in the U.S. was not included on her parents’ asylum application, the principal must file an asylee relative petition (Form I-730) within 2 years of the date the asylum application is granted in order for the child to derive asylum status from the parent. For those asylum applications filed at any time and pending on or after 8/6/02, these children will be able to derive asylee status and later adjust status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21 and the I-730 is filed within two years of the asylum grant.

3. Unmarried Child outside the United States: If an unmarried child is not living in the U.S. and a parent files an asylum application at any time, and it was pending on or after 8/6/02, the child will be able to derive asylee status and later adjust her status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21 and the parent filed or files the I-730 within two years of obtaining asylum status. 4. Asylum Applications Filed before 8/6/02: Still somewhat unresolved is what happens in the situation when the asylum application of the parents of an unmarried child was approved before 8/6/02. Under these circumstances, we believe the child should still be able qualify for derivative asylee benefits so long as the parent filed the I-730 and it was pending on 8/6/02. Although under these circumstances it should not matter whether the child turned 21 before or after 8/6/02, it is unclear whether the I-730 had to have been filed before the child turned 21 for the child to remain eligible for derivative asylee benefits and adjustment of status. J.

Effective Date of CSPA

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The CSPA was signed into law on August 6, 2002. Therefore, it applies to all petitions filed on or after that date. According to CIS and DOS initially, it also applied to petitions that were filed before August 6, 2002 but that were approved on or after that date. This includes petitions that were denied before August 6, 2002 if an appeal or motion to reopen was granted after that date. Those beneficiaries who had approved visa petitions but no adjustment of status application “pending” on August 6, 2002 who later filed applications for adjustment were initially denied or discouraged from applying. The BIA has clarified that such beneficiaries are actually protected by the CSPA, finding that the CSPA does not require that an adjustment application be pending on the date of enactment if a visa petition was already approved.46 Those beneficiaries who otherwise qualified for CSPA may now file motions to reopen or reconsider their denied adjustment applications without fee, or make their initial application now, in certain cases.47 According to CIS and DOS, the CSPA does not apply to petitions approved before August 6, 2002 if there has been a final determination on the immigrant visa application or adjustment of status application before that date. According to the CIS, a final determination for purposes of an adjustment of status application means approval or denial by the CIS or EOIR. However, the Ninth Circuit has ruled that there is no final determination if an appeal is pending in federal court.48 At this time, CIS is only applying the Padash holding in the Ninth Circuit. If there has been no final determination of the immigrant visa or adjustment of status application, the CSPA will apply to petitions approved before August 6, 2002 if the dependent aged out on or after August 6, 2002. It will only apply to those who aged out before August 6, 46

See In re Avila-Perez, 24 I&N Dec. 78 (BIA 2007). See also Neufeld memorandum, “Revised Guidance for the Child Status Protection Act (CSPA), issued April 30, 2008 and available as Appendix 4-D. 48 Padash v. INS, 358 F.3d 1161 (9th Cir. 2004). 47

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2002 if they applied for adjustment of status or an immigrant visa before aging out. Although there is some dispute about whether the CIS/DOS interpretation is correct, but at this writing this is how the CSPA is being implemented.

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§ 4.11 The V Nonimmigrant Visa On December 21, 2000, Congress enacted the Legal Immigration and Family Equity Act (LIFE). The LIFE Act somewhat ameliorated the family visa-backlog problem by creating two new nonimmigrant visa categories: one for the spouses and minor children of legal permanent residents (the V visa); and the other for the spouses and minor children of U.S. citizens (the K visa). See § 4.3 for information on the K visa. Spouses and children (unmarried and under 21) of legal permanent residents whose preference 2A I-130 family petitions were filed on or before December 21, 2000 and who had been waiting in the priority date backlog49 for three years or more were eligible to apply for a “V” visa. The “V” visa allowed these second preference beneficiaries to reside and work in the United States until their priority dates became current.50 At this writing priority dates for all countries of chargeability under category 2A for spouses and minor children of legal permanent residents have passed the December 21, 2000 cutoff date. As a result, most, “V” visa holders have had immigrant visa availability for some time. If a “V” visa beneficiary has not yet attained permanent residency, it will be important to investigate whether or not the I-130 petition is still viable, or whether it has been “terminated” by the National Visa Center for lack of contact or action by the visa petition beneficiary. Example 4.11-a: Carmelo filed for his wife Josefina in November 2000. In November 2003, Josefina became eligible to apply for a V visa thereby granting her permission to reside and work in the United States. In order to qualify, the beneficiary has to be eligible for the V visa when he or she reaches the three-year mark, not just as of December 21, 2000.

IMPORTANT NOTE: Originally, CIS said that children in V visa status would lose eligibility for the V visa once they turned 21. The Ninth Circuit held, however, that a child who initially qualified for a V visa remains eligible for “V” status once she turns 21. Akhtar v. Burzynski, 383 F.3d 1193 (9th Cir. 2004). Although CIS was only legally required to follow this case in the 9th 49 50

See § 1.5, infra, to understand preference categories and “priority dates.” INA § 101(a)(15)(V).

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Example 4.11-b: Carmelo filed for his daughter in November 2000. Carmelo’s daughter was 20 years old at the time. As of November 2003, she had been waiting for three years for her visa petition to become current, however by that date she was over 21. Therefore, she was no longer eligible to receive the V visa.

Circuit, it made the decision to follow it all over the country. Therefore, thanks to this case, people who turn 21 while in V visa status are eligible to remain in that status until they are able to immigrate. They still must be under 21 when they apply for the V visa the first time.

Individuals who are eligible to request a V visa can do so either at the consulate in the country they reside or, if living in the United States (legally or not), from the CIS. If processing at the consulate, the applicant should request the V visa at the same consulate that would have jurisdiction over the applicant’s immigrant visa. If living in the U.S. without status, the applicant should not travel abroad for processing, as that could trigger grounds of inadmissibility affecting later eligibility to adjust status to permanent residency. See Unit 3. A.

Inadmissibility and the V Visa

By statute, the 3- and 10-year bars do not apply to V visa applicants, even though these bars will apply later when the V visa holder applies for adjustment of status or an immigrant visa. However, all other grounds of inadmissibility do apply to the V visa applicant. The V visa is a nonimmigrant visa. If a nonimmigrant is inadmissible, he or she can request a waiver of inadmissibility under INA § 212(d). Thus, V visa applicants should be able to receive waivers pursuant to § 212(d). The nonimmigrant inadmissibility waiver can waive any ground of inadmissibility in the discretion of CIS upon recommendation of the State Department. Therefore, although this issue is not yet settled, we encourage advocates to argue that the CIS should grant a § 212(d) waiver of a ground of inadmissibility for individuals seeking nonimmigrant visas even though a waiver of that same ground of inadmissibility would not be available for individuals seeking immigrant visas. Because the waiver is discretionary, the CIS or consular office can deny it.

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Example: Chin is subject to the permanent bar because he lived in the United States without permission from May 1998 to July 2000. In July 2000, he left the United States and returned to the U.S. in December by crossing the border illegally. He is not eligible for a waiver of the permanent bar as an intending immigrant. However, as a nonimmigrant V visa applicant, the CIS can grant him a general waiver. Note that when Chin applies for his immigrant visa the CIS will deny his application because he is inadmissible as an immigrant under the permanent bar. See Unit 3. B.

Extending the V Status or V Visa

The CBP may grant persons up to a two-year stay if they are entering the United States with a V visa issued by the consulate. 8 CFR § 214.15(g). The authorized stay is designated on Form I-94, the white card that is stapled into a person’s passport upon admission to the U.S. However, CBP may authorize less than 2 years when the person’s passport is valid for a shorter period. If your client was given less than two years for no apparently legitimate reason, he or she may be able to have the local Deferred Inspections section of CBP (usually still housed within the CIS District Office, even though not a part of CIS) remedy this.

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Persons who enter the United States with the V visa or who are issued the V visa status from the CIS will need to extend their stay before their current stay expires. If they are still in status, they can file the Form I-539, in addition to Supplement A to Form I-539, with the appropriate filing fee, up to 120 days before the expiration of their status. Send the Form I-539, Supplement A and filing fee to CIS, PO Box 7216, Chicago, IL 60680-7216. In Part 2, Question 1, check box (a) asking for an extension of stay of their current status. They should be able to include derivatives and other co-applicant family members on the Supplement A form thus avoiding additional filing fees. They do not need to submit the fingerprint service fee or the medical examination, Form I-693. Include an I-765 and appropriate filing fee if seeking renewed work authorization.

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A V nonimmigrant that has filed an application for adjustment of status (Form I-485) is still eligible for an extension of V nonimmigrant status as long as the adjustment application remains pending. If the V status is expiring and an immigrant visa number is available the V nonimmigrant is allowed one 6-month extension to file for the adjustment. If the client already has let the I-94 expire, he or she will still be filing the Form I-539, but will not be asking for an extension. Instead, they will be filing for a new application for the V status, and will be checking box (b) in Part 2, Question 1. They will write in “V status” on the line asking for the new status they are requesting. They will need to submit the medical exam results and fingerprint service fee. The agency will not extend the V visa or V status if the applicant has applied after the I-94 has expired. C.

Age-Outs

For purposes of the 3- and 10-year bars, children do not begin gaining unlawful presence until they turn 18, nor is unlawful presence relevant for periods prior to April 1, 1997. Children who enter the United States for the first time with the V visa, therefore, do not begin to gain unlawful presence until their I-94 expires. If they file a timely application for an extension, they are protected until a decision is made on the application. If they are approved for another two years, then they never gain unlawful presence; if they are denied, unlawful presence begins on the date of the denial. However, the time between their prior termination of status and the grant of the new application should not count toward unlawful presence, as they should be granted extensions nunc pro tunc. Children between the ages of 18 and 21 who were illegally here when they filed for V status in the United States may have already have enough unlawful presence to trigger the bars to admission. Unlawful presence accrued either before or after the V status still

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In January 2005, the CIS reversed its prior policy of not renewing visas for children who entered with V-2 visas (children of LPRs with separate I-130s filed on their behalf) or V-3 visas (derivatives) once they turned 21. Therefore, all children granted a V-2 or V-3 visa can continue to receive extensions of status as long as their application is not terminated under 8 CFR 214.15(j) and regardless of their age. Children who had previously had a V-2 or V-3 status and whose renewals were denied based on turning 21 can file a new application for an extension and it will be granted starting from the date that the previous status expired.

counts toward the bars. If they have been unlawfully present in the U.S. for a continuous period of more than 180 days, then they trigger the three-year bar when they leave the United States. If they have been in the U.S. for a continuous of one year or more, then they trigger the 10-year bar. Please see Unit 3 for more information on this topic. One way to avoid gaining unlawful presence is to ensure the person does not leave the United States before obtaining permanent residence, including not to apply for a V visa abroad, which is unnecessary. See Unit 7 on Adjustment of Status. The other remedy is to file a waiver based on extreme hardship to the LPR parent. See Unit 6. D.

Termination of V Status

If the petitioner becomes a U.S. citizen while the beneficiary is in V status then the spouse and children, including derivative children, will no longer qualify for extensions of their V visa status, if they then become immediate relatives. However, if the V-2 or V-3 child turned 21 before the parent petitioner naturalized and does not otherwise qualify as an immediate relative under the CSPA, then the child (now a “son or daughter”) can stay in V status until an immigrant visa becomes available and he or she is then able to apply for adjustment of status. Any V-2 or V-3 son or daughter who was denied an extension solely because of the naturalization of the petitioner may now again request an extension through a request letter or motion to reopen without sending a fee to the National Benefits Center. For those spouses and children who do convert to immediate relatives, V status will expire when their authorized period of admission ends.

§ 4.12 When Is a Visa Petition Terminated or No Longer Good? A.

Automatic Revocation of a Visa Petition

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Pursuant to 8 CFR § 205.1(a)(1)-(3), approval of a visa petition as the relative of an U.S. citizen or of a lawful permanent resident is automatically revoked retroactive to the original approval date if: 1. The State Department terminates the beneficiary’s registration for a visa because the alien failed to apply for an immigrant visa within one year after being notified that a visa was available and the beneficiary failed to prove to the Service, within two years of the notice, that the failure to apply was due to circumstances beyond the alien’s control. 2. The filing fee and any other charges are not paid within 14 days after notifying the petitioner or beneficiary that the original check was returned as not payable. 3. The petitioner files a formal notice of withdrawal with any Service officer who is authorized to approve such petitions;

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4. Any of the following events happen before the beneficiary enters the U.S. after consular processing or, if in the U.S., before the final adjudication of the adjustment of status:

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a. For the beneficiary of a spousal petition, if the requisite marriage terminates by divorce or annulment;51 b. Upon the marriage of a person granted second-preference status as the son or daughter of a lawful resident alien;52 Example 4.12-b: Juana, an LPR, petitions her daughter Patricia (2B). Patricia gets married. Because LPRs cannot immigrate married sons or daughters, the petition is terminated. 5. A petitioner legally terminates his status as a lawful permanent resident, except when such termination occurs through the petitioner’s naturalization. Example 4.12-c: Carlos LPR petitions his wife Lorena (2A preference.) Carlos is convicted for drug trafficking and deported for an aggravated felony. The petition for Lorena is terminated. Example 4.12-d: Carlos LPR petitions his wife Lorena (2A preference.) Carlos becomes a U.S. citizen. The petition is not terminated because Lorena becomes an immediate relative.

Exception: Under the Violence Against Women Act (VAWA) a self-petitioning abused spouse or child does not lose eligibility if the lawful permanent resident abuser loses permanent resident status due to an incident of domestic violence and the self-petition is filed within two years of the abuser’s loss of status.53

Example 4.12-e: Carolina, an LPR, petitioned a number of years ago for Austin who lives in Mexico, as her unmarried son (preference category 2B). Austin goes to his consular appointment and his application is approved. After getting his visa but before 51

Note that if the beneficiary is or was the victim of “battery or extreme cruelty” at the hands of the petitioner, he or she may file a VAWA self-petition on Form I-360 per INA § 204(a)(1)(A)(iii) and recapture the priority date from the I-130 previously filed by the petitioner. 52 See 8 CFR § 205.1(a)(3)(i)(I) and INS Adj. Filed Manual 21.4. 53 INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa). 54 8 CFR § 205.1(a)(3).

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For adjustment of status, the petition is automatically revoked when the circumstance that triggers revocation occurs before a final decision on the application. In consular processing cases, the petition is revoked if the circumstance occurs before the beneficiary or self-petitioner commences her or his journey to the United States.54

going to the United States, he gets married to his girlfriend, Barbara. Austin’s visa application is revoked because he no longer qualifies as a 2B beneficiary because he is no longer is the unmarried son of an LPR. There is no provision for appeal of an automatic revocation of a visa petition, and no requirement that CIS give notice of revocation or take any other action to effect the revocation of a petition that is automatically revoked.

PRACTICE TIP: Effect of an Annulment. Depending on the reasons for annulment and on the pertinent state law, an annulment may “relate back” to the date of marriage as if the marriage had never happened.55 The courts apply this principle for immigration purposes where it promotes justice and the intended outcome of the law.56 For example, in the case of a marriage between a USC or LPR and an alien, a retroactively applied annulment of the marriage forming the basis of the immigrant petition may lead to the revocation of the petition and the denial of any subsequent application for adjustment or for an immigrant visa.57 The main factor considered by the courts is whether the retroactive application of the annulment would serve the interest of justice. Therefore, where there is no evidence that a marriage was entered into for the purposes of applying for an immigration benefit, an annulment may not be applied retroactively.58 Similarly, the annulment of a prior marriage may or may not be applied retroactively for purposes of validating the current marriage that is the basis for an immigrant petition, depending on whether or not the courts find that the annulment was sought for the purposes of gaining an immigration benefit.59

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Example: Karthik, a USC, files an I-130 for his wife, Sureikha. After Sureikha enters the U.S. and becomes an LPR, she and Karthik obtain an annulment. The annulment may or may not be given retroactive effect, causing the revocation of Sureikha’s LPR status, depending on whether or not it is determined that the marriage was entered into for immigration purposes. The case is similar for the beneficiary of a second preference visa petition. The son or daughter of an LPR must be unmarried at the time the LPR parent files the immigrant petition and until the beneficiary becomes a lawful permanent resident.60 Such a visa petition may, therefore, be revoked if the beneficiary son or daughter married after the LPR filed the visa petition, even if the 55

Sefton v. Sefton, 45 Cal.2d 872 (1955). See West’s Ann.Civ.Code, §§ 84, 85, 86. 57 See Matter of Samedi, 14 I&N Dec. 625 (BIA 1974); Matter of V--, 6 I&N Dec. 153 (BIA 1954); McCreath v. Holder, 573 F.3d 38 (1st Cir. 2009); Nakamato v. Ashcroft, 363 F.3d 874 (9th Cir. 2004). 58 See Matter of T--, 8 I&N Dec. 493 (BIA 1959). 59 See Matter of Magana, 171 I&N Dec. 11 1 (BIA 1979) (court refused to give retroactive effect to a prior marriage, finding that beneficiary misrepresented his marital history for purposes of obtaining an immigrant visa); see also, Matter of Astorga, 17 I&N Dec. 1 (BIA 1979) (upheld retroactive application of annulment of previous marriage, finding that beneficiary did not obtain immigration benefit through fraud or misrepresentation). 60 See INS Adj. Field Manual 21.4. 56

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marriage was later annulled. Whether or not the annulment is given retroactive effect may depend on whether or not it is found to have been sought in order to grant an immigration benefit to the beneficiary. An annulment will, therefore, not be given retroactive effect in order to cure an otherwise invalid application for LPR status.61

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Example: Aminata, an LPR, files an I-130 petition for her unmarried daughter, Binta. Binta subsequently marries, while she waits for her priority date to become current. When an immigrant visa becomes available for her, she goes to her consular interview and enters the U.S. Once in the U.S., she obtains an annulment of her marriage. Her visa petition may be revoked and she may be placed in removal proceedings.

B.

Elimination of Revocation When the Petitioner Dies

As of October 28, 2009 the INA has been amended to add § 204(l) relating to the adjudication of immediate relative or family-based immigrant visa petitions, and all related applications, upon the death of the qualifying relative, that is, the petitioner or the principal beneficiary. According to the new law, both the principal and the derivative beneficiaries of a pending or approved I-130 visa petition (whether in the immediate relative category or one of the preference categories) are protected should the petitioner or the principal applicant die before the final adjustment of status application is adjudicated under certain conditions. The death of an I130 petitioner does not revoke the underlying petition and neither does the death of the principal applicant revoke the derivative beneficiary’s application if certain conditions are met.62

If an alien has obtained an adjudication of a petition under this new provision of the INA but does not qualify for adjustment of status, he or she may leave the U.S. to undergo consular processing. 61

See, Matter of Wong, 16 I&N Dec. 87 (BIA 1977); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). See INA 204(l); see also, USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act,” December 16, 2010 included in this manual as Appendix 4-C. 62

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Residence Requirement for Qualifying Beneficiaries. In order to qualify for this protection, the beneficiary of a pending or approved I-130 petition must have resided in the U.S. when the qualifying relative died and must continue to reside in the US on the date the decision on the pending petition or application is made. This does not mean that the beneficiary must have been physically present in the US when the qualifying relative died, but simply that the beneficiary’s actual residence was in the U.S. Additionally, if any one of the beneficiaries of a petition meets this residence requirement, then all the beneficiaries meet it as well. It is not necessary for each beneficiary to meet the residence requirement on their own. Therefore, if it is the principal beneficiary who has died, the petitioner may continue to seek approval of the petition so long as at least one derivative beneficiary meets the residence requirements. However, note that this does not give derivative beneficiaries any right to the petition. The petitioner continues to retain his or her right to withdraw the petition at any time.

Waivers of Inadmissibility. This protection extends not only to the underlying I-130 visa petition but to the adjustment of status and any other related application based on that I-30 petition, such as one for a waiver of inadmissibility. Therefore, CIS has the discretion to approve an inadmissibility waiver application, or any other form of relief from inadmissibility, regardless of whether or not the qualifying relationship necessary to qualify for the waiver application has ended as a result of the relative’s death. Additionally, it is not required that the waiver application was pending when the qualifying relative died. The waiver application can be filed after the petitioner’s death as long as the surviving beneficiary qualifies under INA § 204(l). The death of the qualifying relative will be deeded to be the equivalent of a finding of extreme hardship necessary for some waivers. The Affidavit of Support. The death of the qualifying relative does not relieve the alien beneficiary of the requirement to have a sponsor file the Affidavit of Support on Form I-864. Therefore, if the sponsor on the Affidavit of Support dies, another individual who qualifies as a “substitute sponsor” must submit a Form I-864 under INA § 213A. Motion to Reopen and Humanitarian Reinstatement in Case of a Denial. This new rule applies to any petition or application adjudicated on or after October 28, 2009, even if it was filed before that date. For petitions or applications that were denied before that date due to the death of either the petitioner or the principal beneficiary, the surviving beneficiary may file an untimely motion to reopen with the proper filing fee and request that the pending petition or application be adjudicated according to INA § 204(l).63 Additionally, the CIS has found that it would be appropriate to reinstate the approval of an immediate-relative or family-based petition that was automatically revoked upon the death of the petitioner or the principal beneficiary before October 28, 2009, if the beneficiary was residing in the U.S. upon said death and continues to do so.64 Also, if a petition or application that should have been adjudicated in compliance with INA§ 204(l) was denied on or after October 28, 2009, CIS must reopen the case on its own motion for a new decision.

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If the beneficiary does not meet the residence requirement of the new INA rules, the CIS continues to have authority to reinstate the petition under 8 CFR § 205.1(a)(3). Widows and Widowers. Following from new INA § 203(l) described above, as of October 28, 2009, the death of a petitioning spouse is no longer cause for revocation of a familybased immigrant visa petition. Instead, if the U.S. citizen petitioning spouse dies while the visa petition is pending, Form I-130 is automatically converted to a widow(er)’s Form I-360, and the widow or widower becomes a self-petitioner. This is so even when the citizen and his or her alien spouse had only been married for less than 2 years when the citizen died.65 Furthermore, in that case, the alien will be granted lawful permanent residence and not conditional residence. Therefore, he or she will not be required to file an I-751 Petition to Remove the Conditions on 63

See AFM chapters 20.5(c)(8) and 10.21(c)(8) for complete guidance on this issue. See USCIS Policy Memo included here as Appendix 4-C; 8 CFR § 205.1(a)(3)(iii)(C)(2); and AFM chapter 21.2(h)(1)(C). 65 See § 4.3 below for more information on what happens to widows and widowers with K-1 or K-3 visas, and to their dependents. 64

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Residence. However, if the widow or widower remarries before becoming an LPR, he or she loses eligibility for adjustment based on the pending or approved I-360.

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Note Regarding Previously Approved I-130s: Prior to enactment of this new provision in the INA, some courts were allowing widows and widowers of U.S. citizens to immigrate based upon an I-130 petition already filed by the deceased spouse, even though the petitioner died before the couple was married for two years.66 In light of the new law, CIS will honor those approvals and the subsequent adjustment applications and will not seek to rescind a grant of adjustment based on the death of the U.S. citizen petitioning spouse.67

C.

Revocation upon Notice

In addition to automatic revocation, CIS may revoke the approval of an immediate relative or family-sponsored visa petition on grounds other than those specified above.68 In such cases, the CIS must give notice to the petitioner, and the petitioner must have the opportunity to oppose the proposed revocation. If CIS decides to revoke the petition approval, the agency must explain the reasons for the revocation. The action to revoke the petition may be initiated by the consular office due to information acquired during their review of the petition or during an interview with the beneficiary. In that case the consular office returns the petition to CIS with a memo explaining the reasons why they believe the petition should be revoked.69 The consular officer may suspend action in a petition case and return the petition, with a report of the facts, for reconsideration by CIS if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to the status approved.70 CIS may find that the petition is not revocable for the reasons stated by the consular office. If that occurs, CIS returns the petition to the consular office with an explanation of the decision not to revoke the petition.

66

See Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); see also Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); Neang Chea Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) (agreeing with the result reached by the Ninth and Sixth Circuits); Hootkins v. Napolitano (Apr. 20, 2009), summarized in 86 Interpreter Releases 1177, 1184 (Apr. 27, 2009). 67 See USCIS Policy Memorandum, included as Appendix 4-C. 68 8 CFR § 205.2. 69 See INS Adj. Field Manual 20.3. 70 22 CFR § 42.43.

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If CIS agrees with the consular officer that there is a basis to revoke the petition, the petitioner must be notified by CIS of intent to revoke the petition. The intent letter should fully explain the reasons for the revocation and give the petitioner a reasonable period of time (usually

30 days) to submit evidence in opposition to the revocation. Additional time may be granted if the petitioner needs it to obtain documentation from abroad or other meritorious reasons. If the petitioner responds with satisfying evidence that the approval should not be revoked and CIS agrees, the petitioner is advised of the decision to reaffirm the petition by a letter. The petition is then returned to the consular office with copies of the letter of intent to revoke, the petitioner’s response, and the letter of reaffirmation. If the petitioner does not overcome the basis for the revocation, or fails to respond timely, CIS prepares a decision of revocation on Form I-292. A petitioner may appeal the revocation to the CIS’ Administrative Appeals Unit (AAU), and the authorized period for filing the appeal is only 15 days regardless of the type of petition.71 Automatic revocation cannot be reviewed by the IJ or BIA.72 D.

Circumstances That Do Not Lead to Termination

Certain changes of circumstances may result in the petition moving to a different category rather than terminating. 1. If a child beneficiary seeking immediate relative status turns 21, and has opted out of remaining an immediate relative, he or she will become a family-sponsored first preference immigrant (unmarried son or daughter of a U.S. citizen). 2. If a child beneficiary seeking immediate relative status marries, the petition automatically converts to a third preference petition (married son or daughter of a U.S. citizen). Example 4.12-f: Maria, a U.S. citizen petitions for her son Jaime who is 19 and single (thus, an immediate relative). Before he immigrates, Jaime gets married. His petition is not terminated because he can move to third preference status as the married son of U.S. citizen. 3. If a married son or daughter of a U.S. citizen who is under 21 divorces, the visa petition converts back to that of an immediate relative. See § 4.9 above.

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4. Similarly, if a married son or daughter of a U.S. citizen who is over 21 divorces, the visa petition converts automatically to a first preference petition. 5. If a person granted 2A preference status as the child of a lawful permanent resident turns 21 years old, and is not able to remain in 2A status under the CSPA (see § 4.9 above), the visa petition becomes a 2B petition. Example 4.12-g: Juana, LPR, petitions her daughter Patricia who is 20 and therefore eligible for 2A preference status (child of LPR). The petition is only pending one month before it is approved. Patricia is 22 by the time the priority date becomes current. Since 71 72

See INS Adj. Field Manual 20.3. Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985); Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987).

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she can only deduct one month from her biological age under the CSPA, she is unable to remain a 2A beneficiary, and her petition automatically becomes a 2B preference petition (unmarried daughter of LPR.) E.

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Revoked Petitions and Recapturing of Priority Date

If a visa petition is revoked, a new petition filed by the same petitioner for the same beneficiary will NOT acquire the old priority date. However, if the petition is not revoked and the petitioner files new petition for the same beneficiary, the petition can be given the earlier priority date. Furthermore, if a different petitioner files for the same beneficiary, the new petition will not recapture the old priority date. Example 4.12-h: Santana petitions his wife Clotilde. When the priority date becomes current, Santana is not able to immigrate his wife because they do not meet the affidavit of support requirements. The consulate denies Clotilde a visa. Santana is promoted the next month and now makes enough money to meet the affidavit of support requirements. He wants to try to immigrate Clotilde again. Santana can recapture the priority date from the first petition because he’s the same petitioner of the same beneficiary under the same category and the original petition was not revoked. However, if Clotilde had waited several years to submit additional evidence and had been told that her application had been terminated, the visa petition would have been revoked. A new petition filed by Santana would be given a new priority date. For an explanation of when recapturing an old priority date applies to a derivative child who ages out and is not protected by the CSPA, please see § 4.10(E) above.

§ 4.13 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings

Diversity and Diversity Transition Visas. Congress decided to give extra visas through these programs to people from certain countries that have had low rates of immigration in the recent past. These are called “adversely affected” countries. Countries with high immigration in recent years, for example Mexico and the Philippines, do not qualify for these extra visas. Fifty-five thousand (55,000) “diversity” visas per year are available to people from “adversely affected” countries. INA §§ 201(e), 203(c). The applicant must have a high school education or its equivalent, or have two years of work experience in an occupation that requires at least two years of training or experience. Spouses and children may immigrate as derivatives in the diversity program. The application period for these diversity visas occur once a year, for a

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Under the Immigration Act of 1990, visas were set aside for new categories of immigrants, and the system for immigrating through employment was changed and expanded.

one-month period; with only one application per person submitted. Diversity visa winners, however, are subject to the grounds of inadmissibility, including the 3- and 10-year bars. Children who are under the jurisdiction of juvenile court and eligible for long term foster care may apply for adjustment of status as “special immigrants.” This means that the children can become permanent residents without having a U.S. citizen or permanent resident parent and without having to wait for a priority date. A court must also rule that returning the child to his or her country of origin would not be in the child’s best interest. INA §§ 101(a)(27)(J), 203(b)(4). Employment. Some people can immigrate through their employers. The Immigration Act of 1990 expanded this system. See INA § 203(b). Currently 204,422 employment visas are available each year with the vast majority going to professionals or college graduates. Some visas are available for “unskilled” workers; however, the backlog for visas for “skilled” workers, as well as unskilled workers is currently about seven years. For a discussion of employment visas see Unit 21 of this manual and the books cited below.

FOR MORE INFORMATION ON FAMILY VISAS, see: Families & Immigration: A Practical Guide, 4th Edition (www.ilrc.org/publications/familiesimmigration) For an excellent, easy-to-read discussion of family visas and other immigrant and nonimmigrant visas, but one that does not include legal citations, see Immigration Procedures Handbook.

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Immigration Law and Business Chapter 3 provides a thorough discussion of visas.

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APPENDIX 4-A Answers to Exercises

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Exercise 4.2 1. Mario’s mother qualifies because her son is a U.S. citizen over 21 years of age. 2. Mario’s legitimate child (by his wife) qualifies if she is under 21 and not married. Mario’s illegitimate child (by the woman he never married) also must be under 21 and single. Besides that she must show that she is Mario’s natural (biological) daughter and that she and Mario have a bona-fide parent/child relationship. 3. Mario’s sister is not an immediate relative, because siblings of citizens are not immediate relatives. She could immigrate as a fourth preference, as described in §4.5. 4. Mario’s wife qualifies because she is the spouse of a U.S. citizen. If Mario was only 19, he would have to wait until his 21st birthday to petition his mother. Gina’s daughter Soledad does not qualify because she is the child of a permanent resident, not a U.S. citizen. But she can immigrate as a second preference, as described in §4.5

Exercise 4.5 1. Second preference 2A. Carmen’s husband is the spouse of a lawful permanent resident. 2. The parent of a lawful permanent resident cannot immigrate. This is not included in second preference.

4. Martin cannot immigrate his uncle and cousins. 5. As long as John is under 21, he qualifies as an immediate relative because he is the “child” of a U.S. citizen. Once he turns 21 he will become the “son” of a U.S. citizen and will have to immigrate as a first preference, unless his mother filed the I-130 before he turned 21 and “locked in” his age under the CSPA – in that case he would remain an immediate relative indefinitely.. See 4.9(a). 6. Second preference 2B. Jacques is the “unmarried son” of a lawful permanent resident.

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3. Fourth preference. Martin’s brother is the sibling of a U.S. citizen.

7. If Jacques marries, he cannot immigrate through his LPR mother. A permanent resident cannot petition for a married son or daughter. 8. If Michelle became a citizen she could file a first preference petition for her unmarried son. If Jacques marries after Michelle naturalizes, the petition will convert to a third preference petition for her married son. Renee could be a derivative beneficiary of the petition (See § 4.6) 9. Yes. Only a U.S. citizen can immigrate a married son/daughter, as a third preference. 10. Sofia cannot immigrate her mother until Sofia reaches the age of 21.

Exercise 4.6 2. Marta is a third preference because she is the married daughter of a U.S. citizen. She has a husband, but her two kids are not “children” under the Act because they are married or over 21. Only the husband qualifies as a derivative beneficiary, unless the CSPA helps the 21 year old unmarried son. 3. Li is a second preference 2A because she is the wife of a lawful permanent resident. Li has a “child” who qualifies as a derivative beneficiary. Her child could also immigrate through a separate petition as her husband’s “stepchild.”

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4. Susanna is an immediate relative because she is the unmarried child under 21 of a U.S. citizen. Her child cannot be a derivative beneficiary because Susanna is not a preference petition beneficiary. If Susanna waits to immigrate until she is over 21, her petition will convert to first preference, and her child could then immigrate with her as her derivative.

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Exercise 4.8

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1. Oscar can immigrate now. The 3rd preference date for Nicaragua (All chargeability Areas) is June 15, 2003, and his date is before that. 2. Joel cannot immigrate yet. The 4th preference date for the Philippines is September 1, 1990, which comes before his priority date. 3. Marta cannot immigrate yet. The 2nd preference date 2A for Mexico is currently April 15, 2012, which comes before September 15, 2013 . An alternative option would become available if her husband became a U.S. citizen, in which case she could immigrate as an immediate relative.

5. Kim can immigrate now. 6. Julio is an immediate relative. He does not have to use the Visa Bulletin; there is no legal waiting period before he can immigrate. 7. Ravi can immigrate now because the 3rd preference date for India is June 15, 2003, and his date is earlier than that.

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4. Fatoumata can immigrate now. The 2nd preference 2A date for Mali (All Chargeability Areas) is September 8, 2013. Her priority date is on July 3, 2012.

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APPENDIX 4-B THE VISA SYSTEM TOTAL VISAS ALLOCATED EACH FEDERAL YEAR 675,000 1. FAMILY VISAS -- Immediate relative and preference = 465,000 TOTAL  OF THOSE, AT LEAST 226,000 WILL GO TO PREFERENCE PETITIONS AS INDICATED BELOW.  THE REMAINING 239,000 FAMILY VISAS MAY GO TO IMMEDIATE RELATIVES, AS NEEDED. Category 

Beneficiaries covered 

# of immigrant visas allocated for  each category per year 

First :  

Unmarried Sons/Daughters of USC 

23,400 + any visas not required  for Fourth Preference unmarried  sons and daughters of citizens 

Second  (2A):  

Spouses and Unmarried Children of LPR 

Second  (2B):  

Unmarried Sons/Daughters of LPR 



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TOTAL: 114,200     Category 2A gets 77% of  these visas.  Of those, 75%  will be issued with no country  limit. In other words, about  65,000 second preference  visas will be available  regardless of country of  chargeability.  Category 2B gets 23% of  these visas. 

Third :  

Married Sons/Daughters of USC 

23,400 + any numbers not  required by first and second  preference visas. 

Fourth: 

Brothers/Sisters of USC 

65,000 + any numbers not  required by the first three  preferences. 

2. “DIVERSITY TRANSITION” = 55,000 VISAS 3. EMPLOYMENT VISAS = 140,000 VISAS

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Appendix 4-C-2

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Appendix 4-C-5

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Appendix 4-C-7

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Appendix 4-C-9

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Appendix 4-C-11

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Appendix 4-C-13

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Appendix 4-C-15

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Appendix 4-D-1

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Appendix 4-D-3

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APPENDIX 4-E UNIT 4 NOTE-TAKING GUIDE I. IMMEDIATE RELATIVES OF A U.S. CITIZEN A. Three kinds of relatives--INA

§201(b)

1. 2. 3. B. Who is a "child" 1. Unmarried and under 21 2. CIS recognizes parent-child relationship a. Stepchild: child under 18 when marriage occurs b. Adopted child -- 8 CFR §204.2(c)(7) c. Adopted orphan -- 8 CFR §204.2(d) d. Child born out of wedlock 3. Son & Daughter

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C. Who is a “Spouse” 1. Legally Married: 2. Bona fide Marriage relationship: 3. Fiance(e) II. CATEGORIES IN THE PREFERENCE SYSTEM—INA § 203(a) A. First Preference: Unmarried son or daughter of a USC B. Second Preference: Spouse, child, or unmarried son or daughter of an LPR 2A preference includes: ______________________________

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2B preference includes: ______________________________ C. Third Preference: Married son or daughter of USC

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D. Fourth Preference: Sibling of USC, if USC is 21 III. DERIVATIVE BENEFICIARIES--INA § 204 A.

Principal beneficiary:

someone immigrating through preference system

Derivative beneficiary: his or her spouse or child (unmarried, under 21) B.

Two questions: 1. Will the principal immigrate under the preference system? 2. Does he or she have a spouse or children?

IV. THE STATE DEPARTMENT VISA BULLETIN A. Three factors: 1. Priority date: 2. Country of Chargeability 3. Preference category B. "C" and "U" C. Recapturing Priority dates

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D. Termination of Petitions 1. Automatic 2. Upon Notice 3. Humanitarian revival of petition V.

THE CHILD STATUS PROTECTION ACT

A. Effective Dates B. Children of U.S. Citizens

Appendix 4-E-2

C. Children of LPR Parents Who Naturalize While the Petition is Pending D. Married Children of U.S. Citizens (third preference category) E. Children of LPRs and of Derivative Beneficiaries F. Relief for Those from Oversubscribed Countries G. Children of Asylees and Refugees VI.

“V” VISA CATEGORY

A. Eligibility

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B. Procedure

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UNIT FIVE FAMILY VISAS SUBMITTING THE PETITION; MARRIAGE ISSUES; VAWA

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This Unit Covers:   

Completing the I-130 and supporting documents; Special issues relating to married couples, especially the marriage fraud interview; Self-petitioning under the Violence Against Women Act

This Unit Includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14 § 5.15 § 5.16 § 5.17 § 5.18 § 5.19 § 5.20 § 5.21

Completing Government Forms ......................................................................... 5-2 Completing the Visa Petition, Form I-130 ......................................................... 5-4 The G-325A and Photograph: Required in a Petition for a Husband or Wife............................................................................................ 5-11 Documenting the Visa Petition......................................................................... 5-12 What Documents Are Needed to Prove Family Relationship? ........................ 5-13 Obtaining Documents in the United States to Show Family Relationship ...................................................................................................... 5-14 Obtaining Documents from Other Countries ................................................... 5-15 Making Proper Copies of Documents .............................................................. 5-16 Making Certified Translations of Documents .................................................. 5-17 Documenting the Immigration Status of the Petitioner .................................... 5-18 Filing the I-130 Packet ..................................................................................... 5-19 CIS Challenges to a Marriage .......................................................................... 5-21 The Legal Standard for a Marriage .................................................................. 5-22 Documentation to Show That a Marriage Is Bona Fide ................................... 5-24 What Will Happen at the Marriage Fraud Interview? ...................................... 5-25 Preparing Your Client: Self-Defense Techniques for CIS Interviews ............. 5-26 Special Rules That Affect Spousal Visa Petitions ............................................ 5-28 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”) ................................................ 5-31 Requirements for a VAWA Self-Petition for an Abused Child ....................... 5-42 Requirements for a VAWA Self-Petition for an Abused Parent ...................... 5-45 Procedures for Self-Petitioning under VAWA ................................................. 5-47

Gina filed I-130 visa petitions and the supporting documents for her husband Juan and his daughter Soledad. Since Juan was immigrating through a marriage, they knew that special rules might apply. Gina and Juan were required to go to a marriage fraud interview. They were

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nervous about the interview, but they worked hard to prepare for it and passed with flying colors. The petitions were approved and sent to a U.S. consulate.

PART ONE: THE VISA PETITION, FORM I-130 § 5.1 Completing Government Forms The first step in the visa process is to complete the visa petition, form I-130. Completing government forms is something that immigration practitioners spend a lot of time doing. This section will discuss general rules about how to complete forms.

      

Never complete an immigration form unless you have done a complete interview of the client. Never complete an immigration form unless you know who is eligible under the law and who is not for that immigration benefit. If you have a question about the person’s case, don’t file the application first and find out later. Immigration applications that are filed thoughtlessly can result in the person being deported. Never file an application that has any information that you know to be false. Always check every detail of the form with your client before filing the application. Always give a copy of the application to the client.

Your clients should be active and informed participants in completing these forms. There are several reasons for this. If your clients understand the form they will provide more complete and accurate answers to the questions. It may reduce the chance that you will be surprised later by new information. Also, if your clients understand what is on the form they will be able to answer questions about it with confidence at an interview or hearing, even if you are not there to help. Finally, our clients must complete forms as part of many things that they do: at a doctor’s office; for employment applications; for their children’s school; for unemployment insurance benefits. Many people do not know how to cross this “paper barrier.” If they learn how to complete forms correctly by working with you on the case, this skill will help them in other areas of their life.

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There are many ways to involve your clients in completing forms. You may ask the client to fill out a copy of the form in her language before your appointment. Some agencies help people fill out forms in groups. Example 5.1: When Perry Legal takes on a new visa case, he gives the family a copy of the I-130 written in their own language and asks them to complete several questions

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while they are waiting to see him. This saves him time and gives the family a chance to become familiar with the form.

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Lately Perry’s agency has been getting two or three new I-130 cases a week. This is taking too much of his time to do individually. Now he tells families that every other Thursday from 5 to 7 he will help people with I-130s. At the session, for which he charges a small fee, he gives each family an I-130 in their own language. In less than an hour, he can give a small group a talk about the visa petition and documentation, and help people to complete their I-130’s as a group. Afterwards he meets with them individually to finish the real I-130 form and collect documents. Working in groups is extremely efficient for the agency. The method works well even if some clients cannot read or write; they can be paired in a “buddy system” with literate clients. However, if you are going to employ a group format, make sure each of your clients consent to this arrangement, since you need to protect their confidentiality unless it is waived. Here are a few basic rules to follow when filling out government forms. 

Don’t leave any space blank, with few exceptions. Usually, you should write “N/A” or “not applicable” if the question doesn’t apply. Write “none” if that is the answer.



Make sure that you provide the same information about the client on all forms you submit. Often you will complete more than one type of form for an application. Before you hand in an application, go through each form one last time to make sure addresses, dates, number of trips out of the country, and all other information are consistent on all forms.



Read each question carefully, especially if it involves a legal issue (for example, questions about criminal convictions, welfare, length of time in the United States). If you don’t understand a question, get help. A wrong answer could cause CIS to reject the application and result in months of delay, or even a denial. Also even the right answer may have seriously negative legal repercussions, so it is important to understand the law with respect to your particular client’s situation before you both make the decision to actually file the form with the government.



If your client will go to an interview, make sure that he or she practices answering all the questions on the form with you or a friend or family member beforehand. If a question on the form involves a legal issue, tell the client why the government is asking the question and talk about how the client’s answer relates to the issue.

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NOTE: Changes in the Law and Regulations. Immigration law and the rules for submitting applications are constantly changing. From one year to the next, the fee and the documents that are required, the procedure for filing applications and even the legal issues in an application may change. For example, there are new rules regarding filing locations for Form I-130, the Petition

for Alien Relative and a new I-130 form as of 2012. Furthermore, in December 2011, the CIS launched its new Electronic Immigration System, ELIS, through which it will gradually transform its paper-based system into an electronic system where applications for immigration benefits are filed electronically. Any book written about immigration law may quickly become out of date. This book will describe the basic rules as they exist as of March 2014. Just as important, it will tell you how to look up the rules yourself in the regulations and other sources, so that you can keep up with changes in the law.

Please take the time to look at the regulations cited in this unit. Get into the habit of checking the rules for yourself.

§ 5.2 Completing the Visa Petition, Form I-130 The visa petition is Form I-130. A copy of a sample completed form is at Appendix 5-A. (Note: The CIS may change the I-130 form after this book is printed, as they do with many forms. Always check before you prepare a form to be sure it is currently being accepted. You can get information about updates to forms and downloadable versions of current forms from the CIS website at www.uscis.gov.) The I-130 form is fairly simple as long as you know that “you” refers to the petitioner (the U.S. citizen or lawful resident) and “your relative” refers to the beneficiary (the person who wants to immigrate). Every question is important, and is asked for a reason. In the next few pages we will discuss several of the questions on the form. Even if you have completed I-130s before, you should review this section.

WARNING: Special Rules Apply to People Who Immigrate through Marriage. Additional rules apply if either person has ever been married before. See § 5.17. Before you complete an I130 visa petition for a married couple, be sure to analyze the case to see if any special rules might apply.

GUIDELINES ON SOME QUESTIONS FROM THE I-130 FORM

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As you read this section you may want to look at the copy of the I-130 that was correctly filled out at Appendix 5-A. At the end of the section, you will correct an I-130 that has been filled out incorrectly.

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A.

Sections B and C Start Off with the Same 12 Questions; Section B Asks about the Petitioner and Section C Asks about the Beneficiary 

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Questions 1 and 2: Name and Address

Write the last name in CAPITAL LETTERS first. A person who uses two last names should write them both, with just one in capital letters. Then write the first name and middle name (if any), not in capitals. Example 5.2-a: Ana’s father’s name is Gomez and her mother’s name is Romero. She prefers to use both names, hyphenated. She writes “GOMEZ-Romero, Ana” on the form. On question 2, write the real address of the beneficiary, even if he or she lives in the United States and does not have lawful immigration status.

WARNING: If the beneficiary has been previously excluded, deported or removed, this information could lead to a “reinstatement of removal.” Also, if a married couple does not live together, CIS will suspect that the marriage is a fraud. Review the materials on marriage fraud in Part Three.



Question 7: Other Names Used

Write any other names used, including maiden name, previous name, false names, or complete formal name if the person did not list it at question 1. 

Questions 8, 11 and 12: Date of Marriage; Prior Marriages

The prior marriage must have been legally terminated before the date of the current marriage. If it was not, the couple is not legally married and must re-marry before proceeding with the petition. See § 5.13.

WARNING: If a client has ever used a false name, he or she should be asked about when and how that name was used, as it may mean the client is inadmissible for visa fraud, has been convicted of crimes that make him or her inadmissible, has been previously deported under a different name, or has made a false claim of U.S. citizenship. Also, CIS may be particularly suspicious of people who have been married before and may question them about the marriage. See § 5.17.

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B.

Section B, Questions 10, 13 and 14, Concern the Petitioner’s Immigration Status 1. Question 13: Naturalized citizens

The number from the naturalization certificate is the 7-digit number at the top right hand side. The date and place of naturalization are listed on the certificate. 2. Questions 10 and 14a: Lawful permanent residents The alien registration number is the long number beginning with “A” on the green card. The date of admission or adjustment is on older cards on the back, and on newer cards on the front. For “class of admission,” write how the person immigrated: cancellation of removal, amnesty (“Section 245A”), farmworker amnesty (“Section 210”), 2nd preference visa, etc. The “class of admission” is on the front of the card as a code under “category.” If you want to look up the code category, you can find current classification codes as well as references to older versions in the Code of Federal Regulations at 22 CFR § 42.11. C.

Section C Asks for Information about the Beneficiary (The Relative Who Wants to Immigrate) 1. Question 14: Entry into U.S.

This question has three parts. First, you must mark whether the beneficiary last entered the United States legally on a visa, or simply crossed the border without papers. If the person entered illegally, write “entered without inspection” or “EWI” and go on to question 15. If the person entered legally, he or she probably entered with a border crossing card or an I-94 card. Reading an I-94 Card. The I-94 card is a white cardboard card marked I-94. It may be loose or stapled to the passport. You must read the card to answer the rest of question 14. Look at the sample I-94 card in Appendix 5-B. If you do not have your card, there is also an Admission (I-94) Number Retrieval form that you can complete and submit on-line at the website of the U.S. Customs and Border Protection.1 The first part of question 14 asks what type of nonimmigrant visa the person used to get into the country. This should be written by hand on the I-94. This will often be a tourist (noted as “B-1” or “B-2”) or student (noted as “F-1”) visa. You can also find the visa stamp in the person’s passport. For a discussion of nonimmigrant visas, see Unit 1.

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The second part asks for the identification number and arrival date from the I-94 card. This is the printed number with 11 digits on the top left-hand corner.

1

You may find the I-94 Number Retrieval form here: https://i94.cbp.dhs.gov/I94/request.html.

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The third part asks for the date that the person’s permission to stay in the United States ended or will end. This handwritten date appears on the I-94 card or possibly in the passport, unless the person was given “duration of status” indicated by “D/S” which is often the case for F1 and sometimes J-1 visa holders. In that case, you can indicate D/S or “duration of status” on the petition. Also, it is possible that your client extended her stay, in which case there may be a notation on the I-94, or there may be an additional I-94 card or I-797 Notice of Action which indicates an approval of an extension of stay. If you are not certain when status actually expired, it is better to leave this blank as a wrong answer could lead CIS to believe the person has accrued more or less unlawful presence than is actually the case.

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If the I-94 Card Is Lost. If your client will immigrate through consular processing, it is not that important to have the I-94 card. Just mark “I-94 card lost.” If your client will immigrate through adjustment of status, you must have the I-94 card or some other official proof of your client’s legal entry, unless the client can adjust under INA § 245(i) or some other special provision that doesn’t require proof of lawful entry. See Unit 7. An admission stamp in his or her passport would serve as proof. You may be able to obtain a replacement I-94, particularly for entries in the last 10 years or so, by filing a Form I-102 with the appropriate CIS service center. If the I-94 Contains Erroneous Information. If your client was issued an I-94 with incorrect information, he or she may file a Form I-102 with the local CIS district office having jurisdiction over his or her residence. There should be no fee for filing this request to correct information on the I-94 if the error(s) on the document were made by the CIS and through no fault of your client. If your client entered with a border-crossing card, write “Border crossing card” and the date and place of last entry. 2. Question 16: Immigration Court Mark “yes” if the person has ever appeared before an immigration judge. If the person is not sure of this or other information, do not complete the form! Make sure you know what happened to your client before filing. You can often find out by having their fingerprints checked by the FBI. The FBI printout may reveal any arrests and deportations by the Border Patrol, CBP, INS or ICE. See instructions on the FBI check in Unit 3 and Appendix 3-E. If you are certain that the person was arrested by DHS, CBP, Border Patrol, INS or ICE but just “signed for the bus” to Mexico without being fingerprinted, or appearing before an immigration judge or being subjected to an “expedited removal” from the border, write “no.” If the person has an A number, or is unsure as to whether he or she has appeared before an immigration judge or had an “expedited removal,” file a Freedom of Information Act (FOIA) request, or more than one FOIA request—one with each agency that might have information about the person. To file a request with CIS, complete a Freedom of Information Act/Privacy Act Request on Form G-639 and file it with the National Records Center by following the instructions provided on the CIS website. Currently, you must mail or fax the request to:

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U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office PO Box 648010 Lee’s Summit, MO 64064-8010 For assistance, the phone number is 1 (800) 375-5283, the email is [email protected], and the fax number is: (816) 350-5785 To request Customs and Border Protection (CBP) records, mail the completed Form G-639 to: U.S. Customs and Border Protection FOIA Division 799 9th Street NW, Mint Annex Washington, DC 20229-1177 The phone number for the CBP FOIA office is (202) 325-0150 or you can make a FOIA request online to CBP at www.cbp.gov/xp/cgov/admin/fl/foia/. To request Immigration and Customs Enforcement (ICE) records, mail the complete Form G-639 to: Freedom of Information Act Office 500 12th Street, SW, Stop 5009 Washington, DC 20536-5009 The ICE FOIA office may also be reached by phone at 866-633-1182, fax at 202-7320660 or email at [email protected]. Finally, in certain cases involving the border, you may also want to submit a FOIA request to US VISIT. Office of Biometric Identity Management U.S. Department of Homeland Security Washington, DC 20528

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The US VISIT office may be reached by phone at 202-298-5200, by fax at 202-295-5457, and by email at [email protected]. The government officially has ten days to respond to the request, but in reality it may take months to get a response. The immigration service will send a copy of the person’s immigration file to the requester. You may check the status of FOIA requests online at the CIS website, www.uscis.gov, click on “about USCIS” and then follow the Freedom of Information Act link. You may also call the National Records Center at (816) 350-5570 from 7:30 am to 2:15 pm (Central Time). The e-mail address is [email protected]. There is also a special “expedite” process for FOIA requests for persons presently in removal proceedings.

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Do not complete the I-130 until you are certain you know the correct answer to this question, and that your client will not be harmed by the correct answer!

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WARNING: Individuals Previously Removed or Deported Are Subject to Reinstatement of Removal under INA § 241(a)(5). A person who has been removed in the past generally cannot adjust in the United States based on a family visa. If the person attends an adjustment interview ICE may simply arrest and remove (deport) the person. See Unit 7.

3. Question 17: Beneficiary’s spouse and children List all children, including children born out of wedlock, adopted children, stepchildren, and even children who do not plan to immigrate. If either the husband or wife had a child with someone else, other than the spouse, close to the time of the marriage or during their marriage to the petitioner, the CIS is likely to be suspicious that the marriage is a fraud, and you will want to be prepared to provide explanations. Also, if the beneficiary had a child outside the U.S. during the time the beneficiary is claiming to have been inside the U.S., this will also raise questions relating to unlawful presence and other potential grounds of inadmissibility. If the petitioner is the beneficiary’s spouse, a birth abroad of one or more of the couple’s children could raise questions regarding the possible abandonment of permanent residency by the petitioner, depending on how long the petitioner was outside the country. 4. Question 20 is for persons with a different native alphabet, e.g., Chinese or Arabic 5. Question 22 asks how the person will immigrate If your client will adjust status, write the closest local CIS office to your client’s residence. Adjustment of status is discussed in Unit 7. If the person will go through visa processing at a U.S. consulate, write the city where the consulate is located. Consular Processing is discussed in detail in Unit 6. See box below for instructions on which consulate the client can use.

PRACTICE TIP: Choosing the Consulate. The CIS no longer sends the approved petition directly to the consulate, but rather to the State Department’s National Visa Center (NVC). The NVC normally directs which consulates have jurisdiction over individual cases. “Orphan cases” (where there is no U.S. consulate serving, such as in Iran, Libya, Afghanistan, Lebanon, etc.) are usually directed to designated consulates in other countries. Contact the NVC, visit the State Department’s website, or visit an experienced practitioner/agency for guidance about current State Department policy on discretionary acceptance of out-of-district visa cases.

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Question 22 also asks which consulate will process the visa. The visa will be processed by the U.S. consulate with jurisdiction (legal control) over the area where the beneficiary resides or last resided before entering the United States. This is true even if the person was born in or is a citizen of another country. Example 5.2-b: Jacques was born in France but lived in Portugal for the years immediately before coming to the U.S. He will process his visa at the U.S. consulate in Portugal. CIS will send the petition to whatever consulate you name on Question 22 of the I-130. But the consulate will not accept the petition unless it believes it has jurisdiction. It will forward the visa petition to a consulate, which it believes is the right one, or notify you that another consulate must be found. Small countries often have only one U.S. consulate office (the U.S. Embassy), located in the capital. If your client resides in a large country with more than one U.S. consulate and you are not sure which one should handle it, consult the Foreign Affairs Manual (FAM) or the U.S. State Department website “Locate a Consulate” link at www.travel.state.gov. You can also find the FAM online at www.state.gov/m/a/dir/regs/fam/. The FAM is discussed in Unit 6. Sometimes there are problems returning to the home country. If your client is afraid to return to the country of last residence, it is possible that another consulate might accept the case on a humanitarian basis. Usually it takes a great deal of effort to convince a consulate to do this. If there is no U.S. consulate in your client’s country of last residence (for example, as in Iran), another consulate may be handling those cases. In either situation, contact an experienced visa practitioner or resource center for guidance.

D.

Section D Asks for Information about Other Petitions and Your Office 1. Question 1 asks for information about other petitions that are being submitted by the same petitioner at this time. For example, if the petitioner is filing separate I-130 petitions for his or her two children, the name and relationship of each child would need to go on the other child’s petition under Section D. 2. Question 2 asks for information about other petitions that may have been submitted by the same petitioner in the past.

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3. Anyone who assists a person to complete a form should include their information as “Person Preparing Form.” Additionally, if your office will represent the person, you should also submit a Form G-28. The VOLAG number is an official number CIS may have given your agency.

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NOTE: Extra forms are required for visa petitions for a husband or wife. See § 5.3.

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Exercise 5.2 -- Carlos’ I-130: Rhonda and Carlos have come to your office for an I-130. You have asked them to fill out a draft while they wait to see you. Another worker in the office has made up a fact sheet about them, which is found at Appendix 5-C. Using these materials, please review and complete the draft that Rhonda and Carlos wrote. Correct any mistakes they may have made.

§ 5.3 The G-325A and Photograph: Required in a Petition for a Husband or Wife If the visa petition is for a husband or wife you must submit other forms in addition to the I-130. The husband and wife each must submit a form G-325A and a photograph. CIS will use these to run a background check on the couple, as a guard against marriage fraud. The G-325A Form. The CIS uses the G-325A form to obtain background checks on the husband and wife here and in other countries. The form asks for much of the same information that appears on the I-130. Be sure to check the G-325A and the I-130 to make sure that you give the exact same information on both forms. A sample completed G-325A is at Appendix 5-A. The locations where each spouse actually lived and worked during the last five years may raise additional questions and problems, such as abandonment of residency for the LPR petitioner, marriage fraud issues for spouses living separately, public charge, work without authorization, etc., so it is important to not only record the information correctly, but to analyze it completely for additional legal issues. You will see the following section to the left of where the signature goes. Mark the box that says “Other” and indicate you are filing an I-130 petition, as follows: This form is submitted in connection with application for: Naturalization Status as Permanent Resident Other (Specify): I-130 visa petition The section below that, which asks the person to write his or her name in non-Roman alphabet, refers to people whose native language employs a different alphabet, for example, Chinese or Arabic.

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Photographs. The husband and wife each must submit a color, full-frontal facial image, passport-style photograph of him or herself. Clients who are adjusting status will need two or three identical passport-style photos. See the Department of State’s photo requirements online at http://travel.state.gov.

The next step is to obtain documents that will prove the clients’ family relationship and immigration status of the petitioner.

PART TWO: THE VISA PETITION -- DOCUMENTATION AND PROCEDURE § 5.4 Documenting the Visa Petition CIS will rarely “take someone’s word” for a fact. In every immigration case, it is better to present documents in addition to the person’s testimony to prove a point. (See also Unit 11 on documenting cases). In visa petitions, it is absolutely required that you present documentary proof of the facts. Two facts must be proved in a visa petition: the family relationship between the petitioner and the beneficiary, and the immigration status of the petitioner. This section will discuss how to obtain and prepare documents that prove these facts. Many of the rules about documentation are found in the regulations. Other rules are found in the instructions attached to each government application form; these instructions are supposed to have the same effect as a regulation. See 8 CFR § 103.2.

WARNING: Forms sometimes contain incomplete or out of date information, especially about application fees and filing addresses. The way to get the most current information on forms and fees is from the CIS website, which is found at www.uscis.gov. You can also look up the name of the form (for example, “I-130”) in the latest version of the regulations, 8 CFR § 103.7. (Note, however, that fees may have changed since your regulation was published).

If you do not follow these rules in preparing documents, CIS may refuse to accept your petition or application. On the other hand, CIS also is required to follow its own regulations. If you have to fight CIS to make them accept your documentation, the fact that you have followed the regulations will be your main weapon.

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CIS has backed off from its former policy of denying an application, including an I-130, where it lacks “initial evidence.” However, the application may be “rejected” and returned without assigning a priority (filing) date, if it is unsigned or lacks the correct filing fee. Initial evidence for a relative visa petition is a signed and completed I-130, the correct fee, proof of the petitioner’s status and proof of the relationship between petitioner and beneficiary. CIS will generally not deny a case for lack of initial evidence, but rather will give the individual 12 weeks to submit the missing evidence. If the evidence is not received in that period, the CIS will deny the application. The normal processing time for an application will also be extended to reflect any delay caused by submitting required evidence.2 2

8 CFR § 103.2 (b)(1), (b)(8) and (b)(10).

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Exercise 5.4: (Go to www.uscis.gov or look at 8 CFR § 103.7)

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What is the government fee for filing an application for: 1. An I-130 visa petition? 2. An I-90 application to replace a lost permanent resident card? 3. An I-485 application for adjustment of status? Tip: You can go directly to the page designated for a particular form in the CIS’s website by going to www.uscis.gov/[name of form]. For example: www.uscis.gov/i-130 or www.uscis.gov/i-485.

§ 5.5 What Documents Are Needed to Prove Family Relationship? Family relationship must be proved through official birth, death, marriage and divorce certificates. Different documents are required depending on the relationship. Reading Exercise. Please turn to 8 CFR § 204.2. We will not discuss all the requirements for documentation here, so take a moment to locate each section in your regulations to briefly look at the requirements. 1. To file a visa petition for a spouse,3 the petitioner must show two things: (a) that the petitioner is legally married to the beneficiary and (b) that the marriage is “bona fide,” in other words at the time of the marriage, the spouses intended to live in a marital relationship, not just get married for the sole purpose of immigration benefits. To prove that the marriage is legal, the couple must provide a marriage certificate issued by civil authorities and proof of the termination of all previous marriages by both the beneficiary and petitioner.4 Note on same-sex marriages: the CIS has been instructed to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Although no special requirements exist in the law to determine the validity or a same-sex marriage, the CIS has stated that, in general, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Therefore, when filing a Form I-130 on behalf of a spouse of the same-sex as the petitioner, it is a good idea to highlight the fact that the marriage is legally valid in the jurisdiction where it was performed.

3

See more on this in Part Three below. 8 CFR § 204.2(a)(2).

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To prove that the marriage is “bona fide” a variety of documents are acceptable. If the couple has a child together, the child’s birth certificate listing both parents is usually the only proof needed for “bona fides.” If there are no children together, photos of the couple together, tax returns, joint bank accounts, deed to home, rental/lease agreements, insurance, cards and letters to both, etc. are all potentially good documentation of the bona fides of a relationship. It is usually a good idea to submit more than one such document. Example 5.5-b: Zsa Zsa has been married eight times before this one. One of her husbands died and the other marriages ended in divorce. She now wants to immigrate Donald, whom she has just married. What documentation must she submit to prove family relationship? Zsa Zsa needs her marriage certificate with Donald, seven divorce certificates and one death certificate. Ask Donald if this is his first marriage. If not, you also need proof of termination of all of his previous marriages. 2. To prove a parent-child relationship, submit the child’s birth certificate showing the parent’s name.5 If the parent is a father, submit the marriage certificate to show that the child was born in wedlock, along with proof of termination of any prior marriages of the father and mother. Stepchildren, adopted children, and children born out of wedlock all may require additional documents.6 3. To prove a sibling (brother/sister) relationship, submit both siblings’ birth certificates showing that they have at least one parent in common.7 Example 5.5-a: Jack and Jill both have the same mother, but different fathers. Their mother’s name appears on each of their birth certificates. This is sufficient proof. If instead they both have the same father but different mothers, more documentation is required.8

§ 5.6 Obtaining Documents in the United States to Show Family Relationship Your clients can give you valuable help in obtaining documents. They may already have certified copies of important documents, or they may be able to obtain them themselves or through relatives.

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8 CFR § 204.2(d)(2)(i). 8 CFR § 204.2 (d)(2)(ii)–(vii). 7 8 CFR § 204.2(g)(2)(i)–(iv). 8 See 8 CFR § 204.2(g)(2)(iv).

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To obtain a certified copy of a U.S. birth, death, marriage or divorce certificate, contact the appropriate state or county agency where the event took place. Find out the correct fee, if any; whether the fee must be paid by money order instead of personal check; and whether the person needs to sign a release form. You may also want to find out how long it will take to get the document; and, if necessary, if there is a way to obtain the document more quickly.

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An excellent resource guide is Where to Write for Vital Records. It provides information on how to get records from all 50 states, and the information is updated each year. It can be downloaded from the website of the Centers for Disease Control and Prevention at www.cdc.gov/nchs/w2w.htm.

NOTE: You must get a certified copy of a document from a government agency. Hospital birth certificates, church marriage certificates, and funeral home death certificates generally will not be accepted, unless you show that the government certificate is not available and other conditions are met.9

§ 5.7 Obtaining Documents from Other Countries Obtaining documents from other countries can be difficult. Again, your client is probably the best source of information and help in getting the documents. Often the client can contact friends or family members who will obtain the papers and send them. If not, you must phone or write the government agency that keeps documents in the country. It may take several weeks to receive the document.

NOTE: Consulting the FAM. You can get ideas for how to locate the document by consulting the U.S. Foreign Affairs Manual (FAM) or the State Department’s Visa Reciprocity and Country Documents Finder. The FAM is the State Department regulations and internal instructions for U.S. consulates in other countries. See Unit 6. The FAM gives a country-by-country discussion of what foreign documents are available and the sources of those documents which are deemed accepted by the U.S. government.10 You can access this information online by going to http://travel.state.gov/visa/fees/fees_3272.html. Once there, you simply need to select the name of the country where the event happened that you must document (i.e., the birth, death, marriage, adoption, etc.) from the drop-down menu, and scroll down to the “Documents” section, where you will find instructions on how to obtain each required document. Follow the requirements exactly.

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See generally 8 CFR § 204.1(g) and 8 CFR § 103.2(b)(1). See 22 CFR § 33.2, reprinted in Appendix Volume 19 of Immigration Law and Procedure.

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If your client will eventually immigrate through a U.S. consulate abroad, you will have to produce documents according to requirements in the FAM at that time. It may be more efficient to get these documents according to FAM requirements now. Some countries may provide “short form” birth certificates that do not list both parents. CIS will not accept these birth certificates.

Some documents simply are not available, because the government does not keep them or because the place where they were stored has been destroyed. If the document is not available, you need to prove that it is unavailable and obtain a substitute document. Here are suggestions to prove a document is not available. Consult 8 CFR § 204.1(f) for the regulation on the subject. 

See if the U.S. Foreign Affairs Manual (FAM) lists the document as unavailable, for example because natural disaster or war destroyed the records, or the FAM considers the records to be untrustworthy. If the FAM lists the document as unavailable, CIS will probably permit you to submit a substitute document.



If the FAM does not say the document is unavailable (e.g., a birth certificate), you must submit an original statement on official government letterhead that states the reason that the document does not exist and whether similar documents (e.g., a church record of birth) are available for the time and place in question.

Once you have shown that the document is not available, you can present secondary evidence such as medical records, school records, and religious documents prepared around the same time as the missing primary document, or even affidavits. There are rules about what documents can be submitted. See, for example, 8 CFR § 204.1(g)(2) for the rules about substitute documents for a birth certificate. Remember, the CIS and State Departments will not accept this secondary evidence unless you have shown that the preferred document is not available.

§ 5.8 Making Proper Copies of Documents The paper that you will finally receive, whether it is from the U.S. or another country, will probably be a photocopy of the document you requested, with an original certification stamp or signature from the government office. This is your “original” document. There are two things to remember about original documents:

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Do Not Submit Original Documents to CIS Unless You Are Told to Do So

Instead of sending the original document, CIS now generally permits the filing of photocopies instead of original documents with applications and petitions, and the applicant does

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not need to individually certify the copies.11 CIS views the signing of the form or application as certification under penalty of perjury that all evidence submitted with a form or petition is true and correct. It is important to make sure that legible photocopies are submitted with the application. Where CIS determines it needs to review the original of a document, the applicant has twelve weeks in which to submit the original.12

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NOTE: Although submitting originals is not recommended, if originals are submitted instead of copies, it is possible that you may be able to have the originals returned to you. To request the return of original documents, use the Return of Original Documents Form G-884.

B.

Keep the Original Document in a Safe Place and Be Prepared to Show It to CIS upon Request; In Addition, You or the Client Must Bring the Original Document to Any Interview That Has to Do with the Case

Keeping a client’s original document in the office is a major responsibility, and losing it can be a nightmare. If at all possible return all original documents to the client and ask them to keep it safe. If you must keep original documents, it is important to set up a procedure to protect the documents. Many offices, for example, prefer to keep original documents in an envelope that is securely fastened to the client’s office file.

§ 5.9 Making Certified Translations of Documents All documents which are not in English must be submitted to CIS with English translations made by a person who is competent to translate. Summary translations are officially no longer accepted, but in practice if a birth or marriage certificate summary contains all pertinent information desired by CIS, it often will be considered sufficient. All foreign language documents must be accompanied with a full English translation.13 The translation document will need to be accompanied by a signed certificate of translation stating the following: “I certify that I am competent to translate from [the original language] to English and that the above is a correct and true translation to the best of my knowledge and belief.” Note that anyone who is competent to translate may make the translation; it does not have to be an attorney, certified representative or notary public. However, neither the petitioner, beneficiary nor their representative should translate the document unless a third party can then certify its accuracy separately. The translation does not need to be certified by the same person who translates the document. Therefore, it is ok for anyone, including the petitioner, the beneficiary, the representative or an unknown person to have 11

8 CFR § 204.1(f)(2). 8 CFR § 103.2 (b)(5). 13 8 CFR § 103.2 (b)(3). 12

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translated the original document, so long as a third party certifies it as such: “I certify that I am competent to translate from [the original language] to English, that I have reviewed the attached translation and the original document and that the above is a true and accurate translation of the original English document.” The certification should be signed and dated.

PRACTICE POINTER: Reviewing the Documents. After receiving the documents from your client, review them carefully for any inconsistencies or unusual facts. For example, is the date of the current marriage of the petitioner to the beneficiary after the final judgment date of the petitioner’s divorce to her first husband? If not, the present marriage may be invalid and the couple may need to remarry before submitting the petition. For children, it is extremely important to note whether the birth certificate was issued immediately following the birth of the child. “Delayed” birth certificates not only may not be considered reliable, but they also can indicate fraud. Sometimes people are mistaken regarding the facts they tell you, and you must be certain the information on the form is consistent with the documents and that the documents to be submitted don’t raise additional legal issues or concerns. You can also help your clients not to submit well-meaning but fraudulent petitions for relatives or friends.

§ 5.10 Documenting the Immigration Status of the Petitioner There are several ways to prove the petitioner’s status as a U.S. citizen or lawful permanent resident. However, you should never submit an original naturalization certificate or lawful permanent resident card to CIS, because of the risk that it might get lost. A.

Proof of U.S. Citizenship

The regulations are very specific about what documents prove U.S. citizenship.14 A person born in the United States must submit either a copy of his birth certificate, or a valid U.S. passport issued for ten years after the petitioner was eighteen; or a valid U.S. passport issued for five years before the petitioner turned eighteen; or a statement by a U.S. consular officer certifying that the petitioner is a U.S. citizen and has a valid U.S. passport. If the Petitioner does not have any of these documents, he can show school records, baptismal certificates or other documents, if available. The regulation lists other documents that may be submitted to prove citizenship. A U.S. citizen born outside the United States should submit a copy of his naturalization certificate, certificate of citizenship, or U.S. passport issued for a ten year period.15

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Look at 8 CFR § 204.1(g)(1). Other documents may also be used, please see 8 CFR § 204.1(g)(1).

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B.

Proof of Lawful Permanent Residency

You may submit a photocopy of the person’s permanent resident card (“Alien Registration Card”). Or you may submit a copy of a passport with a stamp indicating permanent resident status, or a judge’s order or a Form I-797 showing that the person has been granted adjustment of status. See Unit 7. If the petitioner has lost his or her green card, you may have to submit some document showing the green card was granted, plus proof that an Application to Replace Permanent Resident Card on Form I-90 has been filed. Sometimes, CIS may also ask whether or not the card has been reported stolen either to them or to the police, so you may need to provide an explanation of how you believe the card was lost.

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§ 5.11 Filing the I-130 Packet Once you have the I-130 completed and have the supporting documentation, you are ready to send the whole I-130 packet to CIS. Always send the packet via certified mail/return receipt requested. The I-130 instructions contain a list of what items must be submitted. At the present time, the requirements for an I-130 packet are: 1. 2. 3. 4.

I-130 visa petition; Proof of petitioner’s immigration status; Proof of family relationship; If the petition is for a married couple, passport-style photos and a G-325A for both husband and wife;16 5. Check made out to “U.S. Department of Homeland Security” for the correct fee; and 6. Notice of Entry of Appearance as Attorney or Accredited Representative on Form G-28, if filed by attorney or accredited representative; 7. If the petition is for a spouse, it is essential to include evidence that the marriage is bona fide. Where to File? Where you send this packet depends on where the petitioner lives and whether or not the beneficiary is eligible to apply for adjustment of status on form I-485 at the same time. Unit 7 will discuss who is eligible to adjust status. The general mailing instructions are below and they make reference to “Lockboxes” which are centralized postal office addresses where the CIS receives certain petitions that it then reroutes to the appropriate CIS Service 16

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Note that for transgender spouses, the regulations will require a photograph that “reflects a good likeness of, and satisfactorily identifies the applicant … agree[s] with the submitted identification evidence and reflect[s] the applicant’s current and true appearance.” See, USCIS Interim Policy Memorandum, “Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update AD 12-02.” April 10, 2012.

Center. Please note that you must check the CIS website at www.uscis.gov/i-130 for exact mailing addresses, as these will differ depending on whether you use the postal service or send something via express mail or courier deliveries. A. If you are filing a Form I-130 concurrently with a Form I-485, Application to Register Permanent Residence or Adjust Status, and the petitioner lives in the United States, the entire package as of this writing is filed at the CIS Chicago Lockbox. Visit the CIS website for the current filing address. If the person immigrating is eligible for adjustment of status to lawful permanent residence because he or she is an immediate relative or has a current priority date, the I130 will be filed together with the I-485 adjustment of status application at the Chicago Lockbox. Chapter 3 will discuss who is eligible to adjust status. B. If you are filing a stand-alone Form I-130 and the petitioner lives in the United States or Canada, then the location for filing as of this writing will be either at the Chicago or the Phoenix CIS Lockbox, depending on the state of residence of the petitioner.17 Check the CIS website to ensure you have the correct filing location. C. If you are filing a stand-alone Form I-130 and the petitioner lives in a country outside of the United States or Canada: 1. Petitioners residing in countries without CIS offices will need to file Form I-130 at the “Chicago Lockbox.” You should look at the I-130 instructions or the CIS website to find the right address where to file the petition; 2. Petitioners residing in a country with a CIS office have the option of filing the I130 petition at the Chicago Lockbox, or they may file it at the international CIS office having jurisdiction over the area where they live. To find out if the country where the petitioner resides has a CIS office, you can visit the “International Immigration Office” page at www.uscis.gov/international, which includes information on each international office and instructions for how to file an I-130 petition at that office. The CIS Chicago Lockbox will forward the petition to a CIS Service Center, which will process and adjudicate the petition. After the petition is approved, the Service Center will forward the application to the National Visa Center, which will forward it to the U.S. Consulate when the visa becomes available.

KEEP A COPY! CIS or the Post Office could lose your package. Never submit any documents to CIS without making a copy for your files. If you are helping someone that you will not

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The locations for filing by state of standalone I-130 petitions may be presently found at: www.uscis.gov/i-130.

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represent, make sure that the person keeps a copy. Keep your receipt from the certified mail/return receipt requested mailing with the copy. If there is ever a problem, this will be your proof of filing and priority date.

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PART THREE: THE MARRIAGE FRAUD INTERVIEW & OTHER REQUIREMENTS FOR MARRIED COUPLES § 5.12 CIS Challenges to a Marriage The CIS is very suspicious of people who try to immigrate through a spouse. CIS has stated that in its opinion over one-third of the spousal visa petitions it receives are based on fraudulent marriages. When CIS receives a visa petition based on a marriage, it will review the petition for signs of marriage fraud. Before it approves a spousal visa petition, CIS requires that the couple show that their marriage is bona fide (real). CIS may require these couples to come to a marriage fraud interview prior to approving the I-130 petition, but generally will conduct such an interview at the time of adjustment. At the adjustment interview, the CIS officer will ask the couple questions about their marriage and review documents that they bring to show that their marriage is sincere. If the examiner determines that the marriage is suspect based on the application or the preliminary interview, he or she may refer the couple to a marriage fraud interview. At the marriage fraud interview, the spouses are interviewed separately and their answers are compared. Discrepancies can lead to a finding of fraud and the immigrant spouse can then be placed in removal proceedings. What kind of fact situations in a marriage does CIS find suspicious? While there is no set rule, in the past CIS has been especially suspicious of marriages if the spouses:    

State that they are not or will not be living together; Are of very different ages, and especially if the woman is older than the man; Are of different races; Are of certain targeted nationalities.

Any couple may be called to a marriage fraud interview. The best policy is to encourage all couples to collect documentation that shows that they have a real marriage. This should start at your first or second meeting. Most of the rest of this section is a discussion of how you can help prepare your clients for a marriage fraud interview. Also, there are several important rules that apply to married couples at all stages in the process.

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§ 5.13 The Legal Standard for a Marriage Married couples must show two things: that the marriage is valid (legal); and that the marriage is bona fide (not a fraud) at its “inception” (at the time the couple got married). A.

The Marriage Must Be Valid

A couple is legally married if the marriage is recognized as valid in the place where the couple was wed.18 Example 5.13-a: Your clients were married only in a church ceremony in Mexico. Because this is not a “legal” marriage under Mexican law, it will not be accepted by CIS. For a marriage to be legal, the couple must have been free to marry each other. If either the petitioner or beneficiary was married before, you must present proof that: a) the prior marriage has been legally terminated by a valid divorce or annulment, or by the death of the spouse; and b) this happened before the person married again. Furthermore, the termination of any prior marriage must be valid both in the jurisdiction where the original marriage took place, and where the subsequent marriage took place.19 Some divorces may be suspect. CIS almost never accepts divorces where neither person was present in the place where the divorce was obtained. Divorces where one person was not present may or may not be accepted. Example 5.13-b: Luis and his first wife obtained a divorce in the Dominican Republic. Luis was not physically in that country to get the divorce. The divorce may or may not be legally recognized, depending on several factors. Luis needs to get expert legal help to evaluate the Dominican divorce. Same-Sex Couples, Transgender Spouses and the Defense of Marriage Act (DOMA). Until recently, the federal Defense of Marriage Act (DOMA) had specified that a “spouse” could only be a person of the opposite sex. This prevented bi-national same-sex couples from filing immigrant visa petitions based on marriage. In June of 2013, the historic U.S. Supreme Court ruling in the case of U.S. v. Windsor struck down DOMA, declaring it unconstitutional; and the CIS has, therefore, begun approving visa petitions for same-sex spouses, announcing that it will use the same criteria as for heterosexual couples.20 To this end, the CIS has stated that it will look to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. Therefore, couples who do not currently live in a state or country that

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However, the U.S. will not recognize polygamous marriages, even if they are legal in the place where the marriage took place. 19 See Matter of Luna, 18 I&N Dec. 385 (BIA 1983); Matter of Hosseinan, 19 I&N Dec. (BIA 1987). 20 U.S. v. Windsor, __U.S.__ (June 26, 2013); see also “Implementation of the Supreme Court Ruling on the Defense of Marriage Act” on the CIS website.

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recognizes same-sex marriage may obtain a lawful marriage in such a state or country so long as the laws of that place permit out-of-state residents to marry there.

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Furthermore, in the case of In re Lovo-Lara, 23 I&N Dec. 746 (BIA 2005), the BIA held that a marriage including a transgender spouse is valid for immigration purposes so long as it is considered a valid heterosexual marriage between two people of the opposite sex according to the law of the state where the marriage was celebrated. Thanks to the Windsor decision, transgender individuals in heterosexual marriages should no longer be subjected to any special requirements or conditions in order to prove that their marriage is in fact a “heterosexual” marriage. The same, of course, is true of same-sex couples where one or both spouses are transgender. In other words, the question of a person’s gender identity should no longer be relevant to the question of the legal validity of the marriage; it may, however, still be important where a transgender individual wants to have their gender identity properly reflected on their immigration documents.21 Example: Theresa is a U.S. citizen and her wife Jenny is from Trinidad and Tobago. They were married in Amherst, Massachusetts. Michael is a U.S. citizen and his husband Fernando is from Spain. They were married in Madrid, Spain. Sung Bae is a U.S. citizen and his husband Takeshi is from Canada. They were married in Vancouver, British Columbia, Canada. All three of these couples were married in places and times that made their marriages legal. As of now, these couples will finally be able to petition their spouses for immigration benefits. B.

The Marriage Must Be Bona Fide

The couple must meet a specific test to show that their marriage is bona fide. They must show that at the time that they got married, their goal was to create a real marital relationship and not to commit immigration fraud.22 This is the only test that the couple must meet. For example, a CIS officer cannot deny a visa petition because he does not believe the marriage is “good” or will be a lasting one, or because he disagrees with how the two people lead their lives. The more “conventional” a marriage situation, the easier it will be to get CIS to approve the visa petition. A couple who lives together, who has a common social life with family and friends, who owns property together and who has been together for some time looks like a “regular” marriage. But other marriages, which do not look like this, also qualify under the rule. Example 5.13-c:  Couple A must live apart six months of the year so that the wife can travel to work.

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See, USCIS Interim Policy Memorandum, “Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update AD 12-02.” April 10, 2012. 22 See Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

    

Couple B is living separately at the time of their interview because of problems in the relationship. They hope to get back together. The wife in Couple C kept her house in her own name because she wants to leave it to her children from a previous marriage. Couple D has not yet informed the husband’s family of their marriage, because they know the family will disapprove. There is a thirty-year age difference between husband and wife in Couple E. The husband and wife in Couple F are of different races and neither is fluent in the other’s language.

As long as none of the couples intended to commit marriage fraud, and they all married in order to create a real marital relationship, all of their marriages must be found to be bona fide. This is true even if the couple separated for a time.23

NOTE: Advising the Couple to Delay the Application. If the couple does not live together now but will in the near future, you might advise them to not file the visa petition until they do live together. But if the couple will live apart for months or years, they may want to file the application now, especially if they want to establish a priority date now. Handling this kind of case may take a great deal of time, and this may determine whether you decide to keep the case. As long as the case is well prepared, however, it should win eventually.

§ 5.14 Documentation to Show That a Marriage Is Bona Fide At the marriage fraud interview, you must submit documentary evidence showing that the couple is living together (if they are) and that their financial and personal lives are intertwined. For example, evidence could show that:

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     

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The couple has or is expecting a child; One spouse has been added to the other’s health or life insurance policy; Each spouse’s work records have been updated to reflect the marriage; Rental agreement and utilities accounts are in both names; The couple has joint bank accounts showing normal levels of activity; or The families (especially the petitioner’s family) approve of the marriage.

See Matter of Adalatkah, 17 I&N Dec. 404 (BIA 1980).

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Exercise 5.14: Name five other pieces of evidence that might show that the couple is really married and living together: Include evidence that a couple could get even if they did not have bank accounts or other financial records.

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Many people are careless about changing the paperwork in their lives to reflect that they are married. You can help them build a record by suggesting that they make these changes. Some advocates advise a couple to build up a “history of togetherness” on paper before submitting a visa petition/adjustment application, just to avoid CIS suspicion.

§ 5.15 What Will Happen at the Marriage Fraud Interview? The marriage fraud interview is a stressful and scary experience for many clients. You can help them learn the skills to pass the interview with confidence. After you submit the visa petition, you may receive a notice by mail asking the couple to come to CIS for an interview to discuss the petition. This is the marriage fraud interview. If the interview date is not convenient, you may call the number listed on the form to reschedule the interview. However, it is best to send a certified, return receipt letter in order to notify the CIS that you are unable to attend the interview. It is important to have this record of your notification to them in case CIS later denies the case because of the failure to attend the interview. At the interview the CIS officer wants to see for herself whether the client’s marriage appears to be bona fide. The officer may do three things. a. The officer may ask the couple all of the questions on the I-130. The couple should have practiced answering all the questions. b. The officer may look at the documentation about the marriage that the couple submits. The couple must be able to describe the documentation and discuss it. c. The officer may ask the couple questions about their marriage. The couple must prepare for these questions, and know how to deal with questions to which they do not know the answer. They must be prepared for the possibility that the officer will act suspicious, hostile or threatening.

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The questions concern intimate details that only persons who live together would know. The questions asked vary from examiner to examiner; some typical questions are: “What side of the bed do you sleep on?” “Who gets up first in the morning?” “What do you do together to have fun?” “When was the last time you spoke with one of his relatives?” “What did you have for dinner last night?” “What kind of food does she like?” “What did you give him for his last birthday?” “What does his father do for a living?”

The officer may separate the couples and ask each the same question to see if they give the same answer. If the couples answer the question differently, they should be given a chance to explain the difference in their answers when they are brought back together. The interview may be videotaped or recorded.

WARNING: Don’t represent clients who want to commit marriage fraud. If you believe that your clients are going to commit marriage fraud, do not handle the case. Your clients are risking severe penalties—the inability to immigrate through any kind of visa petition in the future, up to 5 years in prison, and $250,000 in fines. See INA § 275(c). You also face severe penalties. CIS marriage fraud interviewers are skilled at detecting fraud and it is very difficult to pass the interview unless the couple actually has a personal relationship.

§ 5.16 Preparing Your Client: Self-Defense Techniques for CIS Interviews How can you help your client gain the skills to deal with an interviewer who may act hostile? First, get the basic facts straight. You and your clients should prepare a short history of the relationship. Mark important dates (when did you first meet? when did you decide to get married? when did you move in together?) and make sure the clients agree on what they were. If necessary, write down important dates and events for them to study. However, if one or both spouses are not good with dates, it is better to keep those general and not overly specific, in case they forget, except for the most important dates, such as birthdays and the date of their marriage. Example 5.16: Mork and Mindy are preparing for their marriage fraud interview. With their legal worker they have written a short history of their relationship:    

Met in the summer of 2003 at party at her cousin’s house. Started going out about a month later. Moved in together in June, 2004 (or “in the summer of 2004”). Got married on November 14, 2005.

Prepare the couple to answer the question: “Why did you decide to get married?” If people do not rehearse this question they may be caught off guard at a CIS interview. Romantic reasons like “I love her” are perfectly good. So is any other honest answer. The couple should practice saying what their relationship is like and how married life is good for them.

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If the couple is separated because of marital problems they should be prepared to say why they got married, what problems they have had, and why they still hope to get back together someday. The fact that a couple argues about personal issues can actually help the case by showing that they have a personal relationship.

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Take your clients through a practice interview, with yourself as the CIS interviewer. The couple must prepare in case they have an interviewer who seems hostile. This is especially important for people who do not speak English well or who are shy.

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Before you give them the interview, talk with them about interviewing “self-defense” skills. They have the right to:     

Ask for clarification if they don’t understand a question; Correct the officer if he or she misstates what they said; Fully explain what they want to say, and not let the officer cut them off; and Say, “I don’t know” instead of taking a wild guess (important!) Tell the truth even if they find it embarrassing (e.g., my husband didn’t give me a present for my birthday or I have never met my spouse’s parents)

Questions for Discussion 5.16: Remember a difficult interview that you went through (or just a fight with an obnoxious person). Name three other strategies you can use when trying to answer questions asked by someone who is angry. Walking out is not an option!

The CIS officers have access to not only DHS records, but also to other records, such as DMV records. CIS officers also “Google” people to see what they can find and they look at Facebook pages. So, talk to your clients about what might be in these records and social media sites, and look at them yourself if possible. For instance, have they had cars registered at addresses other than where they live or have they used different addresses in obtaining drivers’ licenses or I.D. cards? Does the husband have photos of himself with other women on Facebook, but not with his wife? In some instances, the CIS Officer has called relatives—parents and/or children—during the interview. You should prepare your clients for this possibility so that if their parents, for instance, are called, they are aware of the marriage and will not contradict the couple on when they have gotten together, what they do for holidays, etc. In some cases, CIS officers have threatened the U.S. citizen or resident spouse with jail unless they “confess” that the marriage is fraudulent. The officer may even tell one spouse that the other already has confessed. Hopefully this will not happen to your clients, but you should warn them ahead of time. Unless a spouse “confesses,” the CIS will not be able to prove fraud. Tell your clients:   

Do not sign any form withdrawing the visa petition without consulting a lawyer. Do not sign any form stating that the marriage is a fraud. You may ask to stop the interview or speak with your attorney/representative at any point.

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Your role as the attorney/representative in the interview is to observe. You cannot help the client with answers to questions. You can ask that questions be repeated or rephrased. Also, you can witness what goes on and object if you think that the interviewer is being abusive. You, or your clients if alone, can ask to see a supervisor if the interviewer becomes abusive or unreasonable. The fact that you are there may give your clients more confidence.

Will the CIS Knock at My Client’s Door? CIS has the authority to do home visits to verify that a couple is indeed living in marital union. How often CIS exercises this right is hard to say, but CIS agents have been known to go to a couple’s home and interview not only the couple but also neighbors to verify that the marriage is indeed valid. They have also asked to look in bedrooms, in closets, nightstands, and have gone through mail. They are not supposed to do this without your client’s permission, but if your client allows them in the door, this could occur.

§ 5.17 Special Rules That Affect Spousal Visa Petitions There are five important restrictions placed on persons who immigrate through marriage. You must understand all of these rules. Use the following five questions to analyze spousal petition cases. A.

Has an Order to Show Cause or Notice to Appear Been Issued against the Beneficiary? In Other Words, Is or Was He or She in Deportation or Removal Proceedings?

People who marry while they are under deportation or removal proceedings face special restrictions if they want to immigrate through their spouse. If a person marries after the issuance of an Order to Show Cause (OSC) or Notice to Appear (NTA) and before deportation or removal proceedings terminate, the person cannot automatically immigrate through his or her new spouse. The person must prove to CIS by “clear and convincing evidence” that the marriage is bona fide. This means that the couple will certainly face a marriage fraud interview. If the person cannot do this, he or she must live outside the United States for two years before immigrating.24 Example 5.17-a: On April 7, 2013, ICE issued a Notice to Appear against Roberto. He married a U.S. citizen on May 1, 2013, while waiting for his first immigration court hearing. Roberto has the burden of proving by clear and convincing evidence that his marriage is bona fide. If he cannot, he will not be able to immigrate through his wife until he has left the United States and lived in another country for two years.

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How is this different from any marriage petition? CIS can challenge any couple to prove that their marriage is bona fide. One difference is the legal standard of proof. Here the couple must offer very strong proof to show by “clear and convincing evidence” that the marriage is 24

INA § 204(g) and INA § 245(e)(3).

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bona fide. Usually, the couple must only show this by a “preponderance of the evidence,” which requires less strong evidence.

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In addition, if the beneficiary spouse was previously ordered deported or removed, the filing of the petition makes it more likely that ICE will be notified and that the person could be called in for an interview and arrested and removed from the United States.25 B.

Did the Petitioner Immigrate through a Marriage within the Last Five Years?

A person who immigrated through a marriage may not file a visa petition to immigrate a new spouse for five years, unless the person can prove by “clear and convincing evidence” that the first marriage was bona fide.26 This restriction does not apply if the first marriage ended because of the death of the spouse. Example 5.17-b: Wai-Lan immigrated in 2010 as the wife of a U.S. citizen. She and her husband divorced in 2011. She has remarried and wants to petition her new husband. It is now July of 2014. Because five years have not passed since she immigrated in 2010, Wai-Lan must prove that her previous marriage was not a sham in order to submit a visa petition on behalf of her new husband. If she waits until the five years have passed, she will not need to prove that unless the CIS obtains evidence against her and makes a special challenge. C.

Has the Beneficiary Ever Tried to Commit Marriage Fraud?

Under INA § 204(c), a person cannot immigrate through any kind of visa petition (including employment-based visas) if CIS finds that he has previously tried to immigrate by marriage fraud, or even tried to marry in order to commit immigration fraud. Example 5.17-c: In 2000, Ng admitted to INS that he had tried to commit marriage fraud. Now Ng’s U.S. citizen mother wants to petition for him. Ng cannot immigrate through any visa petition. D.

Did (or Will) the Person Become a Permanent Resident within Two Years of the Date That He or She Married the Petitioner?

Many people who immigrate through a marriage will only be granted “conditional permanent residency.” This applies to persons who actually immigrate (not just file a visa petition) through a marriage within two years of the date of the marriage.

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This is because someone who has previously been deported or removed and returns to the U.S. illegally is subject to “reinstatement of removal.” See INA § 241(a)(5). 26 INA § 204(a)(2)(A).

In order to keep their permanent resident status, conditional residents and their spouses must file an application to remove the conditional status of their residence within the ninety day period before their status expires. CIS will then determine whether they wish to interview the couple or waive the interview. There are some exceptions to this rule that allow conditional residents to apply for a waiver to remove the conditional status on their own where the marriage has ended, where the conditional spouse has been abused by the other spouse or where the conditional resident would suffer extreme hardship if he or she had to leave the U.S. Conditional residency is discussed in Unit 7. E.

Did the Person Obtain Lawful Permanent Resident Status through the Spouse within Two Years of Getting Married and Then Did the Marriage End within Two Years of the Date That the Person Was Lawfully Admitted for Permanent Residence to the United States?

If so, INA § 237(a)(1)(G)(i) creates a presumption of removability. To avoid being removed, the person must prove that his or her marriage was not a fraud. Example 5.17-d: Rhonda married her U.S. citizen husband Sam in England on March 1, 2010. Sam immediately filed a visa petition for Rhonda, the petition was approved, and Rhonda obtained an immediate relative spouse immigrant visa at the U.S. embassy in London. Rhonda then was admitted to the U.S. and entered the country on September 1, 2010, and was admitted as a conditional lawful permanent resident. On January 1, 2012, Rhonda and Sam filed for divorce and the divorce was final on July 15, 2012. Is Rhonda deportable for marriage fraud? Possibly. ICE may issue an NTA alleging marriage fraud and Rhonda will have the burden of proving that she did not marry “for the purpose of avoiding any provisions of the immigration laws.” Also note that her conditional LPR status will be terminated by CIS upon knowledge of the divorce, but reinstated if Rhonda applies for a waiver. If the waiver is denied, ICE could allege that Rhonda is deportable both because her conditional residence has terminated, and because ICE believes Rhonda committed marriage fraud. Example 5.17-e: Rita Resident entered the United States in March of 2001. She married her husband Harry Citizen in April of 2008 and adjusted her status on June 1, 2009. She and Harry were divorced on July 1, 2011. She has not left the United States since that time. Is Rita deportable?

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No. She did obtain her lawful permanent resident status within two years of getting married, but her marriage did not end within two years of the date she became a lawful permanent resident on June 1, 2009. A person will also be found deportable under § 237(a)(1)(G)(ii) if he or she fails to “fulfill the alien’s marital agreement” and the marriage was made for immigration purposes. Here CIS is trying to get at an immigrant who has fooled a resident or citizen spouse into thinking the marriage is real and then deserts them or in other ways does not have a marital relationship.

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Remember, marriage fraud is considered a serious crime. Both spouses face a possible prison sentence of up to 5 years and fines of up to $250,000.27

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PART FOUR: SELF-PETITIONING UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA) § 5.18 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”)

Important Note: This section is an introduction, not a manual. VAWA applications are complicated and the following section will only introduce this subject. For an in-depth manual on VAWA, including training materials and information, please consult The VAWA Manual: Immigration Relief for Abused Immigrants produced by the Immigrant Legal Resource Center and Catholic Legal Immigration Network, Inc. (CLINIC). Check the website www.ilrc.org for details on ordering this manual. ILRC also recommends that advocates assisting VAWA applicants keep abreast of new developments by subscribing to the “VAWA Updates” listserve. To do so, contact ASISTA at [email protected].

A.

Overview

Congress first passed the Violence Against Women Act in 1994. This large federal law contains provisions that allow spouses and children abused by their U.S. citizen (USC) or lawful permanent resident (LPR) spouse or parent, and parents abused by their U.S. citizen sons or daughters, to “self-petition” to get a green card, without having to convince the abusive relative to file the petition. Due to the activism of domestic violence survivors and their advocates, in 2000, 2005 and 2013, Congress passed amendments that greatly improved the VAWA immigration provisions, by simplifying and expanding the protections and removing some of the obstacles created by earlier versions of the law. The immigration provisions of VAWA are an attempt to correct a very widespread problem: many immigrants are forced to stay in abusive relationships because their abusive family member can “hold them ransom” due to their lack of immigration status. For example, too often an abusive spouse will refuse to file a family visa petition in order to control an undocumented spouse. Or the abusive spouse will threaten to withdraw a petition or even call officials at the Department of Homeland Security to deport the immigrant spouse if he or she attempts to leave, resist the abuse, or call the police. Congress did not want to see U.S. immigration laws used as another weapon in an abuser’s arsenal. So it created VAWA to permit a spouse, child or parent who would otherwise

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See INA § 275(c).

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be eligible for family-based immigration but is in an abusive family relationship to self-petition on his or her own, without having to rely on the abusive spouse, parent, son or daughter to file the family visa petition. VAWA provides these self-petitioners with some benefits that go beyond those available in regular family visa petitions. As long the self-petition is approved, even if no adjustment application has been filed, the VAWA self-petitioner can work legally in the U.S. and will not be deported during the months or years it may take for the petitioner’s priority date to become current. Plus VAWA self-petitioners can apply for adjustment of status in the United States, rather than having to leave the United States to process their visas at a consulate in the home country. Also, the VAWA self-petitioner can receive many public benefits unavailable to other noncitizens. Most victims of domestic violence are women, and for the sake of clarity this unit will refer to the abuser as “he” and the victim as “she.” It is important to note, however, that men sometimes are the victims of domestic violence and women sometimes the abusers. The VAWA immigration provisions benefit both abused husbands and wives, as well as abused children and parents of both genders. Also, as a result of a U.S. Supreme Court case, United States v. Windsor, 570 U.S. ___ (2013), abused spouses in same-sex legal marriages should also be able to qualify under VAWA. VAWA also protects children abused by a USC or LPR parent. And frequently, even if the child was abused and the parent wasn’t, the noncitizen parent may also qualify for VAWA, or if the parent was abused and the child wasn’t, the child may also qualify. See § 5.19 for a discussion of children and VAWA.

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PRACTICE TIP: Getting the Word Out. The self-petitioning provisions of VAWA can help a lot of people get out of abusive situations and get the medical and other supportive benefits that they and their children need. However, in order to benefit from VAWA, people first have to learn that it exists. Immigrant advocates have an urgent task of informing potential self-petitioners, and domestic service providers about the availability of this relief. For outreach materials, go to www.nationalimmigrationproject.org, www.asistahelp.org or www.ilrc.org.

VAWA self-petitions are both similar to and different from regular family visa petitions. On the one hand, the VAWA self-petitioner must prove the same types of facts as in a regular family visa petition. The self-petitioner must offer proof of the abuser’s LPR or USC status to show that the abuser would have been able to petition for her; she must show that a valid and bona fide marriage and or child/parent relationship existed; and she must have a current priority date in order to become a permanent resident. Thus, with some important exceptions, the eligibility requirements discussed earlier in Units 4 and 5 on family visa petitions also apply to self-petitions under VAWA. On the other hand, VAWA self-petitioners benefit from important exceptions to normal requirements for a marriage petition. For example, in some cases the VAWA self-petitioner can immigrate even if the abuser is no longer an LPR or USC; if the marriage has been terminated; or if the abused spouse believed that the couple was married but in reality the marriage was invalid. 5-32

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The VAWA self-petitioner must meet additional requirements that don’t apply to regular marriage petitions. For example, they must prove that they have good moral character, that the abuse occurred, and that they lived with the abuser at some point. These VAWA requirements are discussed in Part A, below. Part B describes how to document that a self-petitioner has met the requirements. Section 5.19 describes VAWA as it applies to children who are abused by an LPR or USC parent. Section 5.20 describes VAWA as it applies to parents who are abused by a USC son or daughter. Section 5.21 describes the procedure for filing a VAWA case.

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Again, this unit covers basic VAWA eligibility, but does not provide enough information for someone to represent a VAWA client. If you take on a VAWA case, be sure to get more information and/or assistance from ILRC (www.ilrc.org), or an agency such as the National Immigration Project of the National Lawyers Guild (www.nationalimmigrationproject.org), ASISTA (www.asistahelp.org) or another legal services agency with expertise and experience working on VAWA self-petitioning cases. B.

Requirements for VAWA Self-Petitioning Spouses

In order to self-petition under the Violence Against Women Act, an abused spouse must prove that:        

The abuser is (or was) an LPR or USC. The self-petitioner is (or was) the spouse of the LPR or USC abuser,28 or the parent of a child who was abused by the self-petitioner’s LPR or USC spouse. The LPR or USC abused the self-petitioner during their marriage. The marriage that forms the basis of the self-petition was a good faith marriage. Either the self-petitioner is residing in the U.S., or if living abroad, the LPR or USC abuser subjected the self-petitioner or her child to abuse in the U.S., or is an employee of the U.S. government or armed forces. The self-petitioner lived with the abuser. The self-petitioner is a person of good moral character. In some circumstances the child of the abused spouse qualifies for status even if the child herself was not abused, and the parent of an abused child qualifies for status even if the parent herself was not abused. 1. The Abuser is (or was) an LPR or USC

Under VAWA, the abuser must be a lawful permanent resident (LPR) or a U.S. citizen. The exceptions to this requirement are:

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Or, in some cases, the applicant was not the legal spouse of the abuser, but believed herself to be a lawful spouse (see Subsection 2 below).

a. The abuse may have occurred before the abuser became a USC or LPR. b. If the abuser loses his lawful immigration status related to or due to an incident of domestic violence, the victim may still qualify to self-petition. That self-petition, however, must be filed within two years of the date the abuser loses status. c. If the abuser loses immigration status for any other reason after the self-petition is approved, that loss of status will not affect the self-petitioner’s case. d. If an abusive LPR spouse naturalizes, a pending self-petition will automatically be reclassified as self-petition of a spouse of a USC. See § 5.21 on procedures, below. Note that VAWA self-petitioners’ derivatives will remain eligible for VAWA under INA § 204(l) even if the abuser dies while the principal’s VAWA self-petition is pending or approved. 2. The self-petitioner is (or was) the spouse of the LPR or USC abuser The marriage is considered valid if it was valid in the place where it was performed or celebrated, and includes common law marriages from places where they are recognized. This should also include same sex marriages (see Practice Pointer below). The exceptions to the spousal relationship requirement are: a. If the marriage was terminated and there was a connection between the abuse and the termination of the marriage, the self-petition can be filed within two years of the termination. b. If the marriage was terminated for any reason after the self-petition was filed, that termination will not affect the self-petition. c. If the abusive USC (not an LPR) spouse dies, the self-petition can be filed within two years of his death. (A widow or widower self-petition may be an easier route than VAWA; however VAWA provides more benefits, so both possibilities should be investigated). d. If the marriage was not valid because a prior or concurrent marriage of the abuser’s was not legally terminated, but the abused spouse believed the marriage was valid and a wedding ceremony was performed, a self-petition may nevertheless be filed. e. If the self-petitioner remarries after the approval of the self-petition, the self-petition will not be revoked.

PRACTICE POINTER: Family-Based Immigration and VAWA Benefits Extended to Same Sex Couples in 2013. In June 2013, the U.S. Supreme Court decided in United States v. Windsor, 570 U.S. ___ (2013), that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.29 As a result, CIS was directed by President Obama and DHS Secretary Janet Napolitano to review immigration visa petitions filed on behalf of a same-sex spouse in the same

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The text of section 3 stated that “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

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manner as those filed on behalf of an opposite-sex spouse, and to ensure that federal benefits for same-sex legally married couples are implemented swiftly and smoothly. As of this manual’s writing (March 2014), same sex I-130 marriage petitions and adjustments of status applications have already been filed and approved. We expect that abused spouses in same sex marriages should also benefit as self-petitioners and eventually be able adjust status under VAWA, where the abusive spouse was or is a USC or LPR. Make sure to research and prove that your client’s same sex marriage was valid and legal in the location in which it took place at the time of the marriage.

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3. The self-petitioner, or a child of the self-petitioner, was battered or subjected to extreme cruelty by the LPR or USC abuser VAWA requires that the self-petitioner show that she or her child “has been battered or has been the subject of extreme cruelty,” by the LPR or USC abuser spouse. The CIS may consider a wide range of behaviors, including where the USC or LPR spouse: a. b. c. d.

Threatened to beat or terrorize her; Hit, punched, slapped, kicked, or hurt her in any way; Emotionally abused her, such as insulted her at home or in public; Sexually abused or exploited her, including molesting her, forcing her to have sex when she did not want to, or forcing her to prostitute herself; e. Threatened to take her children away or hurt them; f. Threaten to deport her or turn her over to immigration; g. Controlled where she went, what she could do, and whom she could see; h. Forcibly detained her; i. Engaged in a pattern of acts that alone would not normally constitute abuse, but added together show a pattern of abuse; j. Threatened or committed acts of violence against a third person or thing in order to scare or pacify her.

The CIS Vermont Service Center, which adjudicates all VAWA self-petitions, regardless of the self-petitioner’s residence, is trained in domestic violence issues and has been flexible in applying the definition of abuse. For further information on what constitutes domestic abuse, please visit the National Immigration Project of the National Lawyers Guild (NIPNLG) website at http://nationalimmigrationproject.org/victims.htm or visit the ASISTA website at www.asistahelp.org. Example 5.18a: Shortly after they were married, U.S. citizen Craig started beating Reni, forcing her to have sexual relations. He refused to file a visa petition for her even though Reni was eligible as an immediate relative. Based on this abuse, Reni may qualify as a VAWA self-petitioner.

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Example 5.18b: Annette came to the United States from the Philippines four years ago as a student and married Greg, a U.S. citizen, two years later. When her visa expired,

Greg began to fill out the forms for a family visa petition, but he never filed it. For the past year, Greg has been isolating Annette from her friends and family. He controls all the finances and forbids her to leave the house without him. One day, about a month ago, while Greg was at work, Annette left to help a sick friend. Greg came home early and was waiting at the house when Annette returned. He yelled at her, threatening to turn her over to immigration and have her deported. Upon hearing Greg’s yelling, Annette’s cherished dog, “Baby,” ran into the room. Greg kicked Baby severely several times until Annette begged him to stop. Greg then told Annette, “Baby got what he deserved and if you don’t shape up, you will too.” This is not the first time Greg has mistreated Baby. Greg’s behavior may qualify as extreme cruelty to Annette. 4. The marriage is (or was) a “good faith” marriage A self-petitioner must not have entered into the marriage with the USC/LPR spouse solely for the purpose of obtaining immigration status. This is the usual test for a marriage for a family visa petition. See § 5.13 above. 5. The self-petitioner must either reside in the U.S. or meet certain requirements to file from abroad A self-petitioner does not need to have continuous physical presence in the U.S. to file the petition. A self-petitioner who recently moved to the United States can qualify. Noncitizens living abroad can self-petition if: a. the abusive spouse is an employee of the U.S. government or member of the U.S. armed services, or b. the abusive spouse subjected the self-petitioner or the self-petitioner’s child to battery or extreme cruelty in the United States. 6. The self-petitioner lived with the LPR/USC abuser There is no specified amount of time the self-petitioner must have lived with the abuser, nor must she live with the abuser at the time the self-petition is filed. Thus a self-petitioner can qualify even if she only lived with the abuser for a short time, or only in another country. Example 5.18c: Sara lived with her uncle before marrying Andrew. Soon after she married and moved in with him, Andrew began to abuse her. To avoid Andrew’s abuse, Sara returned to her uncle’s house. She spends most of her time there, even sleeping several nights a week in her old bedroom. Does Sara satisfy this requirement?

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Yes. Sara did reside with Andrew for a short time. There is no minimum length of time she must have resided with him.

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7. The self-petitioner must be a person of good moral character The self-petitioner must demonstrate good moral character by providing police clearance letters for the three years prior to the filing of the VAWA self-petition. She must show generally that none of the bars to good moral character listed in INA § 101(f) apply, or if they do, that one or more of the exceptions noted below apply. She also must show that she has not done other things the CIS considers would demonstrate a lack of good moral character. Establishing good moral character is described more fully at the end of Unit 3.

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Special Exceptions for VAWA Self-Petitioners of the Good Moral Character Bars in INA § 101(f). A VAWA self-petitioner may be excused from a good moral character bar if she can show (1) a connection between the abuse she suffered and the act or conviction that caused the moral character problem, and (2) that there is waiver available for that act or conviction under the inadmissibility or deportability grounds. For information on applicable waivers, see the information contained in The VAWA Manual which can be ordered from the ILRC at www.ilrc.org or check out the ASISTA website at www.asistahelp.org. 8. Children of the self-petitioner may qualify for derivative status A self-petitioning spouse should list her children (unmarried, under 21) on the selfpetition so that they can obtain the same benefits as the self-petitioner, including deferred action, work authorization and eligibility to adjust to LPR status. The child does not have to show that he has been abused. If the child of an LPR abuser “ages out,”30 he will automatically be considered a petitioner for the preference category for unmarried sons and daughters, and will retain the parent’s original self-petition date as his priority date. Similarly, if the child of a USC abuser marries, he will automatically be considered a petitioner for third preference. Example 5.18d: Harriet was abused by her lawful permanent resident husband, George. He did not abuse Harriet’s child Ann, and Ann did not live with Harriet and George. Harriet’s situation met all the requirements for VAWA, so she submitted a self-petition with 19-year-old Ann’s name listed on it. Harriet and Ann both were approved as VAWA self-petitioners and received “Deferred Action” status (see discussion of “Process” below) and employment authorization, and were put on a list to receive a second preference immigrant visa when it becomes available in about two and a half years. When Ann turns 21, the CIS will automatically move her from the second preference “A” list (for spouses and unmarried children under 21 of lawful permanent residents) to the second preference “B” list (for ‘unmarried sons and daughters’ [over

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Under the Child Status Protection Act (CSPA), children who can be classified as “immediate relatives” no longer automatically age out upon turning 21, though they can choose to move to the 1st preference category. In addition, under the CSPA there is a formula for determining whether the child of an LPR who is a 2A preference derivative beneficiary ages out or not upon turning 21. See Unit 4, § 4.10, for information on how the CSPA operates with respect to such children. VAWA 2005 clarified that the CSPA should apply to VAWA petitions.

21]).31 Although it will take Ann longer to get her immigrant visa in this new category, she will maintain her legal permission to live and work in the U.S. until it is available.

PRACTICE TIP: Other Immigration Relief for Abused Spouses 

Conditional Residence: If your client is a conditional resident, a VAWA self-petition need not be filed. Conditional residence means the USC or LPR spouse filed a petition, the petition was approved, and the immigrant spouse actually received a conditional “green card” that lasts for two years. In conditional residence cases, the married couple must together file a petition (called a “joint petition”) to remove the condition near the end of the two-year period. Instead of enduring an abusive or harmful relationship for this period and hoping her or his spouse will help file the joint petition, the conditional resident may have the option of leaving the relationship and obtaining a special “battered spouse waiver” to remove the condition. See Unit 7 for more information on conditional residence.



Crime Victim/Investigation or Prosecution Witness: The “U” Visa:32 Battered men and women who do not qualify for VAWA (for example, because they are not legally married, or their abusive spouse is not a USC or LPR) may be eligible for the “U” nonimmigrant status or “U” visa created in 2000. See INA § 101(a)(15)(U). The U visa benefits victims of statutorily-listed crimes who are willing to help in a criminal investigation or prosecution of perpetrators of crime. This visa is not limited to domestic violence crimes committed by LPR or USC spouses. There are no requirements as to who the perpetrator must be: he or she could be a stranger or a relative, a U.S. citizen or an undocumented worker. The offense could involve sexual attack, physical attack, kidnapping, incest, or many other types of criminal offenses. The “U” visa provides temporary, nonimmigrant status, employment authorization, and can lead to permanent residency. [Note that another visa, the “T” visa, is available to persons who were victims of serious human trafficking. Generally the person must have forced into work, or been a young person forced to be a sex worker, and must meet other requirements. See INA § 101(a)(15)(T).]



Cancellation of Removal for Domestic Violence under VAWA: Some clients may wish to apply instead for VAWA cancellation of removal because they are not eligible to selfpetition, or because waiting to gain lawful permanent residence will take too long. However, this option is only available to those who are in removal proceedings. (See Unit 11, Part II, VAWA Cancellation of Removal.) Eligible, abused non-citizens who are in removal proceedings for any reason can ask the immigration judge for VAWA cancellation of removal.

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However, even though she is over 21, Anne may be able to retain 2A status under the CSPA formula for second preference beneficiaries. 32 For detailed information on applying for U nonimmigrant status, please see the ILRC manual entitled, The U Visa: Obtaining Status for Immigrant Victims of Crime.

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

C.

Asylum for Domestic Violence: Clients may be eligible for asylum if they can show that they were persecuted, or have a well-founded fear of future persecution, based on their race, religion, nationality, political opinion, or membership in a particular social group. Recent cases and changes in the rules on domestic violence have made asylum for some victims of domestic violence a stronger possibility. Unit 14 briefly addresses this topic, but advocates must also consult with experts in gender-based asylum law, including the Center for Gender and Refugee Studies at http://cgrs.uchastings.edu/.

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Documenting Eligibility for a VAWA Self-Petition

VAWA self-petitioners must provide some documents to prove that they are eligible for VAWA. VAWA recognizes that victims of domestic violence may face greater than normal obstacles to getting documentation. Therefore, although the self-petitioner is required to prove that she meets the VAWA requirements, the CIS is required to accept “any credible evidence” as proof. The following is a description of the VAWA requirements that the applicant must document, and suggestions for finding documents.33 1. Proving that the abuser is an LPR or USC The VAWA self-petition form asks for proof of the abuser’s lawful immigration status or U.S. citizenship. If the applicant is unable to comply, CIS will attempt to verify an abuser’s status through its computer records.34 However, this process may delay processing of the selfpetition, and if the search fails, it will lead to a denial. Most likely, CIS will not have records from U.S.-born individuals who have never filed any paperwork with CIS. Therefore, it is in the self-petitioner’s best interest to prove the abuser’s legal status. If the abuser is an LPR, the selfpetitioner can try to find the abuser’s “A” number on his lawful permanent resident card (“green card”). For information regarding a person born in the United States, the self-petitioner can contact the state or county office of vital statistics (often the county clerk) to obtain a copy of the abuser’s birth certificate. An internet website—www.vitalcheck.com—lists many local offices that provide vital statistics throughout the United States. Sympathetic friends or relatives can also help the applicant in locating the information. If the abuser lost his lawful status due to or related to an incident of domestic violence, the self-petition should include a record of the removal, citizenship revocation, or denaturalization proceedings that indicate the loss of status. The self-petitioner should also provide affidavits and other evidence showing that the loss of status was due to an incident of domestic violence.

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For detailed guidance on documenting a VAWA self-petition, the ILRC’s resource entitled, Document Gathering for Self-Petitioning Under the Violence Against Women Act may be downloaded for free at www.ilrc.org/info-on-immigration-law/vawa. 34 8 CFR § 204.2(c)(2) (spouse), 8 CFR § 204.2(e)(2)(child).

2. Proving that the self-petitioner is (or was) married to the LPR or USC The self-petitioner should include a copy of the marriage certificate of the marriage between the self-petitioner and the abuser. If either spouse had a prior marriage, the selfpetitioner should submit final divorce decrees or death certificates to prove the legal termination of all prior marriage(s). The CIS will not require that a divorce decree specifically state that the termination of the marriage was due to domestic violence. Although the self-petitioner must demonstrate that the battery or extreme cruelty led to or caused the divorce, evidence submitted to meet the core VAWA eligibility requirements may be sufficient to demonstrate the connection between the divorce and the abuse. If the abuser was a USC, and he died within two years of the filing of the self-petition, the abuser’s death certificate should be submitted. If the abuser was a bigamist (was married to someone else at the time that he and the selfpetitioner married) but a marriage ceremony was actually performed between the abuser and the self-petitioner, the self-petitioner should show her good faith belief that the abuser was free to marry and evidence of a marriage ceremony. 3. Proving the battery or extreme cruelty The most important evidence of domestic violence is the self-petitioner’s own declaration. It should be very detailed in its descriptions of the abuse, including, if possible, the approximate date that the abuse began, a description of each incident of physical injury, verbal threats, accounts of other cruelty, attempts to leave or seek help, difficulty in leaving, and feelings about the abuse. The self-petitioning case will be strengthened by other proof of abuse, including a civil protection order, police records, criminal court records, complaints, medical records, evidence of torn clothing, broken furniture, photographs of injuries, affidavits (a notarized statement), declarations (a statement signed under penalty of perjury), or letters from witnesses such as friends, relatives or neighbors which support the client’s statements, or from shelter workers, police officers, counselors, social workers, medical workers, clergy, and experts on domestic violence. A corroborating affidavit from a domestic violence counselor is extremely helpful in any case. Where physical abuse was not present, the key to claims of extreme cruelty is to include evidence of the self-petitioner’s subjective perception of the abuse. The self-petitioner must document in her self-petition not only the acts and behavior of her abuser, but also that she perceived those acts or behavior as extreme cruelty. This should be addressed in the selfpetitioner’s declaration and corroborated with any evidence, such as declarations from witnesses, if available.

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4. Proving that the marriage was in good faith Evidence of the self-petitioner’s good faith intent may include proof that one spouse has been listed on the other spouse’s insurance policies, property mortgage or lease, income tax

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forms, joint bank accounts, birth certificates of children born from the marriage, letters, cards, and e-mails from the courtship, photographs of the wedding ceremony and/or family events, and cards, letters and declarations from neighbors, friends and relatives.

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5. Proof of residence with the USC or LPR spouse A self-petitioner should submit any available record showing her as residing at the same place as her spouse. The records do not have to show that the residence was in the U.S., nor that the residence is current. Some suggestions are school records for the couple’s child(ren), letters addressed to each or both spouse/s, lease agreements or rent bills, utility or other bills, medical records, tax returns, property deeds, and insurance policies. Affidavits, declarations or letters from landlords, family members, neighbors, friends or other people who know they lived together may be sufficient if other records are not available. 6. Proof of good moral character The self-petition must be accompanied by a copy of police or law enforcement clearance letters or record checks from jurisdictions (including other countries) where she has resided for six months or more during the three years preceding the filing of the self-petition. If there are good moral character issues, the self-petitioner should write an affidavit explaining how the problems are related to her experience of domestic violence. In such cases, the application should also include affidavits from responsible people who can attest to the self-petitioner’s good moral character. If the self-petitioner has criminal charges or convictions, she must submit court documents, including the charging document, the indictment and the disposition of the case.

PRACTICE TIP: Community Cooperation in Gathering Documents. Domestic violence counselors and shelter staff are key partners in preparing VAWA cases. If possible, you should always work with such a counselor. They can help the self-petitioner develop her story for her affidavit, identify others who can provide affidavits, help collect documents and write corroborating affidavits about the abuse. You should work with them to develop safety plans that include collecting and protecting essential documents. Similarly, police departments, district attorneys, courts and hospitals are important sources of documents, including reports of domestic violence. They can expedite the process of getting those reports to domestic violence victims. See Appendix 5-I for a list of important documents and tips for working with immigrant victims of domestic violence, which may be given to government and community agencies to help them identify and prepare necessary documentation.

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§ 5.19 Requirements for a VAWA Self-Petition for an Abused Child A.

Requirements for VAWA Self-Petitioning for a Child

A child of an LPR or USC may file her own self-petition if she meets the following eligibility requirements:      

The abuser is (or was) an LPR or USC; The self-petitioner is the child (unmarried, under 21, qualifying parent/child relationship) of the abuser; The LPR or USC abused the self-petitioning child; Either the self-petitioning child is residing in the U.S., or if living abroad, meets certain requirements; The self-petitioning child lives or lived with the LPR or USC parent; and The self-petitioning child can establish good moral character.

As in other areas of family-based immigration, the definition of a “child” for VAWA self-petitioning requires the child to be unmarried and under 21 years old. However, there is an important exception to the age requirement, as explained in the PRACTICE POINTER below.

NOTE: A child who was not abused may qualify as a beneficiary of an abused parent’s VAWA self-petition; see discussion in § 5.19.

1. The abusive parent is (or was) an LPR or USC The rules and exceptions to the requirement that the abuser be a lawful permanent resident or U.S. citizen are the same for a child as those of an abused spouse above. 2. The self-petitioning child is the “child” of the LPR or USC abuser

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An abused, self-petitioning child must meet the immigration law definition of a “child”— in other words, be unmarried and under 21, and have a qualifying “parent/child” relationship with the LPR or USC abuser. This qualifying relationship includes all natural children born in wedlock, as well as some step-children, adopted children, and children born out of wedlock. See Unit 4 for the definition of a parent/child relationship under the INA. The self-petitioning child does not have to be the child of a self-petitioning spouse. Also, an additional exception was created to allow an abused child to self-petition up to the age of 25, as long as the abuse was one of the central reasons for the delay in filing. (See Practice Pointer above.) Protection from “Aging Out” of Status. A self-petitioning child will not “age-out” (that is, lose her status as a “child” by turning 21). Instead she is automatically considered a selfpetitioner in appropriate visa category for “sons or daughters” instead of as a child, if the self-

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petition is filed or approved before the self-petitioning child turns 21. The self-petition of a son or daughter of an abusive USC moves to the first preference category for unmarried sons and daughters of USCs and the self-petition of a son or daughter of an abusive LPR is moved from the 2a to the 2B category for unmarried sons and daughters of LPRs. She does not have to file any additional paperwork, and her priority date remains the original self-petitioning date.

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Although it will take these self-petitioners longer to get their immigrant visas, they will maintain deferred action status and eligibility for work authorization during the entire waiting period.35 In addition, the Child Statue Protection Act (CSPA), discussed in more detail in Unit 4, may protect a self-petitioning child from aging out and moving into a preference category with a longer wait. Example 5.19-a: Joaquin’s mother Maritza is an LPR. Maritza often beats Joaquin and disappears for days at a time, so Joaquin successfully self-petitions under VAWA. Because his mother is an LPR, he will be given a priority date as a 2A category. Even if his priority date does not become current until after his 21st birthday, he will still be able to adjust status through his self-petition. However, his category will change to 2B because he will be an unmarried son of an LPR.

PRACTICE POINTER: Abused Children May Be Able to Self-Petition under VAWA until the Age of 25. Although generally abused children cannot self-petition once they turn 21 (because the definition of a child under immigration law is unmarried and under the age of 21), some abused children may be able to self-petition up to age 25 if they can show the abuse was at least “one central reason” for the filing delay. In June 2010, CIS issued draft policy guidance on this issue. According to their policy memorandum, the self-petitioning son or daughter must have been qualified to file the self- petition on the day before the individual attained age 21. This means that all qualifying factors must have been in place on that date. It also specified that “one central reason” is one that is caused by or incident to the battery or extreme cruelty to which the self-petitioner was subjected. The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but to be considered central, the nexus between the battery or extreme cruelty and the filing delay must be more than incidental or tangential.

3. The LPR or USC abused the self-petitioning child The definition of abuse for a VAWA self-petition is discussed in § 5.18. Not only acts and threatened acts of violence against the child, but such acts against a third person (including the other parent), or against a thing may qualify as abuse if deliberately used to perpetuate extreme cruelty against the child. Witnessing domestic violence is also a form of extreme cruelty. Note that it is no longer required that the abuse occurred while the self-petitioning child lived with the abuser. 35

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The CSPA or Child Status Protection Act should permit VAWA applicant children over 21 to remain in their original categories. See Footnote 1 above and Unit 4, § 4.10, for more information on the CSPA.

4. The self-petitioning child is residing in the U.S. at the time the self-petition is filed, or if filing from abroad, meets certain requirements The self-petitioning child does not need to have continuous physical presence in the U.S. to file the petition. One who recently moved to the U.S. can qualify. Noncitizen children living abroad can self-petition where: a. the abusive parent is an employee of the U.S. government or member of the U.S. armed services, or b. the abusive parent subjected the self-petitioning child to battery or extreme cruelty in the United States. 5. The self-petitioning child lives or lived with the abusive LPR or USC parent The self-petitioner does not need to be currently living with the abusive parent. There is no specified amount of time the child must have lived with the abusive parent. Any period of visitation will count. Thus a child can qualify even if she or he only lived with the abusive parent for a short time. 6. The child is of good moral character Children under 14 years of age are presumed to possess good moral character and therefore do not have to do anything to show this. If the self-petitioning child is 14 years or older, the rules are the same as for a self-petitioning spouse, which are described in § 5.18. Juvenile delinquency dispositions are not considered criminal convictions, and therefore usually do not qualify as statutory bars to good moral character. Be careful, however, of juvenile dispositions relating to crimes of violence, drug sales or prostitution, which might bar good moral character.

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PRACTICE TIP: Other Immigration Options for Battered Children. Some children may not qualify for VAWA, while others may qualify but find another form of relief is better for them. One important form of relief is Special Immigrant Juvenile Status (SIJS). Children who are under the jurisdiction of a juvenile court (including dependency, delinquency or probate) and eligible for long-term foster care due to abuse, neglect or abandonment may qualify for SIJS. There is no requirement that the parent be an LPR or USC, and there is no need to wait for a priority date. SIJS cannot be denied based on age if the noncitizen was under 21 and unmarried on the date of the SIJS application. However, until specific guidance is provided, the juvenile court should retain jurisdiction over the case until the entire application is decided and the child receives lawful permanent residency. See INA § 101(a)(27)(J) and 8 CFR § 204.11, and Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth available from the Immigrant Legal Resource Center at www.ilrc.org/publications/special-immigrant-juvenilestatus.

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Children of U.S. citizens may already be U.S. citizens because they acquired citizenship at birth in another country from a U.S. citizen parent. See Unit 17 for more information. Some children may be eligible to apply for asylum based on traditional arguments, or because they were street children or even victims of domestic violence. See Unit 14 for an overview of asylum. A child who is adopted by age 16 may be able to immigrate through the adoptive parent, if the parent is a USC or LPR. See Unit 4, § 4.2 for a discussion of the definition of adopted children under immigration law. Please also see “Other Immigration Relief for Abused Spouses” in § 5.18, above.

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Documenting Eligibility for a VAWA Self-Petition for a Child

Please see § 5.18, Part B, for a general discussion of documentation needed to prove that an abused spouse or child has met the requirements for a VAWA self-petition. In addition, the self-petitioning child must provide documentation showing the parent-child relationship, like a birth certificate, school or medical records. If the abuser is a stepparent, the child must submit a copy of his parents’ marriage certificate, in addition to the child’s birth certificate. If the child was adopted before April 1, 2008, copies of the legal adoption and proof of two years of legal and physical custody must be submitted. If the child was adopted on or after April 1, 2008, you will have to prove that the adoption conformed to the requirements of the Hague Adoption Convention. See Unit 4, § 4.2.

§ 5.20 Requirements for a VAWA Self-Petition for an Abused Parent Parents of abusive USC sons or daughters is a category for VAWA self-petitioning that was created by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (commonly referred to as “VAWA 2005”). This Act was signed into law on January 5, 2006. For more detailed information on this provision under VAWA, see the August 30, 2011, CIS policy guidance memorandum entitled, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. citizen; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 21.15 (AFM Updates AD 06-32).”36 A.

Requirements for VAWA Self-Petitioning for a Parent

A parent of an abusive USC son or daughter may file a self-petition if he or she meets the following provisions:  

The abuser is (or was) a USC (note parents are not eligible if the abuser was an LPR son or daughter); The self-petitioner is the parent of and has a qualifying parent/child relationship with the abusive son or daughter;

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This memorandum may be found online on the CIS website at www.uscis.gov/sites/default/files/USCIS/ Laws/Memoranda/2011/August/VAWA-Elder-Abuse.pdf.

   

The USC abused the self-petitioning parent; Either the self-petitioning parent is residing in the U.S., or if living abroad meets certain requirements; The self-petitioning parent lives or lived with the USC son or daughter; and The self-petitioning parent can establish good moral character. 1. The abusive son or daughter is (or was) a USC

The rules and exceptions to this requirement are similar to those of an abused spouse above. If the abusive son or daughter lost or renounced U.S. citizenship within the two years prior to the parent filing the self-petition as a result of an incident of domestic violence, the abused parent can still petition under VAWA. However, the son or daughter must have been at least 21 years of age at the time of the loss of status. An abused parent may also self-petition under VAWA if the U.S. son or daughter was at least 21 years of age and died within two years prior to filing the self-petition. 2. The self-petitioning parent has a USC “son or daughter” who is an abuser A son or daughter is a person who once qualified as a child, but now may be over 21 or married. The parent must have had a qualifying “parent/child” relationship with the USC abuser. This qualifying relationship includes all natural children born in wedlock, as well as some stepchildren, adopted children, and children born out of wedlock. Therefore, an abused parent, stepparent, or adoptive parent of an abusive U.S. citizen is eligible to self-petition under VAWA. See Unit 4 for the definition of a parent/child relationship under the INA. The U.S. citizen son or daughter must be at least 21 years of age when the parent’s self-petition is filed. 3. The USC abused the self-petitioning parent The definition of abuse for a VAWA self-petition is discussed in § 5.18. 4. The self-petitioning parent is residing in the U.S. at the time the self-petition is filed, or if filing from abroad meets certain requirements Although the statute does not require that the self-petitioning parent be living in the United States, the policy guidance issued by CIS in August 2011 requires the parent to either live in the U.S. or under the same exceptions that apply to self-petitioning spouses and children (see § 5.18, Part A(5)). She does not need to have continuous physical presence in the U.S. to file the petition. A self-petitioning parent who recently moved to the U.S. can qualify. 5. The self-petitioning parent lives or lived with the abusive USC son or daughter

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The self-petitioner does not need to be currently living with the abuser. There is no specified amount of time the parent must have lived with the abusive son or daughter.

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6. The self-petitioning parent is of good moral character The rules for good moral character are the same as for a self-petitioning spouse, which are described in § 5.18.

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§ 5.21 Procedures for Self-Petitioning under VAWA Obtaining lawful permanent residence through VAWA self-petitioning is a two-step process for all but immediate relative applicants: First, the abused spouse, child or parent files the self-petition via Form I-360 by mail to the CIS Vermont Service Center. If the self-petition is approved, the self-petitioner waits for a visa to become available based on the self-petitioner’s priority date. This may take several years through the family preference process. If the abuser previously filed an I-130 petition for the abused relative, the priority date on that earlier petition may be utilized to allow the self-petitioner to immigrate more quickly. Then, the self-petitioner applies to adjust status to lawful permanent residence, and must prove that she is admissible to the United States. Unlike the regular family visa petition process, however, VAWA selfpetitioners obtain permission to live and work in the U.S., and may be eligible to receive public assistance while they wait to adjust status. Immediate relative self-petitioners, may—though are not required to—file an application for adjustment of status concurrently with the self-petition. A.

Filing the Self-Petition

The VAWA self-petition, whether from a self-petitioner living in the U.S. or abroad is submitted on Form I-360 (although this may change in the future). The self-petitioner does not have to include her own address on the I-360, but can instead list the name of a friend, or your agency, in the c/o space, along with that person’s address. This gives the CIS an alternative address to send correspondence, and therefore helps prevent the self-petitioner’s abuser from discovering that she has filed a self-petition. The self-petitioner must also send documentation showing how she meets the VAWA requirements. The following list of documents is the minimum required. Additional proofs, including those described in § 5.18, Part B, above, make the case stronger.  

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    

The self-petitioner’s affidavit or declaration that describes her relationship with the abuser, the history and nature of the abuse, the good faith nature of the marriage, and her good moral character. Police clearance letters for each place the self-petitioner has lived for at least six months during the prior three years (a clearance letter or “records check” sheet generated by a state’s law enforcement agency may suffice for all locales where self-petitioner lived within that state). Proof of the self-petitioner’s identity and status (like a birth certificate and passport). Proof of the abuser’s status as an LPR or USC. Proof of the qualifying relationship to the abuser (spouse, child or parent). Proof of the self-petitioner’s residence at some point with the abuser. Proof of the battery or extreme cruelty suffered.



Currently, there is no filing fee for self-petitions filed by abused applicants. (If an I-485 is filed concurrently, the normal fees apply, though the applicant may request a fee waiver for both the I-485 and biometrics, if eligible).

You should include a cover letter that describes how the self-petitioner meets each requirement and what documents are included with the application. If an approvable petition was filed earlier on the self-petitioner’s behalf, the letter should request that the priority date from that petition be applied to the current self-petition. If an attorney or BIA accredited representative is representing the self-petitioner, that person should attach a G-28 Notice of Entry of Appearance. Mark on the front of the envelope with the self-petition, the cover letter and the I-360 itself (as well as all correspondence with the CIS regarding the case) “VAWA Unit” in large, red letters. ILRC recommends that you mail the petition certified mail, return receipt requested. The self-petition must be filed with: USCIS Vermont Service Center VAWA Unit 75 Lower Welden Street St. Albans, VT 05479-0001 When the CIS receives the self-petition, it issues a receipt notice that includes the receipt date and the applicant’s priority date. Within several weeks, the self-petition will be reviewed to determine whether it states facts that, if proved true, would lead to approval. If it does, the CIS will mail to the self-petitioner (or whoever she listed in the address section) a letter stating that she is “prima facie” eligible under VAWA. This is NOT a final approval letter, but the selfpetitioner can use this letter as proof of her status as a “qualified alien” to receive many forms of public assistance. See the chart prepared by the National Immigration Law Center in Appendix 5-J that describes what benefits are available to “qualified aliens,” a category which includes VAWA self-petitioners.37 This information changes, so updated information can also be found at www.nilc.org/guideupdate.html. If a self-petitioner needs benefits right away, she may initially file with CIS just a one-page affidavit stating that she meets the eligibility requirements. CIS always gives self-petitioners a chance to supplement their self-petitions later. After sending the “prima facie” letter, the CIS will do a more thorough review of the selfpetition and documentation provided. If more documentation is needed, the CIS will request it in a “Notice of Action” called a Request for Evidence or RFE. The additional documentation must be sent to the CIS within the time limit specified on the RFE, otherwise the self-petition may be denied. If the CIS does not approve the self-petition, it will send the self-petitioner a Notice of Intent to Deny, which gives her additional time to respond with necessary facts and documents that might change the agency’s preliminary decision. If the CIS denies the self-petition, the

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Unlike other VAWA self-petitioners, abused parents do not qualify as “qualified aliens” for the purposes of public benefits and therefore do not receive a notice of prima facie determination before an approval of the VAWA self-petition.

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applicant may file a Motion to Reconsider or Reopen with the Vermont Service Center, or she may file a new self-petition.

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If the self-petition is approved, the CIS will mail the self-petitioner an Approval Notice (I-797). Normally, this includes an “Initial Grant of Deferred Action.” This means that although the CIS knows the self-petitioner is present in the U.S. without lawful immigration status, it will not deport her before she can adjust to lawful resident status. At this point, the CIS also tells the self-petitioner that she may file an I-765 to obtain work authorization (Employment Authorization Document). Self-petitioners who are immediate relatives or have current priority dates from another previously filed petition can also concurrently file their adjustment applications (the I-485 packet) at the Vermont Service Center. Upon receiving this approval notice, self-petitioner spouses, children, and parents of USCs are eligible to immediately apply for lawful permanent residence. However, self-petitioner spouses or children of LPRs who receive an approval notice on their I-360 from Vermont are subject to the visa allocation system and must wait for their priority date to become current prior to filing for lawful permanent residence. The priority date for self-petitioners is the date of filing of the I-360 form. However, if the abuser had filed an I-130 prior to the self-petition, the selfpetitioner can use the I-130’s priority date for his or her self-petition. B.

Special Exceptions to Grounds of Inadmissibility and Waivers for VAWA SelfPetitioners

Self-petitioners under VAWA, like most people who are trying to gain status through family-based petitions, are subject to most grounds of inadmissibility (listed in Unit 3) and may be eligible to apply for waivers of those grounds (discussed in Unit 6). This section discusses only the special, additional exceptions and waivers available to VAWA self-petitioners. Note that several grounds of inadmissibility do not apply to someone who entered the U.S. before April 1, 1997. 

Re-Entry after Removal or Unlawful Presence (Permanent Bars): A discretionary waiver is available to VAWA self-petitioners who can demonstrate a connection between domestic abuse and her (1) removal; (2) departure from the U.S.; (3) reentry(ies) into the U.S.; or attempted reentry(ies) into the U.S. Because approved self-petitioners can adjust status in the United States, they can avoid the unlawful presence bars, which are only triggered by a departure from the United States.



Unlawful Presence (3 & 10 Year Bars): An exception to the three- and ten-year unlawful presence bars is available to approved VAWA self-petitioners and their derivative children. The waiver may apply to those who have accrued more than 180 days or one year or more of unlawful presence after an overstayed visa, depart the United States, and later request admission. The self-petitioner must show a substantial connection between the abuse, the unlawful presence in the U.S. and departure from the U.S.

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C.



Visa Fraud: A discretionary waiver is available to VAWA self-petitioners who have procured or sought a visa or admission to the U.S. or any other CIS benefit by fraud or willful misrepresentation of a material fact. The self-petitioner must show that failure to obtain a waiver would cause extreme hardship to herself, or to her USC, LPR or “qualified alien” parent or child, including a child who is a derivative beneficiary of the self-petition. This waiver does not apply to false claims of U.S. citizenship made on or after September 30, 1996.



Public Health: A discretionary waiver is available to VAWA self-petitioners who have a disqualifying communicable disease. VAWA self-petitioners must nonetheless still comply with medical exam and vaccination requirements at adjustment.



Criminal Convictions: A discretionary waiver is available for the grounds inadmissibility relating to 1) crimes of moral turpitude, 2) multiple criminal convictions, 3) simple possession of 30 grams or less of marijuana, 4) prostitution and commercialized vice, and 5) having sought immunity from criminal prosecution. No showing of extreme hardship is required, as in the regular 212(h) waiver.



Public Charge: The Violence Against Women Reauthorization Act of 2013, Pub. Law 113 (Mar. 7, 2013), clarified that the public charge ground of inadmissibility under INA § 214(a)(4) does not apply to VAWA self-petitioners. There is no need for a VAWA self-petitioner to submit either the I-864 or the I-134. Adjustment of Status

A tremendous improvement made by the 2000 VAWA amendments is that VAWA applicants can apply to adjust status inside the U.S., instead of having to go outside the country and process their green card at a U.S. consulate. There is no special additional fee for VAWA applicants to adjust status in the U.S., as there is under INA § 245(i). As discussed below in Unit 7, Adjustment of Status is a procedure where applicants for lawful permanent resident status may complete their paperwork and interviews in the United States—even if they entered the U.S. illegally. This is a tremendous advantage for VAWA applicants, who otherwise might be required to leave the U.S. to go to consular processing and thus become subject to the 3- and 10year unlawful presence bars. See § 3.11 and INA § 212(a)(9) regarding these bars.

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VAWA allows approved self-petitioners to adjust status in the United States under INA § 245(a). It also exempts them from § 245(c), which bars adjustment for people who have been employed without work authorization, failed to maintain lawful status, entered on C or S nonimmigrant status, entered under the visa waiver program, or are deportable as a terrorists. Approved VAWA self-petitioners should be allowed to adjust status in the United States, even if they originally entered without inspection and cannot show a connection between the entry and the abuse. See Aytes memo, April 11, 2008, “Adjustment of Status for VAWA selfpetitioner who is present without inspection: Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5,” which can be found in 85 No. 17 Interpreter Releases 1272 (April 21, 2008).

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In order to adjust status, the self-petitioner may submit an adjustment of status (I-485 packet) to the CIS Vermont Service Center or to the Vermont Service Center based on an already approved I-360 and current priority date. Immediate relative self-petitioners38 may file for adjustment of status concurrently with the I-360. The Vermont Service Center is accustomed to handling VAWA-related adjustments and has historically been fairly generous in granting fee waivers. Later, the self-petitioner will be called for an adjustment interview at a district office where CIS will decide whether to grant lawful permanent residency. VAWA 2005 and its legislative history indicated a possible shift to adjudicating VAWA adjustment of status applications at a centralized location such as the Vermont Service Center. However, as of the writing of this manual, that process is not in place.

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Advocates should contact the National Immigration Project of the National Lawyers Guild (www.nationalimmigrationproject.org) or ASISTA (www.asistahelp.org) for updates on CIS procedures and policies on VAWA adjustment before sending clients to adjustment interviews. ILRC recommends that advocates assisting VAWA applicants keep abreast of developments about this and other issues by subscribing to the “VAWA Updates” listserve. To do so, contact ASISTA at [email protected].

Immediate relatives are the spouses, parents, and unmarried children under 21 of U.S. citizens.

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Appendix 5-C-3

APPENDIX 5-D Unit 5 Note-Taking Guide

I.

DOCUMENTING THE VISA PETITION

A.

Documents to Show Family Relationship -- 8 CFR §§ 204.2(a), 204.2(d), 204.2(f), 204.2(g)

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1. Client is good source 2. In the U.S.: Where to Write for Vital Records 3. From other countries B.

Original Documents or Legible Copies of Documents -- 8 CFR § 204.1(f)(2) Original must be available; bring to interview

C.

Certifying translations -- 8 CFR § 103.2(b)(3) "I certify that I am competent to translate from ____ to English and that the above is a correct and true translation to the best of my knowledge and belief."

D.

Documenting Immigration Status of the Petitioner -- 8 CFR § 204.1(g) 1. Regulation lists acceptable documents 2. It is acceptable to photocopy naturalization certificate, LPR card

E.

When Harry Met Sally ... Harry is from Australia. He married Sally, who is a native born U.S. citizen in a ceremony in Louisiana. Sally had been married and divorced in Mexico. Sally was born in Texas, in a house. Her mother never got her a birth certificate and she was never baptized. What documents do you need to support the visa petition?

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MARRIAGE ISSUES I.

THE LEGAL TEST FOR A MARRIAGE

A.

Is the Marriage Valid (Legal?) 1. Valid under law where marriage took place? 2. Check prior marriages -- were both parties free to marry? a. Show death or valid divorce, annulment b

B.

Prior marriage ended before re-married

Is the Marriage Bona Fide (Not a Fraud)? 1. At the time the couple married, did they want to establish a real marriage relationship? a. Documentary proof b. Interview self-defense

II.

SPECIAL RULES FOR MARRIAGE PETITIONS

A.

Married after OSC or NTA Issued, INA § 204(g) 1. Prove by "clear and convincing evidence" that current marriage is bona fide or 2. Wait outside U.S. for two years before immigrating

B.

Petition for Spouse #2 within 5 Years of Immigrating through Spouse #1, INA § 204(a)(2) 1. Prove by "clear and convincing evidence" that prior marriage was bona fide

C.

Permanent Ban after Attempted Marriage Fraud, INA § 204(c)

D.

Conditional Residency, INA § 216

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E.

Deportable If Immigrate Within 2 Years Of Marrying And Divorce Within 2 Years Of Any Entry Into U.S. INA § 237(a)(1)(G)

F.

Deportable If Married For Immigration And "Refused To Fulfill Marital Obligation" (defrauded petitioner) INA § 237(a)(1)(G)

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UNIT SIX FAMILY VISAS: CONSULAR PROCESSING AND WAIVERS OF INADMISSIBILITY AND DEPORTABILITY

This Unit Covers:  

Processing of the immigrant visa abroad at a U.S. consulate (Part One); Waivers of inadmissibility (Part Two)

This Unit Includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12 § 6.13 § 6.14 § 6.15 § 6.16 § 6.17 § 6.18 § 6.19 § 6.20

The NVC, the U.S. Consulates and the Department of State ............................. 6-2 How the DHS and the State Department Divide Responsibility in Visa Cases ...................................................................................................... 6-3 Initial Consular Processing at the NVC ............................................................. 6-4 Obtaining Documents According to NVC Instructions and the FAM ............... 6-9 Getting Ready for the Interview ....................................................................... 6-11 What Will Happen at the Interview? ................................................................ 6-14 What Happens after the Immigrant Visa Is Granted ........................................ 6-16 What to Do if Your Alien Registration Card Fails to Arrive ........................... 6-17 Waivers of Grounds of Inadmissibility ............................................................ 6-18 What Is a Waiver? ............................................................................................ 6-19 What Is Discretion? .......................................................................................... 6-19 How to Find the Waivers in the Act ................................................................. 6-21 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission ......................................... 6-22 Waiver for Certain Crimes under INA § 212(h) .............................................. 6-25 Waiver of Inadmissibility/Exemption for Alien Smuggling ............................ 6-30 Document Fraud Waiver of Inadmissibility ..................................................... 6-32 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) ....................................... 6-35 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses.......................................................................... 6-38 Procedure for Applying for a Waiver ............................................................... 6-43 How Do You Establish Extreme Hardship? ..................................................... 6-47

Juan and Soledad prepare all the paperwork for their consular interview in Mexico. Their only worry is that Juan must submit a waiver of inadmissibility because of a prior deportation. They work with the paralegal to gather documents in support of the waiver.

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PART ONE: APPLYING FOR PERMANENT RESIDENCE THROUGH CONSULAR PROCESSING Immigrating through a visa petition is a two-step process. We have finished our discussion of step one, which is the visa petition. Now we will begin our discussion of step two: applying for the immigrant visa and lawful permanent resident status. There are two ways to apply for permanent resident status. Many of our clients apply for an immigrant visa at a U.S. consulate abroad, usually in their home country. This is called consular processing and is covered in this unit. Adjustment of status is when a person applies for permanent residency from within the U.S. Adjustment of status is covered in Unit 7. Where the beneficiary plans to go through consular processing, the petition will first need to file the visa petition on Form I-130. Petitioners who reside in the U.S. need to file the visa petition by mailing it to the CIS Chicago Lockbox or Phoenix Lockbox, depending on where the petitioner lives in the U.S.1 The Lockbox facility will then forward it to the National Benefits Center for processing. Petitioners residing in a country other than the U.S. but with a CIS office have two options. They may either send their I-130 petitions to the Chicago Lockbox or they may file their Forms I-130 at the international CIS office having jurisdiction over the area where they live.2 Those overseas petitioners in countries without a CIS office must send their I-130 petitions to the Chicago Lockbox. Once CIS has approved the petition, it sends it to the National Visa Center (NVC). The CIS Service Center sends an approval notice (Form I-797) to inform the person that the file has been sent to the NVC and that all inquiries should be sent there. After this, the Service Center will not have any updates on the case. The NVC does most of the initial steps in consular processing, including, in many cases, setting the time and date for the visa appointment. Once the visa appointment is made, everything is transferred to the consulate with jurisdiction over the case, and the interview and medical exam take place abroad.

§ 6.1 The NVC, the U.S. Consulates and the Department of State As you can see, there are several government actors in visa processing: The U.S. Citizenship and Immigration Services (CIS) and the Customs and Border Patrol (CBP), agencies within the Department of Homeland Security, and the National Visa Center (NVC) and U.S. consulates, which are outposts of the Department of State.

1

Which lockbox you use depends on the petitioner’s state of residence. Go to www.uscis.gov and click on the “Forms” menu, then search for Form I-130 to locate the filing information for the family visa petition/I130. It is important to always check the filing address before filing, as CIS can change filing procedures at any time. 2 To find out if the CIS has an international office assigned to the jurisdiction where the petitioner lives abroad, please visit the CIS website at www.uscis.gov/international.

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Having more than one governmental entity involved makes the procedure more complicated. For one thing, the State Department writes its own regulations and operating instructions (“notes”) to guide consular officials and other employees. As noted above, the regulations (found in 22 CFR) and instructions are contained in the Foreign Affairs Manual, or FAM. Consular officers follow the FAM in deciding visa cases, even where the FAM contradicts DHS regulations, which it sometimes does. You should be familiar with the FAM as well as DOS and DHS regulations. If any of your cases involve consular processing, you should consult the FAM. The easiest way to find it is to look online at: www.state.gov/m/a/dir/regs/fam/index.htm. The section on immigrant visas is in 9 FAM. The FAM is also included in the large, multi-volume text on immigration law called Immigration Law and Procedure. Volumes 17–19 contain the FAM. Some law libraries and many private immigration law offices may have this text. Some, but not all, of the material in the FAM is contained in 8 CFR § 22, available online and also obtainable at any government bookstore.

§ 6.2 How the DHS and the State Department Divide Responsibility in Visa Cases The DHS agencies and the U.S. State Department each have different responsibilities in visa processing. It is important to know this so that you can identify which agency is in charge of your case at each step. 1. Only CIS can approve a visa petition, unless extraordinary circumstances exist, such as where the petitioner lives abroad and there is no DHS office in the country where the consulate is located. In such cases, the consulate may be able to approve a petition. You would need to contact the particular consulate to make this determination. 2. Once CIS approves a visa petition, the petition is transferred to the NVC for initial processing of the immigrant visa. The NVC notifies the petitioner and beneficiary when it is time for final visa processing, and in most cases collects the forms and documents that are necessary for the consular interview. 3. Once DHS approves a visa petition, neither the NVC nor the consular officer has the right to revoke (cancel) it. A consular officer can, however, send the petition back to CIS for more investigation, and refuse to give the person an immigrant visa in the meantime. Example 6.3: Juan is applying for an immigrant visa based on his marriage to Gina. At the consular interview, the officer becomes convinced the marriage is a fraud. The officer can send the visa petition back to CIS in the United States with a request for further investigation of the marriage. Although the consular officer cannot cancel the visa petition, he or she does have the authority to deny Juan’s application for an immigrant visa.

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4. Only the consular officer can issue the visa, but DHS personnel review the visa applications to screen for terrorists and other inadmissible aliens. Both consular officers and DHS officials have the power to determine that an applicant is inadmissible. However, only CIS can grant a waiver of the ground of inadmissibility. For most grounds of inadmissibility, this means that the person cannot submit an application for a waiver until after he has been interviewed at a U.S. consulate and has been found inadmissible. Then the person submits the waiver application to the consular officer, who forwards it to CIS. The person may have to wait for months for CIS to approve the waiver and send it back to the consulate. If the waiver is denied, the person must wait even longer outside the U.S. while appealing the denial or filing a new waiver application. This procedure does not apply to people whose only ground of inadmissibility is a prior removal or deportation. These people should generally file the waiver application with the CIS office in the jurisdiction from which the applicant was deported before going to the consular appointment. See Part Two. (Note: if the applicant will also need an unlawful presence waiver on Form I-601 upon departure from the United States, the I-212 application cannot be filed in advance.) Furthermore, many Immediate Relatives of U.S. citizens, who are presently residing inside the U.S. and whose sole ground of inadmissibility is the unlawful presence “bar(s)” of INA § 212(a)(9)(B), may also choose not to follow the above procedure. Many of these applicants for permanent residence may prefer to file a Provisional Unlawful Presence Waiver on Form I-601A. See § 6.19, Part B, below. 5. Although the visa officer may issue an immigrant visa, it is CBP that grants permanent resident status. Once the consular officer approves the visa application and DHS personnel approve any related waiver applications if a waiver was necessary, the consular officer will issue an immigrant visa to the applicant. The applicant will present the visa to CBP at the border. The CBP has independent authority to review grounds of inadmissibility. The person will become a permanent resident at the time that CBP admits her at the border and places a stamp in her passport.

§ 6.3 Initial Consular Processing at the NVC As noted above, the NVC does the initial stage of consular processing. The NVC is located at 31 Rochester Avenue, Portsmouth, New Hampshire 03801-2915. The telephone number is (603) 334-0700.3 There is also an automated email service that answers commonly asked questions: [email protected]. The NVC will complete the following preliminary processing steps: 1) it will collect the required fees; 2) it will collect the affidavit of support, the visa application forms, and all the required supporting documentation; and 3) it will forward all 3

Useful information can also be accessed at the NVC website: www.ImmigrantVisas.state.gov.

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documents collected to the appropriate U.S. consulate for the final interview with the visa applicant. A.

The Agent of Choice Form and Paying the Required Fees

There are two fees associated with the Immigrant Visa Application process: the Affidavit of Support (I-864 form) fee and the Immigrant Visa Application fee. When an applicant’s priority date is close to becoming current, the NVC will send an Affidavit of Support (I-864 form) processing fee bill to the petitioner and the online Agent of Choice and Address DS-261 form to the applicant/beneficiary. This form allows the applicant to select an agent to receive NVC mailings. Once NVC receives the Form DS-2614 from the applicant/beneficiary, NVC will mail the Immigrant Visa (IV) fee bill to the agent of choice. This could be either the attorney of record, the petitioner, or someone at a secure address in the beneficiary’s home country. Failure to return this form within a year may lead to cancellation of the petition. If there is a G-28 on file, these forms will also be sent to the attorney of record with a cover letter directing the attorney to the relevant webpage and instructing him or her to coordinate payment of the fees for the Immigrant Visa and the Affidavit of Support. See a sample of this cover letter as well as the Processing Fee Bill Invoices at Appendix 6-A. Online Form DS-261 should be submitted by all agents, even if a G-28 was previously on file.

NOTE: The petitioner and/or beneficiary should be proactive in following up with the NVC when the priority date becomes current if no notice or fee bill has been received from the NVC prior to this point. Sometimes, particularly in older visa petition cases, the NVC fails to notify the petitioner or beneficiary when the priority date is current.

The fee bills are sent by both regular mail and email. As of April 13, 2012, the fees for processing family visa petitions have changed to the following: visa application processing fee is $230 and the Affidavit of Support Fee is $88. The fees may be paid online by clicking on the “Online Payment” link under the “Pay Processing Fees” tab listed on the Immigrant Visa (IV) Process Page of the NVC.5 Payment must come from a checking or savings account at a U.S. bank. If you make an online payment, you will not need to mail the physical fee bill to the NVC. However, in order to make an online payment, you will need the “Invoice Identification Number” listed on the fee bill, in addition to the NVC Case Number. Alternatively, the fees can also be paid using a cashier’s check or money order in U.S. dollars drawn on a U.S. bank and made payable to the Department of State. You can make two 4

This form can be found at https://ceac.state.gov/ceac/. You can access the “Online Payment” link through the IV Main Page at http://travel.state.gov/visa/immigr ants/nvc/nvc_1335.html, or by going directly to http://travel.state.gov/visa/immigrants/info/info_3906.html. 5

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separate payments for each fee bill, making sure to attach the corresponding fee bill to each payment; or you can make one payment for both fees, including both fee bills with the payment. Depending on whether you make the payments separately or not, you may need to mail the payments to different addresses. For specific instructions, follow the link to “Alternative Method of Payment” at the IV Process Page.6 Note on Proof of Payment of the Provisional Unlawful Presence Waiver. If the visa applicant will be submitting a “Provisional Waiver” or “Provisional Unlawful Presence Waiver,” as it is labeled by the NVC, proof of payment of the Immigrant Visa application fee will be required of the applicant at the time of filing the Provisional Waiver Form I-601A. A printout of the payment confirmation from the Consular Electronic Application Center (CEAC) may be utilized for this purpose. If the Immigrant Visa fee is paid by mail, however, a copy of the receipt must be requested from the NVC. To do so, e-mail the NVC at [email protected] using the subject line “Fee Payment Receipt Request” and the NVC case number.

PRACTICE TIP: As soon as the fee bills are received, it is important for either you or the petitioner to contact the beneficiary(ies) and have them obtain the ORIGINALS of all needed documents (birth certificate, police clearance, marriage certificate, etc.), since the processing of the documents is done now at NVC and not at the consular section of the US Embassy overseas.

WARNING: If a period of one year passes without communication to the NVC, all submitted fees and documents expire and must be resubmitted to resume the immigration process.7

B.

Collecting the I-864 and Supporting Documents

Once fee bills are paid, NVC will send a letter with instructions to the agent directing him or her to visit the NVC website. This letter may be sent by mail or e-mail. Although the specific link for the “Immigrant Visa Applicant and Document Processing” may not be provided on that letter, it is listed here and on the IV Process Page.8 These instructions provide the intending immigrant with detailed information on what forms and documents are necessary for the immigrant visa application and the corresponding interview. If payment was made online, once NVC has processed the AOS and IV fees, payment receipts can be downloaded from the Immigrant Visa Invoice Payment Center.9 You can also download the “Document Cover Sheets” which you must return to NVC along with the 6

You can access the “Alternative Method of Payment” link through the IV Main Page listed above. See INA § 203(g) regarding the termination of an immigrant visa petition. 8 The “Submit Visa Applicant and Supporting Documents” link can be accessed through the IV Process Page listed above. 9 See https://ceac.state.gov/CTRAC/Invoice/signon.aspx. 7

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completed immigrant visa application and affidavit of support forms. If payment was made by mail, once the I-864 processing fee is paid, NVC will contact the petitioner, who is also the primary sponsor on the Affidavit of Support with a fee receipt and instructions to download the I864 form and instructions, complete the I-864, and return it to NVC with all required supporting documents (such as tax returns, employer letters, etc.) along with a bar code sheet that identifies the case. Appendix 6-B shows sample Payment Receipt print-outs and “Document Cover Sheets.” 1. Affidavit of support The NVC reviews the I-864 for completeness, to see if signatures, proof of U.S. citizen or LPR status, proof of current income, and required tax returns are included. However, only the consulate can make a decision as to whether the affidavit is legally sufficient to meet the public charge requirements. The I-864 is an enormously complex document, and your clients will need your help in completing it. Please see Unit 3, § 3.7, for detailed instructions on what is required for completion of the I-864. 2. Submitting the Immigrant Visa Application The NVC website contains further instructions and identifies additional documents needed to complete processing. These instructions will not be sent until and unless the fee bill is paid. However, since the instructions included in the packet are available online, the petitioner and the applicant can begin gathering all the required documentation by going to the IV Process Page and following the links therein (also listed throughout this unit). The “Submit Visa Applicant and Supporting Documents” link will provide instructions for the following required steps: 1. Notifying the NVC if any derivative children are turning 21 within the next 60 days. 2. Completing and submitting the Online Immigrant Visa Application on Form DS-260 (at this point a copy of the biographic page of the applicant’s passport is required, verifying six months of validity past the date of the future visa interview). 3. Obtaining the necessary supporting documentation, referred to as the “civil documents.” The civil documents include things such as birth and marriage certificates, adoption documentation, court and prison records, military records, police certificates and deportation documentation; 4. Obtaining immigration-style photographs; and 5. Obtaining any consulate-specific additional requirements. The Application for Immigrant Visa and Alien Registration will need to be completed and submitted to NVC electronically for all consulates, as of 9/13/2013. Electronic form DS-260 has now replaced Form DS-230 Parts I and II for all consulates. The National Visa Center may instruct some applicants who previously submitted form DS-230 to submit on-line form DS-

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260.10 Note that the applicant will need to sign and submit the application on-line, although he or she may receive help from someone else. The applicant will have a chance at the interview to review and confirm all information entered. After submitting Form DS-260, the applicant should print the confirmation page and a copy of the completed form for his or her records, and also take a copy to the visa interview abroad. The confirmation page will be required at the time of fingerprinting abroad, if the consulate, such as Ciudad Juarez, requires fingerprinting in advance of the interview. The forms are self-explanatory. However, a few questions deserve comment:  



Where the forms refer to “Country of Nationality” they are asking for the country of citizenship. Where the forms ask about “Dates & Places of Residence” or “Information about visits/stays in the U.S.,” it is important to answer these questions as accurately and with as much specificity as possible. Note that answers to these particular questions may help to determine inadmissibility under the unlawful presence grounds. It is therefore critical that advocates review these questions and answers very carefully with clients for accuracy, and to determine whether the client is inadmissible as a result; and if so, whether she requires and/or is eligible for a waiver. The DS-260 asks questions referring to the grounds of inadmissibility. Unit 3 of this manual discusses the grounds of inadmissibility.

PRACTICE TIP: Do not leave any question unanswered. Answer “none” or “N/A” (not applicable) where appropriate. Be sure that your answers on all forms are consistent and that they match the information provided on the I-130. If the applicant is submitting the online Form DS-260, the CEAC system will not accept a form unless the information is provided exactly as requested, with complete names of educational institutions, addresses, dates, etc. Note also that the online DS-260 asks for more thorough information, for example in regards to the applicant’s history of residential addresses and the information pertaining to prior spouses.

3. The new Electronic Processing Program At this time, the NVC has implemented an Electronic Processing Program, through which all documents are to be scanned and submitted in Portable Document Format (PDF) to NVC via electronic mail. This includes Form I-864 and all the civil documents. Therefore, Forms DS-260 is submitted online through the CEAC system and the rest of the documents are scanned and sent by e-mail to NVC. Therefore, no physical documents are submitted to NVC; and when NVC 10

This form is completed and submitted on-line through the Consular Electronic Application Center (CEAC) at https://ceac.state.gov/ceac/.

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transfers the case to the designated consulate for final processing, the physical file is sent to the National Records Center for archiving. In early 2014, National Visa Center revised is website to show three different processing groups, designated by consulate. This chart can be found under the “Submit Visa Applicant and Supporting Documents” link at the IV Process Page listed above. Depending on whether the applicant’s consulate is in group A, B, or C, electronic filing may be mandatory, optional, or not permitted. It is anticipated that electronic processing will eventually be implemented worldwide and required for all immigrant visa applications.

PRACTICE TIP: After the applicant has a Case Number, at any stage in the process, the status of the immigrant visa application may be checked online at the CEAC website Visa Status Check page, which can be located at: https://ceac.state.gov/CEACStatTracker/Status.aspx. Since the documentation submitted to the NVC may be outdated at the time of the immigrant visa interview at the consulate, beneficiaries should bring updated information (most current tax returns and bank statements) to the interview.

§ 6.4 Obtaining Documents According to NVC Instructions and the FAM As you will see on the instructions listed on the “Submit Visa Applicant and Supporting Documents” link of NVC’s IV Process Page, the applicant will need to obtain documents, such as birth/marriage records, military service records, police certificate, etc., and either submit these to the NVC or bring them with him or her to the consular interview. The applicant needs to obtain his or her “civil documents” according to the regulations outlined in the Foreign Affairs Manual or FAM. Furthermore, in addition to the documents listed on NVC’s instructions, many consulates have location-specific instructions regarding the required civil documents. Therefore, in order to assist your client in obtaining the required civil documents, you will need to familiarize yourself with different sets of instructions.

PRACTICE TIP: It is a good idea to go online and review these requirements in advance so that you may discuss them with your client. Beneficiary applicants in the home country, especially if they are children, may have difficulty obtaining the required civil documents and may need help from someone in their home country. They may also need to gather a fee payment or other necessary document in advance, in order to obtain one of the required civil documents.

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Country Requirements in the FAM The FAM or the State Department’s Visa Reciprocity and Country Documents Finder in NVC’s website will provide you with instructions on how to obtain the required civil documents from a particular country. On the NVC’s website, you can go to the “Reciprocity by Country” page, which provides country-by-country links to all the reciprocity schedules listed on 9 FAM, Part IV Appendix C, “Availability of Documents.”11 Once there, you simply need to select the name of the country where the event happened that you must document (i.e., the birth, death, marriage, adoption, etc.) from the drop-down menu, and scroll down to the “Documents” section, where you will find instructions on how to obtain each required civil document. Follow the requirements exactly.

WARNING: Pay attention to detail! Get help if you are not sure about documents. If you do not prepare the documents exactly according to instructions, your client may be turned down at the interview and forced to wait for weeks or months until you get the right documents and a second interview can be scheduled.

Exercise 6.4: If you have access to the FAM or the Visa Reciprocity and Country Documents Finder, look at the documentation sections (at http://travel.state.gov/content/visas/english/fees/rec iprocity-by-country.html) discussed above to complete this exercise. Answers to questions are at Appendix 6-C. 1. Yun was born in Taiwan. He wants to immigrate through his mother and needs to provide a birth record. Will he be able to get a birth certificate? If not, is there something else he can submit? 2. Alicia, a Mexican woman, married her partner Grisel, also a woman, in the state of Quintana Roo in Mexico. They were issued a document called “acta de convivencia” (cohabitation certificate). Will this document be acceptable as proof of a lawful marriage if Alicia tries to immigrate through Grisel, who is a U.S. citizen? 3. Jules was born in Ghana. He has a birth certificate, on light gray paper, issued two years after his birth. Will the consulate accept this with no other proof?

Location-Specific Instructions. Some consulates have consulate-specific requirements for documents that are not part of the general civil documents requirements. Therefore, in addition to following the instructions listed in the FAM and on the “Reciprocity by Country” page at the NVC website, you will need to check if the specific consulate where the applicant will be interviewed has issued any such instructions regarding additional civil document requirements 11

The “Reciprocity by Country” page is located at: http://travel.state.gov/visa/fees/fees_3272.html. This country-by-country guide can also be found in Volume 19 of Immigration Law and Procedure.

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for that consular office. In order to check whether or not there are separate instructions at the consulate of concern to you, you may check the link for “U.S. Embassy/Consulate Specific Information” on the NVC’s website.12 Once there, you can select the name of a country from a drop-down menu, and the website will let you know whether or not there are additional instructions for the applicant.

NOTE: All documents listed in either the FAM or in the instructions from individual consular offices serve as “primary evidence” for purposes of the immigrant visa application. However, when such primary evidence is unavailable and “secondary evidence” is necessary, the applicant will need to obtain a letter from the appropriate authorities stating that the requested document is not available.13

NOTE: The NVC usually asks for the original, or certified copies, of some or all of the civil documents to be sent directly to NVC. In such a case, your client should maintain duplicate copies, one to keep in her records and one to bring with her to the interview at the consulate. The consular officer will return only original documents (i.e., passport, birth certificate) to the applicant and will keep all other documents submitted with the application.14 Finally, all documents not in English must be accompanied by certified English translations.15

§ 6.5 Getting Ready for the Interview As stated above, when the case file is complete, the NVC will schedule an appointment for the applicant with a consular officer and will send an appointment letter to everyone involved (applicant, petitioner, and agent/attorney of record) approximately one month before the interview date. With online fee collection and electronic processing, once registered, attorneys will receive this notification via email instead of regular post. At that time, the NVC will forward the I-130 petition and complete immigrant visa application file to the consulate; or, in the case of electronic processing, the NVC will send electronic copies of these documents to the consulate and archive the physical file at the National Records Center (NRC). In either case, NVC will no longer be in charge of the case. All subsequent inquiries must be directed to the consulate. The consulate will request background 12

You may access the “U.S. Embassy/Consulate Specific Information” link at the bottom of the “Submit Visa Applicant and Supporting Documents” link of NVC’s IV Process Page. 13 See 8 CFR 204.1(f)(1). (Note the “any credible evidence” standard regarding secondary evidence for self-petitioners under the Violence Against Women Act). 14 See 8 CFR 204.1(f)(2). 15 See 8 CFR 204.1(f)(3).

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reports from other government agencies and request an immigrant visa number from the State Department.

NOTE: Although routine fingerprinting of visa applicants is not the norm, the NVC conducts a “name check” with the FBI prior to transferring the file to the consulate. If your client’s name comes up in the FBI database he or she will be required to be fingerprinted. Only the consulate can take the fingerprints, which take about 6 weeks to process. Thus, if the applicant needs fingerprints, she must either make two trips to the consulate (if he or she has a legal means to return to the United States) or wait outside the United States while the fingerprints are processed.

WARNING: The Permanent Bar. Clients who have lived in the United States without lawful immigration status for an aggregate total of one year or more, then leave the United States and reenter or try to re-enter without inspection, will be barred from immigrating for a minimum period of 10 years under INA § 212(a)(9)(C). This bar also applies to clients who re-enter or attempt to re-enter without inspection after they have been removed, deported, or excluded. You must warn your clients not to try to come back to the United States while awaiting the outcome of their consular processing, including fingerprint processing, until they have been granted their immigrant visas.

The interview appointment letter will direct the applicant to the “Interview” instructions on the IV Process Page of NVC’s website listed above. The applicant should be prepared to bring all of the following documents to the interview: 1. 2. 3. 4. 5.

The original interview appointment letter from the NVC; An original passport valid for six months after the intended date of arrival in the U.S.; A sealed medical examination performed by an authorized “panel physician” (see below); Two color immigration-style photos of the applicant; All the required civil documents, such as records of birth, marriage, military service and a police certificate, including all original documents establishing the relationship between the petitioner and the applicant; 6. Updated supporting documentation for the petitioner’s Affidavit of Support, including evidence of the petitioner’s financial situation and his or her ability to support the applicant/intending immigrant; 7. Any additional location-specific documents required by the consulate.

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A.

The Medical Exam

The applicant will have to schedule a medical examination by an authorized physician, called a “panel physician.”16 Currently, visa applicants are required to bring the following to their medical appointments (but you should always check the NVC website for updated information):  

Copies of prior medical records, immunization records, and prior chest x-rays The applicant’s passport, identity card, laissez-passer, or travel document

The applicant will receive the results of the examination in a sealed envelope to take to the consulate. Applicants with children ages 2-14 should plan to schedule the medical exam at least four days prior to the visa interview, because a TB skin test will be required and results take 72 hours to obtain.

NOTE: At the medical exam, the physician may ask your client about past drug use and may, in his or her discretion, order testing for drugs. Admission of drug use, even one time for experimental reasons, or testing positive for a drug may lead to findings of inadmissibility either as a drug abuser or as one who has admitted to the violation of a law relating to controlled substances. You may want to speak with your clients before they go to see the civil surgeon— especially teenagers and young adults.

B.

Scheduling a Biometrics Appointment, an Interview, and Selecting a DHL Location

Many U.S. consulates (including Ciudad Juarez at this writing) require the scheduling online of an appointment for fingerprinting at an Application Support Center prior to the visa interview. Some consulates also require that an immigrant visa applicant register at a courier service designated by the consulate (DHL in Ciudad Juarez) prior to attending the visa interview, in order to receive delivery of the applicant’s passport and approved immigrant visa after the visa is approved. The applicant will not return to the consulate, but rather will pick up these documents at the designated courier office. Applicants contact the US Visa Information and Appointment services through their website, selecting the appropriate country and creating an account.17 This account will be used to schedule fingerprint appointments, pay fees, and to select a courier location and track courier deliveries of documents. If a follow-up interview is needed at the consulate, this is also where that interview is scheduled.

16

For a list of panel physicians and other instructions regarding the medical examination, you can click on the “Medical Examination” link at the “Interview Preparation” page listed above on note Error! Bookmark not defined., or you can go directly to http://travel.state.gov/visa/immigrants/info/info_3739.html. 17 Available at https://usvisa-info.com/.

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Once the applicant is ready to schedule an immigrant visa interview, they or their attorney of record will be instructed to go on-line to schedule an appointment at an Application Support Center (ASC) and an interview appointment.

§ 6.6 What Will Happen at the Interview? At the consular appointment, the client will go through one of the most important interviews of his or her life—alone. The client needs to understand what the procedure will be. He or she also must understand all the issues that might come up in the case. If the client can read and write, he or she should be familiar with all of the documents. At the interview, the client will present any documents that were not already submitted to the NVC, as indicated in the appointment letter. It is always a wise plan to carry additional copies of all documents as well as the originals that were not already submitted, to the interview, in case anything was lost in transit. The officer will go over all the questions in the DS 260 to confirm the answers. The client should practice answering all of these questions with an advocate, friend or relative before the interview. Recall from Units 3 and 4 that every prospective immigrant must be admissible. This means she must not be found inadmissible under INA § 212(a), or, if she is, she must receive a waiver of the ground of inadmissibility. If the consular officer finds that the applicant must apply for a waiver, the applicant may need to wait outside the United States for several months for approval of the waiver request. The waiver request is submitted to CIS. If an I-601A Provisional Unlawful Presence Waivers was submitted, it should already have been filed and adjudicated in the U.S. prior to the visa interview. However, if the consular officer determines that an additional ground of inadmissibility applies, the applicant will have to renew his or her request for a waiver of unlawful presence grounds, in addition to requesting the newly identified grounds be waived, through the centralized processing procedure. See below and Part Two of this unit. Pay Particular Attention to the Following Issues Public Charge. Consular Officers pay close attention to the public charge issue. Your client should be prepared to explain his or her sponsor’s sources of income and to explain how he or she will be able to provide for herself/himself in the United States. Unlawful Presence. The Consular Officer will want to make certain that the applicant has not unlawfully resided in the United States. Applicants who have visited the U.S. in the past may be required to submit documents to show they are not subject to the unlawful presence bars. Thus, an applicant who has been in the U.S. should be prepared to present documentation of foreign residence, such as employment records, rent receipts, leases or mortgage statements, bank records, etc. In addition, the consulate may require the applicant to document her lawful presence in the U.S. with such documents as passport pages, copies of I-94s, I-797 notices approving an extension of non-immigrant stay, etc. Note that presently, a Provisional Waiver is available for some “immediate relative of U.S. citizen” applicants with unlawful presence problems.

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Proof of Valid and Bona Fide Marriage. If the person is immigrating through a spouse, the Consular Officer will ask to see evidence of both a valid and bona fide marriage. Immigrant spouses should bring to the interview marriage certificates and divorce judgments, as well as evidence of joint accounts, photographs, affidavits, and any other documentation relating to the bona fides of their marriage. DUI Convictions and Domestic Violence Charges. Some consulates and their affiliated doctors who do the immigrant medical examinations may decide that past DUI convictions or charges of domestic violence, even without a conviction, are evidence of a physical or mental disorder posing a threat to others such as alcoholism. See § 3.2. If this is a possibility, you and your client need to decide whether it is best to delay the consular interview until more time has passed since the incident(s) in question, or whether to obtain documents which are evidence that no disorder or threat exists, such as obtaining a similar examination in advance by a physician expert in the field, and submitting additional corroborating documents. If the consulate finds your client inadmissible, it may require your client to submit an I601 or I-212 waiver with the appropriate fee to the CIS window or office at the consulate, or to the consular officer who will then forward the waiver to CIS. Adjudication of the wavier is a separate process than the immigrant visa application process, and may take between 2-12 months or more. There are different processes at different consulates, and the procedures are often evolving, so it will be important to determine the waiver procedure for the particular consulate where your client will be applying ahead of time and to prepare the waiver package in advance, if you know a waiver will be required. Unless the immigrant qualified for a Provisional Waiver or a Form I-212 which was adjudicated and approved in advance, and is not inadmissible on any other basis, the immigrant will have to remain outside the U.S. during this process, and will often have to appear at a second interview to submit the waiver application. Different grounds of inadmissibility may all be included together on the same I-601 form, though some different supporting documents may be appropriate. See Unit 7. However, Form I-212, for waiving a prior deportation or removal order, in theory and by regulation can be filed ahead of time with the ICE office that executed the person’s deportation, if this is the only waiver that is needed. In practice, however, some ICE offices will not adjudicate the waiver until the applicant has left the country. If There Is a Problem. Tell the client that if something goes wrong, he or she should ask the consulate official for something in writing stating what the problem is. The client should call you immediately. You may be able to provide the missing document, or negotiate with the consular officer over the phone to get the immigrant visa issued. If the problem is not resolved before the first day of the following month, the person’s immigrant visa may be reclaimed and the person may be forced to wait another 60 days to get another visa number and thus immigrate to the United States. If the problem is resolved within the month, the person may retain her visa number.

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Advisory Opinions: Although Consular Officers make factual decisions on particular cases, the ultimate decision as to whether the person is legally admissible rests with the State Department’s Visa Office located in Washington, DC. However, when the case involves factual interpretations as well as legal matters, the consular officers have great discretion. Nevertheless, most consular officers will agree to follow the Visa Office’s recommendation to grant a visa. Consular officers are legally required to follow the legal conclusions made by the Visa Office. Hence, advisory opinions can correct misapplications of regulations and consular abuses. To request an advisory opinion a lawyer or accredited representative should send a letter with the following information to the Advisory Opinion Division: 1. 2. 3. 4.

Full Name of the visa applicant, date and place of birth and nationality Consular post/name of consular officer, if known and post file number if available Type and date of visa application Summary of the facts, statute/regulation in question, legal basis for arguing that the post made a legal error.

The State Department prefers that requests for advisory opinions be sent via email to: [email protected]. However, if necessary, a request for an advisory opinion can also be mailed to: Jeffrey Gorsky, Chief Advisory Opinions Division Department of State 2401 E Street, NW, Room L603F Washington, DC 20037 (202) 663-1187 It is fine to ask questions relating to hypothetical situations if the clarification will serve to clarify a very specific issue. This often leads to corrections to the FAM. However, the Advisory Opinions Division has discretion whether or not to respond to requests for opinion in hypothetical cases. Interpreter Releases publishes some advisory opinions and advocates can use them to better prepare applicants with similar admissibility problems.

§ 6.7 What Happens after the Immigrant Visa Is Granted Once an immigrant visa applicant is found to be admissible, or his or her waiver is approved, he or she is given an immigrant visa valid for six months. Your client must enter the United States during the six months before the visa expires in order to become a lawful permanent resident.

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Effective February 1, 2013, all persons issued immigrant visas outside the United States must pay a CIS Immigrant Fee after receiving the immigrant visa, but prior to travelling to the United States. If this fee is not paid, the person will not receive an alien registration card (green card). The applicant must go online to the USCIS ELIS (Electronic Immigration System) to pay the fee, which at this writing is $165. CIS instructions state that only the visa applicant may go online, register, and pay the fee for each member of the family who is immigrating together. The applicant needs the “A” number assigned, the DOS case number which has been used throughout the process, biographic information on each family member who is immigrating, and a valid credit card or U.S. bank account number and routing number. The applicant then goes online at www.uscis.gov/uscis-elis, chooses “USCIS Immigrant Fee” and pays. All family members may be included in a single transaction. If the client fails to pay the fee prior to entering the U.S., she or he will receive an RFE if not paid within 45 days, and a second RFE if not paid within 90 days. When the consular officer grants the visa, she will give the applicant some papers (including an immigrant visa) to present at the U.S. border. When the applicant comes to the U.S., she will apply to Customs and Border Patrol (CBP) for admission at the border. She will present the visa materials from the consulate to CBP. If everything is in order, CBP will stamp her passport and she will be a permanent resident as of the day she enters the U.S. The passport stamp authorizes the immigrant to work in the United States and is proof of lawful presence in the United States. Many people who immigrate through a petition filed by their spouses obtain conditional permanent resident status when they first immigrate. If the spouse immigrates within 2 years of getting married, the person will be subject to conditional residence. Conditional residents must file another application with the CIS within two years after immigrating, called a petition to remove the conditions on residence, Form I-751. If they fail to file this application, their conditional permanent residence will expire after two years. See Unit 7 for further information on conditional residence.

§ 6.8 What to Do if Your Alien Registration Card Fails to Arrive A person who does not receive his or her alien registration card (green card) in the mail within five months of immigrating, needs to file Form I-90, Application to Replace Permanent Resident Card. There may have been a problem, such as inadequate photos, unreadable documents, that resulted in the card not being issued. In addition, because the United States Postal Service will not deliver green cards addressed to someone who is not a listed resident of a particular address, immigrants should make sure to provide CIS and the consulate with a secure address, in care of someone who is a listed resident of the given address. Unfortunately, CIS does not notify a person if there is a problem with the pictures or the mailing address. Therefore, a new immigrant who has not received the initial card needs to take action to remedy the situation. A good first step is to schedule an InfoPass appointment at the closest CIS office. This will allow them to check the system and see if there are any issues with the card. In some cases, they can rectify the situation without the filing of the Form I-90. An InfoPass appointment is made online at www.uscis.gov.

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Form I-90 is one form that some, but not all, applicants can file electronically, as well as physically. To find out how to file electronically, or where to file physically, go to the CIS website at www.uscis.gov and click on the Forms menu, then do a search for the I-90 form. Note that if someone has not received a card that was issued, there is no filing fee for Form I-90.

PART TWO: WAIVERS OF INADMISSIBILITY § 6.9 Waivers of Grounds of Inadmissibility Your client is at the visa interview at the U.S. consulate abroad. The documents that you sent with the client are in order, the visa petition is valid, and an immigrant visa is available. If there is no other problem with the case, the officer will approve the application, issue the visa, and send your client back to the U.S. to become a permanent resident. But, what happens if your client is inadmissible? Unit 3 covers the grounds of inadmissibility. As you remember, people may be inadmissible if they have certain problems relating to a criminal record, health, immigration offenses (such as visa fraud, prior removal or deportation, alien smuggling, or unlawful presence), public charge (for people who cannot demonstrate that they will not need welfare), or security/terrorist concerns. Sometimes a person who is inadmissible cannot immigrate. However, CIS can waive (forgive) certain grounds of inadmissibility in its discretion. If CIS agrees to waive the ground of inadmissibility, the person may immigrate. In this section, we will discuss the requirements for certain waivers and the waiver application.

PRACTICE TIP on Waivers: This part will discuss waivers of inadmissibility that apply in two situations: 1. When someone tries to immigrate through a visa petition; and 2. When someone tries to enter the United States at the border. Other applications in immigration law may have different rules for waivers. Or, some grounds of inadmissibility may not apply at all. Sometimes there is an “exemption” or “exception” to the ground of inadmissibility for certain people. It is very important to recognize the difference between proving your client qualifies for an “exception” and proving eligibility for a “waiver.” Example 6.9: Someone who is inadmissible for public charge reasons cannot immigrate through a family visa petition, since there is no waiver. But the same person could obtain LPR status in other ways. For example, the public charge ground does not apply to people who apply for cancellation of removal, registry, or asylum.

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Each immigration program or application is different. You must read the INA section that describes each program to see which grounds of inadmissibility apply, and what waivers are available.

§ 6.10 What Is a Waiver? To obtain a waiver is to obtain “forgiveness” of the ground of inadmissibility or deportability. CIS is saying, “Even though we could deny you, you have shown that you deserve to be admitted and we have decided to let you immigrate.” To obtain a waiver, the person must submit an application for a waiver to CIS using Form I-601 or Form I-212. Only certain grounds of inadmissibility, under certain circumstances, can be waived. Example 6.10-a: Muata is inadmissible for visa fraud under INA § 212(a)(6)(C)(i). He wants to immigrate through his U.S. citizen wife. Look up INA § 212(i). It states that the Attorney General (that means the CIS) in his or her discretion may waive the visa fraud ground of inadmissibility, if the alien meets certain requirements. Muata meets the requirement because he is the spouse of a U.S. citizen, as long as he can show his U.S. citizen wife will suffer extreme hardship if the waiver is denied. Muata is eligible to apply for a waiver. If CIS grants the waiver, he can immigrate. Some grounds of inadmissibility cannot be waived. People inadmissible under those grounds cannot immigrate through a family visa petition. Example 6.10-b: Ira has a U.S. citizen wife and six citizen children. He is inadmissible because he has a conviction for sale of drugs. There is no waiver for this ground of inadmissibility. Ira cannot immigrate through his family.

§ 6.11 What Is Discretion? CIS is not required to grant an application for a waiver of inadmissibility. It has the discretion to grant the waiver. The person must submit evidence to convince CIS that it should grant the waiver. Discretion is an important concept in immigration law. Some benefits are mandatory under the INA, meaning that CIS must grant the application if the person meets the requirements. For example, if you prove that your client is the unmarried son of a lawful permanent resident who otherwise qualifies as a petitioner of a family petition, CIS must approve that second preference visa petition. Some mandatory “exceptions” are written into the law. Those

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exceptions are not discretionary, meaning that CIS must apply the exception if applicable and not factor in whether the applicant deserves the benefit. For example, the ground of inadmissibility relating to the 3 and 10 year bars for unlawful presence contains “exceptions” for minors under 18, certain asylum applicants, etc. The only proof needed to qualify for the exception would be a birth certificate for the minor or the filing receipt and other proof of continuing status for the asylum applicant. If the applicant fits within the statutory exception to the ground of inadmissibility, you do not have to present evidence the applicant is deserving of this exception for other reasons, just prove that she is under 18, or an asylum applicant, etc. In contrast, if a benefit is discretionary, CIS has the choice to decide whether or not to grant the benefit. Our task is to present facts to persuade CIS to approve it. Much more is therefore required in terms of proof and documentation. Discretion is an easy concept to understand, since we all make discretionary decisions every day. Let’s say that your office can only take on a certain number of clients who cannot afford to pay. If two clients come to your office and need your assistance for free, and you can only help one, certain facts about each of the persons might influence your decision. Consider these two people: Person One is a single mother who works part time at a low paying job to support her two little girls. She needs help with an appeal right away or she will get an order removing her to Guatemala. She fears for her life and her children’s lives if she is deported. She volunteers at her children’s school and at a church program for the elderly. Person Two is a married man who has committed spousal abuse. He has several convictions he wants to get cleaned up, and he wants to get a divorce from his second wife so he can marry someone else and possibly immigrate. If they could help only one client, it is likely that most programs would pick the first person. If she is not helped, she and her children face great hardship. In addition, she appears to be a valuable, hardworking member of the community. The second person does not face immediate hardship if he is not helped, and his personal and criminal backgrounds make his case less sympathetic. CIS considers similar factors when it decides whether to grant a discretionary application. Often the most important factors are: 1. The good moral character of the applicant, by which the CIS refers to the person’s contributions to society and their lack of a criminal record; and 2. The hardship the applicant or close relatives with lawful status would suffer if the application were denied. This hardship may be financial, emotional, physical, or any other type of hardship. (The statute requires evidence of extreme hardship for many waivers.)

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In submitting waiver applications, we always want to include information on these two points. In addition, depending on the waiver or application, the INA may name other factors that CIS should consider. Appendix 6-D contains excerpts from a successful waiver application. Note the list of documents that were filed in support of this waiver application.

Questions for Discussion 6.11: Imagine that CIS wants to refuse admission to one of your close friends. Or, imagine that CIS wants to refuse your admission. You need to design a waiver application. 1. What are three things about the person that show his or her good character or contribution to the community? What documents or affidavits would help prove this? 2. What are at least three ways (in an actual waiver, you would want to present as many hardship facts as possible) that the person or his or her immediate family would suffer hardship if the person could not live in the United States? How would you document this?

§ 6.12 How to Find the Waivers in the Act There are several waivers of inadmissibility for people who immigrate on a visa petition or who try to enter the United States. As you know, because each waiver has different requirements and Congress changes the requirements from time to time, it is important to check the exact waiver requirements in an updated copy of the INA each time. How can you find the waiver sections in the INA? Look at the section that sets out the ground of inadmissibility or deportability. It will either (a) contain the waiver or exception or (b) refer you to another section of the Act where it is located. For example, INA § 212(a)(9)(B) contains the inadmissibility ground that bars people from admission for three or ten years based on unlawful presence. The same section, INA § 212(a)(9)(B)(iii) and (v), has both exceptions and also the family based waiver for that ground. Look at INA § 212(a)(6)(C), which contains the visa fraud ground of inadmissibility. Section 212(a)(6)(C)(iv) states that there is a waiver and refers you to a different section, INA § 212(i). If you turn to INA § 212(i), you will find the visa fraud waiver. As we discuss each waiver, look it up in your copy of the INA. Several grounds require the applicant to have certain U.S. citizen or lawful permanent resident relatives. Read these sections carefully and check what kinds of relatives are required because the required family relationships change from waiver to waiver. For example, look at § 212(i) waiver. The applicant must be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident. Remember that a “son or daughter” can be over 21 or married.

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Example 6.12: Wu and John both need to get a waiver for visa fraud. Wu is married to a permanent resident. John is the father of a U.S. citizen. Wu can apply for a waiver because he is the spouse of a lawful permanent resident. John cannot apply for a 212(i) waiver, because he is the parent of a U.S. citizen, and that relationship does not qualify for that waiver.

§ 6.13 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission A.

Waiver of Inadmissibility

Under INA § 212(a)(6)(C)(i), a person who has, by fraud or willful misrepresentation of a material fact, obtained or tried to obtain a visa, other documentation, or admission into the US or some other benefit under the INA is inadmissible. See Unit 3, § 3.4 for an explanation of this ground of inadmissibility. This ground can be waived at the discretion of CIS. Please read INA § 212(i). To be eligible to apply, the person must:  

Be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, and Show that the U.S. citizen or lawful permanent resident relative would suffer extreme hardship if the CIS denied the waiver. Example 6.13-a: Tse lied to an officer to get a visa to enter the United States. Now he is immigrating through his citizen wife. Because he is the spouse of a U.S. citizen, he can apply for a § 212(i) waiver of the visa fraud ground of inadmissibility. He must show that denial of the waiver will cause his wife extreme hardship.

Many people can use a § 212(i) visa fraud waiver to excuse some forms of document fraud. See discussion of waivers for document fraud, below. Unfortunately, those who are the parents of U.S. citizens or lawful permanent residents are ineligible for this waiver if they have no other U.S. citizen or lawful permanent resident qualifying relative, such as a spouse or parent. The BIA has held that the factors to be considered in whether to grant the waiver include, but are not limited to, the following: … the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an

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unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I&N Dec. 560, at 566 (BIA 1999). Unfortunately, the BIA also held that the underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under § 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion, citing Matter of Tijam.18 Matter of Cervantes, supra, at 560 & 568–569. Matter of Tijam uprooted decades of legacy INS policy that had held that the underlying fraud was not a factor to be considered in adjudicating this type of waiver.19 In addition, multiple acts of fraud or a continuous pattern of fraud will weigh heavily against a fraud waiver applicant. B.

Waiver of Deportability for Persons Inadmissible at Admission

People who were wrongfully admitted to the United States—i.e., those who were inadmissible at admission—may be eligible for a waiver of deportability under INA § 237(a)(1)(H). Often these persons are deportable because they committed visa fraud to gain admission. Also, innocent misrepresentations that led to inadmissibility on other grounds, may require such a waiver. This waiver is usually applicable to those who were admitted to the United States and are now in removal proceedings. The person must:  



Be the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident, and Have been in possession of an immigrant visa and otherwise admissible at the time of admission to the United States (except those inadmissible under INA § 212(a)(5) for failure to meet the labor certification requirements or under § 212 (a)(7)(A)(i) for invalid documentation), OR be a VAWA self-petitioner (no qualifying relatives required if VAWA). Example 6.13-b: Angelica immigrated through a second preference visa as the unmarried daughter of a permanent resident, but she was secretly married at the time. Now she is deportable because she was inadmissible for visa fraud when she immigrated. She can apply for a waiver under INA § 237(a)(1)(H). She is eligible to apply for the waiver because she is the daughter of a permanent resident and she was not inadmissible under other grounds when she immigrated.

In looking at this example, you might wonder how Angelica could be “otherwise admissible” if she was actually married when she immigrated as an unmarried second preference daughter. However, INA § 237(a)(1)(H) was designed to cure the inadmissibility of people like

18

22 I&N Dec. 408 (BIA 1998). See Matter of Alonzo, 17 I&N Dec. 292 (Comm’r 1979) and Matter of Da Silva, 17 I&N Dec. 288 (Comm’r 1979), overruled in Matter of Tijam. 19

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Angelica. For example, in Matter of Manchisi,20 the BIA granted a waiver under former INA § 241(f) to someone whose initial admission was through a fraudulent marriage (former INA § 241(f) is the predecessor to current INA § 237(a)(1)(H)). In that case, the respondent had subsequently remarried and both his current wife and child were U.S. citizens at the time of the proceedings.21 Note that the waiver for persons inadmissible at admission permits the applicant to rely on hardship to a U.S. citizen or lawful permanent resident child; the inadmissibility visa fraud waiver does not permit consideration of hardship to the applicant’s child. When CIS grants a waiver of deportability to a person inadmissible at admission, it actually “cures” the grounds of inadmissibility dated back to the time when it occurred. This may be helpful, for example, to persons who someday need to show seven years lawful residence to qualify for a § 240A(a) cancellation of removal. At least, this was the case in § 212(c) cases and by the same reasoning the waiver should apply retroactively to benefit a lawful permanent resident applicant for cancellation of removal.22 In Matter of Sosa-Hernandez, the BIA held that a person granted a waiver of former INA § 241(f) retroactively validated his LPR status so that he had accumulated the necessary 7 years of lawful unrelinquished domicile necessary to qualify for § 212(c) relief).23 This waiver may also be used when an underlying lie or an innocent mistake results in a finding of removability under 237(a)(1)(A) based on charges of inadmissibility at entry under 212(a)(7)(A) for no valid visa. This would be true where there was some kind of misrepresentation made at the time the person was admitted, whether intentional, innocent or “inherent.”24

PRACTICE TIP: Whenever possible advocates first should try to convince the CIS examiner or consular officer that the applicant has not committed a violation of INA § 212(a)(6)(C) because visa fraud waivers are very difficult to obtain. For example, a client may have lied about something to the government, but the lie did not really have anything to do with whether the application could be approved (not “material”), such as providing the wrong date of birth in a marriage petition case. Other misrepresentations may be unintentional or innocent mistakes. In neither case should a client be found inadmissible. Sometimes as a practical matter, if CIS insists a waiver is required and indicates it is likely to be granted, it is often wise to file the waiver but to specify the ground of inadmissibility as “alleged misrepresentation” on the form, so that you’re not admitting to doing anything wrong, just acknowledging that CIS is accusing the client of a

20

12 I&N Dec. 132 (BIA 1967), overruled in Matter of Diniz but reinstated in Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978). 21 See also Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) (same situation). 22 See Matter of Sosa-Hernandez, 20 I&N Dec. 758, Int. Dec. 3214 (BIA 1993). 23 See Unit 12, § 12.12 for a discussion of § 212(c) waivers. 24 See Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

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violation. Other times it may be best to appeal a finding of inadmissibility that is wrongly decided.

C.

Waiver of Inadmissibility under INA § 212(k)

Persons who did not commit fraud, but were ineligible for admission for permanent residence under INA § 212(a)(5) for failure to meet the labor certification requirements or under § 212 (a)(7)(A)(i) for invalid documentation may be eligible for a waiver under INA § 212(k). This waiver is not for those who commit misrepresentation or fraud, but it does cover those whose admission was due to a mistake that they themselves could not have known. It is only available to those who are or were inadmissible under INA §§ 212(a)(5)(A) [failure to meet the labor certification requirement] or 212(a)(7)(A)(i) [lack of proper documents], who are otherwise admissible. The § 212(k) waiver requires a finding that the inadmissibility “was not known to, and could not have been ascertained by the exercise of reasonable diligence by the immigrant before the time of departure” to the United States. Example 6.13-c: Maya, a citizen of Ghana, was the beneficiary of a second preference petition through her father, a lawful permanent resident. However, she married before her priority date became current. Her visa petition should have been revoked upon her marriage, but instead, the Consular Officer mistakenly granted immigrant visas to Maya, her husband, and her three children, even though she disclosed her marriage on all the application forms. This fact is discovered when Maya and her family are returning to the United States from a trip back home to visit Maya’s grandmother. Maya and her family are charged with inadmissibility under INA § 212(a)(7) and are placed in removal proceedings. They are granted a § 212(k) waiver because they did not commit any misrepresentation when they applied for their immigrant visas, and had no idea that they were not eligible to immigrate when the Consular Officer mistakenly granted them the visas. Since the § 212(k) waiver is only for those who have erroneously been granted immigrant visas through no fault of their own, there is no hardship requirement, and no requirement that the applicant have permanent resident or U.S. citizen relatives. The only requirement is to show that the mistake through which the individual was granted an immigrant visa was an innocent or inadvertent one that could not reasonably have been known at the time of admission.

§ 6.14 Waiver for Certain Crimes under INA § 212(h) Some people who are inadmissible for criminal offenses are eligible for a discretionary waiver under INA § 212(h). Which Inadmissibility Grounds Can Be Waived? The waiver can forgive some inadmissibility grounds at INA § 212(a)(2), based upon one or more crimes involving moral

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turpitude; engaging in prostitution; conviction of two or more offenses for which a total sentences of five years or more has been imposed; or one or more convictions relating to a single incident involving possession of 30 grams or less of marijuana. Regarding 30 grams or less of marijuana, the BIA has found that § 212(h) may be used to waive more than one conviction, as long as all convictions relate to a single offense involving 30 grams or less of marijuana.25 Conviction for possessing paraphernalia may be waived if the paraphernalia was for use with that amount of marijuana.26 A crime involving moral turpitude that also happens to be an aggravated felony conviction—for example, a theft offense with a sentence of one year—still can be waived under § 212(h). There is no inadmissibility ground based on having an aggravated felony conviction, and § 212(h) is available to waive a moral turpitude conviction.27 The exception is if the person is subject to the lawful permanent resident bars to § 212(h), discussed below. Which Immigrants May Apply? To qualify for the waiver, the person must be either:    

A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed; A VAWA self-petitioner; Inadmissible only under the prostitution ground; or Inadmissible based upon a conviction or event that took place more than 15 years before the current application.

In these last two categories (prostitution or a 15-year-old conviction), the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests. Restrictions on Some Lawful Permanent Residents. Since 1997, § 212(h) has provided that at least some lawful permanent residents (LPRs) cannot apply for the waiver if they (a) have been convicted of an aggravated felony since a certain type of admission or (b) have failed to accrue seven years of lawful, continuous residence before removal proceedings are begun. As discussed below, however, not all LPRs are subject to these bars. Some LPRs may apply for a § 212(h) waiver even if they have been convicted of an aggravated felony or lack the seven years. Regarding the seven years requirement, the person must have resided in the U.S. in lawful status for a continuous period of at least seven years before removal proceedings are begun. The period may include time spent in lawful status such as a student visa, Family Unity,

25

Matter of Davey, 26 I&N Dec. 37 (BIA 2012). Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125 (BIA 2009). 27 See, for example, Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008). 26

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or asylee status,28 but does not include time spent while an application for lawful status is pending. Example 6.14-a: Assume that Marta is an LPR who is subject to the LPR bars. She was admitted as a tourist in 2005 and overstayed her visa. She applied for asylum in 2006 and it was granted in 2007. She adjusted status and became an LPR in 2008. Later she became deportable and inadmissible for a moral turpitude conviction, and in 2013 removal proceedings were brought against her. Marta does not have the seven years continuous lawful presence required for § 212(h). The seven years began when she was granted asylee status in 2007. It ceased to accrue when the Notice to Appear was filed in 2013, when she had only six years of lawful continuous residence. Note that the BIA has conceded that lawful residence includes any recognized status with the “expectation of long-term presence and ultimate regularization of status.”29 It is important to obtain expert assistance where it is not clear whether the person has the seven years. Example 6.14-b: Before becoming a permanent resident, Cheryl had obtained “V” visa status. Might that be counted as part of the seven years? Finally, not everyone who is an LPR is subject to the LPR bars. At this writing, there is a major conflict in the law. In cases arising within jurisdiction of the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeals, the bars apply only to LPRs who have been admitted to the U.S. as permanent residents at a border or border equivalent. Merely adjusting status to lawful permanent residency does not trigger the bars.30 Neither does being admitted at the border in some other status, such as on a tourist visa. The BIA will follow this rule, which we will call the Martinez rule,31 in cases arising within the jurisdiction of these courts. In these jurisdictions, a person who has not been admitted at the border as an LPR, and who is otherwise eligible for § 212(h), may apply for the waiver despite conviction of an aggravated felony or lack of the seven years. Outside of the above jurisdictions (meaning, in cases arising within the First, Second, Sixth, Eighth, and Tenth Circuits), the BIA will impose its own rule and find that all permanent residents are subject to the LPR bars.32 Advocates there should consider appealing the case to the

28

See Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006); Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006), Matter of Blancas, 23 I&N Dec. 458 (BIA 2002). 29 Matter of Rotimi, 24 I&N Dec. 567, 577 (BIA 2008). 30 Hanif v. Holder, 694 F.3d 497 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Negrete-Ramirez v. Holder, -F.3d- (9th Cir. 2014); Lanier v. U.S.A.G., 631 F.3d 1361 (11th Cir. 2011). 31 The rule was first set out in Martinez v. Mukasey, supra. 32 Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012), Matter of Koljenovic, 25 I&N Dec. 218 (BIA 2010).

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Circuit Court of Appeals, to seek a ruling that the plain language of § 212(h) limits application of the bars to a person admitted as an LPR at a port of entry.33 Example 6.14-c: Remember Marta in the above example. She was admitted at the border as a tourist and later adjusted status to permanent residence. She never was admitted at a border or border equivalent as a permanent resident. Therefore, if her case were heard in the Third, Fourth, Fifth, Seventh, Ninth, or Eleventh Circuits, she would not be subject to the LPR bars, and she could apply for § 212(h) despite the fact that she does not have the seven years. However, if her case were held outside these jurisdictions she would be subject to the LPR bars, because the BIA’s rule is that all LPRs are. In that case she could not apply for § 212(h) because she lacks the seven years. Example 6.14-d: Stephen immigrated through consular processing abroad and was admitted into the U.S. as an LPR at the border. All authorities agree that the LPR bars to § 212(h) apply to him. He will not be permitted to apply for § 212(h) if he lacks the seven years, or if he was convicted of an aggravated felony since the admission. Be sure to get expert consultation in this area when needed. Note that the Eighth Circuit held that a prior adjustment of status as a refugee does make an LPR subject to the bars to § 212(h), because the refugee statutory language is similar to the language at issue in § 212(h).34 The Ninth Circuit rejected the argument that a person will escape the LPR bars if his admission at a U.S. border as an LPR was obtained by fraud.35 When One Can Apply for § 212(h): Admission, Adjustment, Removal Proceedings. An inadmissible noncitizen may apply for a § 212(h) waiver in conjunction with an application for consular processing or for adjustment of status.36 This includes adjustment of status as a defense to removal or as an affirmative application. A deportable permanent resident can apply to “re-adjust” status as a defense to removal, along with a § 212(h) waiver. An inadmissible LPR who is seeking admission after a trip abroad may apply for a 212(h) waiver, without also having to submit an adjustment application.37 Can a § 212(h) waiver also be used to cure a charge of deportability, without an application for adjustment? While this was the rule for many years, recently the Board has reversed this rule and the law is in flux. The rule had been applied as follows. An inadmissible LPR who returns from a trip abroad can apply for § 212(h) to waive inadmissibility at the border, without also applying for adjustment of status. But what happens if the inadmissible LPR is (mistakenly) admitted into the U.S., and later charged with being deportable? The BIA and courts have long been held that the person can apply for § 212(h) “nunc pro tunc,” meaning as if 33

These courts have not yet addressed the question, except that the Eighth Circuit held that it must defer to the BIA’s rule in Roberts v. Holder, --F.3d-- (8th Cir. 2014). 34 Spacek v. Holder, 688 F.3d 536, 539 (8th Cir. 2012). 35 Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010). 36 See, e.g., Matter of Rivas. 37 Matter of Abosi, 29 I&N Dec. 204 (BIA 2007).

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the person still were at the border, as long as he or she was inadmissible because of the same facts that make him deportable.38 If the § 212(h) waiver is granted, then the person will no longer be deportable. However, in 2013 the BIA announced that due to a legislative change that took place back in 1997, the § 212(h) waiver may no longer be used in this manner.39 Advocates will challenge this decision.40 The Eleventh Circuit in Yeung v. INS had gone farther. It found as a matter of equal protection that § 212(h) should be available to a deportable noncitizen even if the person had not departed and been re-admitted to the U.S.41 The Eleventh Circuit has since withdrawn from that opinion and asked the BIA for clarification.42 The Fifth and Seventh Circuits disagree with Yeung,43 and the BIA cited these decisions in support of Matter of Rivas. Advocates should keep abreast of developments. The BIA has not ruled on this issue so far, however the Fifth and Seventh Circuits disagree with Yeung v. INS. Limits on the § 212(h) Waiver for Those Convicted of Violent or Dangerous Offenses. DHS published a regulation that sets out a blanket policy of denying § 212(h) waivers to people whose crimes were “violent or dangerous,” except in “extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that the denial of the application … would result in exceptional and extremely unusual hardship.”44 In addition, depending on the gravity of the underlying criminal offense, “a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion.…” The standard set forth in 8 CFR § 212.7(d) comes from a case that imposes the same standard on asylum-seekers.45 These cases require an experienced and dedicated advocate. While generally courts have declined to find that 8 CFR § 212.7(d) is invalid, some advocates have been able to win these cases according to the terms of the regulation: by showing that the extraordinary hardship exists, and/or by successfully arguing that their client’s crime was not “dangerous or violent” under this standard. Note that while there is no definition of “dangerous or violent” offense, the offenses discussed in Matter of Jean, supra, were very serious: one offense involving shaking a baby and refusing to take the baby for emergency care, so that the baby died; another was shooting parents in front of their children. 38

See Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980); see also Matter of Tanori, 15 I&N Dec. 566 (BIA 1976), cited in Matter of Sanchez. 39 See Matter of Rivas, 26 I&N Dec. 130 (BIA 2013), overruling Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). 40 See, e.g., amicus brief contesting Matter of Rivas in Rivas v. U.S.A.G. at www.ilrc.org/crimes. 41 See Yeung v. INS, 76 F.3d 337 (9th Cir. 1995). 42 See discussion in by Lawal v. Holder, 710 F.3d 1288 (11th Cir. 2013). 43 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2007) and Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007). 44 8 CFR § 212.7(d). 45 See Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002).

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§ 6.15 Waiver of Inadmissibility/Exemption for Alien Smuggling A person, who has knowingly helped an alien enter, or try to enter, the United States unlawfully is inadmissible under INA § 212(a)(6)(E). There are two types of relief for most immigrants:46 1. A discretionary waiver for lawful permanent residents who voluntarily travelled abroad temporarily and have been determined to be “seeking admission” upon their return (see below); and for people who apply for immigration based on family petitions, except 4th preference brothers and sisters; and 2. An automatic waiver or exemption for certain persons who were present in the U.S. on May 5, 1988, were eligible for the “Family Unity” program, are immediate relatives or second preference beneficiaries, and who are applying for Family Unity or immigration through a family visa petition. Who does this waiver and exemption not cover? People who must establish good moral character, who will immigrate through 4th preference petitions (brothers and sisters of U.S. citizens) or work petitions, or who are applying for many other forms of relief have no waiver of this ground of inadmissibility. Further action to persuade Congress to make this standard more humane is needed. A.

Lawful Permanent Residents and Family Immigrants: A Discretionary Waiver

A waiver for alien smuggling is available to permanent residents who are seeking admission, and people who are immigrating as immediate relatives or through a first, second, or third preference visa petition. Why would permanent residents be seeking admission? They might fall into one of the categories of actions that cause a lawful permanent resident to be “seeking admission” after a trip outside the U.S., such as being absent from the U.S. for over 180 days, or being inadmissible under the criminal grounds of inadmissibility at INA § 212(a)(2), etc.47

NOTE on Lawful Permanent Residents and Alien Smuggling: Unless a lawful permanent resident is considered to be “seeking admission” under the provision discussed above, they will not be subject to the grounds of inadmissibility but rather the grounds of deportability. Therefore, 46

There are other smuggling waivers available for U visa applicants under INA § 212(d)(14), for special immigrant juveniles seeking adjustment under INA § 245(h), and for asylees and refugees seeking adjustment of status under INA § 209. See the following ILRC’s publications: The U Visa: Obtaining Status for Immigrant Victims of Crime, Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth (available for purchase at: www.ilrc.org/publications). 47 See INA § 101(a)(13)(C) for a list of the circumstances under which a lawful permanent resident is considered to be “seeking admission” upon returning from a voluntary trip abroad.

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if a lawful permanent resident is charged with deportability under INA § 237(a)(1)(E), he or she must apply for a waiver of that ground. Whether they are charged with being inadmissible or deportable for smuggling, lawful permanent residents may have another form of relief available to them, commonly known as “LPR Cancellation of Removal” under INA § 240A(a).48 Note, however, that a conviction for alien smuggling, unless it was a first offense and the person smuggled was a parent, spouse or child, is an aggravated felony, which is a bar to eligibility for LPR Cancellation.49

To be eligible to apply for a waiver under INA § 212(d)(11), the resident or family immigrant must have smuggled in his or her spouse, parent, son or daughter, and no one else. The relative must have had that status at the time of the smuggling. Example 6.15-a: Mary, a permanent resident, crossed the border illegally while smuggling her fiancé Harry across the border. Although they later married, Mary is not eligible for this waiver because, at the time she smuggled him, Harry was not her husband. If the person meets these requirements, she then must convince CIS to grant the waiver because of one or more of these following grounds:   

For “humanitarian purposes.” For example, the person might be ill and unable to get good medical care in the home country; To “assure family unity.” For example, the person might be leaving behind a permanent resident spouse and child in the U.S.; or When it is “otherwise in the public interest.” For example, the person might be an active church member or a valued employee whom the community would miss. Example 6.15-b: Juanita arranged for someone to smuggle her baby into the United States. Now she has married a U.S. citizen and wants to immigrate through her husband as an immediate relative. When she goes to her visa appointment, she will submit a waiver application to the official. She will demonstrate that she smuggled only her child, and that CIS should grant the waiver based on humanitarian, family unity, or public interest grounds.

These three categories are quite broad, and most good evidence about a person’s life will fit within one or more of them. At some point, the waiver application should state which ground or grounds the evidence is supporting. For example, an application might state “This waiver should be granted for humanitarian purposes and to insure family unity: Regina would be in grave danger if she returned to Peru, where the army has killed almost her entire family, and her family in the United States cannot support themselves without her here.” 48 49

See Unit 12. See INA § 101(a)(43)(N).

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B.

“Family Unity” Relief: Automatic Exemption for Some Relatives of Legalized Aliens

A person is automatically exempted from the alien smuggling ground of inadmissibility if she is eligible for the “Family Unity” as originally enacted in 1990. See Unit 16. In particular, the person must:    

Be an “eligible immigrant” for Family Unity—which includes the spouse, or child of a legalized alien. (“Child” is defined as less than 21 years of age as of one of two specific dates in 1988. See Unit 16 for additional information.) Have been physically present in the U.S. on May 5, 1988; Be immigrating as a second preference beneficiary, or immediate relative, or as someone who is applying for Family Unity; and Have, before May 5, 1988, smuggled only a spouse, parent, son or daughter.

These persons automatically are not inadmissible, under INA § 212(a)(6)(E)(ii). They do not have to apply for a waiver for inadmissibility.

NOTE on Good Moral Character and Alien Smuggling! A person who is inadmissible for alien smuggling is ineligible to establish good moral character, if the offense occurred during the period for which good moral character must be established for a particular benefit or relief. Good moral character is a requirement for 240A(b) cancellation of removal (and the former suspension of deportation), some voluntary departure, registry and naturalization to U.S. citizenship.

Note on Waiver of Deportability for Alien Smuggling: Note that we covered the waiver for inadmissibility for alien smuggling above. However, a person who is subject to the grounds of deportability under INA § 237(a)(1)(E) will need to seek a waiver under that provision. The same requirements apply as in the inadmissibility waiver: the person must have smuggled only his or her parent, spouse, son or daughter, and that person must have had that family status at the time the smuggling occurred. Furthermore, the same exemption for relatives of legalized aliens applies to waive deportability under INA § 237(a)(1)(E)(ii) as in the inadmissibility ground.

§ 6.16 Document Fraud Waiver of Inadmissibility Under INA § 212(a)(6)(F) a person is inadmissible for document fraud if he or she is the subject of a final order by an administrative law judge, finding a violation of INA § 274C. Note that a person does not need a waiver for § 274C document fraud and is not inadmissible on that basis simply because he or she committed document fraud. The person becomes inadmissible only if there is a “final order” by an administrative law judge finding that the person has committed document fraud under § 274C.

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NOTE on Inadmissibility for Visa Fraud: A person who uses false documents to attempt to obtain an immigration benefit by fraud or misrepresentation may come within a separate, additional inadmissibility ground, the so-called “visa fraud” ground at INA § 212(a)(6)(C). In contrast to the document fraud ground, the visa fraud inadmissibility ground does not require a special administrative finding of a violation of § 274C. An immigration judge or officer may simply find as a factual matter that the person committed or attempted visa fraud, whether by using false documents or making false statements.

Under INA § 212(d)(12), the waiver of inadmissibility for document fraud is available to: 1. Lawful permanent residents who temporarily left the country voluntarily, and are otherwise admissible, and 2. Noncitizens seeking admission or adjustment based on any family visa petition. The applicants must not previously have been fined under § 274C and must have committed the offense “solely to assist, aid, or support the noncitizen’s spouse or child (and not another individual).” The waiver will be granted “for humanitarian purposes or to assure family unity.” What does “assist, aid, or support” mean in document fraud? At this writing, there is no regulation or case law on the meaning of how someone commits document fraud to “assist, aid or support” a family member. What do you think this ought to mean? Should it include?    

Using a false document to get a job to support your spouse or child? Getting a false document for your spouse or child to use to get a visa? Helping your spouse or child fill out a false application for immigration benefits? Other?

When must the family relationship occur? The waivers for alien smuggling specifically include a phrase stating that the applicant must have helped someone who at the time of the smuggling occurred had the necessary family relationship with the person being smuggled (e.g., must have been legally married). In contrast, the document fraud waivers discussed here do not contain this phrase. Since Congress did not include this requirement in the document fraud statute, it should not apply. However, presently CIS is interpreting this waiver as if it had the same language as the smuggling waiver, meaning that CIS requires the relationship to have existed at the time of the document fraud. See Unit 3, § 3.5 and Appendix 3-I. You should argue against this interpretation, because the document fraud waiver does not require that the relationship had to have existed at the time of the offense. Example 6.16-a: Graciela desperately wanted to care for her common law husband, Harry, who was ill. She bought a fake green card and used it to complete an I-9 form to get a job. She and Harry were later married, and then Graciela was arrested and charged

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with document fraud. Graciela can argue that, because Harry is her husband now and she committed the fraud to support him, she should qualify for the waiver. Effective Date: The statute does not give an effective date for the waivers, so they appear to be effective as of September 30, 1996. Since they represent a benefit and not any kind of penalty for past acts, arguably the waiver could apply retroactively to § 274C final orders issued prior to the law’s enactment. Can a waiver under INA § 212(i) cure document fraud? People who cannot qualify under the § 274 waivers discussed above might be able to clear up a document fraud problem with a waiver for visa fraud, if the document fraud they committed also constitutes visa fraud.50 Example 6.16-b: Sonya Kowalski wishes to adjust her status based on a petition by her U.S. citizen mother. Sonya tells you that she entered the U.S. on a visitor’s visa that she obtained from the U.S. Embassy in Poland using her sister’s identity and documents. What she did constitutes both visa fraud (lying to get an immigrant visa) and document fraud (using her sister’s documents to get an immigration benefit). Sonya does not have a spouse or child, and therefore would not be eligible for a document fraud waiver if she received a § 274C final order (the fraud was not to assist a spouse or child). Neither CIS nor ICE has ever charged Sonya with document fraud or given her a notice for a § 274C hearing. If Sonya applies for adjustment and submits a visa fraud waiver based on hardship to her U.S. citizen mother, the CIS might grant it and not charge her with document fraud under § 274C. Then she can immigrate. If the CIS decides to charge her with document fraud and gets a final order, however, Sonya will be deportable with no possibility of relief. In the past the CIS has said that if someone in Sonya’s position—a person who committed visa and document fraud and has not yet been summoned to a § 274C document fraud hearing—later submits an application to immigrate through a family visa and submits a 212(i) visa fraud waiver, the CIS will consider the visa fraud waiver. If the CIS grants the visa fraud waiver, it will not try to bring the person to the § 274C document fraud hearing. (See March 1993 letter from the INS Central Office to the San Francisco District Director, reprinted in Interpreter Releases, Vol. 71, No. 6, page 219, February 7, 1994.) This policy is not codified in a regulation or decision, and there is no guarantee that the CIS will always follow it. Moreover, now that there is a special waiver for document fraud as of April 1997, the CIS could change its policy. Advocates should stay abreast of developments and talk with other experienced advocates to see how the CIS is handling waivers at your office.

50

Visa fraud can be waived for inadmissibility [INA § 212(i)] and deportability [INA § 237(a)(1)(H)].

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Reading Exercise: Difference between Alien Smuggling [212(d)(11)] and Document Fraud [212(d)(12)] Waivers. Read the alien smuggling and the document fraud waivers. Answers appear at Appendix 6-C. 

What family members can the applicant have assisted? o Alien smuggling waiver: o Document fraud waiver:



What kinds of family visas must the applicant be immigrating through to qualify for the waiver? o Alien smuggling waiver: o Document fraud waiver:



On what grounds can CIS grant the waiver? o Alien smuggling waiver: o Document fraud waiver:

(Now you see why we recommend reading every waiver to confirm the details!)

§ 6.17 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) The health grounds of inadmissibility at INA § 212(a)(1) include inadmissibility based on having certain communicable diseases, lacking certain vaccinations, having a dangerous mental or physical disorder, or currently being a drug addict or abuser.51 The inadmissibility waiver discussed here, INA § 212(g), can waive the first three categories, but will not waive drug addiction or abuse. Note, however, that certain immigration applications provide a waiver for all of the health grounds, including being a drug abuser or addict. For example, see waivers for U visa recipients, special immigrant juveniles, and asylees or refugees who are applying for adjustment of status.52 A.

Communicable Disease

People who have a communicable disease that makes them inadmissible can apply for a waiver if they have certain relatives. Please read INA § 212(g)(1). In some cases, the person may also have to post a bond and agree to certain controls and conditions (for example, to take precautions not to give others their disease).

51 52

See Unit 3. INA §§ 245(m), 245(h) and 209(c).

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NOTE on Communicable Diseases and Public Charge: Along with causing possible problems under the health grounds, any serious illness also can make a person more likely to be found inadmissible under the public charge ground at INA § 212(a)(4). The officer evaluating the case must consider whether a serious or chronic illness is likely to create significant costs that are beyond what the individual or family can handle. For this reason, while a qualifying affidavit of support usually is enough to meet public charge requirements, authorities may require more in the case of a serious illness. It will be crucial for the immigrant to be able to show that he or she will have sufficient health insurance to meet reasonably expected costs. There is no “waiver” of the public charge requirement for family immigrants, although the public charge ground does not apply to, or can be waived in certain other applications.

B.

Vaccinations

An immigrant who fails to present evidence of vaccination against certain “vaccine preventable diseases” is inadmissible. The diseases include mumps, measles, rubella, polio, tetanus, diphtheria toxoids, pertussis influenza type B, hepatitis B, varicella, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices (ACIP).53 This vaccination requirement applies to immigrant visa and adjustment of status applications filed after September 30, 1996. It does not apply to applications filed before September 30, 1996. In order to avoid unnecessary vaccinations, those people vaccinated as children or adults should prepare by obtaining documentation, if available, of past vaccinations either in the U.S. or in their home countries to take with them to their medical exam. It is also a good idea to check with the doctor in advance as to what documentation she or he wants to see as proof of past vaccinations. People who are inadmissible because they are not vaccinated can apply for any of three waivers, listed in INA § 212(g)(2)(A-C): A. Applicant has received vaccines but he or she did not have the documentation to prove it when he or she filed. If your client has received the vaccination(s) but failed to present documentation at the time of filing, he or she must present documents to the civil surgeon indicating when the missing vaccines were given and obtain a certified medical examination report, form I-693. INA § 212(g)(2)(A). B. Civil surgeon or other listed official certifies that applicant’s missing vaccination is not “medically appropriate.” A particular vaccination would not be medically appropriate if: 1. The vaccine is not recommended for the alien’s specific age group; 2. The vaccine is medically contraindicated (e.g., allergies, pregnancy); 3. The applicant has taken the initial vaccine but is unable to complete the entire series within a reasonable time; or 53

See INA § 212(a)(1)(A)(ii).

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4. There are no medical examinations performed during the flu season (this only applies to the influenza vaccine, since it is generally given only during the fall flu season).54 INA § 212(g)(2)(B). Note: INA §§ 212(g)(2)(A) and (B) listed above are “blanket waivers” and do not require the applicant to fill out the I-601 form or pay the required fee. C. The vaccination would be contrary to the applicant’s religious beliefs. Applicants for this waiver must show that: 1. They are opposed to vaccinations in any form; 2. The objection is based on religious beliefs or moral convictions (whether or not they are a member of a recognized religion); and 3. The religious belief or moral conviction is sincere.55 This is a “non-blanket waiver”; applicants must file an I-601 form and pay the required fee.56 The vaccines are not required for admission of internationally adopted children, ten years of age or younger. To qualify for this waiver, the adopting parent(s) must sign an affidavit promising that the child will receive the required vaccinations within 30 days of admission to the U.S. or at the earliest time that is medically appropriate. The doctor must sign the affidavit before the visa issuance.57 All CIS required vaccinations are now medically available in “one shot” treatments for the initial doses of each vaccine, and usually only the first dose in a vaccination series is required for the medical exam, though the applicant will be expected to continue the series. Therefore, all can be taken in one doctor’s visit, though some people may want to spread them out over several visits instead. All applicants must still see a civil surgeon. Though personal physicians may administer vaccines, the applicant must go to a civil surgeon in order to obtain certification of the vaccinations. Also, the civil surgeon must administer the rest of the medical exam for immigration. The CIS will use the certification to determine whether the applicant receives a waiver. If your client qualifies for a blanket waiver, he or she does not need to fill out the I-601 form or pay a fee, but the civil surgeon must still fill out an I-693 medical examination and its supplement.

54

75 Interpreter Releases 481 (April 6, 1998). 75 Interpreter Releases 700 (May 18, 1998). 56 INA § 212(g)(2)(C). 57 INA § 212(a)(1)(C)(i–iii). 55

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C.

Mental or Physical Condition Posing a Threat to Others

The government can impose a bond and require several conditions and controls as a requirement for a waiver under INA § 212(g)(3).58 D.

Drug Abuse or Drug Addiction

There is no general waiver for drug abuse or addiction in INA § 212(g), and no waiver applicable to persons immigrating through a family visa. However, possible waivers are available in particular applications, for example for U visa recipients, Special Immigrant Juveniles, or asylees or refugees applying for adjustment of status.59 A person who fails to comply with terms and controls imposed as part of a waiver of the health grounds, will be inadmissible. The Department of Health and Human Services has to certify that the person failed to comply.60

§ 6.18 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses You may want to review the grounds of inadmissibility relating to unlawful presence as you go through this section. Remember that persons who have family unity protection, are seeking asylum, are self-petitioning battered spouses, U visa recipients, T visa recipients or Special Immigrant Juveniles, are subject to special rules relating to the unlawful presence grounds of inadmissibility. A.

Family Waiver of Three- and Ten-Year Ground of Inadmissibility for Unlawful Presence

Persons who have spent a certain period of “unlawful presence” in the U.S. may be barred from admission for three or ten years.61 These unlawful presence bars only apply if the person leaves the United States, which of course they must if they are immigrating through consular processing. The three-year bar is triggered if the person was unlawfully present in the U.S. for at least 180 consecutive days but less than one year, and left the U.S. voluntarily, whether or not under a voluntary departure grant. The ten-year bar is triggered if the person was unlawfully present for a continuous period of at least one year and then left the U.S., whether the departure was voluntary or under an order of removal. These bars do not apply if the person remains in the U.S. and adjusts status in the U.S. The unlawful presence bar can apply when an immigrant accrues unlawful presence of 180 58

See also 8 CFR § 212.7(b)(4). See, e.g., INA §§ 245(M), § 245(h), and 209(c). 60 INA § 237(a)(1)(C)(ii). 61 INA § 212(a)(9)(B). 59

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consecutive days and leaves the United States and then attempts to reenter lawfully, with advance parole or a non-immigrant visa. The CIS can grant a waiver to a noncitizen who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, if the CIS determines that refusing admission to the noncitizen would result in extreme hardship to the citizen or permanent resident spouse or parent. INA § 212(a)(9)(B)(v). Note that the waiver is not available to a parent of a citizen or lawful permanent resident (unless the person is also the spouse or son or daughter of a U.S. citizen or lawful permanent resident). Also, hardship to the waiver applicant himself or herself is not considered. Example 6.18-a: Quan entered the United States as a visitor in January 2009 with permission to stay until June 1, 2009, but never left. He was discovered, placed in removal proceedings, and finally removed on July 25, 2010. Later his U.S. citizen son became 21 years old and applied to immigrate Quan. Is Quan inadmissible? Why or why not? If so, is a waiver available? Quan is inadmissible and subject to the ten-year bar. Counting from June 1, 2009 (the day his presence became unlawful) he was in the United States for more than a year in unlawful status before he was removed. Unfortunately, if Quan’s son is his only lawful permanent resident or U.S. citizen relative, Quan will not qualify for the family waiver because it is not available to parents of U.S. citizens or lawful permanent residents. He will have to wait for ten years after the date of his removal to return. If, however, Quan’s wife or parent is a U.S. citizen or lawful permanent resident, Quan will be eligible for the waiver. He will have to show that his wife or parent will suffer extreme hardship if CIS denies the waiver. If CIS does deny the waiver, Quan cannot immigrate until he has spent ten years out of the United States, which would be July 25, 2020. Most applicants for immigrant visas who will go through consular processing submit requests for waivers of the three and ten-year bars to CIS abroad, using form I-601. The request is submitted after the consulate has made the determination that the applicant is subject to the bar. The form is merely the starting point in preparing a waiver—a significant amount of corroborating documentation is also required to have a chance at approval. Appendix 6-D is an excerpted sample of a successful waiver application, which demonstrates the type of documentation that a good waiver application should contain. See § 6.12 below, describing the Provisional Unlawful Presence Waiver process on Form I-601A for certain individuals who are inadmissible solely under § 212(a)(9)(B)(i).

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B.

Waiver after Ten Years of the “Permanent Bar” for Persons Who Re-Enter Unlawfully after Removal or One Year Unlawful Presence

Persons who re-entered the U.S. unlawfully after either being ordered removed or accruing one aggregate year of unlawful presence are subject to the so-called “permanent bar” under INA § 212(a)(9)(C). These people can apply for a waiver, but they may not submit the application until ten years after their last departure from the United States.62 Example 6.18-b: Joan entered the U.S. in January 2010 and has lived illegally in the U.S. with her American husband since then. She left in December 2012 and returned illegally two weeks later. What grounds of inadmissibility apply to her? Joan is subject to the 10-year bar because she was illegally in the U.S. for more than a year and she left. She will be able to receive a waiver of the unlawful presence if she can demonstrate that her removal will cause extreme hardship to her husband. However, she is also subject to the permanent bar because she was present in the United States for periods adding up to a year, left and returned illegally. She will not be eligible for a waiver of this ground of inadmissibility until ten years from departing the U.S.

WARNING! 245(i) eligibility does NOT protect a client from the permanent bar in 212(a)(9)(C).63 If the person leaves after more than a year of unlawful presence and returns illegally, they will be subject to this bar. Additionally, unlike the unlawful presence bar in INA § 212(a)(9)(B), there is no exception for minors written into this section of the law. Therefore, even a child who accumulated a year or more of unlawful presence in the U.S. before departing and returning illegally may be subject to the permanent bar.64

NOTE: Illegal reentry triggers the permanent bar if the person reenters after an aggregate period of unlawful presence of more than a year. That is, even if the person was never unlawfully present for a year at a time, she can become subject to the permanent bar if she reenters illegally after her periods of unlawful presence add up to more than a year.

62

INA § 212(a)(9)(C)(ii). The BIA has held that adjustment of status under INA § 245(i) does not provide an exception to the permanent bar for those who illegally reentered after accruing one year unlawful presence (the 212(a)(9)(C)(i)(I) bar). Matter of Briones, 24 I&N Dec. 355 (BIA 2007). Matter of Lopez & Diaz, 25 I&N Dec. 188 (BIA 2010). The Ninth Circuit has deferred to the BIA’s position, and has withdrawn its prior decisions to the contrary. Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), overruling Acosta v. Gonzales 439 F.3d 550 (9th Cir. 2006). 64 The U.S. Consulate in Ciudad Juarez does NOT exempt minors from the permanent bar. Other Consulates may decide differently, but you must be very careful before advising clients with this problem, including minors. 63

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C.

Past Removal or Deportation: INA § 212(a)(9)(A)

The Attorney General can waive the ground of inadmissibility for prior removal or deportation, before the person reenters the United States.65 However, if the person re-enters the United States after April 1, 1997, he or she may also be subject to the permanent bar, which can only be waived after the person spends ten years outside the U.S., and reinstatement of removal. Example 6.18-c: Jake entered the U.S. in January 1990. He was deported in 1994. He remained in the country to which he was deported, where he met and married his U.S. citizen wife in 1998. Jake can apply for a waiver of his prior deportation to permit him to consular process and enter the U.S. as an immediate relative if the CIS grants the waiver. People who are in the U.S.—as opposed to outside the U.S. immigrating though a U.S. consulate—may not be able to apply for a waiver of a prior deportation/removal because CIS can reinstate the prior removal order and deny most forms of relief. Some CIS offices have indicated that they will not contemplate a request for a waiver of this ground of inadmissibility from a person who is in the U.S.

IMPORTANT WARNING about Automatic Reinstatement of Prior Deportation or Removal Order: The 1996 IIRIRA added a provision that poses an extreme danger to persons who were deported or removed and then re-entered the U.S. illegally. Once the person has illegally re-entered, the CIS or ICE can simply “reinstate” the prior deportation or removal order and remove the person, without giving the person the opportunity to apply for any relief except restriction on removal or relief under the Convention Against Torture (CAT).66 See INA § 241(a)(5). The Supreme Court has held that ICE may reinstate prior deportation orders even if the deportation and the illegal re-entry occurred before the provision’s effective date of April 1, 1997.67 After the Supreme Court decision, the 10th Circuit Court held there is an exception to reinstatement for a person who, before the effective date or IIRIRA (April 1, 1997) had already taken steps to change their status, such as applying for adjustment of status.68 Several other courts had ruled in the same way previously in cases with similar facts.69 This does not help very many people presently.

65

INA § 212(a)(9)(A)(iii). See Footnote 3. See also Unit 15 for information on restriction on removal and CAT relief. 67 Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 165 L.Ed. 2d 323 (U.S. 2006). 68 Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007). 69 Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir. 2005); Sarmiento Cisneros v. U.S. Atty. Gen., 381 F.3d 1277 (11th Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003); Lopez-Flores v. DHS, 387 F.3d 773 (8th Cir. 2004); Velasquez-Gabriel v. Corcetti, 263 F.3d 102 (4th Cir. 2001) and Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004). At least one court has found that marriage to a lawful permanent resident and the approval of a visa petition before reinstatement of removal came into effect did not protect the noncitizen from reinstatement. See Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007). 66

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Thus, in practice a person who has re-entered the United States illegally70 after being deported or removed will likely not get a chance to apply for a waiver of the prior deportation or removal in an application for adjustment of status. The CIS will probably reinstate the prior order and deny the person a chance to go before an immigration judge. Any person in this situation must obtain careful counseling and understand all their options before approaching the CIS. Example 6.18-d: Gregorio is a Mexican national who first entered the U.S. in 1992. In 1994 he was placed in deportation proceedings and deported. He returned to the U.S. without inspection in 1995 and married his U.S. citizen spouse in 1997. In 2001 Gregorio’s wife filed a visa petition on his behalf. After the petition was approved, Gregorio filed an adjustment application under 245(i). He also subsequently filed an I212 Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal. See § 6.19 for more information about Form I-212. In cases like this, once the CIS realizes that Gregorio was deported and re-entered illegally, it will probably simply reinstate his deportation order and remove him without letting him apply for adjustment. Individuals deported before April 1, 1997 were told that they were inadmissible for five years while those who were excluded had been told that they were inadmissible for one year. However, IIRIRA’s provisions regarding prior removals (including those who left pursuant to an exclusion order) are retroactive and these individuals are subject to the higher penalty of having to stay out of the country for at least five years. The CIS has stated that unless there are negative factors, it will grant the waiver if the person has already stayed out the one year after having been excluded from the U.S. In other words, the CIS appears to be willing to give a break to people who already have stayed out at least as long as they were required to before IIRIRA passed. Note, however, there is no time limit as to when the CIS can grant a waiver. If the applicant could persuade the CIS to do so, it could grant a waiver for any person inadmissible under this ground on the day after the person was removed. Congress stated that standards developed for the former exclusion ground should continue under the IIRIRA waiver of inadmissibility. Under that law, in deciding the waiver, CIS will consider such factors as the person’s character, the hardship to family members, the person’s length of residence in the U.S., rehabilitation, and why and how recently the person was deported. See, e.g., Matter of Tin, 14 I&N 371 (Reg. Comm’r. 1973) and Matter of Lee, 17 I&N Dec. 275 (Comm. 1978).

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Illegal re-entry is generally thought of as re-entry without inspection, but may also include other types of entry, such as entry with fraudulent documents. It’s not clear at this time whether “illegally re-entering” will be interpreted by the BIA and the courts to mean more than entry without inspection.

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CAUTION: Several penalties apply to people who fail to attend their removal hearing, depart after the expiration of voluntary departure, or disobey other laws relating to removal/deportation. See Unit 10 for more information on this subject.

Exercise -- Review Questions for Waivers: Would the following people be eligible to apply for a waiver of inadmissibility? Why or why not? What would they have to prove? The answers are given in Appendix 6-C. Note: In answering these questions, remember that the point is not to memorize all the waiver requirements. Hardly anyone has time to do that, and in any case, the requirements keep changing. The point is to be able to research the requirements and apply them to facts. As you answer each question, look up the waiver in this unit, and take another look at the waiver as it appears in the Act. 1. Renee is inadmissible for visa fraud. She is immigrating through her lawful permanent resident husband. 2. Dagoberto is inadmissible because of a robbery conviction that happened ten years ago. Now he wants to immigrate through his U.S. citizen mother. 3. Franz is inadmissible because he committed document fraud to get a job to support his sick wife. He is immigrating through his U.S. citizen brother. He has no other relatives who have lawful immigration status. 4. Hans is inadmissible because of a prior deportation. He is immigrating through his U.S. citizen brother. He has no other relatives who have lawful immigration status. 5. Tina has active tuberculosis, which is a “communicable disease” and makes her inadmissible. She wants to immigrate through her U.S. citizen daughter.

§ 6.19 Procedure for Applying for a Waiver A.

Overview

Generally, if a person is immigrating through a U.S. consulate abroad, current procedure requires the person to first attend their interview at the consulate before applying for a waiver. The exception to file a Provisional Unlawful Presence Waiver is discussed below in Section B. However, generally, the waiver application cannot be filed until a consular officer makes a finding that the immigrant visa applicant is inadmissible. Once that happens, waiver applications must be filed with CIS, at specific locations depending on the type of visa petition in question. It is very important to carefully check the CIS filing instructions before completing and filing the

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waiver.71 Additionally, the CIS has put out a flowchart, “Filing Certain Waivers of Inadmissibility,” outlining the I-601 waiver process.72 If there is any doubt that the person really is inadmissible, he or she should wait for the officer to bring up the subject, instead of volunteering to submit a waiver. Once the consular officer has found the person inadmissible, only then should the person submit the waiver form I-601, the fee, and the supporting documents to the appropriate CIS address. More than one waivable ground of inadmissibility may be included with the same waiver. Unfortunately, it will often take the CIS office several months to approve the waiver.73 Generally, during that time the person will be stuck outside the United States. In some cases involving particular hardship, it may be possible to persuade CBP to parole the person back into the United States during this time. See Unit 16 for a discussion of advance parole. When the I-601 is approved, CIS will send notice to the consulate and the person or her representative. The consulate will request another visa number for the person and schedule a second appointment. The I-601 form is deceptively simple forms to complete. The heart of the request however is not in the form but in the documents you attach to show why CIS should grant the waiver in its discretion (e.g., declarations and documents showing hardship). Never submit just an I-601 form or I-212 form. Always include substantial documentation to show why the person deserves to have CIS grant the waiver. An excerpted sample I-601 waiver request is in Appendix 6-D. A simplified sample declaration is in Appendix 6-E. People may also submit an I-601 waiver application along with an application to adjust status in the United States. See Unit 7. B.

Provisional Unlawful Presence Waiver, Form I-601A, for Some Immediate Relatives

Effective March 4, 2013, CIS instituted a procedure that allows certain individuals who are subject to the three or ten-year bars under INA § 212(a)(9)(B) to file a provisional waiver of inadmissibility prior to leaving the US for their consular interviews. Note that this is a change in the administrative process involved in the waiver for the three-year and ten-year bars, and not a change in the law. The waiver at INA § 212(a)(9)(B)(v) still applies. Being able to apply for the waiver before travelling abroad for a consular interview can provide tremendous benefits. It allows applicants to avoid having to wait for adjudication while abroad, away from their family and their life in the US; and it allows them to avoid the risk of getting stuck outside the US, barred from reentry, if the waiver is denied. 71

See the filing instructions at www.uscis.gov/i-601. You may find this document at www.uscis.gov/sites/default/files/files/form/i-601chart.pdf. 73 Current processing times vary by country, and range from 6 months to around 18 months. The new centralized filing is expected to standardize the processing time to 6 months for all waivers. 72

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1. Eligibility requirements The provisional waiver is filed on Form I-601A. A person is eligible to apply for the I601A Provisional Unlawful Presence Waiver if he or she: 1. Is physically present in the United States at the time of filing the waiver application; 2. Is at least 17 years old; 3. Is eligible to apply for a waiver of the three or ten-year bar, in that the person can establish that a parent or spouse who is a U.S. citizen or permanent resident would suffer extreme hardship if the waiver were denied. 4. Is the beneficiary of an approved immigrant visa petition (Forms I-130 or I-360) classifying the applicant as the immediate relative of a U.S. citizen; 5. Is not inadmissible under any other section of the INA other than § 212(a)(9)(B)(i) regarding the 3-year and 10-year bars; 6. Already has an immigrant visa application pending with the Department of State; 7. Has paid the immigrant visa processing fee. 8. If currently in removal proceedings, proceedings must be administratively closed and must not be re-calendared before the time of filing the waiver application.

WARNING: The Right Relatives. One must carefully determine whether the person has the relatives required to qualify both for the unlawful presence waiver itself, and for the I-601A application process. 

To qualify for the waiver itself, the person must show that a U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if the waiver were denied. Hardship to a son or daughter does not count. See INA § 212(a)(9)(B)(v) and discussion at § 6.18, above.



To qualify for the I-601A waiver procedure, the person must be immigrating as an “immediate relative.” That means that the person must have a U.S. citizen spouse, a U.S. citizen child who is age 21 or older, or, if the person is unmarried and under age 21, a U.S. citizen parent.

In some cases, a single relative will meet both sets of requirements. A U.S. citizen spouse or, in some cases, parent meets the requirements both for the waiver itself and for the I-601A process. (Do you see why?) In other cases, the person may have to draw on two relatives. Example: Estelle is married to a permanent resident and has a 22-year-old U.S. citizen daughter. She will qualify for the unlawful presence waiver if she can show hardship to her permanent resident husband. She will qualify for the I-601A process because she will immigrate as an immediate relative, through her U.S. citizen daughter. With the help of

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her whole family, Estelle can apply for a provisional waiver of the three or ten-year bars, while here in the U.S.

For an overview of the Unlawful Presence Waiver, Form I-601A, filing process, please see Appendix 6-F. A sample waiver is included as Appendix 6-G. Neither the filing nor the approval of a provisional unlawful presence waiver application will confer any legal status on the person granted the waiver; protect against accruing more unlawful presence; confer employment authorization; confer travel authorization (such as advance parole); or protect the person from being placed in removal proceedings or from being removed from the United States. 2. Revocation of the I-601A wavier The I-601A Waiver will be revoked automatically if one of the following events occurs:   

The immigrant visa is denied at the consular interview; The I-130 petition associated with the I-601A waiver is revoked, withdrawn, or rendered invalid (and not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition); The applicant reenters the US without inspection by immigration authorities (EWI) at any time before approval of the I-601A waiver or after approval but before an immigrant visa is issued. 3. Denial of the I-601A waiver

If an I-601A waiver is denied, there is no appeal process. A person can re-file a new waiver, but only if the immigrant visa case is still pending with the Department of State. In such a case, an applicant must notify the Department of State of his or her intent to file a new I-601A waiver. An applicant can also re-file form I-601A if a new petition process is started. If a consular officer determines inadmissibility at the immigrant visa interview, an applicant can also still try to file the regular I-601 waiver with the USCIS Lockbox after attending their immigrant visa interview. 4. Risk of deportation The risk of applying for this waiver, should it be denied, is low for individuals whose only ground of inadmissibility is the unlawful presence (i.e., those whose I-601A is denied because they fail to meet the hardship element). However, there is a higher risk to consider with clients whose I-601A is denied because they have an additional ground of inadmissibility, especially one related to a criminal record or an immigration violation, such as unlawful entries,

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fraud or misrepresentation, etc. The CIS has said it will continue to follow their current NTA Policy to decide whether or not to refer a particular individual to ICE for removal proceedings.74 5. Individuals in removal proceedings All applications for a provisional unlawful presence waiver must be filed with CIS. Immigration Judges do not have jurisdiction to adjudicate I-601A waivers. If an applicant is currently in removal proceedings, proceedings must be administratively closed and must not be re-calendared before the time of filing the waiver application. If a waiver is granted while a case is administratively closed, the applicant must re-calendar proceedings and ask the court to either terminate proceedings or grant voluntary departure. This is very important, because if the applicant leaves while the case is administratively closed, it could be a self-deportation. Additionally, those who are either subject to reinstatement of a prior order of removal or subject to a current final order of removal or a final order of exclusion or deportation, or any other provision of law (including an in absentia removal order), are not eligible for the provisional unlawful presence waiver on Form I-601A.

§ 6.20 How Do You Establish Extreme Hardship? Note: A simplified sample affidavit is included in Appendix 6-E. Please read it as we discuss establishing extreme hardship. Several of the inadmissibility waivers require applicants to establish that if they are not allowed to immigrate, a qualifying relative will suffer “extreme hardship.” CIS has stated that it will use case law arising out of the former “suspension of deportation” cases to define extreme hardship. These cases used an “extreme hardship” standard when determining the suffering that would flow to a deportable person’s children, spouse, parents, and even to him or herself. As discussed above in the context of the Provisional Unlawful Presence Waiver, unlike the law in extreme hardship for suspension of deportation, the unlawful presence waiver will only examine hardship to the inadmissible person’s spouse or parent, not to themselves, nor is hardship to children considered.75 The same is true for the visa fraud waiver.76 When applying for any waivers always remember to explain how the separation will affect relatives listed in that statute, not how it will affect the inadmissible immigrant. If the family member would necessarily move to the applicant’s home country to avoid separation, explain the hardships that they would face. For example, you can discuss how the parent-child separation can increase the hardship to the qualifying parent who is left in the United States caring for a child. Additionally, you can discuss

74

USCIS Memorandum, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” November 7, 2011. 75 INA § 212(a)(9)(B)(v). 76 INA § 212(i).

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language barriers, inability to support family, have health insurance, etc. if the person were to relocate. Example 6.20-a: Jaime has recently filed an immigrant visa petition on Form I-130 for his wife Lupe who entered the U.S. without inspection in 2012. They have two USC children, Sonya and Henry, ages three and six. Lupe has to demonstrate extreme hardship to her spouse in order to obtain a waiver of the 10-year bar. Lupe explains to you that the youngest child has asthma and the oldest just started school. They live far from the school in a rural county. If Sonya has an attack she must be taken to the hospital or administered medicine within thirty minutes. In the waiver, you argue that it would be an extreme hardship to Jaime if he did not have Lupe to drive Henry to school and take Sonya to the doctor. You explain that Jaime works two jobs, has a limited income, and cannot afford to hire someone to do the work that their mother does for her children. Jaime will suffer because he is concerned for the health and education of his children. Over the years, courts have examined what constitutes extreme hardship. In finding hardship, courts have looked at how the separation of family members affects the qualifying relative. In recent decisions, courts have been giving more weight to relatives that existed at the time of commission of the violation than to relatives acquired after violation. (E.g., hardship to a parent in existence when a person committed visa fraud given more deference than hardship to a wife from a marriage after violation). In evaluating hardship, the courts have considered factors such as emotional trauma suffered from separation, loss of employment or educational opportunities, access to medical care, and other severe changes in the life of the qualifying family member resulting from the separation and conditions in the country to which the relative may have to move because of her inability to remain in the U.S. without the applicant. Family separation and “financial inconvenience” are not enough. Courts do not look at just one factor but at all the factors taken together. See, Unit 11, §§ 11.6 through 11.13 for a discussion of what factors courts have traditionally looked to demonstrate extreme hardship in suspension cases. CIS wants evidence of extreme hardship in “both directions”—i.e., the hardship that will occur if the qualifying family member remains in the U.S. without the applicant and also the hardship that will occur if the qualifying family member leaves the U.S. and accompanies the applicant to his or her own country. Finally, in deciding whether to grant the waiver the CIS will look at the gravity of the violation vis-à-vis the circumstances that led to committing the violation and the harm the qualifying relatives will suffer if the waiver is denied. The key to establishing hardship is a well-prepared declaration by the affected applicant and/or qualifying relatives and documentation backing up the hardships stated in the declaration. We must present a clear picture of the situation to the CIS officer evaluating the case. Ideally, the declaration should reflect not only the hardships the declarant would face but also bring a “human” face to the mind of the examiner. Take a look at Appendix 6-E. Example 6.20-b: George Washington in his declaration could just concentrate on talking about how his wife Martha is useful to him. However, he talks about how he and his wife met and about their plans for the future. This gives the examiner a picture of the couple.

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Although it is obvious that financial hardship will occur when a contributing member of the family cannot immigrate, the law does not generally find hardship from “reasonably anticipated consequences.” Therefore it is important to ground financial difficulties in the individual’s emotional state and other hardships that the financial hardship will cause (such as medical and educational hardships). Example 6.20-c: George Washington mentions that if his wife is not allowed to immigrate he would be financially unable to continue to go to school and would have to find a full time job to support himself and his mother. However, he also mentions that quitting school would be emotionally devastating and he would not be able to care for his mother properly because he would have to concentrate on earning a living. As you may have noticed, the waivers limit who qualifies as a relative. For example, the unlawful presence and visa fraud waivers require hardship to a USC/LPR parent or spouse. Hardship to one’s children is not included. This does not mean that you cannot mention nonqualifying relatives. If the hardship to non-qualifying relatives affects qualifying relatives then the examiner must consider it. Example 6.20-d: George Washington talks about how his mother will be unable to go to the doctor and how much she will miss Martha. But he also talks about how seeing his mother unhappy will make him feel. He also talks about how not having Martha to take care of his mother will result in feeling that he has failed to keep his promise to his father. How separation from loved ones affects qualifying relatives varies from person to person. Thus, it is very difficult to have a boilerplate form. Advocates, however, can ask a standard series of questions designed to elicit the information needed to organize a declaration. The declaration should encapsulate not only the hardship the qualifying relative would endure from the separation, but also should bring to life the individuals involved. George Washington’s declaration in Appendix 6-E is a very simplified version of the kind of declaration that should be submitted with a waiver, and is used here merely to illustrate some key points. Look at the sample waivers in Appendices 6-D and 6-G for an extremely well-prepared waiver declaration.

FOR MORE INFORMATION, see: Immigrants’ Rights Manual, Chapters 2 and 4 Immigration Law and Defense, Chapter 4, § 5.3 Immigration Law and Business, §§ 3.8, 6.4 Immigration Procedures Handbook

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APPENDIX 6-C ANSWERS TO EXERCISES Exercise 6.4 1. Yun was born in Taiwan. He wants to immigrate through his mother and needs to provide a birth record. Will he be able to get a birth certificate? If not, is there something else he can submit? According to the Country Reciprocity Schedule, “[h]ousehold registration records will contain entries regarding birth, death marriage, and divorce. Extracts of the household registration may therefore be accepted as prima facie evidence of this fact." 2. Alicia, a Mexican woman, married her partner Grisel, also a woman, in the state of Quintana Roo in Mexico. They were issued a document called “acta de convivencia” (cohabitation certificate). Will this document be acceptable as proof of a lawful marriage if Alicia tries to immigrate through Grisel, who is a U.S. citizen? According to the Country Reciprocity Schedule, “[s]ame-sex marriages in Mexico are allowed in the Federal District (DF) since December 29, 2009, and in the state of Quintana Roo since October 30, 2008. After five years of living together, a same-sex couple in a common law relationship is entitled to all benefits as if it were a marriage in the DF since December 29, 2009. These couples are able to receive an ‘acta de convivencia’ from the Civil Registry.” 3. Jules was born in Ghana. He has a birth certificate, on light gray paper, issued two years after his birth. Will the consulate accept this with no other proof? According to the Country Reciprocity Schedule, “[r]egistrations not made within one year of an individual's birth are not reliable evidence of relationship, since registration, including late registration, may often be accomplished upon demand, with little or no supporting documentation required.” Therefore, in the case of a late registration such as that of Jules, secondary evidence will be required, such as “a midwife's certificates of birth, weight cards or welfare centre cards, and baptismal certificates. Recent affidavits by relatives or friends are not reliable.”

From Section 6.16: Answers to Reading Exercise: Difference Between Alien Smuggling [212(d)(11)] and Document Fraud [212(d)(12)] Waivers. -- What family members can the applicant have assisted?

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Alien smuggling waiver: A person who was a spouse, parent, son, or daughter at the time of the offense. Document fraud waiver: A spouse or child whether or not the person had that relationship at the time of the offense. (Note that CIS holds that even for document fraud, the relationship must have existed at the time of the offense. This is contrary to the statutory language) -- What kinds of family visa must the applicant be immigrating on to qualify for the waiver? Alien smuggling waiver: Any family visa except 4th preference (US citizen petitioning for a brother or sister) Document fraud waiver: Any family visa petition, including 4th preference.  

On what grounds can CIS grant the waiver? Alien smuggling waiver: Humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Document fraud waiver: Humanitarian purposes, or to assure family unity.

(Now you see why we recommend reading every waiver to confirm the details!)

Exercise 6.19 1. Renee is eligible for a visa fraud waiver under § 212(i) because she is the spouse of a permanent resident. She must show that her husband would suffer extreme hardship if she were not admitted, and that she is deserving of positive discretion. 2. Dagoberto is eligible for a 212(h) waiver, because the offense is a crime involving moral turpitude (so it can be waived under 212(h)) and he is the son of a U.S. citizen. In the waiver he must demonstrate that his mother would suffer exceptional and extremely unusual hardship if he were not permitted to immigrate, because robbery is not just a crime of moral turpitude, it is also a crime of violence. See 8 CFR § 212.7(d)(2). 3. Franz is eligible for a waiver of document fraud. The waiver of inadmissibility is available to someone immigrating through any kind of family visa petition. (Compare this with alien smuggling, where a waiver would not be available to someone immigrating through his or her sibling on a 4th preference visa, and to misrepresentation/fraud under INA§ 212(i), which is only available to the spouse or son or daughter of a US citizen or lawful permanent resident). Franz must show that he committed the fraud only so that he could help his wife, and that the waiver should be granted as a matter of humanitarian purposes or to assure family unity.

Appendix 6-C-2

4. Hans can apply for a waiver of prior deportation (now called removal). He does not need a particular relative. He needs to show that he is deserving of discretion. He should look to the guidelines discussed in Matter of Tin, and Matter of Lee, both cited in your materials: applicant’s character, hardship to family, length of residence, etc. However, if he attempts to apply for the waiver and adjustment of status while in the U.S., ICE will likely try to reinstate his prior deportation. 5. Tina can apply for a waiver under INA §212(a)(g)(1). She has a U.S. citizen daughter, which will let her apply for the waiver under INA § 212(g)(1)(B). Because she is applying under the "B" section, she may have to pay a bond and promise to do certain things to prevent the spread of the disease.

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Appendix 6-E Declaration in Support of waiver of unlawful presence bar to immigrating Intro who he is and what he wants

Establishes Relationship

Summary of hardship

Emotional hardship

Hardship if petitioner needs to leave U.S.

I, George Washington, hereby request that my wife Martha be granted a waiver of her immigration violation because it would be an extreme hardship to me to be separated from my wife. I am a native born U.S. citizen Martha and I have known each other for five years and got married last Valentine’s Day. We first met in high school when we were in the 11th grade. I was not good in school, but thanks to Martha I finished high school and went to mechanic’s school. Martha helps me with my studies. She helps me with my school- work but also helps me financially. Because I am in school, I cannot work full time. She’s a wonderful supportive wife. She stays up late at night to help me with my homework, and then gets up really early and prepares my lunch. She would make a wonderful teacher, and maybe when we are able, it will be her turn to go to school. We love each other very much and have a lot of fun going places together, even just to the market. When the weather is nice, we go fishing on the pier. Although we generally don’t catch anything, we love spending the time just talking. She is my best friend. We look forward to having a family someday after she gets her papers and I finish school. I have been told that if Martha does not get her waiver, she may be away from me for ten years. Without Martha I would be lost. She takes care of my mom and me. My mother, who is also a U.S. Citizen, is elderly and she cannot drive herself to doctors’ appointments. If Martha were not around, I would need to cut back in my schooling to help my mother. It would be hard for me, after having gone to school this long and being so close to finishing the program to stop. Even with quitting school, it would be very difficult for me to help my mom the way that Martha does. I would need to find a full time job to support us and without finishing school, it would not pay enough to hire someone to care for my mom. When Dad died, I promised I would take good care of mom. If I don’t keep my promise I will be very depressed because I failed in my promise. I would also be very sad because my mom would miss Martha very much. I am an American citizen, I cannot just move to Ecuador. I guess Ecuador would have to let me immigrate but I don’t think that they would want me. First, I have not finished my schooling and without Martha around, I don’t feel I can get it done. Also, I don’t speak Spanish. Martha tried to teach me, but I was never good at it in school. Also, my mother needs me as well. She needs to stay in the U.S. to be treated. So, if I stay in the U.S. I would be lost without my wife, but if I move to Ecuador I would be unable to take care of my mom.

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Please grant my wife her waiver. We are both very sorry that she broke the law by living in the U.S. without permission. But as you can see she has done a lot of good while in the U.S. She helped me finish high school, is encouraging me to do something productive with my life and has taken care of my mom. Also, if she gets her papers she will be able to get a better education herself, which would make us both happy. Sincerely, George Washington

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[Redacted personal document.]

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UNIT SEVEN FAMILY VISAS: ADJUSTMENT OF STATUS AND CONDITIONAL RESIDENCE

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This Unit Covers:

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Eligibility for adjustment of status and how to prepare the application (Part One); Removing conditional permanent residency for some persons who immigrate through marriage (Part Two); and Waivers of the joint petition where the marriage has ended or there are other problems (Part Three)

This Unit Includes: § 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10 § 7.11 § 7.12 § 7.13 § 7.14 § 7.15 § 7.16 § 7.17 § 7.18 § 7.19 § 7.20 § 7.21 § 7.22 § 7.23 § 7.24

What Is Adjustment of Status? ........................................................................... 7-2 Who Is Eligible for Adjustment of Status Based on a Family Petition?.......................................................................................... 7-3 What Forms and Documents Are Needed to Apply for Adjustment of Status? ................................................................................. 7-18 The Application for Adjustment, Form I-485 .................................................. 7-21 Form G-325A, Fingerprints, Photos, and Medical Exam ................................. 7-22 Submitting the Adjustment Application ........................................................... 7-24 The Effect of Leaving the Country................................................................... 7-25 What Will Happen at the Adjustment Interview? ............................................ 7-25 The Decision: Approvals and Denials .............................................................. 7-28 Introduction: The Immigration Marriage Fraud Amendment Act.................... 7-31 What Is Conditional Permanent Residency? .................................................... 7-31 Who Is a Conditional Permanent Resident? ..................................................... 7-32 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition” .................................. 7-34 When to File the I-751 Joint Petition ............................................................... 7-34 Completing the I-751 Joint Petition ................................................................. 7-37 Application Procedure: Filing, Interview, Standard for Approval, Denials ....................................................................................... 7-38 Termination of Conditional Residency by CIS during the “Testing Period” .............................................................................. 7-40 Introduction to Waivers of the I-751 Joint Filing Requirement ....................... 7-42 When to File ..................................................................................................... 7-43 How to File a Waiver ....................................................................................... 7-44 The “Good Faith” Waiver ................................................................................ 7-45 The Extreme Hardship Waiver ......................................................................... 7-46 The Battery or Extreme Cruelty Waiver .......................................................... 7-47 Proof of Battery or Extreme Cruelty ................................................................ 7-48

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§ 7.25 § 7.26 § 7.27 § 7.28

Additional Help for Battered Spouses and Children ........................................ 7-48 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died .............................................................................................. 7-49 Dependent Sons and Daughters ........................................................................ 7-49 Special Situations Involving Conditional Residency and Waivers .................. 7-51

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PART ONE: ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT There are two ways to become a permanent resident based on a family visa petition: through consular processing at a U.S. consulate abroad (usually in the person’s home country), or through adjustment of status at a CIS office in the United States. In Unit 6 we looked at the rules and procedures for consular processing. In this section we will look at how a person can immigrate through adjustment of status in the United States. First, we will discuss who is eligible to apply for adjustment of status. Next, we will look at adjustment procedure, how to prepare an application, and what will happen at the adjustment interview.

§ 7.1 What Is Adjustment of Status? Any time a person becomes a permanent resident without leaving the United States, he or she goes through an “adjustment” of immigration status. This is true for people who immigrate through almost any means, including visa petitions, asylum, registry, cancellation of removal and legalization. Thus, when one becomes a permanent resident through application within the United States, the change is made through “adjustment of status.” In contrast, when one changes from one non-immigrant status to another in the United States, that change is made through a “change of status.” Example 7.1: Li entered the Unites States on a tourist visa and married a U.S. citizen who has filed a visa petition for him. Li may apply for adjustment of status to permanent residence. See 8 CFR § 245. Kwame was granted political asylum. Beginning one year from the day he wins asylum, he may submit an application to adjust status to permanent residence. See 8 CFR § 209.2. Each kind of adjustment application has its own eligibility rules, procedures, and forms. Also, different adjustment applications permit waivers for different grounds of inadmissibility. This section will focus only on adjustment of status to permanent residence based on a family visa petition under INA § 245, 8 CFR § 245. All of the rules discussed here apply only to

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this most common form of adjustment application. They do not apply to adjustment based on asylum, registry, cancellation of removal, “U” visas, etc.1

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§ 7.2 Who Is Eligible for Adjustment of Status Based on a Family Petition?

Note the following general rule: An immediate relative who entered with inspection and who is otherwise eligible for adjustment of status can adjust under § 245(a) even if he or she is out of status or has worked without authorization, because there is an exception for immediate relatives for those particular “bars” to ineligibility in § 245(c). In contrast, a preference immigrant, even if he or she entered with inspection and is otherwise eligible for adjustment, cannot adjust under § 245(a) if he or she has fallen out of status or has worked without authorization. Section 245(a) adjustment has two major advantages over § 245(i) adjustment. People who are able to qualify for § 245(a) adjustment do not have to pay the $1,000 penalty fee. Also, § 245(a) adjustment does not require that the applicant be the beneficiary of an immigrant visa petition or labor certification filed by April 30, 2001. Adjustment of status is granted in the “discretion” of CIS. When a benefit is “discretionary,” the adjudicator may deny the application even though the person meets the basic eligibility requirements. Although CIS has at times denied adjustment of status based on a discretionary assessment of factors it considers adverse, it generally grants adjustment to those who meet the eligibility requirements.

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Note that these same rules do apply to employment based adjustment, diversity visa adjustment and some other less common means of immigrating to the United States which are not discussed in this manual. 2 The physical presence requirement does not apply if the visa petition or labor certification was filed on or before January 14, 1998.

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Summary. There are two kinds of adjustment of status for family immigrants. Under INA § 245(a), people who entered the United States after being inspected and admitted (or who were paroled into the United States) and meet other requirements may stay in the United States to do their permanent resident adjustment. Section 245(a) adjustment has existed for many years. The second type of adjustment is found in INA § 245(i) and applies to people who entered without inspection or have certain other disqualifications or “bars” prohibiting 245(a) adjustment which are set out in INA § 245(c). INA § 245(i) permits some of the persons ineligible under § 245(c) along with those who entered without inspection to adjust their status if 1) any qualifying family member or employer filed an approvable petition or labor certification on their behalf by April 30, 2001, and 2)_they were physically present in the U.S. on December 21, 2000.2 With some exceptions, people who adjust status under § 245(i) must pay a penalty fee of $1,000 in addition to the regular adjustment fees.

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Should Your Client Adjust? Several factors should be taken into consideration when deciding whether to adjust status or go through consular processing. Generally, it is better to adjust status because it allows the applicant to stay in the United States, avoids the 3 and 10 year bars (which are triggered by departure from the United States) and provides an appeals/review process (there is no appeals process for consular processing).

WARNING: Adjustment May Not Be Available to Individuals Who Have Been Previously Deported or Removed and ICE May Arrest and Immediately Deport Such Persons. IIRIRA added a provision to the Immigration and Nationality Act (“INA”) barring individuals who reenter the country illegally after removal/deportation from most remedies except restriction on removal (formerly “withholding of deportation”). See INA § 241(a)(5). This provision, called “reinstatement of removal,” bars individuals previously removed from adjustment and may require ICE to immediately remove any previously deported individual it finds in the United States. See § 10.9 to determine whether this provision will affect your client. Reinstatement of removal applies to persons who reenter the United States illegally after having been removed or having departed voluntarily under an order of removal. CIS takes the position that “removed” includes “deported” under the prior legal framework. Note that while at least two Circuit courts appear to state that the provision applies to persons who left with voluntary departure if the voluntary departure was ordered following a hearing before an immigration judge,3 these courts appear to confuse a grant of “voluntary departure” with a noncitizen leaving the United States voluntarily subsequent to an actual removal order. CIS presently appears to interpret the “departed voluntarily under an order of removal” language as applicable to “selfdeports” only, after a final order of removal.4 Reinstatement can also apply following expedited removal when the person has not had a hearing before an immigration judge. See § 10.18. Expedited removal occurs when ICE or CBP administratively removes a person pursuant to INA § 235(b), giving the person Form I-860. If, however, the person left under “voluntary return” or “voluntary departure” without an order of removal, he or she is not subject to reinstatement of removal. In addition, individuals who proceed with consular visa processing continue to be eligible for a waiver of prior deportation. It is important to look closely at your client’s immigration history if he has had encounters with immigration authorities in the past because there is a serious danger that ICE will arrest a person 3

Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1128-29 (9th Cir. 2001); Shtyllaku v. Gonzales, 252 Fed. Appx. 16 (6th Cir. 2007) (unpublished). In addition, the Gallo-Alvarez facts involved a self-deport after the expiration of a period of voluntary departure granted by the immigration judge, and while respondent’s case was on appeal. See Gallo-Alvarez, 266 F.3d at 1126. 4 Adjudicator’s Field Manual, 23.2(c)(2)(C); 40.9(b)(3)(H). The Field Manual states that “[v]oluntary departure is always granted in lieu of removal proceedings or a final order of removal. Therefore, if an alien timely departs according to the voluntary departure period, the alien is not subject to a final order of removal.”

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who has been previously removed at the adjustment interview and deport him without a hearing. Still, there may be some options available, even for clients with prior removal orders, such as motions to reopen due to ineffective assistance of prior counsel.

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Unfortunately, the Supreme Court has held that ICE may reinstate all prior deportation orders, no matter how long ago they occurred, even if the deportation and the illegal re-entry occurred before the provision’s effective date of April 1, 1997.5

PRACTICE TIP: If the applicant has any history of contact with the INS, CIS, ICE, or CBP, be sure you know exactly what occurred in the eyes of the immigration authority. You may need to do an FBI fingerprint check and/or a Freedom of Information Act (FOIA) request. If you have any doubt about your ability to assess the record and its effects, refer the applicant to a practitioner with greater expertise. Do not put your client at risk of arrest and removal.

Other Adjustment “Red Flags.” In addition to a prior removal, review with the applicant other adjustment “red flags.” Those include:

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Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007). 7 Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir.2005); Sarmiento Cisneros v. Attorney General, 381 F.3d 1277 (11th Cir.2004); Sarmiento Cisneros v. Attorney General, 381 F.3d 1277 (11th Cir.2004). 8 Ixcot v. Holder, 646 F.3d 1201 (9th Cir. 2010) (pending asylum application filed pre-IIRIRA enactment precluded reinstatement). 9 Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (petitioner married a U.S. citizen pre-IIRIRA enactment, but failed to apply for adjustment until after IIRIRA took effect); Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (once DHS “fully” adjudicated asylum and NACARA applications, reinstatement was held appropriate); Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007) (marriage to LPR and filing of visa petition not sufficient to preclude reinstatement). 6

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After the Supreme Court decision in Fernandez-Vargas, the Tenth Circuit Court of Appeals held there is still an exception to reinstatement for a person who, before the effective date of IIRIRA (April 1, 1997), had already taken steps to change their status, such as applying for adjustment of status.6 The Seventh, Eleventh and First Circuit Courts had ruled in the same way previously in cases with similar facts.7 The Ninth Circuit subsequently agreed with these four Circuits, holding reinstatement is not applicable if the noncitizen filed any application for discretionary relief prior to the enactment of IIRIRA, which was still pending.8 The Second, Fifth, and Eighth Circuits appear to agree with this approach in citing their sister circuits reasoning while holding that reinstatement is indeed applicable if the noncitizen failed to apply for discretionary relief prior to the enactment of IIRIRA.9

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  A.

Criminal history: If the applicant has any criminal history, be sure you have reviewed it carefully and, if necessary, refer the applicant to a practitioner with sufficient expertise to give advice on its effect. Intent at entry and visa fraud: If the applicant entered with a non-immigrant visa, carefully review her or his intent at the time of entry and what he or she said at the consulate when applying for the visa and/or at the border at the time of entry to see if there is any indication of a material misrepresentation which might constitute visa fraud. Starting a job or getting married to a U.S. citizen right after entry with a non-immigrant visa is a red flag to officers that the person might not have intended to be a visitor at the time he or she entered, and could have made a misrepresentation; advocates should explore this issue. History of entries and exits, with particular attention to the unlawful presence bars. Persons should not apply for adjustment if they are subject to either the permanent bar of § 212(a)(9)(C), or reinstatement of removal of § 241(5) (except as a defense if they are already in removal proceedings). Smuggling, even if assisting a relative. Other grounds of inadmissibility (see Unit 3). Section 245(a): Adjustment of Status Provision for Persons Who Entered the United States after Being Inspected and Admitted and Who Meet Other Requirements

In studying adjustment, you need to read the statute. Please read INA § 245(a) and § 245(c). If you do not have a copy of the INA, these are reprinted at Appendix 7-G. Under INA § 245(a) and § 245(c), it has been the law for many years that most people may adjust status in the United States as long as they: 1. Can show that they were admitted and inspected to the United States (did not enter illegally) or were paroled into the United States; 2. Are the beneficiary of an approved visa petition (or a pending visa petition, in the case of a beneficiary who is an immediate relative where the visa petition and the adjustment application were filed concurrently); 3. Are immediately eligible to immigrate. This means that the applicant is an immediate relative of a U.S. citizen, or, if in the preference system, has a current priority date (see Unit 4); 4. Have never worked without employment authorization or been out of lawful immigration status or fall within the other, less common, § 245(c) bars to adjustment. Even if the person may have been out of status or worked without authorization during a previous trip to the United States, the person cannot adjust. (However, see discussion of IIRIRA § 245(c)(8) below.) This last rule does not apply to immediate relatives of U.S. citizens because an exception is written into § 245(c) for these applicants. See INA § 245(c)(2).

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These provisions are found at INA § 245(a) and (c). Immigration practitioners refer to this kind of adjustment as “§ 245(a) adjustment,” to distinguish it from adjustment under § 245(i) as well as other forms of adjustment. People who qualify for § 245(a) adjustment do not have to pay the $1000 “penalty” fee imposed for § 245(i) adjustment.

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Example 7.2-a: Juana entered the United States five years ago with a tourist visa and had permission to stay for 30 days. She has not left since that date. She has worked illegally. She just married Rodrigo, who is a U.S. citizen, so she is eligible to immigrate as an immediate relative.

Yes, under the rules as stated above, Juana can adjust under § 245(a). She entered the United States legally (that is, she was inspected and admitted by immigration authorities), and she is eligible to immigrate right away as an immediate relative. She does not meet the fourth requirement because she lost her lawful immigration status after her thirty-day visa expired and she worked illegally. That does not matter, however, because the fourth requirement does not apply to Juana since she is immigrating as an immediate relative of a U.S. citizen. INA § 245(c)(2). The application form for adjustment of status is Form 1-485. This form will be discussed in more detail later.

PRACTICE TIP: Recently, CIS has allowed persons who initially entered without inspection, and later obtained TPS or DACA status, and then left the United States pursuant to a grant of advance parole and returned using the advance parole, to qualify for adjustment of status under 245(a) since they have been inspected and paroled into the United States. This is based on the BIA decision in Matter of Arrabally and Yerrabelly.10 These applicants must of course also have an approved visa petition and a current priority date and must not be barred from adjustment for other reasons found in INA § 245(c), such as having worked without authorization or overstaying a visa, unless they are immediate relatives. Note that there are special requirements for DACA advance parole as well, and not every DACA applicant will be able to obtain advance parole as a result. (See Unit 16 for DACA discussion). However, this CIS practice appears to be in flux presently, and it is not clear whether CIS will continue to allow those with TPS and DACA to use advance parole entries to adjust status. It is critical that you check the current state of CIS policy and any relevant regulations and caselaw in these cases that may arise in the future, before you assist someone to file for adjustment in this manner. Another twist is that two different Circuit Courts have issued rulings that are polar opposites regarding whether someone with TPS status who initially entered without inspection may then apply for adjustment of status as an immediate relative, despite never having left the United 10

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

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Under the rules given above, can Juana adjust status under INA § 245(a) and not have to pay the $1,000 penalty fee?

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States and returned with advance parole or any other status. The Eleventh Circuit followed CIS policy in stating that such a TPS applicant may not adjust status,11 while the Sixth Circuit said that she can adjust, reasoning that the TPS statute treats those with TPS like nonimmigrant visa entrants.12 The difference, according to the Sixth Circuit in the Flores case, was that Flores had disclosed he had entered without inspection on his TPS application, and the petitioner in the Eleventh Circuit case did not. The Fifth Circuit, in dicta, has also indicated that it believes those granted TPS can adjust.13 Given the conflict among circuit courts on this issue, one probably should not try this route presently outside of the Sixth Circuit, especially since advance parole is widely available to those with TPS and that might work as an alternative.

B.

Section 245(i): Adjustment of Status for Persons Who Did Not Enter the United States with Inspection or Who Otherwise Do Not Meet the Requirements for § 245(a) Adjustment

This section discusses (1) the basic requirements for § 245(i) adjustment, including the April 30, 2001 and January 14, 1998 filing deadlines; (2) special cases such as adjusting pursuant to a different petition than the original, if the original petition was “approvable” when filed; (3) derivative beneficiaries and § 245(i); and (4) the additional fee requirement for § 245(i). 1. Who may apply for adjustment under § 245(i)? What date must the petition or labor certification application have been filed? Who Is Eligible? In 1994, Congress created another kind of adjustment of status under INA § 245(i) for people who did not qualify for regular adjustment of status under § 245(a). Under this law, the following noncitizens can apply to adjust status to permanent residency (if they meet the other § 245(i) requirements):    

People who entered without inspection; People who are not immediate relatives of a U.S. citizen and who overstayed a nonimmigrant visa or worked illegally; People who entered in transit without a visa; People who are “alien crewmen.”

Who is not eligible for § 245(i)? A noncitizen who was admitted as a K-1 fiancé but did not marry the U.S. citizen petitioner is not eligible to adjust, even under § 245(i). See text of § 245(i) at Appendix 7-G. See also Appendix 7-E, which is a chart comparing the adjustment provisions of § 245(a) and § 245(i). A K-3 spouse cannot use § 245(i) to adjust through someone other than the U.S. citizen petitioner through whom he or she obtained K-3 status. Other individuals are also prohibited from § 245(i) adjustment, such as those in conditional permanent resident status. See 8 CFR § 245.1(c)(5). 11

Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011). Flores v. U.S. Citizenship and Immigration Servs., 718 F.3d 548 (6th Cir. 2013). 13 United States v. Orellana, 405 F.3d 360 (5th Cir. 2005). 12

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To adjust under § 245(i) the applicant must be immediately eligible to immigrate, i.e., must be the beneficiary of an immediate relative visa petition or a preference petition with a current priority date. The person must not be inadmissible, or if inadmissible must be eligible for and granted a waiver of inadmissibility.

Under the initial 245(i) law, adjustment is available to beneficiaries of petitions or labor certifications filed on or before January 14, 1998. Under the LIFE ACT of 2000, which extended 245(i), additional requirements apply to § 245(i) applicants who are the beneficiaries of petitions or labor certifications filed between January 15, 1998 and April 30, 2001. To be eligible for § 245(i) adjustment, these persons must also demonstrate that they were physically present in the U.S. on December 21, 2000. Mailed petitions for this particular benefit are considered to be timely filed if postmarked before April 30, 2001. See 8 CFR § 245.10(a)(2)(i). This additional physical presence requirement does not apply where the petition or labor certification was filed before January 15, 1998. Example 7.2-b: Juan is an LPR who submitted an I-130 for his wife Aria in 1995. Aria entered the United States without inspection in 1994. Since the I-130 was submitted before May 1, 2001, Aria is eligible for adjustment under § 245(i). She is not eligible for § 245(a) because she entered without inspection. Aria does not need to establish physical presence in the United States on December 21, 2000 because Juan filed the I-130 before January 15, 1998. Example 7.2-c: Charlie is a U.S. citizen who married Louisa in 1997, but he did not submit an I-130 petition for her until May 23, 2001. Louisa entered the United States without inspection in 1993. Louisa is not eligible for § 245(i) adjustment because her I130 was filed after April 30, 2001. She is also not eligible for § 245(a) adjustment of status since she did not enter with inspection. Therefore, Louisa must do consular processing in order to immigrate. (Note that she will need to file for a waiver of the tenyear bar for “unlawful presence” if she leaves the country to do consular processing. For more information on this waiver, see Units 3 and 6.) Over time, many groups have tried to persuade Congress to reinstate § 245(i) adjustment of status permanently for those with immigration violations. However, as of this writing it does not appear that this will happen in the near future. Advocates should keep abreast of developments. People who adjust under § 245(i) must file Supplement A to Form I-485 (a copy is provided in Appendix 7-H) along with the regular Form I-485. We discuss the regulations for

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By What Date Must the Petition or Labor Certification Application Have Been Filed? Who Is Subject to the “Physical Presence” Requirement? The initial § 245(i) provision ended in 1998. Subsequently § 245(i) was extended, with certain additional requirements. Congress ended the extensions of § 245(i) adjustment in 2001. At this time, § 245(i) adjustment is only available to beneficiaries of an immigrant visa petition (Form I-130 or I-140) or labor certification application that was filed on or before April 30, 2001.

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documenting the physical presence requirement in Subsection E, below. Additional regulations on § 245(i) adjustment are found at 8 CFR § 245.10.

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2. Special cases: Adjusting pursuant to a different visa petition; the “approvable at filing” rule The government stated in memoranda14 that any beneficiary of any immigrant visa petition or labor certification filed by the § 245(i) deadline may adjust under § 245(i), even if the adjustment is pursuant to a different I-130 petition. CIS refers to this interpretation as the “alienbased” reading of the statute because eligibility for § 245(i) grandfathering attaches to the person (the beneficiary) rather than to a particular petition. To take advantage of this, the original petition must be approved (or was approvable when it was filed) and there must be a visa number immediately available for the second petition. The Department of Justice also generally adopted the helpful clarifications from the prior memoranda in its regulation at 8 CFR § 245.10. Example 7.2-d: Lamar (a U.S. citizen) petitioned for his brother Teo in 1995. Teo, who entered the United States without inspection, married Lana, who was also a U.S. citizen, in May 2001. Lana then submitted an immediate relative petition for Teo. Although the second I-130 (the one Lana submitted for Teo) was submitted after April 30, 2001, CIS will allow Teo to adjust in the United States under 245(i) because he had another I-130 pending (the one Lamar filed for Teo prior to the April 30, 2001 deadline). This “alien-based” approach is helpful in situations like that of Teo, above, where his original petition had a long backlog but his later petition would make a visa immediately available. It allows him to take advantage of the petition filed on or before April 30, 2001 to adjust status in the United States under § 245(i), but it also gives him the advantage of the shorter wait to immigrate under the new visa petition. What happens to visa petitions that were valid when filed, but where changing circumstances make beneficiaries no longer eligible for the visa? According to CIS, a petition filed by April 30, 2001 only had to be “approvable when filed” and not approvable at the time of adjustment. Thus, if the beneficiary was eligible at the time of the original filing and later becomes ineligible for that petition, the individual can proceed with adjustment even if there is no longer a basis to immigrate under the old I-130 petition, as long the person has another valid visa petition under which to immigrate. The Department of Justice incorporated the “approvable when filed” approach in its rule at 8 CFR § 245.10(a)(3). Example 7.2-e: Tran (LPR) petitions for his unmarried daughter Nicole in 1999. Nicole, who entered with a visitor’s visa that has now expired, marries an LPR in June 2001 and becomes ineligible to get a green card through her father. Her LPR husband files an I-130 for her in the month they marry. Assuming Nicole was present in the United States on December 21, 2000, can she adjust? 14

See then-INS memoranda dated January 26, 2001, June 10, 1999; and April 14, 1999, currently posted at www.uscis.gov/files/pressrelease/245i.pdf, or in issues of Interpreter Releases published during that period.

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Yes, because Nicole was an eligible beneficiary of an I-130 petition filed by her father at the time he petitioned for her. That is, her father’s petition “grandfathered” Nicole because it was approvable when filed. 8 CFR § 245.10(a)(1) provides the definition of a “grandfathered alien.” By being “grandfathered” by the original petition, Nicole is able to take advantage of 245(i) adjustment based on a new petition filed after the § 245(i) deadline of April 30, 2001.

Example 7.2-f: Jana (a USC) filed a family visa petition on October 12, 1999 for her brother Larry who had entered the United States illegally. She forgot to include a copy of her brother’s birth certificate to establish that she and Larry were siblings. She moved and did not receive the notice from CIS that the application was incomplete. When CIS did not get a response from her regarding the additional information, they denied the petition. Larry married a U.S. citizen in June 2007 who just filed a petition for him. Is there anything that can be done so that Larry can adjust under § 245(i)? Yes, according to the memo and regulations, Larry can submit the receipt from the original I-130, and the needed information to complete the original petition in order to demonstrate that it was “approvable when filed.” This would cure the problem with the original petition filed before the 245(i) deadline and permit him to submit his application for adjustment of status based on the second petition his wife filed on his behalf.

PRACTICE TIP: It is the applicant’s burden to prove that he or she qualifies for § 245(i) adjustment as a person for whom a petition was filed by April 30, 2001. Therefore, it is up to the applicant to produce the prior petition receipt or approval notice that establishes his or her eligibility for § 245(i) adjustment. If your client has lost his or her copy of an I-130 receipt or approval notice (Form I-797) you can obtain a duplicate replacement by filing an I-824 or Freedom of Information Act Request with the Service Center where the original I-130 petition was filed. However, the petitioner must sign these requests, since the petition “belongs” to the “petitioner” not the “beneficiary.” If the petitioner is deceased, a spouse, child or perhaps another 15

See Ogundipe v. Mukasey, 541 F.3d 257 (4th Cir. 2008); see also Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008).

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The memorandum and the regulations recognize that even if a petition is denied, it may have been approvable when filed. Thus, the beneficiary of an I-130 filed by April 30, 2001 that CIS later denied due to insufficient documentation may submit the missing documentation later to prove the petition was approvable when filed and that he or she is eligible to adjust under § 245(i), but those documents must pertain to the circumstances or documents that existed at the time of filing. For instance, you would be able to show a birth certificate that was requested earlier and not provided, but not a marriage certificate from this year, when the petition required the marriage at the time of filing.15 However, if the original I-130 had been denied because it was submitted without the proper fee or for a non-qualifying individual (for example, a citizen trying to petition a cousin) or because it was fraudulent, the person will not qualify to adjust under § 245(i) because the application was not “approvable when filed.”

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relative can make the request together with a copy of the death certificate of the petitioner. Also ask your client if she has kept the post office receipts for certified mail in order to verify that the petition was postmarked by April 30, 2001. If an original I-130 was not approved, it is the applicant’s burden to prove that it was “approvable” when filed.

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The Ninth Circuit held that you cannot make the claim that your client did not file timely under § 245(i) due to ineffective assistance of counsel.16

3. Derivative beneficiaries qualify under INA § 245(i) On March 9, 2005, CIS issued another memorandum clarifying the eligibility requirements for “derivatives” of those who are “grandfathered” under 245(i). Depending on the circumstances, a spouse or child of someone who is grandfathered under 245(i) may also be able to adjust status under 245(i). It discusses the following two situations. a. Spouse or child relationship that existed at time of filing If the principal beneficiary of an I-130 can demonstrate that a spouse or child relationship existed on or before April 30, 2001, then that spouse or child is grandfathered regardless of any subsequent changes in the relationship with the principal beneficiary. This means a spouse can remain grandfathered even after losing that marital status due to divorce or a child can remain grandfathered even after becoming 21 years of age. In such cases, the spouse or child who is grandfathered can still seek to adjust status under 245(i). This is true even if the derivative beneficiary was not listed on the original I-130, but can prove he or she was a qualifying relative at the time the original petition was filed. b. Spouse or child relationship established after April 30, 2001 and in existence on the date that the principal beneficiary adjusts status In this situation, the spouse or child may benefit from 245(i) if they are adjusting as the dependent of the principal beneficiary. The spouse or child is not grandfathered and may not independently benefit from 245(i). For example, if the spouse and the principal married after April 30, 2001 and divorced before the spouse adjusted, the spouse could not later claim 245(i) protection from this relationship. Therefore, the qualifying relationship must continue to exist at the time the principal beneficiary adjusts status in order for the spouse or child to obtain the derivative benefit of 245(i). c. Spouse or child relationship established after April 30, 2001 but not in existence on the date that the principal beneficiary adjusts status In these situations, the spouse or child is not grandfathered and may not file for adjustment of status under § 245(i) as a dependent of the principal beneficiary. 16

See Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008).

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d. Spouse or child relationship established after the principal beneficiary adjusts status

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In this situation, the spouse or child cannot adjust status under 245(i) under the same petitions as the principal, as they were not derivatives at the time the principal adjusted. The principal should file a visa petition for the after-acquired spouse or child.17 e. Effect of naturalization of the petitioner on derivative applicants

Example 7.2-g: Candido, a lawful permanent resident at the time, petitioned his wife Marta in 2000. He didn’t petition for his daughter Janira separately because she was only five and he had been told that she could immigrate as a derivative of Marta’s application. In 2007, Candido became a U.S. citizen. Marta therefore became an immediate relative and as such her children could not immigrate with her as derivatives. Candido has to submit a new I-130 petition for Janira. Can Janira adjust even if her new I-130 petition will have a filing date after April 30, 2001? Yes, she can because her derivative status on the original I-130 petition filed by her father on behalf of her mother in 2000 was valid and the petition was approvable when it was originally filed. Therefore, she is grandfathered by INA 245(i) and can now become the principal beneficiary of a newly filed I-130. Furthermore, she could file her adjustment of status application concurrently with her new visa petition because she would have a current visa available as an immediate relative of her father. Note, however, that if Marta and Janira last entered the U.S. with inspection, they probably qualify for “regular” adjustment under 245(a) and then would not need 245(i) once they both became immediate relatives after Candido became a U.S. citizen. 4. Additional fee required for § 245(i) adjustment applications There is a penalty for filing under the § 245(i) adjustment law. With certain exceptions, people who adjust under this law must pay an extra $1,000 penalty fee, along with the regular adjustment fee. The only exceptions to this are: 17

Note, however, that a child born during a temporary trip abroad by an LPR mother, who is brought back to the United States by the LPR at the conclusion of the LPR’s trip abroad, should be admitted as an LPR at the border. 8 CFR § 211.1(a)(3).

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A March 9, 2005 CIS memorandum, reproduced in Appendix 7-I clarifies that individuals who were “derivatives” of an I-130 petition when it was filed are still eligible for § 245(i) adjustment even if their relationship to the petitioner no longer exists, for example due to divorce. When a petitioner naturalizes, the former derivative is still grandfathered under § 245(i), as long as the person was a valid derivative beneficiary of the principal beneficiary on the original I-130, and the petition was approvable when it was filed. In this situation the person is still grandfathered under § 245(i) even if he loses his derivative status. See also 8 CFR § 245.10(a)(1)(i).

1. Children who are under 17 years old at the time of filing the adjustment application; and 2. Spouses and children of the petitioner who qualify for Family Unity and have submitted a Family Unity application. See 8 CFR § 245.10(b). The beneficiaries remain eligible for the waiver of the penalty fee when the petitioner, who is also the “legalized alien” on the Family Unity application, becomes a U.S. citizen. See 8 CFR § 236.11(3) and 8 CFR § 245.10(c)(2) and (c)(3).

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C.

The Three- and Ten-Year Bars and Adjustment of Status

In order to adjust status, a person must be admissible or, if the person is inadmissible, she must obtain a waiver of the ground of inadmissibility. In Unit 3 you read about grounds of inadmissibility and deportability based on unlawful presence in the United States. There are several such grounds. Two of the most common are called the “three- and ten-year bars.” People who have been unlawfully present in the United States for between 180 days and one year are inadmissible for three years if they depart the United States. People who have unlawful presence of one year or more are inadmissible for ten years if they depart the United States. These grounds were created by IIRIRA and went into effect on April 1, 1997. Unlawful presence in the United States before that date does not count. There is a discretionary family waiver for spouses, and sons and daughters of U.S. citizens and permanent residents whose qualifying family member would suffer extreme hardship if the waiver were not granted. Also, certain people considered “out of status” for some other purposes do not accrue “unlawful presence” for purposes of determining whether a departure triggers the three- or ten-year bar. These people include bona fide asylum applicants who have never worked without authorization, people with family unity protection, minors, approved VAWA self-petitioners, and certain others. INA § 212(a)(9)(B). This ground is discussed in more detail in Unit 3 of this manual. These particular unlawful presence bars apply only to people who leave the United States and then apply for admission. One way to avoid coming within this ground is not to leave the United States, and instead stay in the United States to adjust status if eligible under § 245(a) or § 245(i). Example 7.2-h: Patrick is an American citizen. He met Mary in 2006 and they got married in June 2007. Mary entered the United States unlawfully in 1995 and has been here ever since. Patrick wants to get a green card for Mary. She is not eligible for § 245(a) because she had an unlawful entry. She is not eligible for § 245(i) because her family petition was not filed on or before April 30, 2001. Therefore, Mary will have to do consular processing. However, when she leaves the United States for her interview, she will become inadmissible under the ten-year bar because she resided unlawfully in the United States for over a year and has departed the United States. At her consular interview, she will have to request a waiver of the ten-year bar, if she has not already done so in the United States via a “provisional waiver” application. See Unit 6 for a

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discussion on provisional waivers. If the waiver is not granted, she will not be able to immigrate until ten years from the date of her departure from the United States. Note that even if CIS grants the waiver, Mary will have to wait outside the United States during the time it takes to adjudicate the waiver request, which could take a year or more. If Mary is eligible for a provisional waiver, she could avoid this long wait.

PRACTICE TIP: Re-Entry after a Grant of Advance Parole. A person who has a pending adjustment application can receive advance parole to travel outside the United States while his or her adjustment application is pending. Advance parole is discussed in more detail in Unit 16. One can apply for advanced parole when she has an application pending that she does not want to abandon, but needs to leave the U.S. briefly for some reason, like sickness of a family member. It is an application that CIS may grant before you leave. CIS had issued policy guidance indicating that if someone leaves on advanced parole, the person will trigger unlawful presence bars. However, the Board, in Matter of Arrabally and Yerrabelly, issued a decision in April 2012 reversing this policy.18 The Board found that an individual who leaves the U.S. pursuant to granted advanced parole while her adjustment application is pending will not be subject to the unlawful presence bars upon return. Example 7.2-j: Sarti, a U.S. citizen, marries Yari who entered on a tourist visa in 1985. Yari was here without authorization after her tourist visa expired. In December 2007, Sarti and Yari file an adjustment packet for Yari. Yari wants to go visit her very sick mother in Ecuador. Can she? Answer: Yes, CIS may grant her advance parole given the severe illness of her mother. And actually almost everyone presently who is filing for adjustment of status after the Arrabally and Yerrabelly case can and should probably apply for advance parole together with the initial application for adjustment of status, as there is then no additional fee. For adjustment applicants, unlike some other statuses, no special reason is required for a grant of advance parole, just a desire to travel. Yari has lived in the United States without permission for over a year and therefore she must be concerned about the unlawful presence bar. However, pursuant to Matter of Arrabally and Yerrabelly, if she 18

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

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Example 7.2-i: Claudette is a Brazilian citizen. She came to the United States in 2003 and overstayed her visa, which expired in 2003. While in the United States she met Peter, a U.S. citizen. In 2005, she left the United States. Peter missed her so much he asked her to come back and marry him. She came back to the United States with a visitor’s visa and they got married. Peter filed for Claudette under § 245(a). Claudette is eligible for § 245(a)—but because she lived in the United States without permission for over a year, left, and now wants to seek admission, she will have to request a waiver of the ten-year bar. (Note: Claudette may also need a waiver for visa fraud if she entered on a visitor’s visa with the intent to marry Peter and adjust status, and she lied about her intent to a consular or DHS officer. See Units 3 and 6.)

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is granted advanced parole, she would be able to leave to visit her mother and return to complete processing without triggering the unlawful presence bars. If Yari left without getting advanced parole, she would abandon her application for adjustment and be subject to the unlawful presence bar as someone who lived here over a year without permission. While for a period of time recently CIS applied the Arrabally decision to those with TPS, and appeared to be doing so as well with DACA grantees who travel pursuant to advance parole, CIS may now be backing off of this interpretation of adjustment eligibility for persons with TPS and DACA who initially entered without inspection. Note there are additional requirements for those with DACA who wish to apply for advance parole.

D.

Section 245(i) Adjustment: Documenting Physical Presence for Beneficiaries of Petitions Filed between January 15, 1998 and April 30, 2001

Persons for whom visa petitions were submitted between January 15, 1998 and April 30, 2001 must also demonstrate that they were physically present in the United States on December 21, 2000. The rule for satisfying this physical presence requirement is found at 8 CFR § 245.10(n). Persons submit this documentation of physical presence as part of the adjustment application process. We recommend that practitioners urge their clients to obtain and keep this documentation in a safe place, so that it will be accessible when they are ready to adjust status. Example 7.2-k: Ramon, a U.S. citizen, filed an I-130 petition for his married daughter, Berta, in January 2001. Berta entered the United States without permission from Mexico in 1998, and has not left since then. Berta will need to submit evidence that she was physically present in the United States on December 21, 2000, in conjunction with her adjustment of status application. You advise Berta to find and keep evidence of her physical presence on December 21, 2000 now so that it will be available later when her priority date becomes current and she is therefore able to submit her adjustment application. The CIS previously summarized its requirements for demonstrating continuous physical presence in its “Questions and Answers” which were distributed about the same time the interim regulations were issued.19 The following are some excerpts: “Government-issued documents are preferable as proof of physical presence, and CIS and the Executive Office for Immigration Review (EOIR) documents have precedence over the records of other agencies.” Our Comment: We do not think that preference for government-

19

See CIS website, Questions & Answers, www.uscis.gov/files/pressrelease/Section245ProvisionLIFEAct_ 032301.pdf.

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issued documents is appropriate because most persons who will benefit from § 245(i) have been here unlawfully and have therefore been avoiding contact with governmental agencies.

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“If there are no government-issued documents that demonstrate your physical presence in the United States on December 21, 2000, CIS will accept and evaluate non-government issued documents as well. You may submit photocopies of government-issued documents as well as non-government-issued documents that establish your physical presence.”

In practice, practitioners must be creative using whatever documents that might be relevant to your client from that time period. Examples include: school transcripts; pay stubs; dated photographs from a specific event, like prom; utility bills; rent receipts; family photographs from the holidays, etc.

Exercise 7.2: The following six scenarios involve some real analytic work using the rules discussed in this unit. For each scenario, address the following questions:     

Is the person “immediately able to immigrate” (either immediate relative, or current priority date on a preference petition)? Can the person adjust status under INA § 245(a)? Why or why not? If § 245(a) is not an option, can the person adjust status under INA § 245(i)? Why or why not? Of the people who can adjust under § 245(i), who must pay the penalty fee? Why or why not? Would any of the grounds of inadmissibility relating to unlawful status or presence affect the applicants?

Answers are at Appendix 7-A. 1. Maria, age 30, entered the U.S. in 2000 without inspection and married a U.S. citizen. She and her husband have not filed anything with CIS. 2. What if Maria’s sister filed a visa petition for her in 1999 and Maria entered the U.S. in July of 2000 and has never left? 3. Abdul entered the United States on a tourist visa that expired in 1986. He married a U.S. citizen in 1992. He has worked steadily. They have not filed anything with the CIS. 4. Carlos and his three-year-old daughter Teresa entered the United States with visitor’s visas in 1999. The visas have long since expired. Carlos married Rhonda, a lawful permanent resident of several years, and Rhonda filed a visa petition on his behalf in

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“You may have a single document that may suffice to establish your physical presence on December 21, 2000. But if you do not possess documentation that contains the exact date of December 21, 2000, you may need to submit several documents to prove that you were physically present in the United States prior to, as well as after December 21, 2000.”

5. 6.

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7. 8.

2010. Carlos does not yet have a current priority date. He wants to file for adjustment as soon as his priority date is current. What would happen if Rhonda becomes a U.S. citizen? Yusuf entered the United States without inspection in 2012. He is from Syria and has been granted TPS. Yusuf marries Sharon, a U.S. citizen. He wants to apply for adjustment. What if Yusuf applies for and travels on advance parole? Carmen is a Salvadoran who entered the United States illegally in 1986. She married Herman, who received permanent residency under the amnesty program in 1987. She has Family Unity protection. Herman filed a second preference petition for her several years ago in April of 2001, and her priority date is now current.

§ 7.3 What Forms and Documents Are Needed to Apply for Adjustment of Status? Every applicant for adjustment of status—including derivative beneficiaries, young children, and the elderly—must submit a complete packet of application materials. The adjustment of status application packet must contain the following forms and documents: 1. Form I-485: the adjustment of status application form and all supporting documentation. 2. Form G-325A: the biographical data form. Children under the age of 14 are not required to submit the G-325A. 3. Passport-style photographs: as of September 1, 2004, passport-style photographs must be submitted (these are front-facing photographs instead of the previously required profile photographs). You should include the required number of photographs per application form. For example, Form I-485 requires two photos of the beneficiary. However, if you are also submitting a Form I-765 employment authorization application you will need to include an additional two photos because the I-765 requires its own set of photos. The same is true if you are submitting the I-131 advance parole permission to travel application, which also requires two photos. 4. A Form I-130 Visa Petition signed by the petitioner for an immediate relative or an approval notice for a previously-filed, and now valid and current, I-130 petition and copies of supporting documentation: 5. Filing fees: $985 for an adjustment application ($635 if the applicant is under 14 years of age AND is filing with the I-485 application of at least one parent), $85 for biometrics (fingerprints and photo processing—not required for an applicant under 14 years of age or 79 years of age or over), and $420 for the I-130 visa petition if an immediate relative is filing both the visa petition and adjustment packet together. There are no fees for an I-

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765 and I-131 if included with the adjustment packet. Always check the CIS website (www.uscis.gov) for the latest filing fee information before you file, as fees often change.

7. Proof of vaccinations or proof of exemption for this requirement. (This is part of the Form I-693. Double check that the civil surgeon marked all the correct boxes.) 8. If the person must apply for a waiver of a ground of inadmissibility, Form I-601 with the $585 filing fee. 9. The applicant’s I-94 or I-94 printout if the person entered with a nonimmigrant visa,22 and (if available) copy of visa in passport (if a visa was necessary to enter),23 copy of entry stamp in passport to prove entry with inspection if filing pursuant to § 245(a), and copy of every page of passport that is not blank.24 10. Evidence of financial support, which will include a Form I-864 Affidavit of Support according to requirements of INA § 213A signed by the petitioner (see Unit 3) or an I864W if the beneficiary is exempt from the requirement. 11. Form I-765: Application for Employment Authorization. If the applicant wants work authorization, along with separate supporting documents, such as photos and any prior EADs (employment authorization documents). No separate filing fee is required. 20

USCIS Policy Manual, Chapter 4.C.4 found at: www.uscis.gov/policymanual/HTML/PolicyManualVolume8-PartB-Chapter4.html#S-C-4. 21 See www.uscis.gov/i-693 for the version(s) of Form I-693 currently in use and accepted by CIS. 22 If the I-94 is lost, the entry stamp in the passport will suffice as proof of legal entry. If neither the I-94 nor the passport stamp is available, an I-102 should be submitted, to request a replacement I-94. The replacement may then be submitted with the application for adjustment. As of April 26, 2013, CBP is no longer issuing paper I-94s at airports and sea ports of entry, except for those people undergoing secondary inspection, including asylees, refugees and parolees. Instead at those ports of entry, CBP will enter the I-94 into an automated system. These people will still need I-94s to apply for adjustment, but should go to www.cbp/gov/I94 and obtain a printout from the electronic system. 23 Some people from certain countries enter under the Visa Waiver Program and so will not always have visas in their passports. 24 CIS wants a copy of every page of the passport with a mark or stamp on it—which will be reviewed in the determination of potential grounds of inadmissibility, such as unlawful presence, material support to terrorists (past travel to certain countries will likely raise questions), visa fraud, etc.

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6. Form I-693, which are the results of a medical examination. In any adjustment case adjudicated after May 14, 2014, medical exams which are more than one year old will not likely be accepted. Previously, because adjustment of status applications filed with a Form I-693 were often pending for more than the one-year validity period, the CIS extended the validity of the civil surgeon endorsement on Form I-693 until the adjustment of status application could be adjudicated. CIS appears to have discontinued this practice of extending medical exam validity.20 Additionally, as of January 1, 2012, medical exams must be submitted using the latest version of the form.21

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12. Copy of applicant’s birth certificate or record, with a full English translation. 13. Form Supplement A to the I-485 Form, for adjustments under INA § 245(i) (see Appendix 7-H); and $1000 penalty fee, if required, plus supporting documents such as proof of physical presence on December 21, 2000.

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14. Form I-131: Application for Advance Parole, with separate supporting documents. No filing fee is required if filed with the adjustment packet. See Matter of Arrabally and Yerrabelly, holding that travel pursuant to advanced parole will not trigger unlawful presence bars.25 Be sure your client provides all required signatures, including signing the check! However, in the case of Blanco v. Holder, the Ninth Circuit held that it was not proper to reject “alien’s otherwise complete and timely application” for adjustment of status for the sole reason that the accompanying check for the filing fee was inadvertently unsigned. Here, the Court noted that the lack of signature needs to be inadvertent and in good faith (not intentionally done).26 The applicant should never submit originals of official documents, such as birth certificates, marriage certificates, divorce decrees, I-94s, etc., with the adjustment packet unless they are specifically requested because the applicant will not likely get them back. The originals of these documents must be brought to the adjustment interview, but only copies should be mailed with the initial submission. The petitioner and the beneficiary must each bring valid personal identification documents, such as driver’s licenses, social security cards, passports and all other immigration documentation with them to the adjustment interview, including the EAD/advance parole card received after the adjustment application was filed. If the applicant is immigrating as a spouse, CIS will probably ask a number of questions at the adjustment interview to ensure that the marriage is “real” and not just for immigration purposes. The couple should already have submitted with the I-130 visa petition copies of documents demonstrating that the marriage is bona fide, including: joint tax returns, joint bank accounts, joint credit card accounts, insurance forms naming each other as beneficiaries, rental agreements with both parties names, birth certificates of any children the couple may have, wedding pictures, photos from courtship and after marriage especially with relatives of the U.S. citizen spouse, and any cards from friends or relatives that the couple may have received, etc. See Unit 5. They should additionally bring a few more documents to the interview, such as new photos, new tax returns, cards and letters from third parties, and any other documents that a couple typically would acquire since submission of the application. Copies should be made to hand in to CIS at the interview.

One-Step Adjustment: If the person is an immediate relative and qualifies for adjustment, an I130 can be submitted along with the adjustment application, instead of submitting the I-130 first 25 26

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Blanco v. Holder, 572 F.3d 780 (9th Cir. 2009).

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and waiting for approval prior to submitting an adjustment. This is very useful because it requires the beneficiary only to appear for one interview and speeds up the processing. Additionally, the person is able to obtain work authorization more quickly because the work permit application may also be submitted with the initial packet.

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§ 7.4 The Application for Adjustment, Form I-485

CAUTION: If your client is not immediately eligible to adjust, either as a previously inspected and admitted immediate relative, an immediate relative eligible for 245(i), or a preference beneficiary whose preference category is “Current,” do NOT submit the adjustment application together with the visa petition—your client will be denied because of ineligibility and will possibly be referred to ICE for removal proceedings. On the other hand, a failure to submit the adjustment application with the visa petition for a clearly adjustment eligible applicant will result in months to a year or more of unnecessary delays and no work authorization for the applicant. It is critical to carefully ascertain whether or not your client is presently eligible to adjust before deciding whether or not to file the I-485 application.

The I-485 form is not difficult to complete on its face, but requires careful thought and analysis to ensure that the client is eligible and whether any grounds of inadmissibility are implicated by the information to be submitted. Ask the client to fill it out in draft form first, but review every question with him or her. In the instructions, “you” refers to the person who is immigrating. If the form asks a question that does not apply to the person, he or she should usually write “not applicable” or “N/A.” Usually it is best not to leave any part of the form blank. Some guidelines may be helpful: 1. Part 1 asks for information from the I-94. If the person entered with an I-94, you provided this information on the visa petition. This is discussed in Unit 5. 2. Part 2 of the form asks the applicant to state why he or she qualifies for adjustment of status. Persons who immigrate through a relative’s visa petition will check Box “a” or “b.” Persons who immigrate through a fiancé(e) petition will check Box “c.”

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The application for adjustment of status is made on Form I-485. A visa petition (Form I130) may be filed at the same time as the I-485, if the person will be eligible to adjust as soon as the visa petition is approved. This is the case with immediate relatives.

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3. Part 3 of the form asks for information about the person’s non-immigrant visa. Your client may have obtained a visa from a U.S. consulate abroad in order to enter the United States. The visa is the large, multicolored stamp or sticker in the person’s passport. The visa number is the number that usually appears at the bottom right of the visa stamp or sticker and is often in red. The control number is at the top in black. The name of the location of the U.S. consulate (e.g., Ciudad Juarez) or issuing post is included on the stamp or sticker. See sample passport visa, Appendix 5-C. 4. Part 3 of the form is aimed at identifying people who are inadmissible. The grounds of inadmissibility are discussed in more detail in Unit 3. If the client might answer yes to any of those questions, be sure that you understand whether the person is indeed inadmissible and if a waiver is necessary and possible. Do NOT check “yes” unless you are certain. On the other hand, do not check “no” if inadmissibility is absolutely certain. Sometimes, even if a client appears inadmissible, advocates will answer “not certain” and leave it up to the examiner at the interview. It is critically important to obtain expert advice in this situation. If you are certain that a waiver is necessary, file a Form I-601 with the adjustment packet. See Unit 6 on filing waivers. If he or she is not eligible for a waiver, or if it’s likely that the waiver application will be denied, you and your client must decide whether or not to apply, due to the risk that adjustment may be denied and that your client may be placed in removal proceedings.

§ 7.5 Form G-325A, Fingerprints, Photos, and Medical Exam The G-325A Form. Each applicant who is between 14 and 79 years of age must complete a G-325A form. See Unit 5 and Appendix 5-A. At the question at the bottom of the large box, mark “status as a permanent resident.” Be sure to check the G-325A, the I-485, and the I-130 to make sure that you give the exact same information on all three forms: Consistency is crucial. Fingerprints. Each applicant who is between 14 and 79 years of age must be fingerprinted. The process is that an applicant submits a check or money order for the fingerprinting (biometric) fee along with the adjustment application. The CIS will send a notice to schedule the applicant to have his or her fingerprints and an additional biometric photograph taken at a CIS application support center before the person’s interview appointment date. Photos. Each applicant, of any age, must submit two identical color, full frontal, passport-style photographs of him or herself. See Appendix 5-B. At this time, CIS still requires two additional photos for the I-765 and two more for the I-131. Some applicants have been successful submitting only one for each of these two additional applications, but other applicants have had their applications rejected and returned for this reason. Until new instructions are received from CIS, it is best to submit 6 photos with each adjustment application, unless no work or advance parole authorizations are needed.

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Medical Exam. Each applicant, regardless of age, must submit the results of a medical examination. The medical exam and health grounds of inadmissibility are discussed in Unit 3. The medical exam must be submitted on a current form I-693 and it must be conducted by a civil surgeon who has been designated by CIS.27

Generally, the results of the examinations are valid only for one year. Formerly, due to the backlogs of adjustment applications, the validity of civil surgeon endorsements on the Form I693 when filed concurrently with Form I-485 was extended until the adjustment application was adjudicated, if no “Class A or B” medical conditions were noted by the physician. This policy ends on May 14, 2014 and will not apply for any adjustment applications adjudicated after that date. Additionally, as of January 1, 2012, only the latest version of the form is accepted. If the civil surgeon uses an old version of the form, the medical will be rejected. Vaccinations. Each applicant must also submit proof of vaccination in the same sealed envelope as the medical exam. The list of required vaccinations is updated frequently so practitioners should periodically check the website at www.uscis.gov. HPV and Zoster vaccinations are no longer required. For more information on the vaccinations requirement, see Unit 3.

PRACTICE TIP: If the applicant has worked but has not filed income taxes and needs to use her or his own income to overcome the public charge ground of inadmissibility, he or she needs to file back taxes for the three years immediately preceding the filing of the adjustment application. (Some practitioners advise the applicant to pay back taxes before the adjustment interview in any case to protect the applicant from discretionary denial of the adjustment application.) If the applicant does not have his or her own valid Social Security number, he or she can file Form W-7 with the IRS and, in about 6-8 weeks, will receive a taxpayer identification number (TIN). The W-7 is available in English and Spanish on the IRS website at www.irs.gov. The 27

For the most current list of civil surgeons in your client’s area, you can check the CIS Civil Surgeons Locator at https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV or by telephone from the CIS National Customer Service Center at 1-800-375-5283.

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The examination results will be given to the client in a sealed envelope, which must remain sealed and unopened for submission to CIS. If filing for adjustment of status affirmatively at the Chicago lockbox, the completed and sealed Form I-693, should be submitted as part of the I-485 package. If the seal has been broken, or the envelope is open, the medical exam will not be accepted. While the submitted Form I-693 must be sealed by the civil surgeon for submission, the applicant is entitled to her own copy of the results provided by the doctor. In fact, the representative should review a copy to ensure the medical is complete before interview and to ensure whether there are medical problems resulting in inadmissibility. If so, you should review with the client whether a waiver is available or whether the application should not be filed at this time.

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instructions to the form state that photo identification is required and instruct the filer to send an original ID by mail with the application. To avoid loss of the original document, the person can file in person at a local IRS office, where he or she can show but not relinquish the original ID. At least some IRS offices will also accept birth certificates in lieu of a photo ID.

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Many people have worked and had taxes taken from their paychecks, although they have not filed returns because they did not have a Social Security number and were not aware they could file with a TIN. These taxpayers can send in their W-2’s (even though the number on the W-2 does not match the TIN) with their late-filed returns and receive credit for the amount of tax withheld. Do not, however, submit tax returns, W-2s or other documents to CIS that contain a social security number which is invented or does not belong to the applicant. In these situations it is best to use alternative documents and instruct the applicant to only file future taxes with a TIN until a valid social security number may be obtained.

§ 7.6 Submitting the Adjustment Application Applications for adjustment of status and related applications are now filed in one location. This means that, if filed at the same time as the Form I-485 (Adjustment of Status), Form G-325A, Form I-765 (Work Permit), Form I-131(Advanced Parole), and the I-130 petition (visa petition) should all be filed at the Chicago Lockbox. All family applications for adjustment of status should be mailed directly to one of the addresses below: Filings mailed through the U.S. Postal Service should be mailed to: U.S. Citizenship and Immigration Services PO Box 805887 Chicago, IL 60680-4120 Filings mailed through private couriers should be addressed to: U.S. Citizenship and Immigration Services Attn: FBAS 131 South Dearborn, 3rd Floor Chicago, IL 60603-5517 The adjustment application packet must be filed with the Chicago lockbox regardless of which CIS office has jurisdiction over the applicant’s residence. Filings received at locations other than those above will be returned to the sender.

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Within a short time after mailing, the applicant or his or her representative should receive a receipt notice acknowledging that the application has been filed. After initial processing, the application will be forwarded to the appropriate CIS District’s Adjustment of Status Unit in the Examinations Branch. Later, the applicant will receive a fingerprint appointment notice. Interview notices will be sent to both the applicant and his or her representative, unless an interview is not required.28

Adjustment applications are now generally taking about 4-8 months for processing. If you have a beneficiary who will be turning 21 before the adjustment interview and is not protected from aging out by the Child Status Protection Act (see Unit 4, § 4.10), it is critically important that you alert CIS and ask that the person be interviewed at an earlier date. Follow up and be persistent, and your client should be interviewed and approved prior to aging out. In many CIS offices, if the applicant does age-out while the adjustment application is pending, CIS will hold the adjustment application in abeyance and continue to renew the applicant’s work authorization until the priority date in the new category becomes current. See more about aging out under § 7.9 below.

§ 7.7 The Effect of Leaving the Country Once the applicant has filed the adjustment application, she must stay in the United States until the application is finally decided. If she leaves the United States (except under a grant of advance parole), the application will be considered withdrawn. 8 CFR § 245.2(a)(4)(ii). If the person has been granted advance parole, the person will not be subject to the three and ten-year bars if that travel was the only absence that could trigger the bar.29 See § 7.2.

§ 7.8 What Will Happen at the Adjustment Interview? Each applicant for adjustment must attend a CIS interview, if one is scheduled, although children under 14 may ask to have the interview waived. 8 CFR § 245.6. A spouse petitioner must attend the interview with the applicant, except in extraordinary circumstances, such as the petitioner’s incarceration. The petitioner parent of a minor child should also attend the interview. 28

Sometimes no interview is required for a parent petitioning for a child, or a son or daughter petitioning for a parent. 29 Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

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Although the application process is undergoing standardization, some CIS districts may still retain additional or unique mechanisms for handling parts of the adjustment of status process. Contact the CIS or a local immigration attorney or agency if you need information about local procedure. Many CIS districts have their own websites linked to the CIS general web site. Local CIS web sites may post information detailing how to proceed with applications in that district. However, since procedures change more often than website updates, it may still be a good idea to consult with an agency or private practitioner.

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In other instances, although not required, the best practice is still for the petitioner to attend the interview. However, where the petitioner is not physically able to attend the interview or lives far away, the petitioner, at a minimum, should be available to speak to the officer by phone. If the applicant submitted a one-step adjustment application, CIS will decide both the family visa petition and the adjustment application based on what happens at the interview and on the documents submitted. Sometimes the adjustment interview is waived, and CIS simply decides the application based upon the documentation submitted. This typically occurs when a parent is petitioning a child, or vice versa, an adult son or daughter is petitioning for a parent. At the interview, the officer will go over the information contained in the I-485 form to confirm that it is accurate. Applicants should practice answering the questions with a friend or legal worker before the interview. Applicants immigrating through a marriage should be prepared to answer questions about their marriage that ensure to the examiner that the marriage is valid and bona-fide. See Unit 5. If the family relationship is clear and no grounds of inadmissibility apply, the interview should be quite simple. Problems will arise only if there are questions about marriage fraud, grounds of inadmissibility, or other reasons for discretionary denial. If the person must submit a waiver of inadmissibility application (an I-601 Waiver), she may do so at the adjustment interview or during the 90-day period following the interview pursuant to a written notice CIS gives at the interview. When filing the I-601, the applicant will have to pay the $585 filing fee or qualify for a fee waiver, unless the beneficiary has active tuberculosis, a history of mental illness, or is mentally retarded.

PRACTICE POINTER: Prepare the Applicant for the Interview. After CIS sends the notice of interview, meet with the applicant to prepare for the interview. It is also helpful to meet with the petitioner, especially if it is a marriage petition and adjustment case. To prepare you should: 

Review the notice of interview and the documents the notice requests the applicant bring Note, however, the notice is a template sent to every applicant. Not all the documents listed must be brought to the interview by every applicant;



Review with the applicant any other documents needed, e.g., new photos and other new proof of bona fides if a marriage case, any new criminal records, or records concerning prior receipt of public benefits. Note: all criminal and public benefit records should be obtained and reviewed prior to the submission of the application to ensure that the application will not result in a referral to removal proceedings;

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Review again the applicant’s entry. If he or she entered without inspection, he or she will probably simply need to answer a question concerning entry by saying, e.g., “I entered through the hills at night near Nogales.” If he or she entered with a non-immigrant visa, review the facts surrounding the applicant’s entry and visa interview for possible fraud. Again, this already should have been done prior to the submission of the application, but needs to be revisited in preparation for the interview. In addition, review with the client any

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“preconceived intent” to remain in the U.S., though this is of less concern, as it is not by itself actually “visa fraud.” Review receipt of public benefits by the applicant or any family member. If the applicant or someone in the family received public benefits that do not create a public charge problem, explain that the applicant can answer simply and directly a question concerning public benefits—e.g., “I received Medi-Cal for my child for pre-natal care.” Hopefully this has already been addressed on the application. Many practitioners check “no” in this type of circumstance, and write in “Emergency Medi-Cal only during pregnancy” for example, or “my U.S. citizen children received food stamps for 3 months when I was unemployed.” Review any arrests or convictions. Explain to the applicant to give a simple, direct answer to any question concerning arrests and convictions—e.g., “I was arrested in 1997 for disorderly conduct. I did not have to go to court.” If there is a document from the court or probation that is not damaging to the client, he can take that and present it as well. Or: “I was convicted in 1998 of driving under the influence. I paid a fine and went to DUI school. Here are the court records.” Be sure to review the record the client will be submitting—don’t submit police reports unless there is a really good reason to do so, i.e., they are helpful to your client. Police reports are not credible “evidence” regarding what happened, and sometimes make unfounded allegations that can be detrimental to your client’s case. Just submit the court abstract or summary—but review it first, prior to filing the adjustment case. For example, a simple DUI involving alcohol will not presently make your client inadmissible, but a simple DUI involving controlled substances WILL likely make your client inadmissible, and needs to be addressed before submitting the application for adjustment. These are complicated cases, with potentially devastating consequences, and it makes sense to consult with an attorney who is expert in these matters first, or refer your client to an expert, before submitting any documents relating to criminal offenses to CIS. You may also want to tell applicants (especially younger applicants) that the examiner might ask them whether they have ever used any drug, including marijuana and including as a one-time experiment. If they say “yes,” such an answer might lead to a finding of inadmissibility. If the drug involved was anything other than marijuana, such a finding of inadmissibility cannot be waived. The same is true for their conversation with the civil surgeon and the adjustment medical exam, as the civil surgeon may make a finding of a “Class A” health issue regarding drug abuse, which will lead to a finding of inadmissibility for one year since last use/abuse.

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Tell the applicant that the examiner will probably ask whether he or she has ever lied to CIS or any other agency to receive an immigration benefit. If there is a question concerning possible fraud, review the facts carefully to distinguish fraud from events that were in fact not fraud. The examiner may also ask whether the applicant has ever made a false claim to U.S. citizenship.



Advise the applicant generally on how to answer the examiner’s questions. Tell her or him to listen carefully to the questions, to answer directly, briefly and honestly the question asked, and not to volunteer information not specifically requested. Also tell your client not to answer a question he or she does not understand, but instead ask to have it explained. Tell your clients never to “guess,” which is often a particular problem in marriage cases. Saying

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“I don’t know” is a much better solution. For example, if an examiner asks a client, “What did your wife give you for your last birthday” and the client doesn’t remember, it is best to say something along these lines: “I don’t remember what she gave me for my birthday, but I do remember she gave me tools that I wanted for Christmas.”

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If the applicant’s case presents significant issues or complications, he or she should be accompanied at the interview by an accredited representative or an attorney.

In addition to telling the applicant about all the above-mentioned issues in preparation for the adjustment interview, it is very helpful to do a mock interview with the petitioner and beneficiary so they can experience exactly what might happen during the interview. Some practitioners do this for every adjustment case with great success, as the clients know what to expect, are less nervous, are able to understand the questions better and why the questions are being asked, and can better focus and articulate their answers.

PRACTICE POINTER: If you have teenage clients who meet with you alongside their parents, ask the parents for permission to meet with the teen alone at some point. Advise the teen again about the above issues, particularly drug use and other criminal issues, and explain the process again and potential consequences. The parents may not even be aware of the teen’s past actions and the teen might not feel comfortable talking about these issues in front of his parents.

§ 7.9 The Decision: Approvals and Denials Approvals. If the application is approved, the applicant will receive notice of approval and temporary evidence of permanent resident status in the mail. The “date of issuance” of the notice is usually the date of adjustment. Because the issuance of permanent resident cards has been streamlined, as a general practice, CIS no longer stamps passports with proof of residency at the time of interview. Applicants should nonetheless bring their passports to the interview. If there are compelling facts of a family emergency, in some instances CIS will stamp passports with an “I-551” stamp as proof of residency. Contact local practitioners in your area to find out if your district office will stamp a passport subsequent to a successful adjustment of status interview. If an emergency arises that requires temporary proof of residency after approval but prior to issuance of the I-551 card (green card), the immigrant can make an InfoPass appointment and request the stamp.

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PRACTICE TIP: If the applicant does not have a current passport and might want to travel after adjustment, advise her or him ahead of time to apply for a passport from the home country’s consulate, if possible.

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If the examiner feels that additional evidence is needed, the CIS may issue a “request for evidence” or RFE form, telling the applicant what evidence might be needed. CIS may give the applicant the RFE at the interview or send a request later.

Denials. If the application is denied, CIS may do one of the following: send a denial letter, indicating that the applicant should leave immediately; offer voluntary departure to the applicant; or place the applicant in removal proceedings by issuing a denial letter with a Notice to Appear (NTA) in Immigration Court. In removal proceedings, the applicant can renew the adjustment application before the immigration judge. The judge can grant permanent resident status based on adjustment along with any needed waivers of inadmissibility as long as CIS approves the underlying visa petition relating to the relationship between petitioner and beneficiary.30 The immigration judge has no jurisdiction to decide a visa petition, only the adjustment application, but you can request continuances of the removal case to allow additional time for the I-130 to be adjudicated. If an immigration judge denies an application for adjustment of status, the person may appeal that decision to the BIA. The person can maintain work authorization while the appeals are pending. 8 CFR § 274a.12(c)(9). If the CIS does not refer the person to ICE for issuance of an NTA to begin proceedings, the applicant cannot appeal the denial to an immigration judge or the Administrative Appeals Unit. 8 CFR § 245.2(a)(5)(ii). The applicant can, however, file a motion to reopen pursuant to 8 CFR § 103.5. The motion to reopen must be filed within 30 days of the denial, except when the failure to file before this period expired may be excused in the discretion of CIS by demonstrating that the delay was reasonable and beyond the control of the applicant or petitioner. There is a fee for filing the motion to reopen. If a waiver application is denied, however, the applicant can appeal that denial to the Administrative Appeals Unit. In some cases, the applicant may decide to accept the CIS denial and go through consular processing instead of taking the adjustment case to immigration court. For example, if CIS agrees that the person should be able to immigrate, but has a strong argument that the person is 30

8 CFR §§ 245.2(a)(l), 1245.2(a)(1), 1240.11(a)(2), 242.8 and 1242.8.

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If CIS approves the adjustment application, the person will receive a “welcome notice” and subsequently a lawful permanent resident card in the mail (I-551). It usually takes only a couple weeks after approval to receive the card, although you may want to advise the applicant that it sometimes takes longer. If no card has been received a month after the approval, an inquiry with CIS should be made as to the status of the card production.

not eligible for adjustment, it may be easier for some people simply to go through consular processing. In those cases, the person should explore requesting voluntary departure to avoid accumulation of unlawful presence.

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Delays. For the most part, intending immigrants have no choice but to wait their turn, unless they wish to file a lawsuit in federal court for “mandamus” to force CIS to adjudicate their application. Some cases, however, require prompt attention: Aging-Out. CIS policy is to expedite cases where a beneficiary (due to reaching 21 years of age) will no longer have a current priority date. CIS does not routinely check its records to see if applicants are approaching their 21st birthday. It is up to the applicant, and his or her representative, to bring the issue to the attention of the CIS. Also, advocates should not wait until the person is a few months from his or her birthday to approach CIS. It is best to inform CIS of the approaching change of category 18 months prior. The problem of children aging out may be less of a concern after the passage of the Child Status Protection Act (CSPA) on August 6, 2002. Under this law, if a U.S. citizen files an I-130 on behalf of a child before the child turns 21, the child’s “immigration age” is “frozen” and she will continue to be considered a child for immigration purposes even if the CIS does not act on the petition before the child turns 21. However, if a permanent resident parent files an I-130 on behalf of a child before the child turns 21, the child’s age will be determined using the date that the priority date of the I-130 becomes current, minus the number of days that the I-130 is pending. This could result in the child waiting several additional years. In addition, the child must seek to acquire the status of a lawful permanent resident within one year of visa availability. This provision also applies to derivative beneficiaries on family-based petitions. Petitioner in Poor Health and Dies. If a petitioner dies before the adjustment is granted, all of the principal and derivative beneficiaries of a pending or approved I-130 visa petition (whether in the immediate relative category or one of the preference categories) are protected under certain conditions. These conditions are described in greater detail in Unit 4. Naturalized Petitioners. Prior to the 245(i) deadline, many LPRs submitted I-130 petitions for their spouses and children. Due to the backlog of I-130 processing at CIS Service Centers, some LPR petitioners only received receipt notices and are still awaiting approval notices. However, since submitting the petitions, some have become U.S. citizens and would like their spouses to apply for adjustment of status now as immediate relatives. Previously, the receipt notice could be used to qualify for 245(i) adjustment, but would not suffice to complete the “onestep adjustment application” which required either an I-130 petition filed concurrently, or a family petition approval notice. As a result, many families had to submit and pay for the filing of a duplicate Form I-130 along with the receipt notice from the previously submitted I-130. However, in 2004 CIS implemented a new policy under which families no longer have to file a new I-130 if one is already pending at a CIS Service Center. Instead, CIS has implemented an internal system for requesting a copy of the receipt file. Now families need only send a letter to the CIS Service Center notifying them that the petitioner is now a U.S. citizen, with proof, and therefore adjudication of his I-130 petition is a higher Service priority.

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PART TWO: CONDITIONAL RESIDENCY § 7.10 Introduction: The Immigration Marriage Fraud Amendment Act

While you read this section, remember Congress was convinced that many people who marry citizens or residents do so only to get immigration status. Congress thought that the IMFA would guarantee that only people who entered “real” marriages would obtain immigration benefits. This is the purpose of conditional permanent residency.

§ 7.11 What Is Conditional Permanent Residency? Conditional permanent residency is a two-year “testing period” before a person who immigrates through a spouse can become a full-fledged lawful permanent resident. INA § 216(a)(l). The marriage that is the basis for the I-130 is called the qualifying marriage. The spouse who is immigrating through the marriage is called the alien spouse. INA § 216(h). During the two-year period, conditional residents receive most of the benefits that lawful permanent residents do. They can work, travel in and out of the United States, and count the time they spend as conditional residents toward the residence requirements for U.S. citizenship. 8 CFR § 216.1. They have a “Resident Alien” card, which is a permanent resident card that has an expiration date of two years from the date of issuance and their residency itself actually expires at that time if they take no further action—unlike other permanent residents, whose cards may expire, but their residency is indefinite unless and until rescinded. Conditional residents have all the other rights of lawful permanent residents, such as being able to petition for other relatives (e.g., unmarried children sons and daughters of any age). However, conditional residents must meet additional requirements before the condition on their lawful resident status is lifted: 

Generally, conditional residents who are still married to their petitioning spouse must submit a joint petition on Form I-751 (signed by both spouses) within the 90-day window prior to the end of the two-year conditional residence period, to have CIS remove the conditional basis of their residence. If they don’t submit this petition, or CIS doesn’t receive it before the card expires, their residence status will be automatically terminated and they risk being deported. Filing the joint petition results in an extension of permanent residency, evidenced on the receipt notice, which the conditional resident may use to work and travel.

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In 1986 Congress passed the Immigration Marriage Fraud Amendment Act (IMFA). Congress passed this Act in response to the former INS’ claims that large numbers of people were becoming permanent residents by committing marriage fraud. The IMFA contained many rules that were designed to stop marriage fraud. Most importantly it created a status called conditional permanent residency often referred to in shorthand as “conditional residence,” which applies to some people who immigrate based on their marriage to a U.S. citizen or lawful permanent resident.

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Alternatively, there is a waiver of the joint filing requirements for conditional residents who are unable to file a joint petition due to divorce, annulment, battery or extreme cruelty at the hands of the spouse, so long as the applicant can prove that the marriage was nevertheless entered into in good faith; or for those who otherwise cannot file jointly but who would suffer extreme hardship if their petition to lift the conditions on their status were denied. Such persons may file a waiver application (also using the I-751 form) at any time prior to the 90-day window to file the joint petition, or after their residency ends. However, if they do not file the waiver before the expiration of their conditional residence, their residence status will be automatically terminated, and they risk being placed in removal proceedings. Once the waiver is filed, residency is reinstated during the adjudication period for the I-751 waiver. See § 7.14 on Filing Late below.



Under certain circumstances the CIS may terminate conditional residency during the twoyear period, such as when it comes to CIS’ attention that the couple has divorced.

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§ 7.12 Who Is a Conditional Permanent Resident? People who immigrate through their spouse within two years of the date that they marry are conditional residents. Therefore, people are conditional residents if within two years of marrying the person who filed the I-130 for them, they either (1) enter the United States with an immigrant visa after consular processing or (2) have an adjustment of status application finally approved within the United States. INA § 216(h)(1), 8 CFR § 216.1. In addition, noncitizen children of the conditional resident spouse who immigrate within two years of the spouse’s marriage to a U.S. citizen are also conditional residents. INA § 216(a)(1). (This applies only to stepchildren of the petitioning spouse.) As you know, there are two ways to immigrate through a family visa petition: visa processing at a U.S. consulate abroad and adjustment of status in the United States. In visa processing cases, the person does not become a resident until the moment she first enters the U.S. using her immigrant visa. In adjustment, the person does not become a resident until he receives final approval from CIS. Example 7.12-a: In November 2007, Shao Non, a Chinese citizen, marries Beth, a U.S. citizen. Beth petitions for Shao Non, and in November 2008 he has his visa appointment in Beijing, China. He immigrates on December 15, 2008 when he returns to the United States from China, entering the U.S. with his immigrant visa. Is Shao Non a conditional resident? Yes. Because Shao Non immigrated within two years of marrying Beth he will be a conditional resident for the next two years—until December 14, 2010. Shao Non and Beth needed to file the Form I-751 within the 90 days prior to December 14, 2010.

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Example 7.12-b: Ellen, a citizen of Canada, marries Fred, a U.S. citizen, in January 2012. Ellen applies for adjustment of status based on her marriage. Her application for adjustment is approved on June 2, 2012.

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Is Ellen a conditional resident? Yes. Because Ellen completed adjustment of status within two years of marrying Fred, she will be a conditional resident for the next two years—until June 2, 2014.

Example 7.12-c: In January 2002 Guillermo, a citizen of El Salvador, marries Anna, a lawful permanent resident. Anna files a second preference petition for Guillermo. In September 2007, Guillermo completes consular processing and enters the United States using his immigrant visa. Guillermo is not a conditional resident. This is because he immigrated more than two years after his marriage to Anna. Example 7.12-d: Marta and Oscar have been together for several years. In February 2010, they finally decided to marry and wed on February 14, 2010. Marta is a U.S. citizen and Oscar is a citizen of Mexico. After they marry, they are not sure if they went to spend most of the year in Mexico or in the U.S. Over a year later, they file Oscar’s adjustment of status. Oscar and Marta are scheduled for their interview on January 30, 2012. What should they do? In this situation, they might want to re-schedule their interview, or ask the officer to not adjudicate the case for two weeks. If they wait just two weeks longer, Oscar and Marta will not have to go through the I-751/ conditional residence process, and Oscar will be a full-fledged lawful permanent resident. Given the choices, they would probably prefer to wait two weeks and avoid the further legal hurdles of getting approved prior to having been married the full two years.

Exercise 7.12: Who Is a Conditional Resident? Are any of the following people conditional residents? 1. Kwan married a U.S. citizen on June 4, 2007. He completed adjustment of status on January 3, 2008. 2. Maria married a U.S. citizen on February 1, 2010. She completed visa processing and entered the United States with an immigrant visa on April 6, 2011. 3. Marco married a permanent resident on August 9, 2009. He completed visa processing and entered the United States with an immigrant visa on November 3, 2011.

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As the F2A preference category wait has become shorter, it is possible that at some point, people who immigrate under the second preference category will need to go through conditional residency. In the past, the waiting period for a second preference visa petition for a spouse was much longer than two years and therefore, most spouses and children of LPRs ended up immigrating more than two years after the date of their marriage.

4. Frank is about to immigrate through his brother. Frank’s new wife Franny, whom he married two weeks ago, can immigrate as Frank’s derivative beneficiary. When they immigrate through Frank’s brother, will either of them be a conditional resident? Why or why not?

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§ 7.13 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition” As stated earlier, conditional residents must submit an application (Form I-751) to CIS in order to remove conditional status and become full-fledged lawful permanent residents. They must follow strict deadlines for when to submit the application. If the couple is still married and cooperative at the end of the two-year period, they will file a joint petition to remove the conditional basis of the immigrant spouse’s status. They must file a form I-751 during the 90-day period before the second anniversary of the immigrant spouse’s conditional residency grant. If the couple is divorced, legally separated, one spouse refuses to cooperate, or the petitioner has died, the immigrant spouse must file a petition by himself or herself to remove the conditional status and must request a waiver. Those who file by themselves may file the waiver request prior to the 90-day window to file the joint petition, but if they do not file by the expiration date of their conditional residence, their status will be terminated. Their status will later be reinstated, however, when their waiver is on file. There is no actual deadline for filing the waiver, unlike the deadline for the joint petition. See § 7.14 on Filing Late below. We shall discuss this waiver in more detail in Part Three of this unit. The same requirements that apply to the conditional resident spouse also apply to any conditional resident children who immigrate within two years of the noncitizen parent’s marriage.

§ 7.14 When to File the I-751 Joint Petition If the couple is still legally married after two years they may file a joint petition with CIS to remove the condition on the immigrant’s resident status. The petition must be filed in the 90day period before the two-year anniversary of the date that the new immigrant spouse received conditional residency. INA § 216(d)(2)(A), 8 CFR § 216.4. “Filed” means the petition was actually received by CIS by the deadline date, not simply postmarked by the deadline. To determine when to file the joint petition, count two years from the date that the conditional resident spouse received conditional residency. (This date is listed as the expiration date of the Conditional Resident Card, I-551.) Then count backwards 90 days. The petition must be filed within this 90-day “window” before conditional residency expires. Example 7.14: Diego married Frida, a U.S. citizen, on July 10, 2011. He entered the United States with his immigrant visa on August 1, 2012. The two year anniversary of

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Diego’s receiving conditional residency is August 1, 2014. Diego and Frida must file (CIS must actually receive) the joint petition between May 3, 2014 and July 31, 2014.

If the client received proper notice and fails to appear with his or her spouse at a required interview without good cause, his or her status will be terminated at the second anniversary of the client’s lawful admission for permanent residence. See INA § 216(c)(2)(A).31 Because of this harsh rule, you and your client must keep track of the deadlines. If your office does not have a tickler or pending system in place to keep track of important dates, set one up. If you miss the filing deadline you could be liable for malpractice. More important, you can cause your client lots of trouble and heartache. You should make sure your client understands that he or she is responsible for filing within the deadline. Give something to the client in writing which explains what conditional residency is and how and when to remove it. Sample letters in English and Spanish to conditional resident clients are included at Appendices 7-B and 7-C.

Exercise 7.14-a: Figuring Filing Deadlines. Stefan, a Hungarian who was here on a student visa, married Janice, a U.S. citizen, on December 1, 2009. Stefan finally adjusted his status to a permanent residence on November 12, 2010. Looking at the sample letter found at Appendix 7-B, what are the dates of the deadlines for filing the application for Stefan and Janice to complete the process? Answer: The window of time in which Stefan and Janice need to file a joint petition is August 14 to November 11, 2012. After November 11, 2012, Stephan’s conditional residency will automatically terminate if no joint petition has been filed.

31

Note, however, that many conditional residents filing joint petitions with their spouses are not required to attend an interview. CIS reserves the right to require an interview, but does not always do so.

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It is critical to keep track of these deadlines. If the joint petition (or a waiver, see below) is not filed on time, the conditional resident will lose his or her legal status automatically and will be subject to removal. CIS will try to notify the person at the start of the 90-day “window.” However, it is not a defense against losing lawful status if the person doesn’t file because CIS does not do this, or because notice does not reach the person. Also, CIS is not required to send the person notice prior to terminating conditional residence if the basis for the termination is a failure to file a timely petition (I-751). See INA §§ 216(a)(2)(C), 216(c)(2)(A), and 8 CFR § 216.4(a)(6). If the joint petition is filed too soon, it will be rejected, and the applicant will possibly lose the filing fee and, in addition, risk not discovering the error in time to re-file before the deadline.

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Make sure both the husband and wife understand when the filing deadline is. It is not enough just to tell the U.S. citizen or lawful permanent resident. The conditional resident spouse needs to understand the situation. Some people allow their petitioning spouse to control all matters that seem technical or legal. These people later find themselves at the mercy of their spouses who may no longer want to take care of them. Make sure that your clients understand that they must contact you or another legal worker before their conditional residency expires whether or not they are still married. Filing Late. Sometimes a joint petition can be filed late. A late joint petition will not be accepted by CIS unless you show that there was “good cause” for the late filing and that the length of the delay was reasonable.32 Applicants filing untimely joint petitions are required to submit a separate statement explaining the reason for the late filing, and they may also want to submit any available additional supporting evidence.33 The CIS will evaluate the applicant’s explanation and supporting documentation according to the length of time that has passed since the filing deadline. The regulations do not define “good cause,” but the CIS has been relatively reasonable in accepting late filed I-751 applications if a reasonable explanation is provided. According to CIS guidance on this matter, some examples of what constitutes good cause may include: a. b. c. d. e.

Hospitalization Long term illness Death of a family member Legal or financial problem Caring for someone

f. g. h. i.

Bereavement Serious family emergency Work commitment Family member on active duty with the U.S. military

If the CIS is unable to make a determination on whether the failure to file timely was due to good cause, it may issue a request for further evidence (RFE). Furthermore, if the issue is still inconclusive after the applicant responds to the RFE, the CIS service center where the petition was filed may forward the file to the local CIS office for an interview. It is important to provide a strong explanation for untimely filing of a joint petition, because the CIS will deny the petition for failure to comply with the filing requirements if it determines that the explanation and corroborating evidence do not establish good cause. Extension of Status While Petition is Pending. Filing of the joint petition or waiver automatically extends conditional residence status for one year. Thus, any conditional resident who has filed a Form I-751 remains a conditional resident until a decision is made on his or her Form I-751. The receipt notice will indicate that it is proof of ongoing lawful permanent resident status. With the receipt letter and the Conditional Resident Card, the immigrant can continue exercising all rights vested in a lawful permanent resident. At least in some regions, CIS takes well over a year to adjudicate the petitions and, therefore, CIS will extend conditional residence 32

8 CFR § 216.4(a)(6). USCIS Interim Policy Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions,” December 23, 2012. 33

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beyond the one-year automatic extension period. CIS will provide documentation of this extended status for travel or employment purposes in the form of the receipt notice for the I-751.

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If the conditional resident continues to live in “marital union” with the U.S. citizen spouse for three years and has maintained conditional resident status for three years, the conditional resident is eligible to apply for naturalization even if the joint petition is still pending. Sometimes the joint petition is approved at the same time as the naturalization application.34

§ 7.15 Completing the I-751 Joint Petition

1. Does the Couple Live Together? In Parts 1 and 4 of Form I-751, the couple must provide their home address. If the couple does not live together, CIS will probably suspect fraud and require an interview. (See below). If the couple lives apart but the marriage is still viable, they should attach an explanation of the reason they live apart with other documentation of their legitimate relationship. If the marriage is no longer viable but the couple is still legally married, a separate statement explaining this should be included with the petition. A joint petition cannot be denied solely because the spouses are separated or have initiated the legal termination of their marriage.35 The legal requirement is still whether the marriage was both valid legally and “bona fide at its inception,” (i.e., not entered into for immigration purposes only), at the point the couple got married. CIS has specifically stated it “may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.”36 As a practical matter, however, due to the length of adjudications, a pending divorce may become final before CIS adjudicates any joint petition filed. 2. Does the Marriage Still Exist? The conditional resident must still be legally married to the spouse who filed the visa petition for her. If the couple is not married or one spouse refuses to file the application, she must request a waiver when filing the I-751. See § 3.18 below for a discussion of the waiver requirements and process. 3. Did the Couple Pay to Arrange a Sham Marriage? Part 3, Question 6 of Form I-751 asks if anything of value was given to anyone, except an attorney preparing a valid petition, to prepare the I-130 or the joint petition. The CIS is trying to discover those people who paid to have sham marriages arranged. If the client paid your agency money to help fill out the forms, you may want to cross out the word “attorney” and write “community agency” or “paralegal” so that the client may still mark the question “no.” 34

INA § 216(e). USCIS Memorandum, Acting Associate Director, Donald Neufeld, I-751 Filed Prior to Termination of Marriage, (Apr. 3, 2009). 36 Id.; INA § 216(d)(a)(A). 35

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A copy of Form I-751 is included as Appendix 7-D. As you can see, it is straightforward. The form does bring up important legal issues, however.

4. Did Children Immigrate Based on the Marriage? Part 5 of Form I-751 refers to children who immigrated based on the marriage. These children are conditional residents and must file to remove conditional status. This is discussed in more detail in § 7.27.

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§ 7.16 Application Procedure: Filing, Interview, Standard for Approval, Denials Filing the Petition. Some rules for filing the joint petition are found at 8 CFR § 216.4. To file the joint petition, the couple submits three things: the Form I-751; the supporting documentation to show that the marriage was bona fide at inception (not entered into solely for immigration purposes); and a filing fee of $505 plus an $85 biometric fingerprint fee. (Always check the CIS website at www.uscis.gov to confirm the correct current filing fee.) File the joint petition by mail with the CIS Regional Service Center that has jurisdiction over the area where the conditional resident lives. This address is listed on the Form I-751 instructions. (Because CIS mailing addresses sometimes change, you should also check the CIS website at www.uscis.gov to confirm the correct address.) Be sure to include evidence that the marriage is legitimate. This is the same kind of evidence as you would bring to a marriage interview, but will normally be evidence from the time period in the marriage after the noncitizen adjusted status or entered with his or her immigrant visa. See Unit 5. Including sufficient evidence in the application may help the client avoid having to go to a CIS interview. Notice of an Interview. CIS can choose to interview the couple, but it is not required. An interview will most likely take place if the I-751 raises concerns, or is not well-documented. Additionally, CIS may randomly pick some petitions for interview. On the other hand, if the couple files a joint petition with plenty of supporting documentation the CIS often waives the interview. If CIS chooses to interview the couple, the couple must attend the interview. If the couple is outside of the United States at that time, they must come back to the United States for the interview.

WARNING: Whenever possible, the couple should not go to the interview without a legal representative! If you are not an accredited representative (and therefore will not be allowed in the interview), you should try to help the couple find an experienced lawyer or accredited representative to go with them. The presence of a representative reduces the opportunity for abuse on the part of the CIS examiner.

If the CIS chooses to interview the couple, it must schedule the interview within 90 days of the filing of the petition. INA § 216(d)(3). The CIS has 90 days after the interview to issue a decision. INA § 216(c)(3)(A). Despite the mandatory language of the statute, the CIS has stated

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that it feels it can interview a couple more than 90 days after the application is submitted and deny the joint petition.37

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Standard for Approval and Requests for Evidence. According to the regulations, the CIS must approve a jointly filed petition if it determines that all of the following conditions are met:38

In cases where the couple is still legally married but the couple is legally separated or in divorce or annulment proceedings, the CIS may issue a RFE with an 87-day response period asking the conditional resident to provide a copy of the final divorce decree or annulment. The applicant should also request that the CIS treat the jointly filed I-751 petition as a waiver petition. This is important because it will help the applicant avoid having to file an entirely new I-751 waiver with new fees. In the case where the applicant does not have the final divorce decree or annulment by the 87-day deadline, it is important to respond to the RFE nevertheless, and provide an explanation with evidence, such as documentation showing where the couple is in the process of divorce proceedings. For example, in California, there is a 6-month waiting period in order for a court to finalize a divorce. If the conditional resident applicant fails to respond to the RFE or to provide the requested information to the satisfaction of the CIS adjudicating officer, the examiner will determine whether there is sufficient evidence of a good-faith marriage to adjudicate the petition as is. If so, CIS will then either approve or deny the petition based on that evidence. If the petition is being adjudicated at a CIS Service Center, it is likely that the Service Center will forward the file to the local CIS office for an interview (see below). The local office will then conduct an interview to determine whether or not the four facts listed above have been established, and if so, the petition should be approved. Denials and Appeals. If the CIS denies the joint petition, it will begin removal proceedings against the conditional resident. CIS may only deny the joint petition on one of three grounds (unless the couple failed to attend the interview): 1) the marriage was fraudulent at its inception; 2) the marriage has been terminated; or 3) the petitioner was paid a fee to enter into the marriage. The conditional resident can ask for a substantive review of the denial by:

37

See Acting Associate Comm’r, Legal Opinion of James A. Puleo, dated June 21, 1990, reproduced in Interpreter Releases, 991 (Aug. 31, 1990). 38 CIS Memorandum, Acting Associate Director, Donald Neufeld, I-751 Filed Prior to Termination of Marriage, (Apr. 3, 2009); INA § 216(d)(a)(A).

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1. The qualifying marriage was legal in the place where it took place; 2. The qualifying marriage has not been legally annulled or terminated; 3. The qualifying marriage was not entered into for the purpose of procuring permanent residence status for the immigrant spouse; and 4. No fee was paid in connection with the filing of the petition (other than legal fees paid to a lawyer).

  

renewing the joint petition in removal proceedings before an immigration judge; filing a motion to reopen by showing new facts; or filing a motion to reconsider.

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If the CIS denies the joint petition because the couple failed to show up for the interview or failed to submit additional evidence in response to a Request for Evidence, and the spouses are still married, the couple should file a new joint petition. If the marriage has terminated or the petitioner refuses to cooperate in filing a new petition, the conditional resident should file an I751 waiver. However, should such a turn of events occur after the initial filing of the joint petition, the applicant may be able to avoid having to file a new I-751 as a waiver and pay the fees anew, simply by notifying CIS that she or he has legally separated from his or her spouse or that divorce or annulment proceedings are pending. In that case, CIS should issue an RFE and give the applicant 87 days to submit a written request that the previously filed I-751 be treated as a waiver along with a copy of a final divorce decree or annulment (see § 3.15 above for more details). Then CIS will amend the I-751 and treat it as a waiver request in lieu of a joint petition. Timing of the notification is critical here, as in many states, divorces take more than 87 days to finalize.

CAUTION: Annulments should be carefully reviewed, hopefully before the annulment is agreed to by the immigrant and is final, since many annulments make an allegation of fraud. If the fraud was allegedly undertaken by the immigrant, CIS could have a basis for alleging that the immigrant committed marriage fraud.

In removal proceedings, the government has the burden to prove that a joint petition substantive denial was proper. If a second or late filed joint petition (or waiver) is pending during removal proceedings, generally judges will continue the proceedings until the waiver is adjudicated. Immigration Judges do NOT have jurisdiction to rule on an I-751 application in the first instance (when it is initially filed), but will hear an I-751 after CIS has denied it. This is considered “renewal” of the waiver application before the Immigration Judge, but in the instance of a waiver, the applicant has the burden to show that the waiver should be granted. If the immigration judge (IJ) rules against the petitioner in removal proceedings, the applicant can appeal to the BIA. If the BIA denies the petition, the applicant can appeal to the circuit court of appeals.

§ 7.17 Termination of Conditional Residency by CIS during the “Testing Period” Under INA § 216(b)(1), CIS can revoke conditional residence and begin deportation proceedings in three situations before the two-year testing period ends:

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1. The marriage has been judicially annulled or terminated, except through the death of the citizen or permanent resident spouse; 2. The CIS decides that the marriage is a “sham,” that is, that the couple married only for immigration reasons; OR 3. The CIS learns that someone was paid to file the original I-130, other than a legal worker who prepared the document.

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CIS must send the conditional resident written notice that it intends to terminate conditional residence. The conditional resident must have a chance to answer the charges of CIS.39

PRACTICE TIP: Four Things to Do When Clients First Immigrate as Conditional Residents 1. Make sure that the clients understand what their filing deadline is and what is required. State that this is their responsibility. Give them something in writing that explains the process and shows them their 90-day period. Tell them to contact you right away if their address changes. Put the deadline in your own tickler system. 2. Ask the clients to begin collecting documents now that they can use in two years to show that they have a bona fide marriage. This includes: joint income taxes, joint bank accounts, utility bills and lease in both names, joint purchases, photographs, etc. Although some married couples put the name of only one of the spouses on the bills, make sure your clients have most of the bills in both their names. This way it will be easier to prove that the marriage is a bona fide marriage. 3. Tell them that, although it will be difficult for the conditional resident to immigrate if the marriage ends before two years, a waiver is possible. Make sure the conditional resident understands that he or she is not completely dependent on the spouse. 4. Inform your client about the ability of spouses of U.S. citizens to naturalize after three years of lawful permanent residence instead of the traditional five. The two years of conditional residence count toward the three years needed. In addition, the naturalization application can be submitted 90 days prior to reaching the three-year period of permanent residence, but not before the parties have been married to each other and living with each other for at least three years and the U.S. citizen spouse has been a U.S. citizen for at least three years. See Unit 17

39

8 CFR § 216.3(a).

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Note that such a termination is different than when a conditional resident simply fails to file a joint application or a waiver before the end of the waiting period. When nothing is filed, conditional residency terminates automatically at the end of the waiting period and the CIS is not required to give any notice to the conditional resident.

and the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide.

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PART THREE: ADVANCED ISSUES IN CONDITIONAL RESIDENCY WAIVERS Lupe is married to Ron, a U.S. citizen. Lupe is a conditional permanent resident, based on her marriage to Ron. Ron and Lupe have one U.S. citizen child, Billy. Billy has very bad asthma and requires medical care. A year after Lupe becomes a conditional resident, Ron leaves her for another woman. He does not send any money to support Lupe and Billy. Ron told Lupe that if she tries to get any child support from him, he will have the immigration authorities remove her. Lupe is afraid that Ron can have her removed. She is sure that he will not file a joint petition with her to remove conditional residency when she needs to in nine months. Lupe is eligible for a waiver of the requirement that she file a joint petition. Her waiver might be based on extreme hardship to herself or Billy, if Lupe were to be deported. If the marriage ends, Lupe can also base her waiver on the fact that she married Ron in good faith and that it was not her fault that Ron refused to file a joint petition with her. In addition, if Ron ever battered or abused Lupe or Billy, Lupe can seek a waiver based on that ground.

§ 7.18 Introduction to Waivers of the I-751 Joint Filing Requirement As discussed in Part Two, couples who are still married and want to have a relationship together turn conditional residency into permanent status by filing a joint petition. However, sometimes the joint petition cannot be filed. The marriage may have ended in death, divorce, or annulment. Even if the marriage has not legally ended, the U.S. citizen or permanent resident spouse may be hostile and refuse to help the conditional resident spouse. A conditional resident spouse in this position may be eligible for a waiver of the requirement that a joint petition be filed. He or she must still file form I-751, but can do so alone, without the other spouse’s participation. Under INA § 216(c)(4), there are three grounds on which the CIS will grant a waiver. The conditional resident must show that: 1. the marriage began in good faith and has ended (other than through death); OR 2. extreme hardship (that arose during the conditional residency period) will result if the conditional resident is deported; OR 3. the conditional resident got married in good faith and during the marriage she or her child was battered or subjected to extreme cruelty by the lawful permanent resident or U.S. spouse, and she was not at fault in failing to meet conditional residency requirements.

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If the conditional resident does not file the I-751, either jointly with the U.S. citizen spouse or individually based on one of the above grounds, he or she will lose legal status automatically and be subject to removal. For clients who cannot file a joint petition, the legal worker must investigate the possibility of filing the I-751 individually, requesting a waiver of the joint filing requirement.

§ 7.19 When to File Neither the INA nor the regulations state when a waiver must be filed. The waiver application may be filed at any time before, during or after the 90-day period before the second anniversary of receipt of conditional residency. The waiver should be filed prior to the 90-day period if the marriage has already ended in divorce or annulment, since the conditional residency will also be automatically revoked at that point, although it is still acceptable to file at a later time. If the marriage has not yet ended, the waiver should be filed during the 90-day window, unless the waiver is based on a good faith marriage and divorce; in that case waiting until the divorce is final will avoid the problem of adjudication and denial because a divorce is not yet final. If the waiver is not filed before the expiration of conditional residence, an immigrant’s residence will be automatically terminated but CIS must still accept the waiver filed subsequently, and the person’s residency will be reinstated while the waiver is pending. For example, the couple might initially jointly file, but while the I-751 is pending, they divorce. In this case, the immigrant could then re-file the I-751, asking to waive the joint requirement.40 It may be possible to avoid having to file a new I-751 as a waiver and pay the fees anew, if the applicant noncitizen spouse notifies CIS of the legal separation or that divorce or annulment proceedings are pending. CIS should then issue an RFE allowing 87 days to submit a written request that the previously filed I-751 be treated as a waiver with a copy of a final divorce decree or annulment (see § 7.15 above for more details). The I-751 would then be amended and treated as a waiver request instead of a joint petition. Example 7.19: Geraldo is a conditional resident whose U.S. citizen wife divorces him after one year of marriage. Geraldo’s sister-in-law, who never liked him, informs the CIS about the divorce. CIS issues an intent to terminate conditional permanent resident

40

Matter of Stowers, 22 I&N Dec. 605 (BIA 1999); see also 66 Interpreter Releases 430, 433 (Apr.17, 1989); 67 Interpreter Releases 159, 168 (Feb. 5, 1990).

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NOTE: Getting Help. In many cases CIS is extremely hard on people who applied for waivers of the joint filing requirement. If at all possible, the person should have a legal representative at the CIS interview. If you are not an attorney or accredited representative and therefore cannot accompany the person to the interview, try to refer the person to an experienced attorney or accredited representative who can represent the person at the interview.

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status. If he qualifies for a waiver, Geraldo may file before the 90-day period in order to avoid being deported.

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PRACTICE TIP: If it becomes apparent before the 90-day period that the conditional resident will need a waiver, it may be best practice in many cases to file when the grounds for the waiver arise.

PRACTICE TIP: Where the Divorce Will Not Be Final before the Expiration of Conditional Residence. A common situation is one where divorce proceedings have been or will be initiated but the divorce will not be final before the expiration of conditional residence. In that instance, the best practice would be to file a waiver on one of the other two grounds if that is an option—extreme hardship or battered spouse—or to file the I-751 jointly if the spouse is amenable. This prevents the conditional residence from terminating and allows your client to continue as a conditional resident. If a joint petition was initially filed, once the divorce is final CIS should be notified as explained above. If a waiver on a different ground was filed, a second I-751 petition can still be filed based on the good faith but terminated marriage ground. In a bona fide marriage, this is the strongest waiver petition, which is why most petitioners file it as soon as they are eligible to do so, i.e., when the divorce is final.

§ 7.20 How to File a Waiver In order to obtain a waiver, the conditional resident must file: Form I-751 (“Petition to Remove Conditions on Residence”); the $505 filing fee plus $85 biometrics fee and supporting documentation. These were the required fees as of March 1, 2014. The petition must include the declaration of the applicant, explaining the reason for requesting a waiver, and be accompanied by documents that support the argument. Form I-751 requires that a conditional resident choose the basis for the waiver from one of the categories listed: the petitioning spouse is deceased; the marriage was entered into a good faith but was terminated; extreme hardship; and battery/extreme cruelty by U.S. citizen or LPR. However, a conditional resident may choose more than one basis and argue them in the alternative.41 Regardless of the basis of the waiver, you must submit a statement of explanation and supporting evidence. The statement should be a detailed affidavit in the client’s words. Explain this to the client and ask her to draft a statement that you and your client can eventually finalize together (see Unit 15 for more information on how to work with clients on declarations in the 41

See Gordon & Mailman § 42.05[3][a]; Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992); Matter of Anderson, 20 I&N Dec. 888 (BIA 1994).

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asylum context, which can be a similar process to working with clients on statements and affidavits in the waiver context).

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If the marriage was bona fide, e.g., not just for immigration purposes, the person should give details and documents that support the legitimacy of the marriage. However, if the marriage was not bona fide, an extreme hardship waiver may still be available. Matter of Balsille, 20 I&N Dec. 486 (BIA 1992). He or she should explain why the marriage ended (if it did) or why the relationship became hostile, and why a waiver should be granted. The heart of the statement should be a discussion of the basis of the waiver. See §§ 7.21–7.23. For a discussion of what to do if the citizen or resident spouse has died, see § 7.26.

This is the broadest waiver. Every applicant whose marriage has ended should cite “good faith” as a reason the waiver should be granted. This waiver requires the immigrant spouse to show three things: 1. She intended to have a bona fide marriage when she got married. To prove this, you and your client should gather all of the same kind of evidence that is submitted with the I-130 for a marriage fraud interview or with an I-751 joint petition. See Unit 5. CIS suggests showing evidence of joint finances, the length of time they lived together, birth certificates of any children born to the couple, and the reason the marriage ended. 2. The marriage has ended other than through the death of the spouse. The conditional resident should submit the decree of divorce, annulment, or other termination proceedings. (Under the old law, the conditional resident had to be the person who filed to end the marriage. This requirement has been eliminated, and now it does not matter who filed for divorce.) The marriage must already be terminated to file for this waiver; the mere commencement of divorce proceedings is not sufficient.42 3. It was not her fault that she could not file a joint petition. Under the regulations, it is not clear what “fault” means. 8 CFR § 216.5(a)(l). Certainly the person should emphasize that she was committed to the marriage and describe the things she did to try to make the marriage work. If the applicant’s spouse “caused” the demise of the marriage, through an affair, or abuse, or abandonment, or some other similar action, and there is documentation of this, including statements of third parties, the applicant should submit these documents as well.

42

See William Yates, Acting Associate Director, Operations, CIS Memorandum HQADN 70/23.12, (Apr. 10, 2003), available at www.uscis.gov/files/pressrelease/CRwaiver041003.pdf.

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§ 7.21 The “Good Faith” Waiver

§ 7.22 The Extreme Hardship Waiver

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Another basis for a waiver is to show that extreme hardship will result if the conditional resident is deported. INA § 216(c)(4)(A). The CIS will consider only hardship that arose after the conditional resident acquired conditional residence status.43 Who must suffer the hardship? Neither the statute nor the regulations answer this question. CIS officials have stated that the hardship must be to the conditional resident spouse, to a dependent child, or to a new spouse.44 If you have a case where removal would cause extreme hardship to another close relative or to the community, you should discuss the case with an attorney. Extreme hardship is a standard that is used in other areas of immigration law, especially in the former suspension of deportation and some waivers of inadmissibility. Extreme hardship means hardship above and beyond that which a person who was forced to leave the United States normally suffers. 8 CFR § 216.5(e)(1). To determine extreme hardship, consider what aspects of a client’s life would change if she had to go back to her country. Consider especially factors such as: age, family ties in the United States and the home country, how long she has lived in the United States, health and medical needs, economic and political situation in the home country, her position in and involvement with her community, keeping in mind that such factors must have arisen after the person became a conditional resident, in order to be considered. The BIA has identified the following as factors to consider in evaluating extreme hardship in the context of suspension of deportation:              

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The age of the applicant, both at entry and at the time of application for relief; The age of the qualifying relatives; The applicant’s length of residence in the United States over the statutory minimum; The applicant’s family ties, both in the United States and abroad; The health of the applicant and qualifying relatives; The applicant’s financial status and occupation; The applicant’s ties to the community; The economic and political conditions in the home country; Any disruption of educational opportunities; Any adverse psychological impact of deportation; Linguistic or cultural factors that make securing employment in the home country difficult; Additional factors relevant to conditions in the home country; The applicant’s involvement and position in the local community; and The applicant’s immigration history.

INA § 216(c)(4). See 67 Interpreter Releases 341 (Mar. 19, 1990).

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Advocates should not feel limited to the above list of factors, but should include all factors that are relevant to the particular case. See Unit 11 for more information on extreme hardship.

If you were drafting a hardship waiver for Lupe, what kinds of hardship would you discuss? Whose hardship would you consider? Suggested answers are at Appendix 7-A.

The burden on the conditional resident to prove extreme hardship is heavy. The requirements for a waiver based on good faith are less strenuous.45 Because the extreme hardship waiver is difficult to prove, you and your client should consider whether she may qualify for the other two types of waivers, good faith or battery/extreme cruelty. However, there are two situations where the extreme hardship waiver is the only option: 1) where the marriage was not bona fide; or 2) the parties cannot or will not terminate the marriage, and there is no basis for a battered spouse waiver.

§ 7.23 The Battery or Extreme Cruelty Waiver Conditional residents who have suffered from physical abuse or extreme cruelty at the hand of their spouses or parents also can file a waiver to the joint petition requirement. INA § 216(c)(4)(C). The purpose of this waiver is to allow conditional residents the opportunity to leave the abusive relationship without worrying about the fear of losing the option to gain lawful permanent resident status. The applicant must prove the following: 1. She was married in good faith. 8 CFR § 216.5(e)(3). Proof of this requirement is discussed above under the “good faith” waiver. 2. Her USC/LPR spouse battered her or her child or treated her or her child with extreme cruelty during the marriage. Note that a conditional resident spouse can also file this waiver if her children were the victims of the physical or mental abuse, and it is not required that the children have U.S. citizenship or permanent resident status. 8 CFR § 216.5(e)(3). 45

See Gordon Mailman § 42.05[3][c].

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Exercise 7.22: Re-read the story at the beginning of this part about Lupe, a conditional resident, and her son Billy, who has asthma. Lupe is from an island in the Philippines that is extremely poor, with a primitive sewage system, and no medical facilities or public education offered beyond the 8th grade. The area has had many deaths due to fighting between government and guerrilla groups. Lupe has lived in the United States for ten years. She is very active in her church. Her parents are here and are permanent residents. Billy gets monthly treatments for his asthma, paid for by the health insurance Lupe has at her job. Lupe wants to eventually remarry Reynaldo, a permanent resident. She has a good relationship with his two children.

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3. CIS definition of extreme cruelty includes, but is not limited to, any act of violence or threatened act of violence resulting in physical or mental injury, psychological abuse, and sexual abuse or exploitation. 8 CFR § 216.5(e)(3)(i). The law does not require that the marriage have ended for the conditional resident to file for a waiver based on battery or extreme cruelty. It also does not require that the applicant prove hardship. CIS’ regulations clarify that the battered spouse waiver is available to conditional residents, regardless of their current marital status. 8 CFR § 216.5(e)(3). Many people have been trapped in abusive situations because their lawful permanent resident or U.S. citizen spouse threatened he or she would not file a joint petition if the abused spouse left the marriage. This waiver is designed to allow those people to secure their lawful permanent resident status without the cooperation of the abusive spouse or parent.

§ 7.24 Proof of Battery or Extreme Cruelty In order to prove battery or extreme cruelty, the conditional resident should submit documents such as police reports, court transcripts and court orders, doctor’s reports, medical records, affidavits from school officials and social service agencies reports, or affidavits from police, judges, medical personnel, school officials, and social service agencies. The conditional resident should also submit affidavits or declarations from people aware of the abuse. It is highly recommended that the conditional resident include a psychological evaluation. CIS initially required that a psychiatrist, clinical psychologist, or licensed clinical social worker complete the evaluation. However, Congress recognized that not all immigrants have access to mental health professionals and lessened this requirement to include any credible evidence that is relevant to the petition.46

§ 7.25 Additional Help for Battered Spouses and Children As part of the 1994 Crime Bill, battered immigrant women began to have new opportunities to obtain lawful status. They may be eligible to self-petition for an immigrant visa under the Violence Against Women Act (VAWA) or to apply for a special three-year cancellation of removal. CIS must consider any credible evidence relevant to the application in acting on these applications, as well as acting on the battered spouse waiver to the I-751 joint filing requirement. A discussion of this provision is included in Unit 5. A different section of the law provides battered spouses with a special cancellation of removal application. (See Unit 11 for discussion of cancellation of removal.) For more information on VAWA immigration relief for battered spouses and children, see the ILRC’s publication, The VAWA Manual: Immigration Relief for Abused Immigrants.

46

See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.103-322, 108 Stat 1796, § 40702, amending INA § 216(c)(4).

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Information on this manual as well as how to order it can be found on the ILRC website at www.ilrc.org/publications.

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§ 7.26 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died

The BIA held “that a conditional permanent resident under INA § 216(a) who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under INA § 216(c)(1) does not need a separate § 216(c)(4) hardship waiver if the petitioning spouse died during the two-year conditional period.” The I-751 petition, in this instance, will be treated as a joint petition and may only be denied for the reasons a joint petition could be denied (e.g., fraudulent marriage, payment to petitioning spouse or termination other than death). Matter of Rose, 25 I&N Dec. 181 (BIA 2010).

§ 7.27 Dependent Sons and Daughters Dependent sons and daughters of conditional residents also immigrate as conditional residents. This may include children who immigrate as derivative beneficiaries, as well as children who immigrate directly as stepchildren of the petitioner. INA § 216(h)(2). (To review who is a derivative beneficiary or stepchild, read § 4.6.) The INA calls these children alien sons and daughters. INA § 216(h)(2). Like a conditional resident spouse, a conditional resident son or daughter must apply to remove conditional status. Example 7.27-a: Marie Paule received conditional residency via adjustment of status through her marriage to Steve, who is a U.S. citizen. Steve also petitioned for Marie Paule’s unmarried 17-year-old son Jacques as his stepson (this is because Jacques does not qualify as a dependent beneficiary of Marie Paule since she is an immediate relative). Jacques is also a conditional permanent resident, because his mother’s marriage to Steve, which created the stepchild/stepparent relationship between him and Steve, took place less than two years before Marie Paule was granted adjustment. Thus, he takes the same conditional status as his mother. Two years later, when Jacques is 19, he can remove his conditional residency status.

47

See Letter from R. Michael Miller, Dep. Ass’t Comm. Adj. to Gerald Linkon, reproduced at 66 Interpreter Releases 982 (Aug. 28, 1989).

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CIS can grant a waiver to a conditional resident whose spouse has died. 8 CFR § 205.1(a)(3). The conditional resident must submit a copy of the death certificate. As with the other waivers, the person does need to submit evidence that the marriage was bona fide. If there is no indication of marriage fraud, the person does not need to prove extreme hardship.47 When filing the I-751, check Box “2c,” stating that spouse is deceased.

Depending on their situation, the son or daughter may be included on the parent’s I-751 joint petition or waiver. The rules about when and what children file are somewhat complex. You do not need to memorize them; just know that the issue exists and where to look for the law. Here are examples of situations: When the Parents Are Submitting an I-751

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1. The son or daughter became a conditional resident within 90 days of the date the parent did. In that case, the son or daughter can be included in the parent’s I-751 and does not need to file a separate petition. 2. The son or daughter received conditional residency more than 90 days before or after the parent did. The son or daughter must submit a separate I-751 application. 8 CFR § 216.4(a)(2). This waiver should be submitted at the same time that the parent applies to remove conditional residency—even if the son or daughter hasn’t reached the two year anniversary. Example 7.27-b: Roberto became a conditional resident as the spouse of a lawful permanent resident. His son immigrates as a conditional resident as Roberto’s dependent child one year later. His son will have to file his own I-751 application because he did not come within 90 days of his parent’s grant of conditional residence. The children do not need to show hardship; they need only show that the parent’s marriage was bona fide. If the parents’ I-751 joint petition has been granted, the child can submit a copy of the approval notice to show that the marriage is bona fide. The child’s waiver can be submitted at the same time as the parent’s joint petition, as long as the parent’s conditional residency expires before the child’s does. When the Parents Request a Waiver 1. The Conditional Resident Parent Must File an I-751 Waiver. The child should be included in the parent’s waiver application. The decision for the child’s case will be the same as the parent’s. The child does not have to establish additional hardship. 2. The Conditional Parent Never Files an I-751 Waiver. This could happen if the conditional resident parent dies or decides not to pursue a waiver. In this case, the son or daughter must file a waiver of his or her own to have conditional residency removed.

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§ 7.28 Special Situations Involving Conditional Residency and Waivers48 Failing Marriages. Even if a marriage is failing and no longer viable, the CIS may approve a jointly filed I-751 petition if it believes that the marriage was entered into in good faith, as long as the petitioner appears at any interview that might be scheduled.49 In other words, if the marriage is failing at the end of the two-year period—even if the parties have separated—CIS must still accept a timely filed joint petition and adjudicate it. The parties’ conduct after they enter the marriage should affect the CIS’ decision only if it bears on the parties’ state of mind at the time they were married.50

2. Separated, but Reconciliation Unclear or Failed. If the U.S. citizen spouse is willing, he or she can still file a joint petition because what matters was whether the marriage was bona fide when it was entered into. If the U.S. citizen spouse refuses to file the joint petition (I-751), then a waiver should be filed. It is more advantageous to file the joint petition because there are strict rules about when a joint petition can be denied; waiver decisions are discretionary. In addition, interviews are more common for waiver applicants than for joint petitioners. 3. No Possibility for Reconciliation and No Possibility for Joint Petition. The only option is to apply for waiver of the termination of conditional residency (waiver of joint filing requirement). A waiver application should be filed, if possible, before the expiration of the conditional residence EVEN IF the marriage has not yet been terminated. The waiver can be filed on the basis of extreme hardship or battered spouse, depending on the facts. A second waiver application can be filed once the marriage has been terminated. 4. Marriage Terminated and Conditional Resident Not at Fault. The conditional resident can file for a waiver (I-751) whether or not he or she initiated the divorce. 5. Marriage Entered into in Bad Faith or Can’t Be Terminated. The applicant may file for an extreme hardship waiver based on factors that have arisen since entry. Further, all

48

See 8 CFR §§ 216.4, 216.5. “INS Answers Marriage Fraud Questions,” Questions 38-40, reprinted in 67 Interpreter Releases 334, 339 (March 19, 1990). 50 Matter of McKee, 17 I&N Dec. 332 (BIA 1980). 49

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1. Separated, but Attempting to Reconcile. Should one file a joint petition? Yes, so long as the couple can demonstrate good faith in trying to continue the relationship, the joint petition should be granted. Affidavits should include an explanation of the circumstances of the separation and the couple’s attempts to reconcile. The immigrant can always file a waiver if reconciliation fails and the joint petition is withdrawn.

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factors need substantial documentation. The courts are conflicted as to whether an extreme hardship waiver may be granted if the marriage was a sham marriage.51 6. Conditional Resident Must Travel and Will Not Be Present within 90-Day Filing Period. One can petition or file for a waiver from abroad, but your client may still be required to attend an interview at a local CIS office although a waiver may be sought.

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See 8 CFR §§ 216.4, 216.5.

FOR MORE INFORMATION, see: Immigrants Rights Manual, Chapters 2 and 3 Immigration Law and Defense, Chapter 4 Immigration Law and Business, Chapter 3

51

See Waggoner v. Gonzales, 488 F.3d 632 (5th Cir. 2007) (holding that a noncitizen may seek an extreme hardship waiver even if marriage was not in good faith because the language of the extreme hardship statute is clear and does not require a good faith marriage to qualify); Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010) (impliedly agreeing with Fifth Circuit but still denying extreme hardship claim where wife withdrew joint petition and stated marriage was solely to obtain immigration benefit); but see Velazquez v. INS, 876 F. Supp. 1071 (D. Minn. 1995) (finding that the extreme hardship provision does not apply if sham marriage).

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APPENDIX 7-A Answers to Exercise Questions

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Exercise 7.2 1. Maria is an immediate relative and so is immediately eligible to immigrate (which is a requirement for adjustment). Because she entered without inspection, the only way that she can adjust is under INA § 245(i). However, she is not eligible for 245(i) because an I-130 was not submitted by the 245(i) filing deadline (April 30, 2001). She will have to do consular processing.

2. In this situation, Maria can adjust under § 245(i). Her husband can file an immediate relative petition for her and she can file an adjustment application at the same time, using the petition of her sister to “grandfather” under § 245(i). Maria also meets the physical presence requirement as she was in the U.S. on December 21, 2000, which she will need to prove. 3. Abdul can adjust under § 245(a). He meets the first three requirements because he entered with permission and a visa petition can be filed for him which will let him immigrate right away as an immediate relative. The fourth requirement -- to stay in status and not work illegally -- does not apply to him since he is an immediate relative. See INA § 245(c)(2). Since he meets the requirements for § 245(a) adjustment, he does not have to adjust under § 245(i) and pay the $1000 fine. 4. Carlos is a second preference and his daughter Teresa can immigrate as a derivative beneficiary. They cannot adjust right now because their second preference visa petition does not have a current priority date, so they are not "immediately eligible" to immigrate. When they get a current priority date, Carlos and Teresa cannot adjust under § 245(a) because they are no longer in legal status. As the spouse and child of a permanent resident, Carlos and Teresa are second preference. Because the I-130 petition was filed by the 245(i) deadline, Carlos and Teresa will be able to adjust under § 245(i). In that case, Carlos will have to pay the $1000 penalty fee, because he is adjusting under § 245(i) and he does not fall within one of the two exceptions (unmarried child under 17 or family unity applicant). Teresa will not have to pay the $1000 penalty as long as she is still a child under 17. In terms of grounds of inadmissibility, Carlos would be subject to the three and ten year bars if he left the U.S. because he began to accumulate unlawful presence after April 1, 1997. (Teresa probably does not have to worry about that bar because it does not apply to minors under age 18.) However, since Carlos and Teresa are eligible for 245(i), they can adjust status instead of leaving

Appendix 7-A-1

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Note that since she has been unlawfully present in the U.S. she will be subject to the 3/10 year bars. She will either have to request a provisional waiver to the bars and have it approved before she leaves the U.S., or will be required to submit the waiver at the consular office. In either case, she will need to demonstrate that barring her from immigrating to the U.S. will cause extreme hardship to her husband.

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the U.S. Because he will not leave the U.S., he will not become inadmissible under a three or ten year bar. 5. If Rhonda naturalizes to U.S. citizenship, Carlos will become an immediate relative (husband) and Teresa will become an immediate relative (stepdaughter). Since immediate relatives cannot have derivatives, Rhonda will need to submit an I-130 petition for Teresa, and show that Teresa was under 18 at the time Rhonda married Teresa’s father, Carlos. Although the date of submission will be after the 245(i) filing deadline, Teresa would be able to adjust in the US since she was a derivative under her father’s I-130 petition which was filed by the deadline of April 30, 2001. However, it is important to note that if Rhonda naturalizes, both Carlos and Teresa will not need 245(i). They would be able to adjust status under 245(a) because although they are no longer in legal status, they were inspected and admitted to the U.S. and are now immediate relatives. 6. He cannot adjust presently, except in the Sixth Circuit, because USCIS takes the position that a grant of TPS does not cure Yusuf’s entry without inspection. He would need to undergo consular processing, and unless he was granted TPS within 179 days of entering the U.S., he will need to apply for a waiver for unlawful presence – either through the provisional waiver process here in the U.S. which is available for immediate relative spouses of US citizens (which is the best course of action) or at his consular interview.. 7. If Yusuf applies for and is granted advance parole, upon his return to the U.S. he might be eligible to apply for adjustment of status, since he will have been “inspected and paroled.” His travel on advance parole will not count as a “departure” triggering the 3/10 year bars, due to the BIA decision in the Arrabally case. Whether he will be able to adjust or not is currently in flux, some with TPS have done so recently, but CIS has indicated that it may no longer find such applicants eligible. 8. Carmen is second preference with a current priority date. She cannot adjust under § 245(a), because she entered the U.S. illegally. She can apply for adjustment under § 245(i), since she is currently eligible to immigrate because she has a current priority date and her I-130 was filed by the 245(i) deadline. She does not have to pay the $1000 penalty fee under the new law, because she fits one of the exceptions: she is the spouse of a legalized alien and is qualified and has applied for family unity. Exercise 7.12 1. Kwan is a conditional resident because he adjusted status within two years of the marriage. 2. Maria is a conditional resident because she immigrated within two years of the marriage. 3. Marco is not a conditional resident because he immigrated more than two years after he married.

Appendix 7-A-2

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4. Franny is not a conditional resident. A spouse is not a conditional resident unless he or she is immigrating on an I-130 filed by his or her spouse. Franny is immigrating as a derivative beneficiary. Since Franny and Frank's marriage was not the main basis for the visa petition (Frank's relationship to his brother was), they do not have to "prove" their marriage by going through conditional residency. As we'll see, however, children who are derivative beneficiaries are conditional residents, if the parent is.

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Exercise 7.22: Lupe and the Extreme Hardship Waiver All of these factors could show extreme hardship.

Lupe's U.S. citizen son, Billy, will also suffer hardship: he will either lose his mother or go with her to a place where he cannot get medical treatment for his severe asthma. He will be separated from one of his parents by either accompanying his mother to the Philippines or by staying with his father and is too young to understand why one of his parents is seemingly abandoning” him. In addition he may have other health problems and will not get a decent education in the Philippines. Reynaldo, Lupe’s LPR fiancé, and his young motherless children will suffer if they are separated from Lupe for several years before he can immigrate her. It might further strengthen the case if Lupe and Reynaldo actually get married. With your assistance, Lupe should also gather documents to prove all of these factors, including Billy’s birth certificate; documents such as taxes, bills, employer letter, Billy’s school transcripts and awards, etc., to prove length of residency; documents regarding country conditions in the Philippines, particularly in Lupe’s hometown, including lack of medical treatment for Billy’s asthma and poor educational opportunities; copies of “green cards,” naturalization certificates, and birth certificates of Lupe’s family members, including Reynaldo and his children, who are living here in the U.S.; documents from church pastor or priest and community organizations, particularly letters and awards regarding Lupe’s attendance and community service; employer letter from Lupe’s job stating her great value to the company and her length of employment; documents proving her health insurance benefits; letter from Billy’s doctor regarding his treatment in the U.S. and anything negative the doctor knows or is concerned about regarding treatment in the Philippines; letters from Billy’s teachers and psychological evaluation of Billy to prove how he would suffer emotionally should he be forced to be separated from one of his parents and an expert opinion, if possible regarding how Lupe might lose custody of Billy should she be forced to leave the U.S.. Finally, gather documents demonstrating Lupe’s and Billy’s relationship with Reynaldo and his children, and how they would suffer if separated from Lupe, including affidavits or letters from each of them, if possible and from third parties who know them well.

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The fact that Lupe has lived in the U.S. for a long time, has many relatives in legal status, and comes from a war-torn and underdeveloped area show hardship to her. Here she has family, church and community work, a good job, and health insurance. She will need to show that these conditions and factors arose after she became a conditional resident, however. She could be torn from her young son Billy, if her husband gets custody and blocks Billy's removal to another country.

APPENDIX 7-B SAMPLE LETTER TO CLIENTS REGARDING CONDITIONAL RESIDENCY Name of your office Your address Date

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Name of client Client’s Address Dear ____________________ (insert name of clients), Based on your recent marriage, ______________________ (insert name of conditional resident spouse) has received conditional permanent residence. Conditional permanent residence is like having lawful permanent residence (a “green card”) in many ways. You can travel in and out of the United States, you can work in the United States, and the time that you spend as a conditional resident counts toward the time you need to become a citizen. However, conditional residence is different from lawful permanent residence. You must apply to the CIS to have conditional residence turned into lawful permanent residence. You must submit and USCIS must receive this application in the 90 day period before the second anniversary of the date you received your conditional residence. ___________________ (insert name of conditional resident) must apply and USCIS must receive your application between (__________________) and (____________________). (insert dates of “window period.”) If you do not apply and/or USCIS does not receive your application within this period, your conditional residency with automatically end and you will be subject to deportation. The CIS does not have to notify you when it is time to submit your application. Therefore it is very important that you keep track of the date your application is due, and that you stay in touch with our office. If you move make sure you inform us of your new address and phone number. We need to meet with you again before your application is due. PLEASE TELEPHONE US NO LATER THAN ______________________ (insert date three months before beginning of application “window period.” This is the date you want the client to get back in touch with you.) so that we can make an appointment to meet with you. When you apply to remove conditional residency you will have to prove to the CIS that you have a valid marriage. Right now you can start collecting documents that will show that your marriage is valid. Try to do the following things as soon as you can: --put your lease or mortgage in both of your names;

Appendix 7-B-1

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--put both of your names on your bank accounts; --put both of your names on your utility bills;

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--make sure both of your driver’s licenses have your same home address on them; --keep letters that are addressed to both of you at the same address; --keep pictures that are taken of you together, especially when you are on vacation; --put your spouse on your health insurance;

--make your spouse the beneficiary of your life insurance. Set up a file now and keep copies of these documents and any other document you have that shows that you are married. The application to become a permanent legal resident is normally submitted by the two spouses together. However, if you have problems with your marriage before your application is due, please call us. It is possible in some situations to submit a waiver application even if you are no longer married. Remember, it is very important that you file and USCIS receives your application to become a permanent resident between ______________ and _____________ (insert dates of window period) or the ICE can deport you. Sincerely, Your Name

Appendix 7-B-2

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--ask your boss to change your work records to show that you are now married;

APPENDIX 7-C SAMPLE LETTER TO CLIENTS REGARDING CONDITIONAL RESIDENCY

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(SPANISH TRANSLATION)

Nombre de su oficina Domicilio Fecha Nombre del cliente Domicilio Estimados Sres. ___________________________________________, Debido a su recien matrimonio, ______________ (incluye el nombre de residente condicional) ha recibido residencia permanente condicional. En diversas formas el tener residencia permanente condicional es como tener residencia permanente legal. Puede entrar a y salir de los Estados Unidos, trabajar, y a la misma vez el tiempo que usted pase como residente condicional le vale para el tiempo que usted necesita para hacerse ciudadano. Sin embargo, residencia condicional es diferente a residencia permanente legal. Tiene que solicitar al Servicio de Ciudadania y Inmigración (CIS) para poder obtener su residencia permanente legal. La aplicación deberá ser sometida y también recibido por CIS en el período de noventa dias antes de que se cumplan dos años de haber recibido su residencia condicional. ________________(incluye el nombre de la residente condicional) deberá solicitar y CIS deberá recibir la aplicación entre ___________________ y ___________________ (incluya la fecha de período de aplicación.) Si no aplica o CIS no recibe su aplicación en este período su residencia condicional automáticamente terminará y corre peligro de ser deportado. El CIS no tiene la obligación de avisarle cuando es tiempo de someter su aplicación. Por lo cual es muy importante que tenga en mente la fecha en que tiene que someter su aplicación. Tambien manténgase en contacto con nuestra oficina. Si llegará a cambiarse, asegúrese de informarnos de su nueva dirección y de su número de teléfono. Necesitamos vernos antes de que tenga que someter su aplicación. POR FAVOR LLAMENOS antes de ____________________________(incluye una fecha por lo menos tres meses antes de que empieze el período para aplicar) para que podamos hacerle una cita. Cuando aplique para eliminar la condición de su residencia, habrá que demostrar al Ciudadania y Inmigración (CIS) que su matrimonio es válido. Desde ahora puede empezar a reunir documentos que demuestren que su matrimonio es válido. Trate de hacer lo siguiente lo mas pronto posible:

Appendix 7-C-1

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-- ponga el contrato de arrendamiento o hipóteca a nombre de los dos; -- ponga ambos nombres en las cuentas de banco;

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-- ponga ambos nombres en los cobros de utilidades; -- asegúrese que en ambas licencias de manejo, tengan el mismo domicilio; -- guarde cartas que les lleguen que tengan ambos nombres y el mismo domicilio;

-- incluya a su conyuge en su seguro de salud; -- pídale a su patrón que cambie la información en su archivo para que ahora indique que ya es casado; -- ponga a su esposo/a como beneficiario de su seguro de vida. Empieze un archivo y guarde copias de estos documentos y de cualquier otro documento que indique que están casados. La aplicación para convertirse en residente permanente legal es entregado por los dos esposos juntos, por lo regular. Sin embargo, si hay algun problema en su matrimonio antes de que se tenga que someter su aplicación, por favor comuníquese con nosotros. En algunos casos se puede someter una aplicación aún cuando no siguen casados. Recuerde que es muy importante someter su aplicación para ser residente permanente entre _________________________ y __________________________ (incluye las fechas del período de aplicación) si usted no somete su aplicación entre las fechas antes mensionadas correrá el peligro de ser deportado.

Sinceramente,

Su nombre

Appendix 7-C-2

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-- guarde fotos que se hayan tomado juntos, especialmente aquellas cuando están en vacaciones;

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Appendix 7-D-1

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Appendix 7-D-2

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Appendix 7-D-3

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Appendix 7-D-4

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Appendix 7-D-5

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Appendix 7-D-6

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Appendix 7-D-7

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Appendix 7-D-8

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Appendix 7-D-9

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Appendix 7-D-10

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Appendix 7-D-11

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Appendix 7-D-12

APPENDIX 7-E COMPARISON OF ADJUSTMENT PROVISIONS § 245(i) ADJUSTMENT

1.

Entry with inspection;

1.

Entry without inspection, or falls under one of the categories in 245(c).

2.

Applicant has not worked without authorization and has not been out of lawful immigration status, with certain exceptions.1

2.

N/A.

3.

Visa immediately available.

3.

Visa immediately available.

4.

No fixed deadline.

4a.

Must either have filed an approvable family or employer petition or labor certification on or before January 14, 1998;

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§ 245(a) ADJUSTMENT

OR

5.

N/A.

4b.

Must have filed an approvable family or employer petition or labor certification on or before April 30, 2001 and prove physical presence in U.S. on December 21, 2000.

5.

Pay $1,000 fine, with certain exceptions.2

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By Diego Bonesatti 1 This provision does not apply to applicants adjusting as immediate relatives. 2 This provision does not apply to children under the age of 17, or to children/spouses of 210/245A lawful temporary/permanent residents who apply for Family Unity benefits pursuant to § 301(a) of the Immigration Act of 1990.

Appendix 7-E-1

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APPENDIX 7-F Unit 7 Note-Taking Guide

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ELIGIBILITY FOR ADJUSTMENT INA § 245; 8 CFR § 245.1 A.

ADJUSTMENT OF STATUS UNDER INA § 245(a)

All applicants for § 245(a) adjustment must:

2. file a visa petition with the adjustment application, or already have an approved visa petition; 3. be immediately eligible to immigrate: -- immediate relative or -- if in the preference system, has a current priority date. In addition, ALL APPLICANTS FOR ADJUSTMENT EXCEPT IMMEDIATE RELATIVES OF A U.S. CITIZEN MUST: 4. be in lawful immigration status and not have worked without employment authorization. Note: IIRIRA requires, however, that immediate relatives also not have worked unlawfully for this type of adjustment. See INA § 245(a)(8). However, current CIS policy is to continue to allow immediate relatives to adjust despite the fact that they have worked. INA 245(c) has other restrictions that advocates should become familiar with. Cases for Discussion Example 1: Maria entered the U.S. without inspection and married a USC Example 2: Abdul entered the U.S. on a tourist visa that expired in 1986. He married a U.S. citizen in 1992.

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1. show that they entered the United States with inspection;

B.

ADJUSTMENT OF STATUS UNDER INA § 245(i)

Applicants for § 245(i) adjustment must 1. Already have a petition that was filed prior to May 1, 2001; 2. Be immediately eligible to immigrate;

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3. If the petition was filed between January 15, 1998 and April 30, 2001, the person must demonstrate that she was physically present in the U.S. on December 21, 2000; 4. Pay an extra "penalty" fee of $1,000; Exceptions to penalty fee: 1) children who are under 17 years old at the time of filing the adjustment application; and 2) spouses and sons and daughters who qualify and have applied for Family Unity 5. No requirement of lawful admission. Note: A ground of inadmissibility created by IIRIRA penalizes people who are present in the United States without admission or parole (entry without inspection). There is no waiver listed in the Act. However, CIS has said it will not enforce this provision, though CIS policy can change. Who qualifies under INA § 245(i)? Example 1: Maria entered the U.S. without inspection and married a USC. Example 2: Abdul entered the U.S. on a tourist visa that expired in 1986. He married a U.S. citizen in 1992. Naturalization of the Petitioner may affect derivatives. Example 3: Carlos and his three-year-old daughter Teresa entered the United States with visitors’ visas that have long since expired. Carlos married Rhonda, a lawful permanent resident, who filed a visa petition for him in 2000. For purposes of this example, we will say that Carlos does not yet have a current priority date. He wants to file for adjustment now. What can Rhonda do to help? Will there be any consequences to Teresa?

Appendix 7-F-2

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CONDITIONAL RESIDENCY, INA § 216 A.

WHO IS A CONDITIONAL RESIDENT?

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1. Person who immigrated on a marriage petition within two years of the date he or she was married. 2. “Immigrated” means a. Final CIS approval of adjustment application, OR

B.

WHAT MUST A CONDITIONAL RESIDENT DO? 1. The couple must file a Petition to Remove Conditions on Residence (Form I-751) at the proper time. 2. The proper time is USCIS must receive the petition anytime beginning three months before the second anniversary of when the person immigrated, up until the day before the second anniversary of when the person immigrated.

C.

WAIVERS OF THE REQUIREMENT TO FILE THE JOINT PETITION

There are four grounds for a waiver of this requirement (Form I-751). 1. The marriage began in good faith, but was terminated through divorce or annulment. 2. The petitioning spouse subjected the conditional resident to battery or extreme cruelty 3. Deportation would result in extreme hardship for the conditional resident. 4. The petitioning spouse is deceased.

Appendix 7-F-3

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b. First enter U.S. with immigrant visa obtained through U.S. consular visa processing.

APPENDIX 7-G INA § 245(a)-(c)

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(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (b) Record of lawful admission for permanent residence; reduction of preference visas Upon the approval of an application for adjustment made under subsection (a) of this section, the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 1152 and 1153 of this title within the class to which the alien is chargeable for the fiscal year then current. (c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) of this section shall not be applicable to (1) an alien crewman; (2) subject to subsection (k) of this section, an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title, [FN1] (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa.

Appendix 7-G-1

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INA § 245(i) (i) Adjustment in status of certain aliens physically present in United States

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(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-(A) who-(i) entered the United States without inspection; or

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of-(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or (ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and (C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equalling $1,000 as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of 1986 at any date, who-(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of 1986; (ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and (iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section.

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(ii) is within one of the classes enumerated in subsection (c) of this section;

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

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(B) an immigrant visa is immediately available to the alien at the time the application is filed. (3)(A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 1356 of this title. (B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the Breached Bond/Detention Fund established under section 1356(r) of this title, except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 1356(m) of this title.

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Appendix 7-H-1

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Appendix 7-H-2

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Appendix 7-H-3

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Appendix 7-H-4

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Appendix 7-H-5

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Appendix 7-H-6

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Appendix 7-H-7

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Appendix 7-H-8

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Appendix 7-H-9

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Appendix 7-H-10

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Appendix 7-H-11

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Appendix 7-H-12

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Appendix 7-H-13

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Appendix 7-H-14

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Appendix 7-I-1

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Appendix 7-I-2

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Appendix 7-I-3

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Appendix 7-I-4

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Appendix 7-I-5

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Appendix 7-I-6

APPENDIX 7-J

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Problems on § 245(i) Eligibility

PROBLEM TWO: Elaine LPR filed an I-130 petition for her husband Sergio on October 23, 1997. Her two kids were derivatives of Sergio’s application. Elaine and Sergio divorced in February 1999. Can Sergio adjust status? Can the kids adjust status? Write a one page letter to your client Elaine explaining your conclusions on the adjustment possibilities for Sergio and their children.

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PROBLEM ONE: Jose LPR petitioned his son Tomas in 1995 but his application was denied because he didn’t prove that Tomas was his son. Tomas got married to Adela USC in 2001. Adela submitted an I-130 for Tomas on May 12, 2001. Can Tomas adjust pursuant to 245(i)? Write the argument part of a one page letter to CIS using the 245(i) grandfathering memo at Appendix 7-I to explain why.

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UNIT EIGHT LEGAL RESEARCH FOR IMMIGRATION PRACTICE

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This Unit Covers:   

Legal authority in immigration practice; Case citation; Legal research

This Unit Includes: § 8.1 § 8.2 § 8.3 § 8.4 § 8.5

§ 8.14 § 8.15 § 8.16 § 8.17

PART ONE: LEGAL AUTHORITY IN IMMIGRATION PRACTICE Trang Nguyen, a Vietnamese woman who is a lawful permanent resident, comes to you for help. She has tried to file an immigrant visa petition for her adopted daughter, Mai. CIS denied the petition because Mai was not legally adopted here in the U.S. Trang brings you proof that the adoption was considered legal in Vietnam. How do you find legal support for Trang’s position, and how do you present this argument to the CIS?

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§ 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12 § 8.13

What Is Legal Authority? ................................................................................... 8-2 Distinguishing Primary Law Sources from Secondary Research Sources ............................................................................................................... 8-3 Hierarchy in Legal Authority ............................................................................. 8-3 Sources of Legal Authority: The Constitution ................................................... 8-4 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act) .............................................................................................. 8-4 Sources of Legal Authority: Regulations ........................................................... 8-5 Sources of Legal Authority: Cases ..................................................................... 8-5 Sources of Legal Authority: Internal Agency Operating Instructions ................ 8-7 Understanding the Code: The Case Citation System ......................................... 8-8 Citations in Judicial Decisions ........................................................................... 8-9 Citing the Immigration and Nationality Act ..................................................... 8-11 Citing to the Code of Federal Regulations ....................................................... 8-11 Research Tips for the Immigration and Nationality Act and the Regulations .......................................................................................... 8-12 Other Primary Sources: Internal Operating Instructions .................................. 8-13 Additional Tools for Research: Using Treatises and Other Secondary Sources ........................................................................................... 8-13 Practical Tips for Legal Research .................................................................... 8-14 Gaining Access to Library Materials................................................................ 8-15

§ 8.1 What Is Legal Authority? One word which frequently pops up when doing legal work is the word “authority.” This concept is very important, as authority can be a strong ally and can also help you clear up questions about the law. You should know what authority is, and not be afraid to use it to support you in your cases. After you have gathered the facts from the client about his or her legal problem, the next step is to search for the law that might apply to that set of facts. This may sound easier and more straightforward than it actually is because there are a number of sources of “the law” for immigration problems.

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Legal authority can be found in the U.S. Constitution, federal statutes or acts, and U.S. treaties. It can also be found in state and local (municipal) laws, acts or statutes. Critically, because in the United States we have a “common law” legal system (what this means is discussed further in § 8.7), legal authority is also developed through judicial and administrative decisions, also called opinions, in individual cases. In addition, legal authority can be found in rules called “regulations” written by the agency involved, such as DHS, the Department of State, or the Department of Labor. Even agencies’ internal instructions, policy guidelines, or memoranda could be authority. Any of these sources may be considered “legal authority.” That means that these sources can be used (“cited”) by you in support of your position in a legal argument. What makes a legal argument different from any other type of disagreement is that to win, one must persuade a decision maker that your idea of what the law says is correct. To persuade someone, you must not only tell him or her what you think the law is or should be, but also provide legal authorities to back up your argument. Example 8.1: Using the example of Trang’s problem with the adoption, the argument is over whether Mai was adopted in a manner that CIS will recognize as legal. Your position in the argument would be that CIS should recognize it as a legal adoption. The next step is to locate some legal authority that supports this position. You search the statute and the regulations and find nothing that applies. But you find a case decided by the Board of Immigration Appeals that says that the adoption must conform to the laws of the place where the adoption occurred to be recognized by CIS. You see that this supports Trang’s position because she can prove that the adoption, which took place in Vietnam, was legal in that country. Your authority in support of this argument is the case decided by the Board of Immigration Appeals.

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§ 8.2 Distinguishing Primary Law Sources from Secondary Research Sources

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There are a variety of legal sources that carry different weight with administrative agencies and the courts. It is important to understand how they fit together and work on behalf of your case. Sources of law include the United States Constitution, statutes, regulations, and cases published by the courts. Explanatory books that may be very helpful for research, such as Gordon & Mailman’s Immigration Law and Procedure, Kurzban’s Immigration Law Sourcebook, or books written by other authors or publishers—including this book!—are not sources of law. These other books that analyze or index statutes, regulations and cases are only considered “secondary” materials, which means that they are only the author’s opinion about the law. In Part Three of this unit, we explain how to use these books for researching the law, but do not cite these books in a legal argument! Instead, you should find the primary sources of the law—regulations, statutes, and cases—by looking in the secondary research books which will tell you where to find the law. In fact, even very experienced practitioners start their analysis of a legal issue by researching secondary sources of law. But remember, cite only to those primary sources.

§ 8.3 Hierarchy in Legal Authority

In written rules, you have the following levels of authority, starting with the highest level: The Constitution of the United States Immigration Laws (statutes, the Act) Immigration Regulations (part of the Code of Federal Regulations) Internal Operating Instructions These laws and authorities are interpreted by courts which issue decisions which in turn may become law. These decisions clarify the meaning of the Constitution, laws, and regulations and in some cases may even overrule laws and regulations. Unit 9, § 9.6 discusses the court system as it is relevant to the practice of immigration law. There is also a hierarchy within case decisions itself. Decisions issued by the U.S. Supreme Court, federal circuit courts, federal district courts, and the Board of Immigration Appeals (the appeals unit for many immigration decisions) govern overlapping jurisdictions and have varying degrees of authority. Overall, figuring out which cases have more authority is a bit more difficult and will be dealt with in § 8.7.

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Among the different sources of law, there are some sources that are more powerful than other sources. You could think of it like a pyramid with the more powerful authorities on top. This is true in both the written rules and in cases. This hierarchy is most important when there are contradictory statements of law from different sources; then you must decide which is the more powerful source.

Immigration cases that are placed in removal proceedings go before the immigration courts and if appealed, go to the Board of Immigration Appeals. Both are part of an administrative agency within the Department of Justice called the Executive Office for Immigration Review. Sometimes immigration cases can be reviewed by the federal district courts, federal courts of appeal or the United States Supreme Court. This is discussed in greater depth in § 9.6.

§ 8.4 Sources of Legal Authority: The Constitution The Constitution is the “supreme law of the land.”1 All the laws in the United States must conform to the Constitution. If a law goes against the Constitution, a court can strike down that law as “unconstitutional.” The Constitution is a higher level of authority than statutes or regulations.

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Case law has long interpreted the Constitution to give virtually unlimited power (also called “plenary power”) to Congress to decide who is allowed to immigrate and who to deport.2 For that reason, it is very difficult to get a court to declare the main rules of immigration law unconstitutional. As a consequence, Congress is allowed to draw fairly arbitrary lines when it comes to immigration law, and those delineations are generally still constitutional. However, the Constitution does protect people (to a certain degree) from unfair immigration procedures. For example, the Constitution guarantees that the procedure in removal proceedings must be fair. Specific constitutional protections are discussed more fully in Unit 19, Constitutional and Statutory Rights of Immigrants.

§ 8.5 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act) The next level down of authority after the Constitution is the laws or statutes passed by Congress that control immigration. Almost all of the laws controlling immigration and naturalization are collected in one place in the Immigration and Nationality Act (or “INA”). The same laws are also indexed in Title 8 of the United States Code. In other words, the INA is codified in the United States Code and you will sometimes see the law cited in the INA format and the U.S. Code format. (See § 8.11 for information on research in the INA.) You can access the INA on the U.S. Citizenship and Immigration Services (CIS) website at www.uscis.gov under “Laws.” All paralegals should have an up-to-date copy of the Immigration and Nationality Act and of the regulations that govern immigration, and get into the habit of checking it often. 1 2

U.S. Const. Art. VI, Cl. 2. Chae Chan Ping v. U.S., 130 U.S. 581 (1889).

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Other federal laws that are somewhat related to immigration will be found in other locations in the United States Code, and can be accessed using the internet at www.gpo.gov/fdsys under United States Code.

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§ 8.6 Sources of Legal Authority: Regulations Governmental agencies interpret the statutes and issue regulations that become governing rules. For example, as the agency responsible for lawful immigration to the US, CIS will issue regulations related to visas, lawful permanent residence, and naturalization. The purpose of the regulation is to clarify statutes and set the procedures. Whereas the Immigration Act tells you what the law is, the regulations fill in a lot of details and tell you how the DHS immigration agencies are going to apply the laws. You can access the immigration regulations, indexed in Title 8 of the Code of Federal Regulations (“8 CFR”) on the CIS website at www.uscis.gov under “Laws.” We spend most of our time working with the regulations issued by DHS that deal with enforcing the Immigration and Nationality Act. We also consult regulations issued by the Department of State and the Department of Labor. (Information on research using the regulations is found later in this unit in §§ 8.13-8.14.)

§ 8.7 Sources of Legal Authority: Cases The basic outline of our immigration law is written in the form of statutes and regulations. But, in addition to these rules, the law is also found in a system of case decisions (also known as “case law”) written by various courts, from an individual immigration court, to the Board of Immigration Appeals, to a federal circuit court of appeals, to the U.S. Supreme Court. Often the case law is an interpretation of the statutes and the regulations. Generally speaking, the case law is just as persuasive as the statutes and regulations it is interpreting and therefore, carry equal weight as legal authority. However, it is important to note that there is a hierarchy in terms of the “weight” of case law, which depends on which court issues the decision. In fact, cases can be more powerful than statutes and regulations because the cases can define and even overturn statutes and regulations. To be able to advise clients, even if you never write a legal “brief,” you need to know how and why case decisions become part of the law. A.

Published vs. Unpublished Decisions

In certain individual cases, a court may decide to publish its decision. This published decision then becomes precedent (also known as binding or controlling legal authority) meaning that other lower courts must follow the rule in future cases with similar facts. Many cases that

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At times, a regulation may conflict with the statute or the Constitution. In this case, a court can strike down the regulation, because both the statute and the Constitution are higherlevel authorities than a regulation.

result in written decisions are unpublished and do not carry the same weight as legal authority. A court does not have to follow an unpublished decision, but it might or might not use it as “guidance” to decide a case. A legal worker can research existing case law to see if a court has decided a case dealing with similar facts and legal issues. If no precedent decision exists, the advocate should research other persuasive legal authority to convince the court to use it as guidance in deciding the case. Example 8.7: The Board of Immigration Appeals decides thousands of cases per year. It chooses only about 30 per year to publish as precedent decisions. You have a case on appeal to the Board. One of the Board’s unpublished decisions has almost exactly the same facts as your case and was decided in favor of the immigrant. Can you use the unpublished case in your argument? Can you make the Board follow the decision in that case?

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The rule is that you cannot cite unpublished cases as controlling legal authority because only published decisions are the ones that must be followed. However, advocates may still try to get the Board to use that decision by attaching a copy of that decision, and writing about it in your brief to the Board. While it is not a precedent, you may request that the Board look to it for “guidance.” See Immigration Court Practice Manual at Appendix J-3 for instructions. The federal courts have separate rules for unpublished opinions. The most recent rules for citing unpublished cases in the federal circuit courts of appeal is included as Appendix 8-A. You should also consult the relevant rules pertinent to the specific federal court for your case. Case decisions are often used to interpret the statutes and regulations. For example, the INA states that a person must demonstrate that his or her removal would cause “exceptional and extremely unusual hardship” to qualify for cancellation of removal (see Unit 11).3 But what facts might be considered “extremely unusual hardship?” To determine this, one looks at published case decisions that found that a person with similar facts did show extremely unusual hardship. See Unit 11 for more information on how courts have defined “exceptional and extremely unusual hardship.” With each case they decide, the courts further define the meaning of the statute or the regulations. B.

Hierarchy of Case Law

In general, the lower courts must follow precedential decisions issued by a higher court. In many instances, the immigration court is the first to consider the facts of an immigration case and determine the outcome of the case by applying the law. The law the immigration courts are bound by is the published decisions of the Board of Immigration Appeals (BIA), the federal circuit court of appeals in the jurisdiction of the immigration court, and the U.S. Supreme Court. When there is a difference of opinion on an issue between the BIA and the circuit court, the analysis of which court’s decision is binding is complex. This is because the case law on when the federal courts must defer to an agency’s decision is complex. There is not always a clear 3

See INA § 240A(b)(1)(D).

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answer on whether the agency’s decision is binding or not on the federal circuit courts. However, if the Supreme Court publishes an opinion on a matter where the BIA and the circuit courts differ, its decision is the binding on both the BIA and the federal circuit courts.

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In the federal court system, the U.S. District Courts are the trial level courts that are the first to consider the facts and apply the law to the case. The federal district courts are bound by decisions of the circuit court of appeal in their jurisdiction and the U.S. Supreme Court. A circuit court is bound by published decisions in its jurisdiction, but a decision from outside its circuit can be persuasive authority if there is no published decision on the matter. All circuit courts of appeals are bound by a U.S. Supreme Court decision.

Binding versus Persuasive Sources of Legal Authority. Within the gamut of legal authority, certain sources of law are called “binding” or “controlling” while other sources are merely considered “persuasive.” Binding authority is a source of law that must be followed by an agency or a court in deciding a case. As mentioned earlier, the Constitution is the supreme law of the land which means it is binding throughout the country and can trump federal and state legislation (and anything else).

§ 8.8 Sources of Legal Authority: Internal Agency Operating Instructions At the bottom of the authority levels are the operating instructions of the various agencies that deal with immigrants (Department of Homeland Security, Department of State, and Department of Labor). These are internal instructions to the employees of the agency. Their purpose is to instruct the agency employees on agency protocol and practice. Some are numbered and put out in a collection in books, such as the Foreign Affairs Manual of the Department of State and the Operations Instructions of the former INS (all of which can be accessed at the CIS website, www.uscis.gov, under “Laws”). Other times they are issued in policy memoranda by the government agency, which also can be accessed at the CIS website, www.uscis.gov, under “Laws.” As with the regulations, agency operating instructions must conform to, and cannot conflict with, the law. If you find a favorable operating instruction that the agency is not following, bring it to the attention of the agency and a supervisor if necessary. However, immigrants trying to get the courts to force the agency to do what the operating instructions say they should do have not always been successful. Sometimes the courts hold that this type of 8-7

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Persuasive authority means sources of law that the court does not have to follow, but should consider. Persuasive authority includes some international law, circuit court decisions from circuits outside of the jurisdiction you are in, lower court decisions (lower than the court you are in), unpublished cases (see discussion above), policy memoranda, operating instructions, and brief in other cases, among others.

policy guideline is not as legally enforceable as a regulation or a statute. (See § 8.14 on research using Operations Instructions.)

PART TWO: CASE CITATION § 8.9 Understanding the Code: The Case Citation System The case decisions constitute an important source of the law in immigration. A.

Citation of BIA Decisions Example 8.9: Case Citation: A published decision of the Board of Immigration Appeals is cited as:

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Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). Every case citation starts with the name of the person or persons involved in the lawsuit. In the example above, only one person’s name is used, Frentescu, because the other party in the case is the government represented by the former INS. In administrative cases, DHS, or formerly INS, represents the government in cases involving removal proceedings. These cases are referred to as the “Matter of [the person’s last name or initials].” You may also sometimes see “In re” and then a person’s name, which is just Latin for “In the Matter of.” In contrast, most case names in the judicial court system start with the names of both the parties. The first number in a citation refer you to the volume number in the set in which you will find the decision. In the above example, you would look for volume number 18. The abbreviated letters that appear after the first (volume) number tell you which set of books you should look in to find the case. There are a number of agreed-upon abbreviations for different sets of decisions, some of which are listed below. In our example, the abbreviation is, “I&N Dec.” This is an abbreviation of “Immigration and Nationality Decisions,” an official set of books containing the precedent decisions of the BIA, and sometimes by the Attorney General or the Administrative Appeals Office (“AAO”). You can access the BIA precedent decisions by going to www.justice.gov/eoir/vll/intdec/lib_indecitnet.html. Following the abbreviation that tells you the set of books is another number. This is the page number where that decision starts. (In our example, you would turn to page 244 of volume 18 of the Immigration and Nationality Decisions to find the beginning of the case.) Following the page number, sometimes it is appropriate to include a second page number where the decision discusses the legal issue relevant to your case. This is called a “pin cite” and if included, use a comma between the first page number and the pin cite. For example, if the pertinent issue appears on page 250, the above citation would look like this: Matter of Frentescu, 18 I&N Dec. 244, 250 (BIA 1982).

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Finally, you will find in parentheses at the end of the citation, an abbreviation that tells you the decision-making body and the year of the decision. In our example, “(BIA 1982),” tells you that the Board of Immigration Appeals made the decision, and that it was decided in 1982. Only published BIA decisions appear with the above citation format. B.

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Guide to Citations in Administrative Decisions

The major source of administrative decisions is the I&N Decisions, discussed above. Most of the decisions contained in these cases are decisions of the Board of Immigration Appeals. Decisions in the I&N Decisions should be cited by its volume and page number, as described above.

You should still know what the “Interim Decision” means because you may see this citation at times. Interim Decisions are cited: Matter of S-A-, Int. Dec. No. 3433 (BIA 2000).

§ 8.10 Citations in Judicial Decisions A.

Citation of Federal Court Decisions

The same basic information appears in a citation of a federal court case: name of party/parties

where case was decided

year decided

National Center for Immigrants’ Rights v. INS, 743 F.2d 1365 (9th Cir. 1984) volume number

set of books

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page number

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There are two cites for each decision issued by the Board, a temporary “interim decision” number and then a final, official cite in the “I&N Dec.” format. Previously, because new volumes of the I&N Decisions with the official citations come out only once every few years, the interim decision number were used to identify the decision before the official volume came out. Now, however, the BIA is able to immediately assign the decision its volume and page numbers for the I&N Dec. citation. This means that newly issued administrative decisions will no longer be identified only by their “Interim Decision” number only. While cases will still be given an interim decision number when issued (along with the I&N volume and page number), advocates should only use the I&N Decisions cite because the Immigration Court Practice Manual recommends using this format. The practice manual is available online at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

Today most advocates use online legal databases such as Westlaw and LexisNexis. These services offer various search functions, link cases thematically, and inform you if a decision has been overruled. These are extremely useful resources; however, if you do not have access to these services, you should go to a law library. Among other features, you can look up cases by party name or using the second half of the citation—in the above example “743 F.2d 1365” would be sufficient to pull up this information. Advocates can also find and read some cases online using www.googlescholar.com by entering the citation and selecting search for legal documents. However, the capabilities of the website are limited. For one, it does not have administrative decisions such as the one with the I&N Dec. cites. (But most I&N Decisions can be accessed online at www.justice.gov/eoir/vll/intdec/lib_indecitnet.html.) Also, advocates should be cautious in using the Google Scholar online resource because this free online resource does not let you know when the case is no longer good law, i.e., that it has been overruled by a different court. That sort of information is one of the benefits of the costly LexisNexis or Westlaw services. Federal court decisions are cited in the format above, with changes varying by: 1) the party names, 2) who decides the cases and 3) in the names of the sets of books in which you can find those decisions.

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B.

U.S. District Courts

The decisions of these local federal trial courts are collected in a set of books called Federal Supplement. It is abbreviated as “F. Supp.” or “F. Supp. 2d” in a citation. Because it includes decisions from U.S. District Courts all across the U.S., it is necessary to include in the citation the abbreviated name of the court that decided the case. For example: Varga v. Rosenberg, 237 F. Supp. 282 (S.D.Cal. 1964). The “S.D. Cal.” tells you that it was the Southern District of California. C.

U.S. Circuit Courts of Appeals

The decisions of these appellate courts are collected in a set of books called Federal 2nd or Federal 3rd. It is abbreviated as F.2d or F.3d in a citation. The set of books called “F.2d” or “F.3d” includes cases from all the Circuit Courts of Appeals in the U.S. To designate which circuit court decided the case, the citation includes an abbreviation for the number of the circuit court that issued the decision. For example: Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008). The “7th Cir.” tells you that it was decided by the Seventh Circuit Court of Appeals. Also, note that in federal appellate immigration cases, the opposing party (the government) is almost always the U.S. Attorney General, so there are thousands of immigration cases with the opposing party name of “Mukasey,” “Holder,” etc. To find out which Circuit Court of Appeals your client is in, consult the map at Appendix 8-B.

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D.

U.S. Supreme Court

The official set of books for decisions of the Supreme Court are called United States Reports. It is abbreviated as “U.S.” in a citation. If a case is cited as being in “U.S.,” you know that the Supreme Court decided the case. For example: Taylor v. Alabama, 335 U.S. 252 (1947). For U.S. Supreme Court cases, only the year of the decision is included in the parentheses. Sometimes you will see “S.Ct.” citation. This citation refers to the unofficial Supreme Court reporter volumes and it becomes available a couple months before the “U.S.” citation. This citation may be used, but once the “U.S.” citation becomes available, you should use official “U.S.” citation.

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§ 8.11 Citing the Immigration and Nationality Act The Immigration and Nationality Act (INA) contains all the basic laws on immigration. (See § 8.5.) It can be located either in a booklet that contains only the INA or in a volume called Title 8 of the United States Code (USC). The United States Code is a compilation of all the federal laws in the United States, and Title 8 contains the INA. The INA and Title 8 U.S. Code are identical. The only thing that differs is their numbering systems.

In the citation, “8 USC § 1255,” the first number (“8”) refers to “Title 8”; the next part— ”USC”—tells you what code it is (here it is United States Code); and the last number—”1255”— is the section number of the statute.

§ 8.12 Citing to the Code of Federal Regulations The immigration-related regulations are found in various “titles” (books) of the Code of Federal Regulations. Most of the immigration regulations are found in Title 8 of the Code of Federal Regulations, but regulations governing the Department of Labor are found in Title 20, and regulations relating to the Department of State are in Title 22. Additionally, one should look at the “Foreign Affairs Manual,” also known as the “FAM” for policies, procedures and guidance on the State Department’s role in deciding immigration cases. Cite these regulations using the same form as the statute discussed above. For example, “8 CFR § 292.4” governs who is authorized to represent people before DHS and the EOIR. In this case, the first number is again the “title”; the “CFR” is the abbreviation for Code of Federal Regulations; and the “292.4” is the section number.

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With the CIS or in the administrative courts, use of the INA citation is more common than the USC citation. (For cases in the federal courts, the USC citation must be used.) When you cite to a section of a statute in a written legal argument, you need to specify if it is INA or USC. For example, the citation for the section on adjustment of status in the INA is, “INA § 245.” The corresponding USC citation is “8 USC § 1255.”

Regulations that govern the EOIR have been renumbered by adding 1000 to the original cite. For example, 8 CFR § 3.1 now is found at 8 CFR § 1003.1. If you cannot locate a regulation governing removal proceedings that is cited in an older case or resource book, try adding 1000 to the regulation number. When an agency wishes to change its regulations, it is first required to publish the proposed change in a government publication called the “Federal Register.” Usually before a proposed regulation becomes law, the agency must allow a certain amount of time for the public to comment. It must then consider any comments received, and then must publish the regulation again in the Federal Register as a “final rule.” Copies of the Federal Register are available in most county or law school libraries. The Federal Registers from 1995 to current are on the Internet at www.gpoaccess.gov/cfr/index.html.

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WARNING! The regulations change much more frequently than the INA, so be sure to consult CIS’ website which offers access to the regulations at www.uscis.gov. You can also obtain a book of regulations every year or subscribe to a service that updates your regulations more frequently. (See Appendix 8-C List of Library Resources for information on ordering.)

PART THREE: LEGAL RESEARCH § 8.13 Research Tips for the Immigration and Nationality Act and the Regulations Trying to find the section of the INA that covers a specific subject rarely works, because the Government Printing Office does not put a subject index in printed copies of the Act. If you perform research at a library that has the entire United States Code, there is a subject file for the entire set of books, which may help. While copies of the regulations and statutes put out by private publishers may have some indexes, these are usually only marginally helpful in research. A much easier research method is to start with secondary research books (see § 8.17 and Appendix 8-D to find the correct section number covering the specific subject you are looking for. One useful book for this purpose is a book called Immigration Law Sourcebook by Ira Kurzban (see Appendix 8-C). This book gives a quick overview of immigration law, including case citations, statutes, regulations, and agency policy guidance. Kurzban’s book contains a good subject index. Many other secondary source books can also be used to guide you to the correct section of the statute. Computer-based research tools for which one must pay a fee, whether online services like LexisNexis and Westlaw or immigration research compilations on CD-Rom, have the distinct advantage of enabling one to do quick and thorough searches using key words. The online services are starting to come down in price a bit. The CD-Rom research compilations are still

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less expensive and have the same advantages that one can get from other secondary source books on immigration.

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The entire Code of Federal Regulations and the INA are also free on the internet. CIS posts them on the agency website at www.uscis.gov. Note that the CFR on this site is only revised once a year, and Congress often changes the CFR more frequently than that. Other useful internet research sites are listed in Appendix 8-D.

§ 8.14 Other Primary Sources: Internal Operating Instructions The internal instructions to CIS personnel are contained in the “Operations Instructions.” (See § 8.8). They are cited as, for example, OI § 241.2b. A copy of the Operations Instructions can be found in the appendix to Immigration Law and Procedure, by Gordon, Mailman, and Yale-Loehr. The set is available in some law libraries and most private immigration law offices, and can be found online at the CIS website (www.uscis.gov). (See Appendix 8-C for information on how to order the books.)

§ 8.15 Additional Tools for Research: Using Treatises and Other Secondary Sources In preparing legal arguments, it is important to cite to some “authority”—that is, some source that states what the law is. As we discussed in Part One of this unit, sources of the law in immigration include the statute, the regulations, cases interpreting those statutes and regulations, official government policies such as Operations Instructions or published Memoranda (which can be found on the CIS website at www.uscis.gov), and the United States Constitution. Those are the sources that you should cite in legal arguments. Other books on the law exist, which are not “the Law” on the subject, but merely discuss the law and help direct you to cases, the regulations, statute, etc. These are called “secondary sources.” Generally, they should not be cited in a legal argument, but they are extremely important research tools. Secondary source books are easier to understand than statutes and regulations because they often give you a summary of the laws and provide background or explanatory information. Secondary source books are often also the fastest way to find where an issue is covered in the primary sources—regulations, statutes, and cases. Using secondary research books with a good index is much more efficient than searching through regulations and statutes without an index,

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The internal rules for granting visas for the U.S. consulates abroad are contained in the “Foreign Affairs Manual.” An example of the citation form for it is: 9 FAM § 42.31, N3. The manual is available on the Department of State web page at www.state.gov/m/a/dir/regs/fam/ and through the CIS website at www.uscis.gov. A copy of the Foreign Affairs Manual is also found in an appendix to Immigration Law and Procedure. The FAM and the Operations Instructions are also both included in many of the CD-Rom research collections on immigration law.

and can ensure that you do not miss important relevant points related to your legal research and arguments. Many secondary research materials have a subject index. The index is usually found in the back of the book but may be in the front, or even in a separate volume. Some research books will also contain an index listing all the references to sections of a statute or regulation. This is useful if you know the section of the regulation or statute and you want more information on what it means or names of cases that have interpreted it. Some books also have a Case Index that lists all the cases referred to in the book. Many authors and publishers also will have a system for updating the books when changes in the law occur. You should always check the date of the materials that you are using, whether in a book or on the internet. If a book is out of date and it does not contain an update, you should either use another book or be sure to double-check any information that you take from that source. Even books that are updated regularly cannot stay completely up to date because the updates are generally published once a year or every six months, but changes in the rules or practice can and often occur in the meantime.

Unit 8

To keep current, every office should subscribe to Interpreter Releases, a weekly publication (see Appendix 8-C for information on ordering publications) and keep up with other immigration legal updates distributed by listserve, posted online, or published in writing. Information on library materials, both primary sources and secondary sources, is contained in an Appendix 8-C to this unit. This list includes information on the type of book, the cost, and how to order. Information on free internet research sites for immigration law is found in Appendix 8-D.

§ 8.16 Practical Tips for Legal Research A. Always check the backs of the books to see if there is an index. B. If there is no index, check the front for a Table of Contents. C. Learn the language used by legal workers to help you find what you need. (For example: “immigrant visas,” “non-immigrant visas,” or “adjustment of status.”) D. Learn how to find the most recent information in the updated or revised materials, if they are updated. E. Once you find the information that you seek, take notes of where you found it for later reference. F. Make use of materials available from other reliable sources. If someone else has already done the work, take advantage of it. But be sure to check that it is still good law! G. Always check to see if there is an update section to the manual, which could be separate from the actual manual.

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FOR MORE INFORMATION ON THIS SUBJECT, see Legal Research: How to Find and Understand the Law (16th Ed.), by Elias (Nolo Press August 2012). This book on general legal research tips is written for non-attorneys. Order from Nolo Press at www.nolo.com or by calling 1- 800-631-5158 ext. 6.

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§ 8.17 Gaining Access to Library Materials Many nonprofit organizations are unable to afford a full library of legal materials. There are several ways that advocates can gain access to materials they cannot afford. First, one way to get free research materials is to use the internet. Free immigration research information materials on the internet have greatly expanded. The government agency sites can be very useful, such as the sites for the CIS (www.uscis.gov) and the EOIR (www.justice.gov/eoir). A list of some of the many web sites on immigration is found at Appendix 8-D.

Experienced attorneys in private practice handling immigration cases might also have most of the materials that you need. It is useful for nonprofit organizations to locate immigration attorneys who are willing to assist them. Establishing good relations with these practitioners will prove helpful for other reasons as well, such as for general advice, financial support, and developing attorney referral lists to which to refer clients whose cases the office is unable to assist.

FOR MORE INFORMATION ON CITATION FORMS, see: A Uniform System of Citation (Blue Book), published by Harvard Law Review Assoc. (Available in law book stores and law libraries.)

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Additionally, most counties have a law library in the county courthouse that is open to the public. Some contain a good deal of material on immigration; others may have just the federal statutes, codes, and regulations. You may also be able to get access to law school libraries. Often law librarians are friendly and willing to help you find materials in the library.

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Appendix 8-A-1

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Appendix 8-A-2

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Appendix 8-A-3

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Appendix 8-A-4

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Appendix 8-B-1

APPENDIX 8-C LIBRARY RESOURCES FOR IMMIGRATION PARALEGALS

NOTE: For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions and prices. You may also contact our publications department at 415.255.9499 x 743.

Most Useful

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Interpreter Releases – This weekly guide to immigration law and procedure is indispensable because it keeps you up to date on recent developments in immigration law. The publication also includes practical tips for handling immigration matters from experts in the field. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/ Code of Federal Regulations, Title 8 – The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the United States Federal Government. This book contains the regulations interpreting and providing procedures for the Immigration Act. A new, updated edition of this book is produced annually. Most law libraries should have a copy. Specify title when ordering. Order from: http://bookstore.gpo.gov Find U.S. Government Bookstore Contact Information: http://bookstore.gpo.gov/help/ Bender’s Immigration Regulations Service – This two volume set contains all the regulations for immigration practice, including those regulating the INS, the Department of State, and the Department of Labor. These regulations are in a loose-leaf format and updated regularly through a subscription update service. Updates are issued with amendments incorporated directly into the text. This is an excellent way to keep your regulations current. Order from: http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProdu cts&catId=10762&prodId=10521 Find LexisNexis Matthew Bender Office Locations & Contact Information:

http://www.lexisnexis.com/en-us/about-us/contact-us/contact-us.page#usoff Federal Immigration Laws and Regulations, 2012 ed. – This book contains the complete text of the federal statutes in the USCA Title 8, Aliens and Nationality, as well as the federal regulations in the CFR Title 8, Aliens and Nationality. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/

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Visa Bulletin – This is a monthly publication of the U.S. Department of State which describes the availability of visas in all the different preference categories – a must for all those doing immigrant visa work. It also contains an explanation of the preference system for immigrant visas.

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Cost: No charge – The Visa Bulletin is available online at http://travel.state.gov/visa/bulletin/bulletin_1360.html. To be placed on the e-mail subscription list for the Visa Bulletin, please provide your email information to the following e-mail address: [email protected] and in the message section type in: “subscribe Visa – Bulletin (your first name/last name)” – (example: “subscribe Visa – Bulletin Sally Doe”). The U.S. Department of State also has available a recorded message with visa cut-off dates which can be heard at (202) 663-1541. Kurzban’s Immigrant Law Sourcebook (13th Edition), by Ira J. Kurzban – A resource book that covers all of immigration law in brief, outline form, citing to the regulations, statutes and important case law. A new edition is published nearly every year. Order from: AILA Publications, P.O. Box 753, Waldorf, MD 20604-0753; Ph: (800) 982-2839; Fax: (301) 843-0159; www.ailapubs.com

Other Helpful Immigration Publications: -GENERAL IMMIGRATION LAW AND PRACTICEAdministrative Decisions under the Immigration and Nationality Act – These are bound volumes of opinions and orders of Attorney General, and the older decisions of the Board of Immigration Appeals that it has designated for publication. They are the highest law on the issue, unless overruled by the Federal courts or changes in the statute and regulations. There are currently 24 volumes. Order from: William S. Hein Co., Inc., 1285 Main Street, Buffalo, NY 14209; Ph: (800) 828-7571; http://www.wshein.com/ Board of Immigration Appeals Interim Decisions – These are the latest decisions of the Board of Immigration Appeals, which it has designated for publication. They are no longer issued in print. Decisions are available online in the EOIR virtual library at http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html. Immigration Procedures Handbook, by Fragomen, Shannon, and Montalvo – This manual focuses on the procedure for immigrant and non-immigrant visas, providing recent information

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Immigration Law and Defense (3rd, 2012-1 ed.), by National Immigration Project of the National Lawyers Guild – A good two-volume comprehensive overview of immigration law and procedure containing extensive references to judicial decisions and INS regulations, parallel citations to the U.S. Code and Immigration Act, and CFR references. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/

on matters such as filing fees, contains explanations of how, where, and why to present specific types of petitions and applications. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/ Immigration Law and Procedure, by Mailman, Yale-Loehr, and Wada – This 21-volume treatise on immigration law and procedure is a good research tool with an index. Also included in its volumes are copies of the Federal Regulations relating to immigration, the CIS “Operations Instructions,” listings of DHS office addresses, and descriptions of the availability of public record documents from foreign countries. These volumes can be found in most law libraries and in the offices of most immigration attorneys. Order from: http://www.lexisnexis.com/store; Ph (800) 223-1940 Find LexisNexis Matthew Bender Office Locations & Contact Information:

Unit 8

http://www.lexisnexis.com/en-us/about-us/contact-us/contact-us.page#usoff A Guide for Immigration Advocates: A Comprehensive Immigration Practice Manual – This, the manual that you are reading, has been designed especially for paralegal advocates in immigration. It covers the basics of immigration law in non-legalese. Recent editions include an expanded discussion of the Violence Against Women Act (VAWA) self-petitioning provisions, hardship waivers, critical new cases discussing grounds of inadmissibility and removal, mandatory detention policies, and community organizing. Other features include a section on critical books for your library, internet research, systems for identifying potential remedies in a case, and how to manage a caseload. This book is a real time-saver for paralegals, whether working for a community organization or for an attorney in private practice. For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103. -CRIMINAL PROBLEMSImmigration Law and Crimes, by Kesselbrenner and Rosenberg – This volume is a comprehensive work on issues in immigration law relating to criminal convictions. It is updated annually for a fee. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/ Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws) (formerly titled California Criminal Law and Immigration) – An updated and expanded version of the Quick Reference Chart and Notes for Determining Immigration Consequences of Selected California Offenses, this book includes extensive material on recent changes in the law and sample pleadings for post-conviction relief, shows step-by-step how to identify, analyze and defend against the adverse immigration consequences of charges, using a combination of user-friendly char ts, summaries and practice aids, and in-depth discussion of defense strategies. It includes extensive discussion of California offenses, including new defense strategies for assault, domestic violence, drugs, sexual crimes with minors and other commonly charged offenses.

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For the latest information on ILRC publications, please visit our website www.ilrc.org for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103.

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Books by Norton Tooby, including Criminal Defense of Immigrants, Aggravated Felonies, and Crimes of Moral Turpitude. For information go to www.nortontooby.com or call (510) 601-1300. -REMOVAL DEFENSES: ASYLUM and HARDSHIP WAIVERSAsylum and Related Immigration Protections, 9th Edition – This manual provides a description of asylum law, an overview of removal proceedings, practical guidelines for bond and the master calendar hearings, includes many case examples, practice tips and practical information for preparing client’s case, preparation for the application, asylum interview, merit hearing and appeals. For the latest information on ILRC publications, please visit our website www.ilrc.org for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103

-FAMILY IMMIGRATIONFamilies & Immigration: A Practical Guide – A practical legal guide and essential tool for practitioners who assist in all aspects of family-sponsored immigration. It is a single volume resource designed for everyday practice by the beginning immigration attorney, immigration paralegal, community based organization or family immigration advocates. The manual reaches all aspects of family-sponsored immigration and provides an understanding of qualifications for who can file and how to submit a family-based visa petition. For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103. Immigration Law and the Family, by Ignatius, Stickney, and the National Immigration Project of the National Lawyers Guild– This is a first point reference to help practitioners provide highly detailed documentation that validates family relationships in question and speed up clients’ immigration applications. It shows how to fill out key forms for each category of family immigrant visa application at U.S. consulates, helps document complicated family relationships where birth or marriage certificates are unavailable, or where a fraudulent relationship is suspected. Gives detailed descriptions of stepchildren, legitimate and legitimated children,

Appendix 8-C-4

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Hardship in Immigration Law: How to Prepare a Winning Case in Waiver and Cancellation of Removal Cases - This manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103.

orphans, and adopted children, provides details of the filing processes and eligibility for visa petitions and adjustment of status applications. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/ -NATURALIZATION-

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Naturalization and U.S. Citizenship: The Essential Legal Guide – This practical manual details all the eligibility requirements for naturalization and provides helpful suggestions both on procedural issues and how best to work with naturalization clients. The manual also discusses what to do if a naturalization application is denied, how to help clients prevent losing their U.S. citizenship once they are naturalized, and how to determine if clients may already be U.S. citizens through acquisition or derivation. The guide covers the recent changes in the law concerning citizenship for children, contains detailed information on good moral character and contains valuable information on how to help applicants with disabilities apply for naturalization. For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103. U.S. Citizenship and Naturalization Handbook (2011-2012 Edition), by Levy, Roth, and the National Immigration Project of the National Lawyers Guild – A comprehensive book on the law of naturalization. Contains extensive case cites. Good for advanced issues in naturalization. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/ VICTIMS OF DOMESTIC VIOLENCE, CHILD ABUSE, OR OTHER CRIME Special Immigrant Juvenile Status and Other Options for Children and Youth – The Immigration Act of 1990 created special relief for abused or abandoned children who are in juvenile court dependency proceedings and eligible for long-term foster care. A new federal law enacted in December 2008, called the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, further introduced important new protections for the treatment of unaccompanied minors in the immigration system. As “special immigrant juveniles,” these children can apply for protection against removal and adjustment of status to permanent residents. This practical manual can be used by immigration counsel as well as children’s welfare workers. It has a special focus on Special Immigrant Juvenile Status, but also provides information on other immigration options for children and youth including: U Nonimmigrant Status, Violence Against Women Act protection, asylum, family-based immigration options, citizenship, and others. The manual also addresses specialized issues, such as working and representing child clients, immigration consequences of delinquency, and detention. For the latest information on ILRC publications, please visit our website www.ilrc.org for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, San Francisco, CA 94103. The VAWA Manual: Immigration Relief for Abused Immigrants is a comprehensive guide for advocates working with immigrant survivors of domestic violence. This comprehensive manual includes in-depth information on the VAWA self-petitioning requirements and process,

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adjustment of status, inadmissibility and waivers, consular processing, conditional permanent residency, VAWA cancellation of removal, special immigrant juvenile status, the U and T visas, gender-related asylum, and public benefits. Also featured are practical tips for working with immigrant survivors of domestic violence, assembling and documenting a strong VAWA selfpetition, and extensive appendices of sample applications, fee waiver requests, declarations and more.

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For the latest information on ILRC publications, please visit our website www.ilrc.org/publications for the most recent editions and prices. Order from: ILRC, 1663 Mission St., Suite 602, SF, CA 94103. -NEWSLETTERS & PERIODICALSImmigrants’ Rights Update – is a substantive newsletter that features coverage of changes in immigration law, regulations, and government policy. It also reports on areas such as eligibility for public benefits, employment law, and constitutional rights. The Immigrants’ Rights Update contains news about trainings and new publications. It is published 4 times per year and sent free of charge to subscribers via email. Subscribe online at: http://nilc.org/iru.html

Bender Immigration Bulletin – A biweekly publication with articles on current topics and summaries of recent decisions. Order from: http://www.lexisnexis.com/store; Ph (800) 223-1940 Find LexisNexis Matthew Bender Office Locations & Contact Information:

http://www.lexisnexis.com/en-us/about-us/contact-us/contact-us.page#usoff ** Please visit www.ilrc.org to find out what resources are available for download or purchase.**

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Immigration Briefings – A monthly publication giving in-depth treatment to a single issue in immigration law each month, such as foreign adoptions, immigration investors, adjustment of status, and much more. Some months the topic is one that would interest most non-profit legal service providers, but other months it may not be. Order from: http://west.thomson.com/ Find West Contact Information: http://west.thomson.com/support/contact-us/

APPENDIX 8-D Immigration Law Research Web-Sites American Immigration Center- www.us-immigration.com This searchable site was compiled to provide prospective immigrants and others information about US immigration procedures. American Immigration Lawyers Association (AILA)- www.aila.org AILA is a national organization that practices and teaches immigration law. Their web site has immigration information, news, as well as a searchable database (AILA InfoNet) available to members only.

Unit 8

American Immigration Council– www.americanimmigrationcouncil.org The American Immigration Council is an affiliate of AILA that is a legal action and immigration policy center. Their website provides updates and practice advisories on important recent litigation and decisions throughout the country. Board of Immigration Appeals and Attorney General Precedent Decisionshttp://www.justice.gov/eoir/vll/intdec/lib_indecitnet.htmlThis link provides all recent precedent setting BIA decisions, which are listed in reverse chronological order and by volume number. By clicking on the decision number you can open and read the actual decision in full format using Adobe Acrobat. California Court Information- www.courts.ca.gov A well-organized searchable page that includes California court opinions, forms, court rules, special programs, news releases, and contact information. United States Citizenship and Immigration Services – www.uscis.gov This is the official government site for the USCIS, the immigration agency within the DHS that handles adjudications. It contains immigration laws and regulations including the Immigration and Nationality Act and 8 C.F.R. in its entirety, the Federal Register, BIA Interim Decisions, government forms, fee information, naturalization requirements, and procedures, up-to-date information on legislation, statistics and fees. Also has links to a variety of other government sites, such as EOIR and DOS. Contacts on Immigration and Immigration Policy: National Conference of State Legislatures - www.ncsl.org (under “Issues and Research” choose “Immigration”) A very good list with a wide array of resources and policy issues related to immigration. Executive Office of Immigration Review – EOIR - http://www.justice.gov/eoir/ An excellent page that allows you to link to other Department of Justice pages that include recent EOIR decisions, interim decisions, Immigration Court operating procedures, BIA procedures and a useful index of EOIR forms listed by number that include a brief description of each.

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Findlaw- www.findlaw.com An excellent search engine for all legal resources including Supreme Court opinions, state and federal laws, and legal organizations. A link to immigration information and resources is provided on the menu on the right side of the page.

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Immigration and Naturalization Service The INS was incorporated within the Department of Homeland Security, with many of the adjudicatory functions going to USCIS. Information that used to be on the INS website now is relocated. See “United States Citizen and Immigration Services,” above. Immigration Law Portal- www.ilw.com Maintained by Immigration Law Weekly, this is a great searchable source of immigration news. In addition to news postings, this site provides articles on recent legal updates and allows you to chat with lawyers, to post questions and information on an internet bulletin board, and offers attorney referrals. Latin American Network Information Center (LANIC)- www.lanic.utexas.edu Useful site with an overwhelming amount of links to publications, research resources, and organizations.

National Immigration Forum- www.immigrationforum.org This searchable web site is broken down into several sections including immigration policy, action center, community resources, and publications. National Immigration Law Center – www.nilc.org This site contains news developments, practice advisories, fact sheets, reports and other resources on a variety of important immigration topics including employment, public benefits, drivers’ licenses, DREAM Act, and local law enforcement. NILC also publishes the Immigrants Rights Update, a newsletter issued eight times a year that covers changes in immigration law, regulation, and government policy. It is free of charge. You can subscribe to receive emails by going to www.nilc.org and clicking on “News.” National Network for Immigrant and Refugee Rights- www.nnirr.org This site contains reports and fact sheets generally on immigration enforcement issues as well as other concise information on immigration and immigrant and refugee issues. The National Network also provided links to several helpful sites related to immigration issues. Federal Digital System- www.gpo.gov/fdsys Search the entire Federal Digital System database of publications and other government information products available for sale through the government printing office and place your orders online.

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Lutheran Immigration and Refugee Service- www.lirs.org Provides information about the concerns of refugees and asylees.

US Citizenship Study Pages- www.uscitizenship.org Helps non-citizens prepare for the U.S. citizenship test with written and oral questions. Maintained by Metro North Adult Education, On-line study-aids and CD ROM materials are available for a fee. US Committee for Refugees and Immigrants- www.refugees.org World news and updates on refugee information and statistics. This site contains resources for refugees and immigrants, service providers, and lawyers on issues related to refugees, immigrant children and victims of trafficking. Title 8 of the U.S. Code, Aliens and Nationalityhttp://www.law.cornell.edu/uscode/html/uscode08/usc_sup_01_8.html This page provides the current provisions of the INA in its corresponding 8 USC sections.

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U.S. Office of Special Counsel for Immigration-Related Unfair Employment Practiceswww.justice.gov/crt/about/osc This searchable page informs you about the types of immigration-related discrimination an employee can face. It also contains the information about worker’s rights and responsibilities, and forms to file a complaint. The U.S. Department of State- www.state.gov The Department of State provides a well-organized website with links to visa and travel information, current issue updates, and a link to the Bureau of Consular Affairs. Most information is easily accessible from the main web page. However, here are some useful direct links: U.S. State Department’s Visa Bulletin-

http://travel.state.gov/visa/bulletin/bulletin_1360.html This site is very useful because it provides you with the availability of immigrant visa cutoff dates during the current month. Human Rights Page- www.state.gov/j/drl/hr This page contains information about the Bureau of Democracy, Human Rights, and Labor (DRL), with links to country reports on human rights, the UN Human Rights Council, and other related links. Consular Affairs- http://travel.state.gov Provides visitors information about passports, visas, and travel warnings. Lists telephone numbers of visa agencies, provides information about the U.S. Embassy and Consulates worldwide and includes schedule of fees for consular services. Visa Services- http://travel.state.gov/visa/visa_1750.html Provides information on obtaining specific types of visas to the U.S. It also contains a section answering frequently asked questions about visas.

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This is just a partial list of web sites for immigration law and policy. If you have other sites to suggest for the next edition, please email them with the subject line “Advocates’ Guide Web Resources” to [email protected].

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Appendix 8-D-4

APPENDIX 8-E RESEARCH QUESTIONS FOR 8 CFR AND THE IMMIGRATION AND NATIONALITY ACT

Question 1

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Your client is a legal permanent resident. She is pregnant, and wants to leave the United States to have her child near her family. She is concerned that she will have problems re-entering the United States with her new child if the child is born abroad and will not have a visa. Will she be allowed to enter with her new child? Does the child need a visa? What documentation is required?

Question 2 Your client is 51 years old and has lived in the United States as a lawful permanent resident for 23 years. She wants to become a naturalized citizen and meets all the other requirements, but she does not speak English. Would she still be eligible for naturalization?

Appendix 8-E-1

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APPENDIX 8-F EXTRA RESEARCH QUESTIONS FOR LEGAL RESEARCH PRACTICE

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Question # 1: Can you get interest paid by CIS on the money posted as an immigration bond?

Question # 2: Is a person disqualified from naturalization if she has been convicted of three gambling offenses in the last year?

Question # 3: How does one conviction for a crime involving moral turpitude affect a person’s ability to immigrate through an immigrant visa?

Question # 5: May one request oral argument in an administrative appeal to the Administrative Appeals Unit of USCIS?

Question # 6: What must a "conditional resident" do to remove his or her conditional status?

Question # 7: What is the amount of the fine for aircraft and ships that bring in undocumented aliens?

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Question # 4: What is the fee for filing an appeal from a deportation or removal order to the Board of Immigration Appeals?

Question # 8: What is the civil monetary penalty that must be paid for a first offense of document fraud?

Question # 9: What is the U.S. immigration status of a person born in Puerto Rico in 1955?

Question # 10: Does an applicant for admission to the U.S. have a right to withdraw his or her application at time of inspection?

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Question # 11: Can an Immigration Judge waive fees for petitions or applications filed in the immigration courts?

Appendix 8-F-2

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UNIT NINE LEGAL WRITING AND APPEALS

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This Unit Covers:   

Techniques for legal writing; The courts; and Appeals and responses to agency denials and intents to deny.

This Unit Includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8 § 9.9 § 9.10 § 9.11 § 9.12 § 9.13 § 9.14 § 9.15 § 9.16 § 9.17

Writing Techniques for Persuasive Legal Writing ............................................. 9-2 Writing Clearly ................................................................................................... 9-2 Accuracy............................................................................................................. 9-3 Presenting the Facts in Legal Arguments ........................................................... 9-3 Practical Tips for Written Communication with DHS and the Courts..................................................................................................... 9-5 The Courts .......................................................................................................... 9-6 Overview of Administrative and Judicial Bodies ............................................... 9-6 Administrative Appeals of Immigration Cases .................................................. 9-7 Appeals of Immigration Cases in Federal Judicial Courts ................................. 9-8 The Right to Appeal ......................................................................................... 9-11 The Importance of Prompt Action on Denials ................................................. 9-11 Appeals and Motions to Reopen and Reconsider Compared ........................... 9-12 Procedure for Appeals before the BIA ............................................................. 9-13 Motions to Reopen/Reconsider in EOIR .......................................................... 9-17 Appeals and Motions to AAO .......................................................................... 9-21 Who Is Qualified to File a Brief? ..................................................................... 9-22 Keeping Clients Involved in and Informed about Their Appeals ..................... 9-22

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PART ONE: LEGAL WRITING Legal writing is not only what lawyers do when they write a legal brief to a judge. It also includes the kind of persuasive writing that most paralegals and other legal advocates do every day, like requesting documents on behalf of your clients, writing a cover letter along with a filing, and explaining the reasons on the fee waiver why your client cannot pay the fee. This part of the unit provides some tips on how to improve that writing.

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§ 9.1 Writing Techniques for Persuasive Legal Writing The goal of any kind of persuasive writing is to convince your audience of a particular position. To write persuasively, you need to present your facts and your arguments clearly and accurately. You do not need to use long, complicated sentences in order to prove that what you are writing is true. Instead, you should explain your argument simply and directly in order to best communicate your point. In many ways, legal writing is no different from other kinds of writing—the point is still communication. Still, there are several things to keep in mind that can help make your legal writing as effective as possible.

§ 9.2 Writing Clearly

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Writing clearly is often difficult to do in legal writing because the facts or arguments in a particular case can get complicated. Learning how to write clearly, especially in complicated cases, is the best way to make your writing persuasive. In order to write clearly, it helps to think through all the facts and arguments you want to say before you start writing. Many people find it easier to write clearly if they first spend some time making an outline. This can be a formal outline with bullet points and sub-points, a diagram or chart, or simply notes about all the facts. Writing down all of your ideas beforehand will help you be able to note which issues are related and put these next to each other in the outline. Think about how the ideas flow from one to another and then put them in a sensible order. If there is no other logical reason to put any argument first, you might want to start with your strongest (most persuasive) argument. Organization is very important in legal writing. It is very helpful to the decision-maker—and thus to your client—if the decision-maker can skim your document and easily find the main points of your argument. Writing some sort of outline beforehand will help you look at how all the facts fit together and then present them in a clear, orderly manner. A good way to see if your writing is clear enough is to read it out loud to yourself. If any part sounds awkward or confusing, be sure to change it so it sounds simpler and more natural. Remember that the goal of writing is to make the decision-maker understand the facts of the case and the arguments you are making to support your client. Sometimes it helps to think of writing about the case to the decision-maker as if you are explaining it in a letter to a friend—tell them the facts of the case and why you think you should win. Another tip for improving the clarity of your writing is to use topic sentences. A topic sentence is using the first sentence of a paragraph to present the main idea of the paragraph. Then, the rest of the paragraph should be used to prove that the topic sentence is true. For example, a topic sentence might be: “Maria has created a great life for herself in the United States.” Then, the rest of the paragraph would have different facts that show how Maria is just like any other American child: she’s in high school; she’s an excellent student and does all her work in English; she plays on a soccer team; she is in choir; and she has lots of friends.

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§ 9.3 Accuracy When you write a document that will be given to a DHS agency or the court, you must be sure that every fact is accurate. Always check the facts in your legal writing against the facts you have written down in the file to be sure that you’ve stated everything correctly and that you haven’t left out anything important. You should also show what you have written to your client (or at least the section on the facts of the case), so that the client can tell you if there are any errors. It helps to explain to the client the purpose of the letter or brief, and the importance of making sure that the facts presented are true. You may lose your accreditation if you submit something to the courts that you know is false.

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§ 9.4 Presenting the Facts in Legal Arguments The usual goal of what you write in an immigration case is to show that the facts in your case match up with a certain rule of law and thus require the decision-maker to rule in your favor. For example, in the case of a non-permanent resident applying for cancellation of removal, you want to prove that the client is eligible by showing that she has lived here for more than ten years, that she is of good moral character, that she is not barred for any reason, and that certain members of her family will suffer exceptional and extremely unusual hardship if she is removed. Therefore, the purpose of the writing would be to demonstrate how the facts of the client’s case meet the requirements of the law. The facts can be the most important element of the case, and every detail should be included that shows that your client should “win.” But what should you do with facts that might harm your client’s case? It is often best to address in your writing any facts that might hurt your client’s case and portray them in the best light as possible. This is especially true if 1) they relate to the legal requirements of the case, and 2) DHS knows about these facts or will probably find them out. It is not best to bring up things that the DHS cannot or will not discover and that are not strictly related to the legal requirements of the case.

Yes, you should include that fact because it is relevant to the legal requirement of good moral character. If you raise the fact yourself, you can explain the reasons behind it and present it in the best light to the judge. You and Joe should explain the reasons for his drunk driving conviction (bad times, lost his job, etc.) and why it won’t happen again (more stable life, married with children now, doesn’t drink anymore, etc.) Additionally, if you don’t bring it up the ICE attorney will and he or she might portray it in a very negative light. Drunk driving and other arrests are example of facts you should always bring up because the DHS will surely know about them through background checks.

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Example 9.4-a: Relevant Facts: You need to show that your client, Joe, who is applying for cancellation of removal has had “good moral character” for the past ten years. Joe has told you, however, that he was convicted once for drunk driving during that time. Do you need to inform the immigration court about this fact?

Thus, you want a chance to explain them yourself rather than letting the DHS bring it up in a more negative light. Example 9.4-b: Irrelevant Facts: In preparing for an immigrant visa appointment abroad, Margot discloses to you, in confidence, that she has 15 unpaid parking citations. Do you need to volunteer this information to the Consular official? No, you do not need to disclose the traffic citations because they are not relevant to the legal requirements for an immigrant visa. Immigrant visas can only be denied if a person is inadmissible on one of the grounds of inadmissibility listed in the INA (see Unit 3). The criminal grounds of inadmissibility do not include parking violations. There is no duty to volunteer this “bad fact” about Margot, and it is very unlikely that the Consulate or the CIS would discover this fact since it would not be listed on her criminal record. In theory, the only “good facts” about the person that you are allowed to present are those that are relevant to the legal requirements for the benefit he or she seeks. This means that for any benefit that is discretionary (such as asylum, adjustment of status, or deferred action), or where good moral character is required (such as voluntary departure, cancellation of removal, or naturalization), almost all good facts become relevant. Even where the benefit you seek is mandatory, not discretionary, an advocate should often try to present good facts about the person anyway to help show that the person merits immigration relief, even if the facts are not strictly required or related to the legal requirements.

Unit 9

Finally, never assume that the decision-maker knows anything about your client. Tell the decision-maker all the facts of your client’s case. The more positive details the decision-maker has, the more reasons she has to rule in favor of your client. When you present small details of the client’s life, the decision-maker begins to understand your client as a person, instead of just a “case” and is more likely to be sympathetic to your client. For example, instead of saying that a client is a factory worker, try to make the decisionmaker understand the whole situation: “Mustafa works in a cannery near his home in Hollister. He was originally trained as a labeler but was quickly promoted to a packer. He is the lead worker on his line. Also, he takes English classes two nights a week after work, in the factory.” Try to describe the facts so that the decision-maker will understand them in the best light for your client. For example, instead of saying “Leila was sick for two years,” you can be more specific: “Leila was in constant need of medical care after her car accident, and had to stay in bed for over two years. She couldn’t cook or bathe herself. All of her life skills needed to be taken care of by someone else.” Example 9.4-c: Here are two paragraphs that might appear in the “Statement of Facts” of a legal brief. STATEMENT OF FACTS # 1 Mr. and Mrs. Reynoso-Gonzales have lived in the United States for more than ten years. They are 46 years old. Mrs. Reynoso has four sisters here who are lawful permanent

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residents. Mr. Reynoso’s brother, mother, and father live in the United States and are lawful permanent residents. Mr. Reynoso is a carpenter and he earns $350 per week. Mrs. Reynoso is a sewing machine operator and she earns $300 per week. The Reynosos give $100 per month to Mr. Reynoso’s parents, who don’t have very much money because they only get Social Security retirement benefits. Mrs. Reynoso has some health problems because she had a car accident a few years ago.

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STATEMENT OF FACTS # 2 Maria and Jorge Reynoso-Gonzales (Reynoso) are longstanding U.S. residents with a large, close-knit family of lawful permanent residents. They have been living and working here in the United States for over ten years of their adult life. They are 46 years old. They live in the United States with much of their family. The other members of their family are all lawful permanent residents or citizens of this country. Mrs. Reynoso’s four sisters and Mr. Reynoso’s elderly parents and his brother all live close by to the couple. In addition to these immediate family members, the Reynosos enjoy loving relationships with several nieces and nephews who are also legal residents of the United States. The whole family stays in very close contact. Mr. Reynoso earns $350 per week as a skilled carpenter, and is well liked and respected by his boss and his co-workers for his careful and hard work. Mrs. Reynoso earns $300 per week as a sewing machine operator. The Reynosos use part of their earnings to help Mr. Reynoso’s parents, whose only source of financial support is their small Social Security payments. Last year, Mrs. Reynoso was the victim of a hit and run driver. She still requires some years of physical therapy, which has been paid for by her husband’s medical insurance, to prevent this from becoming a permanently disabling injury. She would not be able to afford this kind of therapy in Nicaragua, nor would she have insurance to pay for it there. Which paragraph do you think is more likely to help convince the judge that the Reynosos deserve to stay? Why? What makes it more effective writing?

§ 9.5 Practical Tips for Written Communication with DHS and the Courts

2. Make sure that your “ask” for a specific action or decision (such as granting a visa, reopening a case, etc.) is clear. 3. Always include the alien registration number (“A number”) and the client’s full name as they appear on immigration documents. 4. Address letters to a specific person within the agency whenever possible. 5. If your letter is more than a page or two, divide it up by subject headings.

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1. State the purpose of your letter at the beginning.

6. In general, use 12 point, Times New Roman font for correspondence with DHS and the Courts. If you need to include a reference, use a footnote and not an endnote. 7. If writing in response to a letter or notice from DHS, include a copy of their letter in your response. 8. If you are representing the person as an accredited representative, include a Notice of Representation Form G-28 or EOIR-28. (See Unit 13.) 9. Retain a copy of your letter for your files and to give to your client. 10. Include a copy of any supplemental materials that you refer to in any of your arguments, such as birth certificates, the Notice to Appear, medical records, etc. See Appendices 9-G through 9-I for sample writing exercises.

PART TWO: THE COURTS § 9.6 The Courts In this part of the unit, we’ll discuss the different types of courts that make decisions on immigration cases; the difference between judicial and administrative courts; and how some courts can overrule others. This is critical information for understanding how decisions in cases affect immigration law as well as how to appeal negative decisions made against our clients. When we appeal a decision, we ask a higher court or body to review a decision that we think was incorrect.

Unit 9

§ 9.7 Overview of Administrative and Judicial Bodies For purposes of immigration decisions, there are two types of adjudicating bodies: administrative agencies (which includes administrative courts and administrative review bodies) and judicial courts. Confusingly, immigration courts are not actually judicial courts. They are within the executive branch instead of the judicial branch. They are part of an administrative agency and so are called administrative courts. Administrative courts are set up by an administrative agency, like the Department of Justice or the Department of Labor. Administrative courts are not as formal as judicial courts. They have their own rules and procedures, and some administrative courts permit certain paralegals to practice before them. The immigration courts are administrative courts that are part of the Department of Justice, under the supervision of the Attorney General. Within the Department of Justice, there is an administrative agency called the Executive Office for Immigration Review (“EOIR”). EOIR

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includes the immigration courts, which hear the cases, and the Board of Immigration Appeals (“BIA”), which decides cases that have been appealed. Sometimes immigration cases can be reviewed by judicial courts, see below, such as federal district courts, federal courts of appeal, or the United States Supreme Court. See Appendix 9-A and 9-B for a graphic of the courts’ hierarchy and a description of the path an immigration appeal takes.

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Administrative review bodies are offices within an administrative agency that decide appeals from decisions of the front-line agency staff. The administrative review body within CIS is called the AAO (“Administrative Appeals Office”). The administrative review body within the Department of State dealing with visa decisions is the Visa Office, which can review some decisions to deny visas made by the U.S. consulates. 22 CFR § 41.121(c), 42.81(c). The federal judicial courts consist of the United States District Courts, which are the local trial courts in the federal system; the United States Circuit Courts of Appeal, which hear appeals from the District Courts and some administrative agencies, including the BIA; and the United States Supreme Court. The decisions of the Supreme Court apply to the entire United States, but the decisions of the District Courts and Courts of Appeal usually apply only in their own geographic district. (See Unit 8, Appendix 8-B for a map showing the geographic districts of the Courts of Appeal.) The judicial courts are more formal than the administrative courts, and only attorneys who have been admitted to the bar may represent clients in those courts.

§ 9.8 Administrative Appeals of Immigration Cases

The rules on how and to whom a decision may be appealed differ widely among the various types of immigration decisions. Types of Cases Reviewed by Administrative Bodies Immigration Court. Some types of relief can be applied for affirmatively (the client is not in removal proceedings, but is affirmatively seeking relief) or defensively (the client is in removal proceedings and is applying for immigration relief as a defense against removal). Some affirmative applications are referred to immigration court if they are not approved. This is not technically an appeal, but it does provide another chance for the client to present her case if it is not approved affirmatively. The following are common examples of these types of cases:

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It used to be that almost all decisions to deny immigration benefits could be appealed, usually at both an administrative level and in the federal judicial court system. Over the past several decades, with the passage of Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996 and the REAL ID Act in 2005, Congress has eliminated appeals entirely for a few types of cases, and limited review for many others. Most significantly, these laws drastically changed the types of cases that could be appealed to judicial courts.

  

Asylum; Adjustment of status; Petition to remove conditions of residence.

BIA. The BIA has jurisdiction over appeals for the following types of cases under 8 CFR § 1003.1(b). For a comprehensive list, see 8 CFR § 1003.1(b).    

Immigration Judge (“IJ”) decisions in removal proceedings; Relative visa petition denials and approval revocations; District Director decisions on nonimmigrant visa waivers under § 212(d)(3); and Determinations related to bond, parole, or detention.

AAO. The AAO has jurisdiction over appeals for many types of applications. 8 CFR §§ 103.3, 1103.3. Among the more common types are:           

Temporary protected status; U visas; Special Immigrant Juvenile petitions; Amerasian petitions; Permission to reapply for admission after removal (I-212 petitions); Waivers under INA §§ 212(h) or (i); Fiancée petitions and temporary worker petitions; Applications for reentry permits; Applications for refugee travel documents; Orphan petitions and advance processing of orphan petitions; Bond breach

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§ 9.9 Appeals of Immigration Cases in Federal Judicial Courts A.

Which Cases Can Be Appealed to the Federal Courts?

As mentioned above, IIRIRA, AEDPA, and the REAL ID Act, severely restrict immigrants’ access to the federal judicial courts. They accomplished this in two main ways: limiting the kinds of decisions reviewable by the judicial courts and limiting the time periods for appeal.

WARNING: Advocates Should Refer Cases Involving Appeals to the Federal Courts to Immigration Attorneys Who Are Experts in These Issues. The laws on who can get federal court review are extremely complex and the law on it is still changing. Since non-attorney advocates are not authorized to practice in federal judicial courts, they should not be doing these cases. However, because this right to get review in federal court is such an important right and

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the timeline for filing appeals so short, you should promptly refer all clients who may potentially have cases involving appeals in the U.S. federal courts to attorneys who are experts in this area of practice.



Limit the right to get judicial review in many types of cases, including: expedited removal proceedings; removal based on medical ground; denials of voluntary departure; discretionary decisions; waivers for immigration misrepresentation/fraud, criminal grounds, and unlawful presence; some mandamus and other affirmative lawsuits in nonremoval cases; and habeas corpus review of final orders of removal, deportation and exclusion orders.



Limiting the Time to File Notices of Appeal in Appealing Cases. If your client loses and may have an opportunity to appeal to federal court, it is important to refer this person as soon as possible to an attorney experienced in federal litigation to avoid missing the narrow window for appeal.

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These limitations are serious indeed. However, the REAL ID Act clarified that courts of appeal have jurisdiction to review all constitutional issues and questions of law related to a final order of removal. What does this mean? Constitutional questions concern whether someone’s rights have been violated. This means that individuals who are claiming, for example, that their due process rights were violated may appeal to the federal court of review because this involves a constitutional issue.1 “Questions of law” that can be appealed are those decisions that are based on statutory interpretation or application of law to the facts, and are not discretionary decisions. But, for example, most individuals who lose their cancellation of removal cases based on a discretionary finding of insufficient hardship will probably NOT be able to appeal the decision to the federal court of appeals because this is not a constitutional question or a question of law.

B.

What Is the Typical Route of an Appeal in a Deportation or Removal Case?

A typical deportation or removal case is appealed from the Immigration Court to the BIA. If this case is not within those groups of cases, mentioned above, barred by IIRIRA or the REAL 1

See Ramirez-Perez v. Ashcroft, 336 F.3d 1001 (9th Cir. 2003) (finding that the federal court did have jurisdiction to determine whether the BIA’s interpretation of the hardship standard violated petitioner’s due process).

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PRACTICE TIP: These rules limiting judicial review do not necessarily apply to every removal case. In some of the older cases, the earlier rules from before 1996 may apply instead. Since the old rules are preferable in most ways regarding the right to appeal, you should consult an expert if you have a pre-1996 case to see if the older rules for appeal might apply.

ID Act from being appealed to the judicial courts, then the case can be appealed to the U.S. Court of Appeals for that circuit. As a result of the REAL ID Act, removal cases with a final order based on a criminal offense or a discretionary decision must be appealed in the federal courts of appeal via a process called a “petition for review.” If the immigrant’s case is within those cases that the U.S. Court of Appeals is allowed to consider and if the petition for review is filed properly and on time, the circuit court is required to consider the appeal. If the immigrant loses in the circuit court and wishes to appeal this case further, he can request that the U.S. Supreme Court consider the appeal. The Supreme Court, however, is not required to take this type of appeal and considers only a fraction of the requests for review. See Appendix 9-B, Route of Appeal of a Typical Deportation Case.

PART THREE: APPEALS AND RESPONSES TO AGENCY DENIALS AND INTENTS TO DENY Mr. Wang applied to have his status adjusted to permanent resident here in the United States after he married a U.S. citizen. His application was denied because CIS said he had stolen a car in Idaho. Mr. Wang says that he has never left the state of New York and has never stolen anything. He wants you to help him appeal the decision.

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The following section discusses critical rules relating to appeals and motions to reopen. As you know, appeals and motions are complex. Only attorneys and accredited representatives can represent an individual in these cases. Only fully trained representatives should take these cases. Nevertheless, it can be helpful for all advocates to understand some of the basic requirements and deadlines in these cases, in order to assess how best to preserve questions for appeal and whether and when they should refer clients out to appeal their cases. This section is meant as an introductory guide, and by itself is not a sufficient source of information to conduct appeals. An extremely helpful guide to procedure can be found in the BIA Practice Manual, which is on the EOIR website at www.justice.gov/eoir/vll/qapracmanual/apptm tn4.htm. Advocates should consult and cite to this manual, and check the website for updates, especially regarding Chapter 3 (filing), Chapter 4 (appeals), and Appendix D (deadlines). The BIA manual stresses that practitioners also must consult the governing regulations, and often provides the appropriate citation. Another excellent resource is Kurzban’s Immigration Law Sourcebook (also see Unit 8, Appendix 8-D for other good resources).

PRACTICE TIP: Citations for EOIR Regulations. Regulations that govern EOIR (the BIA and immigration courts) were given new citation numbers by adding 1000 to the old INS citation numbers when the Department of Homeland Security was created. For example, the BIA procedural regulation at 8 CFR § 3 now is found at 8 CFR § 1003. Older cases and practice guides may use the old citation, so if you can’t find an 8 CFR section that they mention, try adding 1000.

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§ 9.10 The Right to Appeal The right to appeal—that is, the opportunity to have a denial reviewed by a higher authority—has been considered to be a right that is basic to a fair procedure. It used to be that very few decisions could not be reviewed. For instance, denial of a visa made by a U.S. Consulate abroad was one of the few actions that could not be reviewed. As mentioned above, IIRIRA in 1996 and the Real ID Act of 2005 sought to limit or eliminate judicial review for some other types of actions.2

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§ 9.11 The Importance of Prompt Action on Denials It is important to be aware of deadlines in immigration law and realize that the particular deadline that applies in your case is determined by where the case is within the immigration system. For example, CIS has different deadlines than the BIA. The timelines to appeal denials and intents to deny in immigration are extremely short. It is therefore critical that you advise clients of their right to appeal and that you act promptly, either to prepare the notice of appeal yourself or to refer the case to an attorney or accredited representative who is trained in appellate work. The deadline by which the BIA must receive a notice of appeal in a removal case is 30 days from the date the decision from the Immigration Court was announced. Note that there is no appeal of denials of adjustment of status; however, these denials can be challenged by motions to reopen (discussed below) which must be filed within 90 days of the final administrative decision or motions to reconsider which must be filed within 30 days of the decision being challenged.3 Immigrants in removal cases must seek appeal from an adverse BIA decision to the U.S. Courts of Appeal within 30 days of the BIA decision.

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Public Law No. 109-13 effective 5/11/2005. It is also possible to file a new adjustment application if the deadline has passed, although that means paying additional filing fees.

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WARNING: A motion for reconsideration and an appeal have the same 30-day deadline from the date of the original decision. Filing a motion to reconsider will not delay the deadline for filing an appeal. Therefore, if the 30-day deadline is approaching and no decision has been made on the motion to reconsider, it’s best to file the appeal within the same 30-day deadline. As a technical matter, the immigration court will lose jurisdiction over the motion for reconsideration when the appeal is filed with the BIA, but it is still advisable to file the appeal if you have not received a decision on the motion to reconsider. If the motion for reconsideration is filed with the BIA, the BIA will retain jurisdiction over the motion even if an appeal to the court of appeals is filed.

§ 9.12 Appeals and Motions to Reopen and Reconsider Compared Once an application has been denied, there are two possible types of responses: a) an appeal to a higher-level decision maker; or b) a motion requesting that the decision maker that denied the benefit look at the case again and reevaluate the decision. A.

Appeals

An appeal is a request to have a higher-level decision-maker decide whether the lower level decision was in error. As mentioned above, depending on the type of case, appeals can be made to the BIA, the AAO, the federal district court, the federal court of appeals, or the Supreme Court. B.

Motion to Reconsider and Motion to Reopen

It used to be that advocates were permitted to file these types of motions whenever the facts of the case required, but under current regulations and statute, immigrants are limited to only one of each motion for the length of the case and the motions must be filed close to the final decision in the case. (See § 9.13 for the few exceptions to these harsh limits.) These limits force advocates to think strategically about their use of these motions.

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Motions to Reconsider. A motion to reconsider is a request that the decision-maker (whether it be the Immigration Court, CIS, or the BIA) re-evaluate its decision on account of an error of law or fact and reenter a new decision. The purpose of a motion to reconsider is to correct an error of law or re-examine the facts. For example, if your client’s application for U nonimmigrant status was denied by CIS based on an erroneous decision that the person was not the victim of a qualifying crime, you could file a motion to reconsider with CIS pointing out the error of law. If a motion to reconsider is granted, the IJ, CIS, or the BIA will modify or reverse their original decision. If the motion is denied, the original decision will be affirmed, which means that the decision will remain the same. (See § 9.13 for procedures on how to file a motion to reconsider.) Motions to Reopen. A motion to reopen is a request that the decision-maker make a new decision based on new information or evidence. In practice, it is frequently used to apply for relief that one did not earlier qualify for or for raising new positive equities, such as a child born in the United States or marriage to a U.S. citizen. For example, if your client was ordered removed because he did not qualify for any immigration relief, you could file a motion to reopen the removal proceedings with the Immigration Court if your client later married a U.S. citizen and became eligible for immigration relief. Not every piece of new evidence justifies granting a motion to reopen. You must prove that the evidence: (1) is material; (2) was unavailable at the time of the original hearing; and (3) could not have been discovered or presented at the original hearing. (See § 9.13 for procedures on how to file a motion to reopen.)

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§ 9.13 Procedure for Appeals before the BIA This section will discuss procedure relating to appeals to the BIA. Procedural rules are crucial. Advocates must meet certain deadlines, mail Notices of Appeal and briefs to the correct address, and provide very specific information. If the procedural rules are not strictly followed, the case may be denied just on procedural grounds. These rules also govern what kind of review your appeal will be given. A.

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Notice of Appeal to the BIA from an Immigration Judge’s Decision

This section discusses filing a Notice of Appeal to the BIA from an IJ’s decision. See Subsection D below for information on filing a Notice of Appeal to the BIA from an immigration officer’s decision. See § 9.8 for information on appeals to the AAO. A Notice of Appeal (Form EOIR-26) must be filed to the BIA to appeal a decision of an IJ. The Notice of Appeal, and later the briefs, are filed directly with the BIA in Falls Church, Virginia. Form EOIR-26 provides different addresses for filing by regular and by overnight mail. See Appendix 9-C for a sample Form EOIR-26. Appearance by Counsel. If you are representing someone in the appeal, you must also file a Notice of Entry of Appearance before the BIA on Form EOIR-27, or the BIA will not recognize you as the representative and will not send you any correspondence related to the appeal.

Following the eRegistry process is very important, because if the Notice of Appeal is filed listing your name as the representative, the BIA will reject it you are not registered properly. Deadline for Filing Notice of Appeal. The BIA must receive the signed Notice of Appeal with the fee or a fee waiver within 30 calendar days after the IJ either gave an oral decision or mailed a written decision. The BIA must actually receive the Notice of Appeal by the deadline. It is not enough to have simply put the Notice of Appeal in the mail by the deadline. Failure to meet the deadline can result in denial of the case for lack of jurisdiction. If the thirtieth

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As of December 10, 2013, any attorney or accredited representative who wishes to appear before the Immigration Court or before the BIA must register online with EOIR’s eRegistry, located at www.justice.gov/eoir/engage/eRegistration.htm. It is a one-time registration process and is not linked to any particular appearance before the court. Attorneys must still enter their appearance on any particular case for the BIA using Form EOIR-27, which they should be able to do electronically after having registered through the eRegistry program. Before this electronic process was implemented, immigration practitioners had to file a Notice of Entry of Appearance on Form EOIR-27 by mail to the BIA. The newly implemented eRegistry allows practitioners to submit electronic versions of these forms, as part of a long-term plan to create an electronic case access and filing system for the immigration courts and the BIA. Even if you are mailing Form EOIR-27 along with the Notice of Appeal, each representative must be registered and have their identity confirmed in order to appear before the BIA.

day falls on a Saturday, Sunday, or holiday, the thirtieth day is considered to be the next business day. The same 30-day deadline applies to everyone, including detained persons. Remember the warning above that even if you have filed a motion for reconsideration with the IJ, that does not delay the 30-day deadline for filing the appeal to the BIA. Once an appeal is properly filed, the BIA will send a written receipt to both the alien (or his or her representative) and DHS. This receipt is important proof that your appeal has been received by the BIA and is currently pending. Remember that a removal order is generally not considered final until you receive a final decision from the BIA. Fee or Request for Fee Waiver; Proof of Service. The rules provide that appeals are not properly filed unless they are received in time with the required documents, fees/fee waivers, and proof of service. Either the appropriate fee or, for those who don’t have money to pay the fee, a Fee Waiver Request and Form EOIR-26A, should be sent with the Notice of Appeal to the BIA. For types of cases that do not require a filing fee, see 8 CFR § 1003.8(a)(2). A “proof of service” is a statement that you have provided a copy of the Notice of Appeal to the other side, i.e., the ICE District Counsel in an appeal of an IJ’s decision. The proof of service is included in Form EOIR-26.

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Content of Notice of Appeal. Notices of Appeal must identify the specific legal and factual reasons for the appeal. If this is not done, the BIA may summarily dismiss the appeal.4 The EOIR-26 provides some guidelines, but because the BIA may dismiss the appeal if the grounds for appeal are not set forth correctly, advocates without appellate experience should refer the case to an experienced practitioner or otherwise obtain assistance so that the Notice of Appeal can be competently prepared. Note that even where legal arguments have been adequately presented, a single BIA member may affirm an IJ’s decision without issuing an opinion.5 Thus, the best advocacy for your client is to complete the Notice of Appeal not only to identify the legal and/or factual reasons for appeal, but also to explain the reasons in a sufficiently compelling manner that the decision is submitted to a three-member BIA panel instead of the usual onemember review.6 Ideally, the reasons for the appeal should constitute a detailed outline of the brief in support of the appeal. B.

Procedure for Filing Briefs in Support of the Appeal

After the Notice of Appeal is accepted, the EOIR will prepare a transcript of the immigration court hearing. Then the BIA will send out a briefing notice, which is a schedule set with deadlines for when you need to submit a written brief supporting your client’s case, and when the ICE attorney needs to submit a brief supporting the ICE position.7 4

8 CFR § 1003.1(d)(2). See 8 CFR § 1003.1(e). 6 8 CFR § 1003.3(b). 7 See 8 CFR § 1003.3(c)(1). 5

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If the immigrant is not detained, the appealing party must file the appeal brief within 21 days after receiving the transcript or the briefing schedule. The other party has 21 days from that deadline to file its response brief.8 A reply brief answering the response brief may be permitted under certain limited circumstances, but only if requested in a motion to the BIA. If the BIA grants the motion, the reply brief must be filed within 21 days of the filing of the brief to which it is responding.9

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If the immigrant is detained, the time for submitting briefs is much shorter. Both parties must file their briefs at the same time, usually within 21 days of receiving the briefing notice, although the BIA can set a shorter time.10 If the appealing party wishes to file a reply brief, he or she has to file a motion to the BIA for permission, like people not detained (see above), but it must be filed within only 14 days after the end of the prior 21 day briefing period. The BIA will not delay its decision in anticipation of, or in response to, the filing of a reply brief.11 Extensions of time for the briefing schedule can be requested of the BIA by filing a motion, but they are granted in the BIA’s discretion.12 BIA policy is generally to allow only one extension of time for briefing per party per case. The policy is usually to give a maximum of 21 days extension, although extensions of up to 90 days can be granted for good cause shown.13 What if potential clients come to your office with notices that make it impossible to file on time or whose time period has already run out? The final regulations clarify that the BIA has discretion to waive these deadlines in its discretion.14 In some cases, the immigrant might be able to file a motion to reopen with the IJ for the purpose of re-issuing the decision. If the judge reissues the decision with a new date, this will re-start the 30-day period to file an appeal. Consult an expert on motions to reopen if your client has missed the filing deadline. C.

Notice of Change of Address

A party must provide written notice within five business days of any change of address or telephone number. The Form EOIR-33/BIA is to be used for a change of address where a case is pending before the BIA. See Appendix 9-F. Form EOIR-33/IC is for cases pending before Immigration Court.

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8 CFR § 1003.3(c); BIA Practice Manual, Chapter 4, § 4.7(a)(i). BIA Practice Manual, Chapter 4, § 4.6(h). 10 8 CFR § 1003.3(c)(1); BIA Practice Manual, Chapter 4, § 4.7(a)(ii). 11 BIA Practice Manual, Chapter 4, § 4.6(h). 12 8 CFR § 1003.3(c)(1). 13 8 CFR § 1003.3(c)(1). 14 See 8 CFR § 1003.3(c)(1). 9

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D.

Appeal to the BIA from an Immigration Officer’s Decision

If an Immigration Officer, as opposed to an IJ, makes a decision that can be appealed to the BIA—for example, if CIS denies an I-130 visa petition—slightly different rules apply.15 The Notice of Appeal is filed on Form EOIR-29, not EOIR-26. All of the relevant papers are filed with the office of DHS that has control over the file, instead of directly with the BIA. This includes the Notice of Appeal, fee or fee waiver request, statement of appearance by representative, supporting documents, and briefs. However, the BIA may permit the filing of briefs directly with itself.16 The Notice of Appeal must be filed within 30 days of the decision. Both parties’ supporting briefs must generally be submitted within 21 days unless the BIA has granted an extension. The Notice of Appeal must meet the same strict requirements of giving a detailed legal and factual basis for appeal.17 See Appendix 9-D for a Notice to Appeal to the BIA from an Immigration Officer decision. E.

BIA Review of an Appeal, Fairness Concerns, Effect of Departure during Appeal

The current BIA structure and review process comes from a set of controversial rules issued by the Department of Justice in 2002.18 Besides shortening the time for filing of appeal briefs, the regulations made several changes that are adverse to the rights of immigrants. These include:  

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Reduction of the BIA members from 23 to 11. Many members considered too “proimmigrant” were forced out. The BIA may now have a maximum of 15 members. Expansion of the BIA’s “summary review process.” This one-person review process now covers most cases. In order to obtain a more thorough review, the person appealing must now set forth the specific factual and legal basis warranting review by a three-judge panel.19 The BIA is also authorized, in the discretion of the BIA member to which the appeal has been assigned, to engage in a “summary dismissal” of “frivolous” appeals without review of the transcript of hearing.20 Disposition of unopposed motions, motions to withdraw an appeal, and DHS motions to remand appeals from decisions of immigration officers by a single BIA member.21 Elimination of oral argument in cases heard by a single BIA member.22

15

See 8 CFR § 1003.3(a)(2), (c)(2). 8 CFR § 1003.3(c)(2). 17 See generally 8 CFR § 1003.3(b). 18 67 Fed. Reg.54878–905 (Aug. 26, 2002). 19 See 8 CFR § 1003.1(e)(6). 20 See 8 CFR § 1003.1(d)(2)(i). 21 See 8 CFR § 1003.1(e)(2). 22 See 8 CFR § 1003.1(e)(7). 16

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    

IJs are ordered to review transcripts and issue written decisions within fourteen days of completing the hearing.23 BIA members are required to either decide each case or refer it to a three-judge panel within 90 days of the appeal.24 Three-judge panels are required to issue a decision within 180 days of referral by the screening panel (with one 60-day extension allowed).25 The Chairperson of the BIA is now required to notify the Director of the EOIR and the Attorney General if any BIA member repeatedly fails to meet the assigned deadlines.26 The submission of new evidence before the BIA by either party is generally prohibited. The final rule clarifies, however, that the BIA continues to have authority to “take administrative notice of commonly known facts, such as agency documents and current events.”27 This procedure is used to allow the BIA to consider a document, such as the State Department’s Human Rights Practices Reports, even if it had not been offered as evidence in the hearing or application by the parties.

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While the stated rationale behind the changes was to eliminate the BIA’s enormous backlog, many practitioners believe that these rules were designed to limit the due process rights of their clients. The reduction of the number of BIA members, expansion of “summary” decisions without opinion, and mandate that BIA members decide cases very quickly are controversial. In practice, this means that it can be difficult for noncitizens to receive a balanced and thoughtful review of their case on appeal from either the BIA on account of these changes, or from the federal judicial courts on account of the limitations on review imposed by IIRIRA and the REAL ID Act. It is important to know that these limitations exist so that you can emphasize with your client the importance of making the best case you can before the IJ or immigration agency—it is much easier to win the first time around than on appeal!

§ 9.14 Motions to Reopen/Reconsider in EOIR The following is a description of the current procedural rules on motions. Restrictive rules regarding motions to reopen and reconsider have been in place in the regulations and the Immigration and Nationality Act since 1996.28

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See 67 Fed. Reg. 54894-5, Supplementary Information III(H)(3). See 8 CFR § 1003.1(e)(8); 67 Fed. Reg. 54896, Supplementary Information III(H)(5). 25 See 8 CFR § 1003.1(e)(8); 67 Fed. Reg. 54896, Supplementary Information III(H)(5). 26 See 8 CFR § 1003.1(e)(8)(v). 27 See BIA Practice Manual, Chapter 4, § 4.8; see also 67 Fed. Reg. 54891-2, Supplementary Information III(F). 28 See INA § 240(c)(5) and (c)(6). 24

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A.

Motions to Reconsider

A motion to reconsider a BIA decision must state the reasons for the motion by specifying the errors of law, fact, or DHS policy in the BIA decision and must be supported by legal authority.29 There is no requirement of new facts or new precedent. Persons before the EOIR are limited to only one motion to reconsider in their case, and the motion must be filed within 30 days of the final administrative decision.30 B.

Motions to Reopen

Motions to reopen are governed by specific parts of the INA as well as the regulations. A motion to reopen must state new facts that were unavailable and could not be presented at the hearing or underlying proceeding, and must be supported by affidavits or other evidence. The rules for motions to reopen in removal proceedings limit a person to one motion to reopen per case, which must be filed within 90 days of a final administrative decision.31 There are some exceptions to the rule that one can only file one motion to reopen in removal proceedings. These exceptions are important to keep in mind, since the “one motion” rule is harsh and leads to countless unjust results. Exceptions:  

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To apply or reapply for asylum or withholding of removal based on changed country conditions.32 To rescind (take away) an IJ’s order of removal entered “in absentia.” Such an order means that the judge ordered the person deported because the person failed to appear at her hearing. If a motion alleges exceptional circumstances for failing to appear, the motion must be filed within 180 days after the date of the order of removal. A motion to reopen for improper notice of the hearing may be filed at any time. In addition, a motion to reopen may be filed at any time if the person was in federal or state custody on the date of the hearing and the failure to appear was through no fault of his own.33 To rescind an in absentia exclusion order. To reopen when the motion is agreed upon by all parties to the proceedings (“stipulated to”) and filed jointly.34

29

INA § 240(c)(5)(C); 8 CFR § 1003.2(b)(1). INA § 240(c)(5)(A) & (B); 8 CFR § 1003.2(b)(2). 31 INA § 240(c)(6); 8 CFR § 1003.2(c)(2). 32 INA § 240(c)(6)(C)(ii); 8 CFR § 1003.2(c)(3)(ii) & 1003.23(b)(4)(i). 33 INA §§ 240(b)(5)(C) & (c)(6)(C)(iii); 8 CFR §§ 1003.2(c)(3) & 1003.23(b)(4)(ii). 34 8 CFR §§ 1003.2(c)(3), 1003.23(b)(4). There was a previous exception to apply for relief under the former INA § 212(c), but the deadline for such motions, April 26, 2005, has passed. 8 CFR §§ 1003.44, 1212.3. 30

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 

To apply for relief under VAWA in certain circumstances.35 The BIA may sua sponte (on its own motion) reopen proceedings in exceptional circumstances, including where there has been a fundamental change in the law.36

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Note that there are other strategies to try to avoid the limits on motions but they are beyond the scope of this manual. Please consult other resource materials or experienced practitioners for advice on how to try and avoid the limits on motions. C.

Motions for Remand

A motion for remand is a motion made to the BIA before it has issued its decision. For example, if your client becomes eligible for adjustment of status while her BIA appeal is pending, and you want the case sent back to the Immigration Court for an adjustment hearing, you file a motion for remand. This is similar to a motion to reopen, except that since there is no final BIA decision in the case, you don’t need to reopen it; instead you need to send it back (remand it) to the IJ. There is no fee for filing a motion for remand. D.

Other Procedural Issues on Motions

Filing a motion to reopen or reconsider does not automatically stay (stop) an order of removal or deportation. A separate motion for a stay must be filed with the motion to reopen or reconsider. This is also true where a motion is appealed.37 The only exception to this rule is motions to reopen in absentia orders under 8 CFR §§ 1003.23(b)(iv)(ii) & (b)(4)(iii)(A).

The representative must file a Notice of Appearance (Form EOIR-27) in order to receive documents and correspondence regarding a client’s motion pending before the BIA. (See Unit 13 for information on notices of appearance.) All motions made and documents submitted to the IJ 35

See INA § 240(c)(6)(C)(iv). 8 CFR § 1003.2(a); see Matter of G-D- 22 I&N Dec. 1132 (BIA 1999). 37 8 CFR §§ 1003.2(f), 1003.6(b). 38 See BIA Practice Manual § 3.3(c)(i)(B). 36

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There is no official form for filing a motion. See BIA Practice Manual Chapter 3 for general rules and procedures for filing motions, and Chapter 5 for filing procedures for motions. Nevertheless, the BIA prefers that motions and supporting documents be set out in a certain order.38 When writing a motion to reopen, you must specifically identify and document the new facts that you wish to prove at the reopened hearing. You can support the new facts with affidavits or other evidence. If a motion to reopen lacks supporting affidavits or other proof, it can be denied. The motion to reopen will also be denied if it appears that the IJ has already explained the right to apply for relief at the prior hearing, or if the evidence could have been presented at the prior hearing, but was not. You must file a “proof of service” that shows that you filed a copy of the motion and attachments on the opposing party, and include a copy of the decision that is the subject of the motion.

and BIA must be in English or accompanied by a certified English translation. If you are requesting relief which requires a particular application form (for example, Form I-485 for adjustment of status), be sure to attach a copy of the application and documentation to the motion to reopen; without it, an IJ or the BIA can deny your client’s motion.39 Note that if your client wants to reopen to adjust his status through marriage, he needs to submit a copy of the approval notice for the visa petition on which the adjustment application is based, or, if the petition has not been approved, he must submit a copy of the visa petition and clear and convincing evidence that the marriage is bona fide.40 The motion should be filed with the decision-maker with jurisdiction over the case, whether it is the IJ, the BIA, or the immigration officer having administrative control over the record (for example, if CIS denied an I-130 visa petition).41 Briefs in support of motions may be filed with a motion. An opposing party has 13 days to file a brief in opposition to the motion. A motion shall be deemed unopposed unless a timely response is made. The briefing schedule is the same for detained and non-detained applicants. The fee for filing a motion to reconsider or reopen a decision made by an IJ is currently $110. If the motion is both to reopen and reconsider, the fee is still $110, not $220.42 There is no filing fee for a motion for remand or if you are requesting that the IJ or the BIA sua sponte reopen the case. Additionally, there is no filing fee if you are asking that the case be reopened to seek relief for which there is no fee, such as asylum.43

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Application fees (for example, to apply for cancellation or adjustment, in a motion to reopen to apply for that) are not paid to the BIA; if the case is remanded to immigration court, the fee will be paid at that time. If the person is unable to pay the filing fee, a fee waiver can be requested. Where a waiver is requested on filing a motion with the BIA, an Appeal Fee Waiver Request form (Form EOIR-26A) should be sent with the motion to the BIA. If the fee waiver request does not establish that the person cannot pay, the motion will not be considered properly filed. If the motion is before the IJ, an affidavit or declaration made under rules set out in 28 USC § 1746 can be filed with the IJ instead of an EOIR-26A.

39

8 CFR § 1003.23(b). Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). 41 8 CFR § 1003.2(g)(2). 42 These fees are current as of the date of this manual. You should check to see if these fees remain correct before filing. You can check the current fees on the CIS website at www.uscis.gov. 43 8 CFR § 1003.8(2)(ii). 40

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§ 9.15 Appeals and Motions to AAO The Administrative Appeals Office (AAO) is the primary appellate body for cases under the jurisdiction of the Associate Commissioner for Examinations (ACE), which is within CIS.44 Appeals from decisions of the CIS district director are filed on Form I-290B, which requires a filing fee of $630.

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A sample Notice of Appeal can be found at Appendix 9-E. The AAO also handles denials of legalization, which should be filed on Form I-694 with a $755 filing fee. For cases decided by the CIS, receiving a denial of a benefit may include preliminary notices, such as a notice requesting that the applicant get more documents (usually issued on Form I-72), and/or a “Notice of Intent to Deny.” For all denied cases, CIS must issue a “Notice of Decision,” which is the actual denial notice. If these cases are appealed, it is usually to either the AAO or to the BIA, a part of the EOIR. One can find lists of some of the types of cases appealed to each of these entities in § 9.8. A Notice of Appeal (Form I-290B) must be filed within 30 days of notice of the decision of denial. If the notice of denial was mailed, the deadline is 33 days. The Notice of Appeal is to be filed with a brief and the filing fee at the CIS office having jurisdiction over the case. The Notice of Appeal must specify the reasons for the appeal; failure to do so may result in summary dismissal of the appeal. Any order by the District Director is stayed (not enforced) throughout the 30 or 33-day period to file an appeal. If the Notice of Appeal is filed, the order is stayed until the case is decided by the AAO. The appeal procedure will usually include the following steps: first, the filing of a notice of appeal setting out the grounds for appeal; second, a request to see the CIS record of the case; and third, the filing of an appeal brief, which lays out the legal argument. Oral argument may be requested, although it is not guaranteed. The decision-maker issues a decision after reviewing the CIS record, the applicant’s brief and new documents (if any), and the government’s brief (if any).

PRACTICE TIP: Reconsideration of a denial may be faster than appeal. Because of this, you may wish to ask the District Director or Regional Service Center to reconsider its decision before forwarding the appeal. Note, however, that filing the motion for reconsideration does not toll 44

See 8 CFR § 103.3(a)(1)(iv).

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A motion to reopen or motion to reconsider must be filed within 30 days of the decision of denial. The motions may be filed on Form I-290B with the office with the record (although this is not always necessary). The motion may include a brief. The requirements for motions to reopen and reconsider are similar to those to the BIA discussed in § 9.14 above.

(delay) the time for filing the appeal, which is the same 30-days time period as for a motion for reconsideration. The representative can file a motion for reconsideration by attaching a cover letter to the brief. The appeal may take months, whereas the reconsideration may be granted very quickly. The I-290B will then be treated as a motion to reopen. Because the filing fees for appeals and motions to reopen before the AAO are so high, it is sometimes more practical to file a new application rather than filing an appeal or motion to reopen. This generally results in a faster decision. Be sure, however, to attach a copy of the denial of the previous application and address all the issues that resulted in the first application’s denial, and include a cover letter that summarizes how you have overcome the basis for the denial.

§ 9.16 Who Is Qualified to File a Brief? In most situations where your client has received an unjust denial, he or she needs to file a written legal argument in response. This argument, although it may sometimes be quite short, should be written by someone who is trained to understand all the legal issues involved and knows how to research and cite relevant law. The exception to this might be where the denial is based upon your client providing insufficient documents or a similar error, and it can be corrected by the paralegal without having to rely on a legal argument. Otherwise, if the denial requires legal argument and if you are not sufficiently trained to do this type of writing, you should inform the client that you cannot help her and immediately refer her to someone who can.

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Paralegals who are accredited representatives (see Unit 13) are authorized to represent clients on appeal to the administrative appeal bodies: the BIA and the AAO. Paralegals are not permitted to represent clients in the federal judicial courts, although there is no law that prevents paralegals from assisting attorneys in these cases. If a case is denied by the AAO or the BIA and your client wishes to seek further review in either the federal district courts or the federal courts of appeal, he or she must be referred to an attorney immediately, as there is a very short timeline for filing a federal court appeal.

§ 9.17 Keeping Clients Involved in and Informed about Their Appeals It is important to keep in touch with the client at the appeal stage of the case. It is true that traditionally the work of an appeal—namely writing and research—has been viewed as solely within the expertise of the legal worker. There are, however, many reasons why this is a critical point at which to keep the client involved. On a basic level, you will need to be able to locate the client when, even if years later, the case is resolved. Second, the client needs to know what is happening with the case for his or her own peace of mind and to inform the decisions he or she makes about travel and future plans. And, more immediately, the involvement of the client can increase the effectiveness of your advocacy on appeal.

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Starting with the first time that you meet the client with his denial notice, you can involve the client in the process. Clients need to understand from the beginning why their cases have been denied. If he has not already read the denial letter, you can read it with him and explain what it says and what his rights are. You can then help him understand what he needs to do in order to win the case, either by gathering more evidence or helping you to understand the facts.

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It is also very important that the client understand exactly what the appeals process is like—particularly what steps will need to be taken and when, and what the client’s role is in each step. In appeals, deadlines are very important so clients need to be informed about when each task needs to be completed and why. You may wish to give the client a “To Do” list with definite deadlines. The client should also be informed of other important facts about the appeal, such as the probable time line for a decision, her immigration status while it is pending, whether she can get work authorization, and whether his or her removal is stayed during the appeal. See Unit 8 on who can appeal and changes brought about by IIRIRA and the Real ID Act. Because of the length of time it may take to resolve some appeals, you should be sure to inform the client of the necessity of notifying both you and the appropriate agency, such as CIS, of any changes of address. A change of address form for cases filed with the BIA is found at Appendix 9-F. To encourage the client to take responsibility for the case, you may want to set up a regular schedule for the client to check in with you on the status of the case, rather than making it your responsibility to contact the client. Another useful way to give the client information is in the form of a letter covering what to expect.

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=

APPENDIX 9‐A 

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The Three Branches of the U.S. Federal Government 

THE LEGISLATIVE BRANCH   

THE EXECUTIVE BRANCH

THE JUDICIAL BRANCH

 

 

Supreme Court 

              Dept. of Homeland Security 

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U.S. Citizenship and  Immigration Services 

Immigration &  Customs  Enforcement Customs and  Border Patrol 

Dept. of Justice

Board of Immigration  Appeals 

Immigration Courts 

Appendix 9-A-1

 

APPENDIX 9-B ROUTE OF APPEAL FOR A TYPICAL DEPORTATION OR REMOVAL CASE

Administrative Courts Immigration Court  Board of Immigration Appeals  Judicial Courts U.S. Court of Appeals  United States Supreme Court*

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Notes: For immigration cases in which the review provisions of the IIRIRA and the Real ID Act of 2005 apply, the opportunities for review, especially to appeal cases to the judicial courts, have been limited. This chart shows the typical route of appeal for a case in which the federal judicial courts are permitted to consider the appeal. [See sec. 8.12 of text]. *The Supreme Court has the choice whether to accept a case for review or not. The Supreme Court considers only a low percentage of the cases that request its review.

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Appendix 9-D-1

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Appendix 9-F-2

APPENDIX 9-G For Writing Exercise

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FACT SUMMARY FOR WRITING PRACTICE

Esther Rosenberg is 87 years old and lives in Parkdale Retirement Home. She is bed-ridden and has virtually no memory due to advanced Alzheimer’s.

Problem:

She has been receiving SSI, a federal benefit program for low income people who are aged, blind or disabled, on account of her Alzheimer’s. The retirement home recently received a letter from the government requiring that Esther prove that she has an immigration status that makes her eligible for SSI or she will be cut off of her benefits.

History:

Esther has no proof of her immigration status. Her only living relative is her daughter Sylvia, who lives in another state. Sylvia remembers her mother, Esther, talking about coming to this country in 1915 as a child with her parents and an older sister. Esther’s parents’ names were Jacob and Lottie Weiss. They arrived by ship and she thinks they may have entered through the immigration inspection point at Ellis Island in New York. Sylvia doesn’t know if her mother, Esther, was a permanent resident or if she ever became a citizen by naturalization. Esther lived in New York City her whole life.

Law:

Assume for the purposes of this exercise that the law is that citizens are eligible for SSI and non-citizens are only eligible for this program if they are lawful permanent residents or other qualified non-citizens including certain refugees, asylees, parolees, and Cuban or Haitian entrants.

She Needs:

Proof that Esther was a lawful permanent resident or that she became a naturalized citizen at some point in her life.

*** Write a paragraph or two of the body of a letter to CIS explaining this client's problem and requesting the necessary documents from them. DON’T WRITE YOUR NAME ON YOUR PAPER.

Appendix 9-G-1

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Client:

APPENDIX 9-H PARAGRAPHS FOR WRITING DISCUSSION

Which explanation below is the most convincing and why?

- PARAGRAPH 1 -

Mr. Singh was very busy and didn’t talk to our office until July 31st. Please allow

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him more time to gather documents for his case.

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PARAGRAPH 2 –

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Mrs. Hernandez came in to my office today and she was really upset. She said that somebody broke into her house and stole her green card. She thinks that it was probably her brother-in-law, Enrique, because he sometimes gets drunk and sort of gets out of control. She called the police, but they didn't arrive for over an hour, so whoever stole it was already gone. So she needs a new green card. Then a couple of hours later she realized that Angelica (her oldest daughter's) passport with a tourist visa was gone too. Angelica is here in Modesto visiting her mother. It's the first time they have seen each other in a long time. Jenny, a neighbor, came over to ask why the police were there and she told her that maybe she could get replacements from the government. So she would like a new tourist visa, too.

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PARAGRAPH 3 -

You told Mr. Mkono, "come in at 11 'clock." Well, when he finally talked to the man there they told him, "We only do that on Wednesdays." And that's not true because I know that you do work authorization cards every day. And he had to wait until 4:50 to see anybody in a really long line. And the guy he talked to kept yelling at him because he said

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he needed another form and Mr. Mkono was really embarrassed.

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PARAGRAPH 4 -

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In re: Respondent, Mrs. Rivera, applicant before the EOIR under section 208 and 242(b)(3) of the INA, who was released on parole from ICE, conditioned on her presence at monthly interviews with DD&P. Mrs. Rivera has a newly acquired complete disability that makes the above-mentioned agreement impracticable and which has altered her situation vis-a-vis your office. Please reopen, review, and reconsider the respondent’s terms, conditions and contract of release and relieve her of the encumbrances and oppressions immediately. Furthermore if prompt action is not taken, we will bring suit against the agency for violating its responsibilities under § 504 of the Rehabilitation Act of 1973.

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Appendix 9-H-4

APPENDIX 9-I LEGAL WRITING HOMEWORK ASSIGNMENT

A. Goal of Assignment: The goal of the homework assignment is for you to get practice in writing correspondence on cases to the CIS. THERE ARE NO “TRICKS” TO THIS ASSIGNMENT. We would like you to use only the facts and law provided to you. YOU DO NOT NEED TO DO ANY OUTSIDE RESEARCH. Your goal should be to write a short and clear letter that provides the CIS with the relevant information and requests what you believe you need for the case. B. Instructions: Pretend that Magdalena Luz is your client. The following information on her case is attached: - Notes on her case taken by your colleague who interviewed her; - An “Intent to Deny” notice from the CIS; - A copy of the relevant regulations. The letter should be no more than a couple of pages. You may address the letter to Madeline Morton, Director of the CIS Regional Service Center.

IMPORTANT!

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DO NOT PUT YOUR NAME ON THE LETTER BECAUSE WE MAY USE IT IN CLASS. INSTEAD, PUT SOME KIND OF IDENTIFYING NUMBER THAT YOU WILL RECOGNIZE LATER, SUCH AS YOUR BIRTHDATE.

THIS ASSIGNMENT MUST BE MAILED TO YOUR INSTRUCTOR BEFORE THE NEXT TRAINING. HAVE THE ASSIGNMENT IN TO YOUR INSTRUCTOR BY THE FOLLOWING DATE:

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CLIENT INTAKE SHEET

Interview Date: Interviewer:

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February 17, 2014 Carmen R.

CLIENT:

Magdalena Luz is a naturalized U.S. citizen, native of Honduras. She filed (on her own) an I-130 petition for her brother, David Zavala.

PROBLEM:

She came to see us today with a Notice of Intent to Deny from the CIS Regional Service Center. They intend to deny the petition on grounds of insufficient proof of her relationship to her brother because their mother's name is listeddifferently on their birth certificates.

FACTS:

Maria, the mother of both Magdalena and David, used two last names. Magdalena's birth certificate lists her mother's name as "Maria Luz," which was her mother's maiden name (she was unmarried at the time of Magdalena's birth). After Magdalena's birth, Maria Luz met and married Salvador Zavala. Maria started using the name "Maria Zavala" after she married Salvador. David was born 2 years after his mother married Salvador. David and Magdalena's mother died in 1987. To prove that she and David were brother and sister, Magdalena submitted only their two birth certificates with her visa petition for David.

POSSIBLE ADDITIONAL PROOF Magdalena thought she could get certified copies of her mother Maria's birth certificate and marriage certificate to Salvador. She said that both she and David were baptized in the Catholic Church in Tegucigalpa. Magdalena is still in contact with her aunt and uncle who live Honduras as well as Mr. and Mrs. Silva, who were their neighbors in Tegucigalpa long before Magdalena or David's birth, and who now live in the U.S. 1. Work with client to get additional proof 2. Read regulations on proof of relationships (attached) 3. Write response to CIS, assuming the client has provided all the proof discussed above.

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TO DO:

United States Citizenship and Immigration Services Regional Service Center DATE: February 12, 2014

In re:

Magdalena Luz, Petitioner David Zavala, Beneficiary Immigrant Visa Petition, Fourth Preference

NOTICE OF INTENT TO DENY You have submitted a petition for an immigrant visa pursuant to Section 203(a)(4) of the Immigration and Nationality Act. Petitioners are required to submit evidence of the necessary family relationship between the petitioner and beneficiary. 8 CFR § 204.2(g)(2). You have failed to prove that the petitioner and the beneficiary have a common parent, as required by 8 CFR § 204.2(g)(2)(i) and (ii). According to the birth certificates submitted in support of the petition, the U.S. citizen petitioner's mother was named "Maria Luz" and the beneficiary's mother is listed as "Maria Zavala." Your petition will be denied on the basis above stated unless additional information is submitted. You are given 30 days from the date of this notice in which to submit a response. If you fail to respond to this notice, your petition will be denied on the basis on the evidence of record. Send all correspondence and evidence to the address shown on the heading of this letter.

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Sincerely,

Madeline Morton Director USCIS Regional Service Center

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8 CFR § 204.2(g)

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(g) Petition for a brother or sister-(1) Eligibility. Only a United States citizen who is twenty-one years of age or older may file a petition of a brother or sister for classification under section 203(a)(4) of the Act. (2) Evidence to support a petition for brother or sister. In addition to evidence of United States citizenship, the petitioner must also provide evidence of the claimed relationship. (i) Primary evidence if the siblings share a common mother or are both legitimate children of a common father. If a sibling relationship is claimed through a common mother, the petition must be supported by a birth certificate of the petitioner and a birth certificate of the beneficiary showing a common mother. If the mother's name on one birth certificate is different from her name as reflected on the other birth certificate or in the petition, evidence of the name change must also be submitted. If a sibling relationship is claimed through a common father, the birth certificates of the beneficiary and petitioner, a marriage certificate of the parents' and proof of legal termination of the parents, prior marriage(s), if any, issued by civil authorities must accompany the petition. If the father's name has been legally changed, evidence of the name change must also accompany the petition.

(iii) Primary evidence if either sibling is illegitimate. If one or both of the siblings is (are) the illegitimate child(ren) of a common father, the petitioner must show that they are the natural children of the father and that a bona fide parent-child relationship was established when the illegitimate child(ren) was (were) unmarried and under twenty-one years of age. Such a relationship will be deemed to exist or to have existed where the Appendix 9-I-4

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(ii) Primary evidence if either or both siblings are legitimated. A child can be legitimated through the marriage of his or her natural parents, by the laws of the country or state of the child's residence or domicile, or by the laws of the country or state of the father's residence or domicile. If the legitimation is based on the natural parents' marriage, such marriage must have taken place while the child was under the age of eighteen. If the legitimation is based on the laws of the country or state of the child's residence or domicile, the law must have taken effect before the child's eighteenth birthday. If based on the laws of the country or state of the father's residence or domicile, the father must have resided--while the child was under eighteen years of age--in the country or state under whose laws the child has been legitimated. Primary evidence of the relationship should consist of the petitioner's birth certificate, the beneficiary's birth certificate, and the parents' marriage certificate or other evidence of legitimation issued by civil authorities.

father demonstrates or has demonstrated an active concern for the child's support, instruction, and general welfare. Primary evidence is the petitioner's and beneficiary's birth certificates, issued by civil authorities and showing the father's name, and evidence that the siblings have or had a bona fide parent/child relationship with the natural father. If the father's name has been legally changed, evidence of the name change must accompany the petition. Evidence of a parent/child relationship should establish more than merely a biological relationship. Emotional and/or financial ties or a genuine concern and interest by the father for the child's support, instruction, and general welfare must be shown. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child's needs, or that in general the father's behavior evidenced a genuine concern for the child. The most persuasive evidence for establishing a bona fide parent/child relationship is documentary evidence which was contemporaneous with the events in question. Such evidence may include, but is not limited to: money order receipts or canceled checks showing the father's financial support of the beneficiary; the father's income tax returns; the father's medical or insurance records which include the beneficiary as a dependent; school records for the beneficiary; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

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(iv) Primary evidence for stepsiblings. If the petition is submitted on behalf of a brother or sister having a common father, the relationship of both the petitioner and the beneficiary to the father must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii) of this section. If the petitioner and beneficiary are stepsiblings through the marriages of their common father to different mothers, the marriage certificates of the parents and evidence of the termination of any prior marriages of the parents must be submitted.

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UNIT TEN THE REMOVAL PROCESS

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This Unit Covers:   

The removal process, especially how to respond to the Notice to Appear (Part One); Bond redetermination hearings and how to help lower a bond (Part Two); Expedited Removal Proceedings (Part Three)

This Unit Includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5

§ 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12

Overview and Definition of Terms .................................................................. 10-2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings ................................................................................... 10-6 Arrests, Issuance of the Notice to Appear and Order to Show Cause .............. 10-9 The Master Calendar Hearing: Beginning Removal Proceedings .................. 10-10 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order ........................................................................................ 10-18 After a Final Removal Order: Surrender and Removal .................................. 10-27 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal” .......................................................................... 10-28 Detention, Bonds and Procedure .................................................................... 10-31 Bond Equities ................................................................................................. 10-40 Preparing for the Bond Redetermination Hearing .......................................... 10-43 Posting the Bond ............................................................................................ 10-44 Expedited Removal Proceedings under INA § 235 ........................................ 10-45

PART ONE: THE REMOVAL PROCESS A CBP official arrests Gabriela at her job. Gabriela tells him that she is from Mexico and does not have legal status in the U.S. Gabriela has been living and working in the U.S. for several years and has two U.S. citizen children. The official detains Gabriela and issues a Notice to Appear to start removal proceedings.

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§ 10.1 Overview and Definition of Terms This unit will discuss what happens in situations like Gabriela’s. We will discuss Gabriela’s rights, including the right to a hearing. We will also see what Gabriela can do to get out of immigration custody. Removal proceedings are the court process that determines whether someone will be removed from the United States. Removal proceedings against a person start when an immigration official issues a document called a Notice to Appear (NTA), files it with the Immigration Court, and gives a copy to the person.1 A Notice to Appear is the document that notifies the immigrant that she must appear in immigration court and describes the charges of removability that are being brought against her—the reasons the government believes the person is in the U.S. illegally. Often the person is arrested first and then receives the Notice to Appear. However, a person does not need to be arrested to receive a Notice to Appear. A person can receive a Notice to Appear in the mail when their immigration visa expires or after getting denied an immigration benefit. The person against whom the NTA is issued is called the respondent (the person who responds to the charges). The regulations implementing the removal procedures, which were introduced by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, are found at 8 CFR §§ 239, 240, 1239 & 1240.

NOTE: Cases that began before April 1, 1997 are in “deportation” or “exclusion” proceedings, not “removal” proceedings. These earlier proceedings were initiated by an Order to Show Cause rather than a Notice to Appear. These documents look generally the same, but the title of the document will indicate “Order to Show Cause” or “Notice to Appear.” Examples appear at Appendix 10-A. If your client was charged under an Order to Show Cause, she may have significantly different forms of relief available to her. Of particular interest are the availability of Suspension of Deportation (as amended by the “stop-time rule”; see Unit 11, and 212(c) relief; see Unit 12).

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PRACTICE TIP: Before you practice in any immigration court, read the regulations governing such practice (8 CFR, Part 1003 et seq.) and the Immigration Court Practice Manual which took effect on July 1, 2008, making immigration court procedures uniform nationwide. The manual may be found on the EOIR website at www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm. The Immigration Court Practice Manual contains the rules that the Executive Office for Immigration Review (EOIR) has made for practice in the local courts. They supplement the general regulations concerning practice in immigration courts, and include important filing 1

Certain designated officials of CIS, CBP and ICE have the authority to issue a Notice to Appear. See 8 CFR § 239.1.

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deadlines. You must follow the general regulations and the Practice Manual rules, or you may have procedural problems—including missed filing deadlines—that injure your case.

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The Immigration Judges do still retain some discretion regarding setting and extending filing deadlines and other issues that may arise. An EOIR memo from the Chief Immigration Judge dated June 20, 2008, specifically directs the judges to be flexible with respect to scheduling for non-profits and law school clinics. If you have questions about local practice, you can speak with an experienced local practitioner. You can also call the immigration court clerk and/or the clerk of the immigration judge before whom your case is pending to clarify how the Practice Manual is being implemented locally or inquire about your case. You will find a full list of immigration courts nationwide, with contact information and general information for each court at www.usdoj.gov/eoir, by selecting “find an immigration court.” If you have filed a motion that is time-sensitive, you can follow-up on the motion with a call to the judge’s clerk to ask about the timing on the decision.

Let’s briefly look at the procedure in a typical removal case. We will go into more detail later in this unit. 1. Arrest and Detention. A person can be arrested and detained by an immigration official (usually a CBP or ICE official) on suspicion of not having lawful immigration status or if someone has lawful status, on suspicion of being removable. After the arrest, the official will interview the person. Often, information from this interview is used against the person to write the Notice to Appear. See Unit 19 on arrests. 2. The Notice to Appear. The Notice to Appear is the formal legal document that charges the person with being a removable alien. In the Notice to Appear, the government must state specific facts that show (1) the person is not a U.S. citizen and the person’s country of citizenship, (2) the acts or conduct that are in violation of the law, (3) the legal authority under which the government is conducting the proceedings, and (4) the provisions of the law that the person violated. Example 10.1: In Gabriela’s case, the Notice to Appear will state that Gabriela is a citizen of Mexico and not the U.S. It will state that Gabriela entered the U.S. without inspection in June 1983 near Calexico, California. (Gabriela herself gave the immigration officer all this information when she was arrested.) Based on these allegations, it will charge Gabriela with being present in the United States without being admitted or paroled. INA § 212(a)(6)(A). The government must serve the person with a copy of the Notice to Appear (give the person a copy). If the person is still in immigration detention, an immigration officer will simply hand her the Notice to Appear. If the person is not in detention, the government may serve the Notice to Appear by mail. See INA § 239(a)(1).

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3. The Bond Hearing. If the person has been arrested, the Enforcement and Removal Operations of ICE will determine if the person is eligible to have a bond set to secure her release from custody. An immigration bond is money a family member or friend must post to secure the person’s release from custody. This bond is supposed to guarantee that the person will come to future hearings and interviews. If the person does not show up, the person who posted the bond will lose the bond money. Some people do not have the right to a bond and are required to remain in immigration custody while they fight the case. These people are subject to “mandatory detention” as described in INA § 236(c). Mandatory detention is discussed in § 10.8(A) of this unit. In the initial interview, the officer will decide whether they are subject to mandatory detention, and if not, whether they are deserving of a bond. On rare occasions ICE may release someone on “conditional parole,” which means without paying a bond. See INA § 236(a)(2)(B). If an ICE officer elects not to set bond, or the amount the officer sets is too high, the detained person may ask to have the decision reviewed by an immigration judge. This is called a bond re-determination hearing, more commonly referred to as the bond hearing. The immigration judge can review a decision of the immigration officer that someone is not eligible for a bond, as well as re-determine the amount of bond. A bond hearing can happen before or after a master calendar hearing and is separate from the removal hearing. The minimum bond a judge may set is $1,500. In a bond hearing, the judge will determine whether or not he believes the person 1) is a danger to the community, and 2) whether the person is a flight risk. If the judge is satisfied that the person is not a danger to society, the judge will determine how much money is necessary to ensure that the person will not abscond. (If the person cannot pay the amount of bond set, or is not offered bond, she will remain in detention throughout the removal proceedings. For those entitled to a bond, it is extremely important to their case that they get bonded out. For more information on bonds and bond re-determination hearings, see Part Two of this unit.

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4. The Master Calendar Hearing. The first hearing in removal proceedings is called the master calendar hearing. Some people have a master calendar hearing before a bond hearing. Other people will complete the bond hearing before a master calendar hearing. A master calendar hearing is used to discuss preliminary issues in a case, and a person might have more than one master calendar hearing before the immigration judge sets a date for the “individual hearing.” In a master calendar hearing, the person must respond to the charges on the Notice to Appear. The judge will most often rule on two questions: a. Is the person really a removable alien, as charged on the Notice to Appear? In other words, can ICE prove that the Notice to Appear charges are correct? b. If so, can the person apply for some kind of relief from removal or means of immigrating?

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If the person can apply for some relief (for example, adjustment of status, asylum, or cancellation of removal), the judge will schedule another longer hearing to decide the application. This is called the merits hearing, “regular hearing” or “individual hearing.” The judge will also schedule a merits hearing if the person denies the government’s charges that she is removable. If the person contests that they are removable, the hearing will focus on the allegations in the Notice to Appear and whether the government has met their burden of proof.

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If the person cannot apply for any relief, and does not qualify or chooses not to apply for voluntary departure instead of removal, the judge will issue a final order of removal. In some cases, it might be appropriate to ask for prosecutorial discretion, which is a request for ICE to close the case based on the positive factors, although the person has no relief. See Unit 16 for more information. If the person does not appeal the removal order, ICE will remove the person by putting him on a plane or bus to the country of removal, which may occur as quickly as a matter of days depending on the country of origin. 5. “Merits Hearings” for Relief. If the person has a defense to removal the judge will usually set the case over for another hearing on that defense, called a “merits hearing,” “regular hearing,” or “individual hearing.” The defense could be an attack on the facts or law set out in the Notice to Appear, or it could be an application for relief such as adjustment of status, asylum, or cancellation of removal. When the respondent attacks the charges on the Notice to Appear, this is called “contesting removal.” Testimony is usually taken at this stage. At the conclusion of the merits hearing, the judge may either issue a decision in court at the end of the hearing or “reserve” the decision to give herself time to prepare a decision. If the person is ordered removed, he or she may appeal the decision to the Board of Immigration Appeals. (See Unit 8 on appeals.) 6. Expedited Removal Proceedings. Some persons have even fewer rights than those in regular removal proceedings. Those persons are in expedited removal proceedings. For example, persons who are apprehended at an airport without proper documents and those who are arrested at the border while crossing illegally will usually be placed in expedited removal proceedings.2 The government also has the option to put any person in expedited removal proceedings if he or she entered without inspection and has been in the United States for less than two years. At first, the government chose not to enforce expedited removal against persons found within the United States. However, in 2002 expedited removal began to be applied to those who have arrived by sea and have been in the United States for less than 2 years. Expedited removal was further expanded on August 10, 2004, when Asa Hutchinson, Undersecretary for Border and Transportation Security for the Department of Homeland Security (DHS), announced that DHS will use expedited removal both at ports of entry and along the U.S. border between entry ports. 2

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Sometimes a person who could be subject to expedited removal is permitted to withdraw her application for admission, and therefore is permitted to return home without an expedited removal order. See Part Three.

In September of 2005, expedited removal was again expanded to include persons apprehended along the entire Southwest border who have been in the US for 14 days or less. Finally, on January 30, 2006, DHS expanded expedited removal to those aliens who have spent 14 days or less in the United States and are either apprehended within 100 miles of the border with Mexico or Canada or arrive by sea and are apprehended within 100 miles of a coastal border area. Currently, people who entered the U.S. without documentation and have been in the U.S. for more than 14 days will continue to be entitled to regular removal proceedings, where they will be charged with being inadmissible. The rest of Part One will discuss removal procedures, and especially the Notice to Appear. Part Two will discuss bond re-determination hearings. Finally, Part Three will discuss expedited removal proceedings.

PRACTICE TIP: If a person comes to you who lives in your area, but has a removal hearing in another district, you can make a motion for change of venue. A motion for change of venue is a request to change the location (venue) of the hearing from one immigration court to another. You make the motion to the court where the case is currently set to be heard. Be sure to read the regulations governing change of venue and the Immigration Court Practice Manual rules that govern the motion. Many times in the past, some immigration judges would require you to admit the allegations of fact in the NTA before granting a motion for change of venue. The Practice Manual requires that the respondent either admit or deny the factual allegations and legal charges. Warning! Filing a change of venue motion does not excuse a person from attending her hearing. A person who has requested a change of venue must appear at the hearing in its original location if the change of venue motion has not been granted by the day of hearing! The consequences of missing a hearing are severe (see § 10.5 below).

§ 10.2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings

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We discussed the basic definition of removal in Unit 1. When the government legally forces a non-citizen to leave the U.S., based on an order of removal, the person has been removed (deported). Any person who is not a U.S. citizen or national can be removed. In order to be removed, the person must come within a ground of inadmissibility or a ground of deportability. The grounds of inadmissibility are set out in INA § 212(a), and the grounds of deportability are set out in INA § 237(a). These grounds focus on crimes, immigration violations, health problems such as drug addiction, and other negative elements. See Unit 3. 10-6

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Earlier in this manual, we also discussed how to determine whether the grounds of deportability or inadmissibility will be applied to a noncitizen. See Unit 1, Part Two and Unit 3, § 3.1.

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To review, starting April 1, 1997 the government can put a person in removal proceedings and charge him or her with being inadmissible or deportable. INA § 240(a)(2). People who have not been lawfully admitted to the United States will be charged with being inadmissible. They are said to be “seeking admission,” even if they are inside the U.S. after having entered illegally. Those who were lawfully admitted but have come within a ground of deportability can be charged with being deportable. A lawful permanent resident who is returning from a trip abroad can be charged with being inadmissible (or, in other words considered to be “seeking admission”) only if: 1. 2. 3. 4.

She abandoned or relinquished her lawful permanent residence, or She was outside the U.S. continuously for over 180 days, or She committed illegal activity while outside the U.S., or She has departed from the U.S. while under legal process seeking her removal from the U.S., or 5. She is inadmissible because of a criminal conviction or other offense under § 212(a)(2),3 unless it has been waived under § 212(h) or § 240A(a)4 or 6. She has entered or is attempting to enter the U.S. without being legally admitted.

See INA § 101(a)(13)(C). Otherwise, a returning lawful permanent resident is not subject to the grounds of inadmissibility, but only to the grounds of deportability. See Unit 3, § 3.1. In removal proceedings, if a person is charged with being inadmissible, she has the burden of proving that she is admissible. In contrast, if a person is charged with being deportable, CIS has the burden of proving that the person is deportable by clear and convincing evidence. The judge’s decision must be based on reasonable, substantial, and probative evidence. INA § 240(c)(3). With few exceptions, ICE can only remove a person after an immigration judge has issued a final order of removal in a removal hearing. Unless an immigration judge has heard the case and issued that order, ICE cannot remove the person. ICE, however, can try to convince 3

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This section does not apply to people whose criminal convictions occurred before April 1, 1997, the effective date of IIRIRA and INA § 101(a)(13)(C). See Vartelas v. Holder, 132 S.Ct. 1479 (March 28, 2012). Instead, the old rule governing brief departures from the United States applies. A “brief, casual, and innocent departure” does not interrupt a person’s lawful permanent residence and they are not considered to be seeking a new admission if the only issue is a pre-April 1, 1997 crime. Rosenberg v. Fleuti, 374 U.S.449 (1963). 4 For certain crimes there are waivers of inadmissibility. See Units 6 and 12 for an explanation of the § 212(h) waiver and LPR cancellation of removal under § 240A(a).

the person to give up the right to a hearing and leave voluntarily, by accepting voluntary departure. See INA § 240B(a) and Unit 16. As long as the person has not been convicted of an “aggravated felony” (see Unit 3) and has not engaged in terrorist activities, he or she can leave the United States voluntarily. The government can grant the person up to 120 days to leave. The government may require the person to post a bond that will be returned when the person provides proof that he or she has left the United States within the time specified. Note, ICE agents may pressure an individual to sign something described as a voluntary departure, but which is actually a Stipulated Order of Removal and has the same effect as a deportation order. It is important that clients read any document before they sign or insist on speaking with a lawyer before signing. Legally, departing voluntarily is different from having an order of removal on one’s record. If the person agrees to voluntary departure and does not leave voluntarily in the time specified, however, there are severe penalties. Example 10.2: Tomas, a Mexican citizen, is picked up by ICE in a raid. The ICE officer convinces Tomas he should just sign a form and take an ICE bus back to Mexico instead of waiting to see an immigration judge. Tomas signs the form, goes to Mexico, and comes back without papers the next day. Tomas has not been removed, because an immigration judge has never seen him or ordered him removed. In fact, the form that Tomas signed (Form I-214) was a statement saying that he agreed to waive (give up) his right to a removal hearing. (Unfortunately, it is possible that Tomas gave up valuable rights by not waiting to see the judge). Tomas might think he has been removed, but in reality he accepted an “administrative” voluntary departure to Mexico. A person whom CBP catches trying to enter the U.S. at the border is not eligible for voluntary departure, but he or she may be able to “withdraw” his or her application for admission to the U.S. and leave without having a removal order on his or her record. Withdrawal can only occur with the CBP’s permission.

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We stated that there are a few exceptions to the rule that only an immigration judge can order someone’s removal. One exception is the “administrative removal” process. ICE itself can order the removal of people who (a) are convicted of an aggravated felony and (b) are not lawful permanent residents. See INA § 238; 8 CFR §§ 238 & 1238. Second, in some cases a federal district court judge, not an immigration judge, can order removal of an alien. See INA § 238. Finally, the CBP can order removal in an expedited removal proceeding. See INA § 235(b) and § 10.12 of this unit.

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§ 10.3 Arrests, Issuance of the Notice to Appear and Order to Show Cause A.

Arrests for Immigration Purposes

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When an ICE or CBP official finds someone whom it believes to be removable it will often arrest that person. There are many ways it encounters such persons. For example, ICE or CBP may:     

Conduct a raid at the workplace, residence, or public area; Pick the person up from jail or prison after he or she has either been arrested or has served a sentence for a criminal offense; Receive a tip from someone that the person is undocumented or has committed immigration fraud; Arrest the person at or near the Mexican border just after he or she has entered. Arrest the person after he files an application with immigration, and convictions are discovered.

After arresting the person, the ICE or CBP official interviews him and completes Form I213 with notes from the interview. See Appendix 10-B for a sample of an I-213. Often the facts gleaned from the interview will be used to write the charges in the Notice to Appear. In some cases immigration officials will issue the Notice to Appear and begin removal proceedings without taking the person into custody. For example, a person might go into a CIS office to apply for an immigration benefit (e.g., asylum); if the application is turned down, CIS might simply hand or mail the person a Notice to Appear without arresting her. Example § 10.3-a: Wu applied for asylum, but had overstayed her tourist visa. The asylum officer found that she was credible, but did not find that she had a well-founded fear of persecution. The asylum officer denied her application. When Wu went to the asylum office to get her decision, the asylum officer handed her a Notice to Appear and told her when her court date would be. Wu was placed into removal proceedings because she was not lawfully present in the United States after overstaying her visa. B.

Notice to Appear

Removal proceedings start when an immigration official issues a Notice to Appear (NTA) and files it with the immigration court. In 2012, the immigration courts received over 300,000 new cases. At the end of 2012, over 325,000 cases were pending in the immigration courts throughout the country.5 Any of several CIS, ICE and CBP officers can issue the Notice to Appear. See 8 CFR §§ 239 and 1239, and the sample NTA form at Appendix 10-A. (Appendix 10-A includes both a Notice to Appear and a pre-4/1/97 Order to Show Cause (OSC) for comparison purposes). FY2012 Statistical Yearbook, EOIR, Office of Planning, Analysis, and Technology, February 2013, www.justice.gov/eoir/statspub/syb2000main.htm.

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One purpose of the Notice to Appear, or NTA, is to tell the person the reasons why she has been placed in removal proceedings. The NTA also contains a number of warnings and advisals to the person about her rights and responsibilities while in removal proceedings, such as her right to obtain counsel, her responsibility to inform the government of any change of address, and the consequences of failing to provide a change of address. It also often informs the person of the date of her first removal hearing (a master calendar hearing), although sometimes this is stated in a later notice. The hearing date should be set at least 10 days after the issuance of the NTA, to give the person time to find legal counsel. INA § 239(b)(1). The act of presenting the NTA to the alien is called “service.” Service of the NTA creates important legal obligations for the alien, who is called the “respondent” in removal hearings. The DHS is required to serve (give) the NTA to the respondent in person, or, if this is not practicable, by mail either to the person or to his or her counsel of record, if any. INA § 239(a)(1); see also 8 CFR § 1003.13. Service by mail is generally, but not always, considered sufficient if there is proof of attempted delivery to the last address provided by the alien. See INA§ 239(c). What constitutes proper service of the NTA and what are the consequences of a failure to appear are discussed in greater detail below in § 10.5.A.

§ 10.4 The Master Calendar Hearing: Beginning Removal Proceedings A.

Obtaining Counsel

The first removal hearing is called the “master calendar” hearing. In some cases, the NTA itself will give the date of this hearing. Because of the large number of cases pending in the immigration court, it might be several months to about a year in a non-detained case before a person has their first master calendar hearing after service of the NTA. At this hearing, the judge checks in on the case and handles preliminary matters and scheduling. Importantly, the respondent must answer the charges on the NTA during a master calendar hearing. A person may have more than one master calendar hearing, to allow the person to find counsel and to prepare the legal strategy of the case. Often, the person does not answer to the charges on the NTA until the second master calendar. This is because the person either asks for more time to find an attorney, or the respondent’s attorney asks for more time to prepare the case.

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Motion for a Continuance: If, for a legitimate reason, you are not prepared to go forward at your first appearance at a Master Calendar hearing, you can move for (request) a continuance (rescheduling) of the hearing. Legitimate reasons for a continuance include that you have been recently retained and require additional time to investigate the facts and charges. For example, it will often take more than a few days to investigate your client’s criminal record. You can move for a continuance and request, for example, 30 or 60 days. The immigration judge must give one continuance under such circumstances; more than one continuance is less likely but may be granted where you can demonstrate a good reason for it.

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The judge must also give the person at least one continuance (rescheduled hearing) to find legal counsel. The government must give the person at least ten days from the time the NTA is served to find a lawyer or fully accredited representative. Once that ten-day period has elapsed, the government can proceed on the case even if the person has not yet found legal counsel. In practice, most respondents do not find counsel before the first hearing. Additionally, first master calendar hearings are very rarely scheduled with such short notice because of the high caseload in the courts. If the person wants to obtain legal help but has not yet been able to, she must go to the hearing and ask the judge to schedule a second master calendar hearing so that she can come back with a representative. If a continuance is granted, the court will not make any decisions on the case until the next scheduled Master Calendar hearing. Nevertheless, clients should begin their search for representation as soon as possible and document all attempts in the event they fail to secure counsel for the next hearing. It is essential that the respondent appear in court, regardless of whether or not she found an attorney. See § 10.5.

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DHS must give the person a list of free legal services in the area when it issues the NTA. See INA § 239(a)(1)(E). The immigration courts must also provide lists of free legal services to unrepresented noncitizens in removal proceedings. See INA § 239(b)(2). Free legal services are a scarce resource. Generally, non-profit groups will take only meritorious cases where clients’ poverty prevents them from being able to hire their own lawyer. Clients should be encouraged to seek reduced-rate attorneys where free help is not available. In removal proceedings, unlike criminal matters, the government is under no obligation to provide representation free of charge. B.

Responding to the Charges in the Notice to Appear

The judge must decide two questions at the Master Calendar hearing: 1. Is the person removable as charged on the Notice to Appear? In other words, can ICE prove that the charges on the Notice to Appear are correct? 2. If so, should the person be removed, or can the person apply for some kind of relief from removal or means of immigrating? Let’s look at each question separately. This section will cover the first question: Is the person removable as charged? At the Master Calendar hearing, the person will respond to the charges in the Notice to Appear. The Notice to Appear must include the charges and the factual allegations. In other words, it must state the law and the supporting facts that show that the person is a removable alien. Example 10.4-a: ICE charges LPR Freddy Fast-Fingers with being deportable under INA § 237(a)(2)(A)(i) (the deportation ground that has to do with crimes involving moral turpitude). ICE says that Freddy is deportable because (1) he is not a U.S. citizen, and (2) he was convicted of grand theft and sentenced to eight months in prison, and (3) he was admitted less than 5 years ago.

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The person must plead to (answer) the allegations and charges in the Notice to Appear. The person can either admit or deny the allegations and charges. When deciding how to respond to the charges, it is important to consider who has the burden of proof. If ICE has the burden of proof, can ICE prove that the charges in the Notice to Appear are correct? If the person in removal proceedings was “admitted” to the United States, either as a permanent resident or in some other visa status, ICE must prove that he or she is deportable by “clear and convincing evidence.” INA § 240(c)(3).6 Therefore, for such people the legal worker must check each allegation to see if: (1) it is true; and (2) ICE can prove it. Example 10.4-b: In the above example, you are Freddy’s legal worker. You discover that Freddy’s criminal defense attorney has vacated the conviction on constitutional grounds. Therefore, the conviction no longer exists. You deny the allegation that Freddy was convicted of grand theft. You also deny that Freddy is removable as charged for committing a CIMT (crime involving moral turpitude.) The burden is on ICE to prove the conviction still exists. If necessary, you can submit proof the conviction was vacated on constitutional grounds. The Immigration Judge dismisses the removal proceedings against Freddy because ICE cannot prove that he really has a conviction that makes him deportable. (See Unit 3.) Representatives should never just automatically admit the allegations in the Notice to Appear. DHS officials often make technical mistakes on the Notice to Appear. They may get the person’s entry date wrong (which could hurt the person later)—or even the person’s nationality! Always check with your client to make sure the Notice to Appear is correct. Second, if ICE charges that the client has committed wrongdoing, don’t accept their word. Check to see whether ICE is right and whether they can prove it in court. If ICE charges your client with being deportable because of a criminal conviction, it must have one of the following documents at the hearing to prove the conviction:     

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

An official record of the judgment and conviction; An official record of the plea, verdict, and sentence; A docket entry from court records indicating that the person was convicted; Official minutes of a court proceeding or a transcript of a court hearing where the court takes notice of a conviction; An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a state official associated with the state’s repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence. Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction; or

6

See Woodby v. INS, 385 U.S. 276 (1966), requiring the government to prove deportability by “clear, unequivocal and convincing evidence.”

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

Any document regarding the conviction that is maintained by a state or federal jail or prison.

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See INA § 240(c)(3)(B).

PRACTICE TIP: If ICE charges that your client is removable on criminal grounds, it is important to carefully review the criminal record. If the person is in fact removable on the alleged criminal grounds, and particularly if he or she has no relief from removal, it is essential to see if there is a possibility of post-conviction relief in the criminal proceedings. The person may be able to obtain a change in the criminal record that will enable her or him to overcome the asserted ground of removability. This type of case should be referred to an experienced immigration or criminal defense attorney since not all types of post-conviction relief will remove a criminal offense for immigration purposes.

If CIS or ICE charges that your client has committed marriage fraud, you should not admit this fact—or at least not without carefully considering the evidence and discussing the case with experts. Even if the person is no longer married, she might need to contest that fraud was involved in order to seek relief. If the respondent in proceedings is charged as inadmissible and has not been previously admitted, the respondent will have the burden to show she is admissible. If an ICE or CBP official charges that the person is undocumented, that person will be charged with the grounds of inadmissibility. Applicants for admission (including those who entered without inspection) bear the burden of proving that they are “clearly and beyond doubt entitled to be admitted and not inadmissible or that [they are] lawfully present in the U.S. pursuant to a prior admission.” INA § 240(c)(2). However, ICE must first prove alienage. 8 CFR § 1240.8(c).7 If the information about alienage is based on the person’s own admission, ask the person how ICE got him to admit that. If it appears that the official might have acted illegally, do not plead to the Notice to Appear—especially if the person cannot apply for relief from removal. Ask for more time and discuss the case with a lawyer or accredited representative experienced in challenging government abuse. See Unit 19. Example 10.4-c: Roberto comes to you with a Notice to Appear charging him with being a Mexican citizen who entered the U.S. illegally. Roberto has been in the U.S. for three years and has no way to immigrate. He says that ICE arrested him during a raid on an apartment house. He refused to speak with ICE officers. The officers drove him around in their van for four hours and threatened that he would go to jail for five years if he didn’t “confess” that he was “illegal.” One officer said he might beat up Roberto. Roberto finally confessed that he was from Mexico and undocumented.

See also Murphy v. INS, 54 F.3d 605 (9th Cir. 1995).

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You realize that ICE has behaved illegally and that it might be possible to suppress (keep out) the information Roberto gave them. You advise Roberto not to admit the Notice to Appear allegations at court. This means that he cannot give any information to the judge about where he is from during any hearing. He must remain silent. You help Roberto find a competent lawyer to file a motion to suppress Roberto’s statement. Without Roberto’s own statement, ICE will not be able to prove that Roberto is not a U.S. citizen and it may have to let Roberto go free. Many people who were not born in the United States may be U.S. citizens, because they inherited citizenship from their parents. See Unit 17. The person may not even be aware of this. The test questions are: might one of the client’s parents or grandparents (or even, in some cases, great-grandparents) have been U.S. citizens? Was the client a permanent resident under the age of 18 when one or both parents naturalized? In either case, the person might have automatically become a U.S. citizen without knowing it, either at birth or when a parent naturalized. See Unit 17 for more information. If there is the slightest chance of this, the client obviously should not concede that he or she is an alien. Since the government has the burden of proof when it charges someone with being a deportable alien, it is very often wise to deny the charges of deportability, and simply ask the judge to have the government prove its case and see what they say, without you having to pinpoint any objections. At the very least, a representative should not admit to facts and charges in the Notice to Appear until you have carefully reviewed all the facts, consulted an experienced practitioner, and developed a strategy for how to proceed in the case. Remember that if: 1. Any information on the Notice to Appear is incorrect; 2. The Notice to Appear charges that your client has committed a criminal or immigration offense, and ICE cannot clearly and legally prove every element of this charge; 3. Your client might have a claim to U.S. citizenship, as described above; or 4. An immigration official may have abused your client or otherwise acted illegally in getting the information on the Notice to Appear; Then the person might have a defense to removal that you would give up if you did not challenge the Notice to Appear.

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In some cases, however, you will decide with your client that the best strategy is to admit the allegations of the Notice to Appear, and concede that he is a removable alien. This sometimes may be a good idea if the person has a very good chance of winning relief from removal and delaying proceedings is not useful to the client.

PRACTICE TIP: In addition to motions for a continuance or to change venue (discussed briefly elsewhere in this unit), the Respondent can make other motions. For example, the Respondent can make a motion to terminate proceedings. The immigration judge will terminate proceedings if she determines that the DHS did not prove the charges of removal, or cannot establish alienage of your client. Note that a motion to terminate is different from a request that the immigration

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judge administratively close the case. When the judge orders a case terminated, the case is complete, and DHS can only continue to seek to remove the Respondent if it can issue a new NTA. A motion to administratively close the case does not end the case completely, but closes the case until one of the parties asks that it be put back on the judge’s calendar. It is no longer true that both parties have to agree before the judge can administratively close a case, as it was in the past. See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), overruling Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996). Either party may make a simple motion to recalendar the proceedings if they wish the case to proceed. During administrative closure the person remains, technically, in removal proceedings, although no further action is taken to remove her.

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Responding to the Notice to Appear: Asking for Relief from Removal

The second question the judge considers at a Master Calendar hearing is, can the person apply for relief from removal or a way to immigrate? If the person admits the allegations in the NTA and concedes that she is deportable or inadmissible (or if the person does not admit and concede, but the government proves the allegations to the judge’s satisfaction), she may then state any reasons why she should not be removed. To avoid removal, the person must apply for some form of relief from removal. We also call this relief a defense to removal since the person uses it to prevent her removal. Means of relief from removal were summarized briefly in Unit 1. An example of one form of relief is cancellation of removal, which we will study in Units 11 and 12. An inadmissible or deportable alien can ask an immigration judge to cancel her removal if she meets certain requirements. For non-permanent residents, one requirement is that she has lived in the U.S. for at least ten years. INA § 240A(b). Let’s return to the story of Gabriela and see how this potential remedy affects her case. Example 10.4-d: As we discussed in Example 10.1, Gabriela was charged in the Notice to Appear with being inadmissible for being present without having been admitted or paroled pursuant to INA § 212(a)(6)(A) because she entered without inspection. She admits that she is inadmissible for the reasons stated in the Notice to Appear. Gabriela tells the judge that she wants to apply for cancellation of removal. Since she has lived in the U.S. for over ten years, has U.S. citizen children and appears to meet the other requirements for cancellation of removal, the judge gives her permission to apply. The judge sets a deadline of 60 days by which time Gabriela must have submitted her application for cancellation of removal. The judge also schedules another hearing to consider Gabriela’s cancellation of removal case after her application and evidence has been submitted to the court.

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A person who is deportable or inadmissible but is not eligible for any other form of relief may be eligible for voluntary departure under INA § 240B. If the person is willing to leave voluntarily and can pay his own way back to the home country, he can ask the judge for

permission to leave voluntarily, so that he will not have a removal order on his record. See Unit 16 for information on voluntary departure. There are severe penalties if the person fails to leave. If the person does not qualify for voluntary departure or any other form of relief, he will be removed. The judge will issue an order of removal. If the person does not appeal (challenge) the order within 30 days it will become a final order of removal. Then, the Enforcement and Removal Operations unit will carry out the judge’s order by deporting the person (putting him on a plane or bus to the country of removal). Someone who is not detained will receive a letter, providing a date to report for deportation.

IMPORTANT NOTE: As of April 1, 2005, the EOIR imposed new requirements on all applicants for relief from removal. In order to collect biometric data (using digital fingerprints and pictures) all applications and fees for court filings are processed through CIS Service Centers. When the applicant states what relief she is seeking at a master calendar hearing, she will be served with instructions on how to complete application filing for fees and biometrics. Applicants for asylum must send a copy of the first 3 pages of their asylum applications to the Nebraska Service Center, along with form EOIR-28 if represented. Applicants for other forms of relief must send a copy of their entire applications to the Texas Service Center, along with filing fees both for the applications and for the fingerprints, in addition to the EOIR-28 if represented. The copy of the application and filing fee must be sent in advance of the filing deadline with the court, as a copy of the fee receipt or a request for a fee waiver must be submitted at the time the application is filed with the immigration court. Additionally, after filing, the applicant will receive an appointment notice for biometrics (fingerprints). Failure to comply with this new requirement could result in delays or in the court deciding that the application has been abandoned. (In the detained setting, biometrics will be collected by ICE instead of this process.) See Instructions for Submitting Certain Applications in Immigration Court, Appendix 10-D, and the Immigration Court Practice Manual, § 3.4(c)(2008).

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PRACTICE TIP: In cases before the Immigration Court, there is always an ICE attorney present who represents the interests of the government in deporting the person. This person’s official title is: “Assistant Chief Counsel.” Anytime you file any paper with the Immigration Court, you must also serve a copy of it on the Assistant Chief Counsel with an attached proof of service. Service can be by mail or personal delivery. The court clerk will not accept the paper for filing without the attached proof of service. The papers that you file with the court and serve on government counsel include the Notice of Entry of Appearance before the EOIR (Form EOIR28).8 Any time you represent someone in the immigration court, you must file a Notice of Entry of Appearance. In addition, you need to file a Notice of Entry of Appearance before ICE (Form G-28)9 by mailing or personally handing the original to the government attorney in court. Only 8 9

The EOIR-28 can be downloaded from the EOIR website at: www.justice.gov/eoir/formslist.htm. The G-28 can be downloaded from the CIS website at: www.uscis.gov (click on the Forms menu).

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“accredited representatives” and attorneys are permitted to represent aliens before the immigration court.

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The Master Calendar Hearing: What Does It Sound Like?

Often in court people speak in a kind of legal code. If the client is charged with being deportable the representative might say, “Your honor, respondent denies the allegations and charges on the NTA, and we ask the government meet its burden of proof.” This means that the representative knows that the government has the responsibility for proving that the person is a deportable alien, and they want to make sure that the government can do it before they admit anything. Or, in the example of Gabriela, she and her representative might decide that the representative should admit all the facts because there was no point in contesting them. (Once the government has proved that Gabriela is an alien, she has the burden of proving that she is admissible, in any event.) In this instance, the representative will say something like this: “The respondent admits the allegations contained in the Notice to Appear, and concedes removability as charged. Respondent designates Mexico as the country of removal.” In other words, she is saying, “We admit that all the facts in the Notice to Appear are true, we concede (admit the legal conclusion) that Gabriela is inadmissible, and if Gabriela is removed, we choose Mexico as the country to which she should be removed.” (They probably have to choose Mexico, because she is from Mexico and no other country would agree to take Gabriela without special arrangements and a visa.) After that the representative will say, “We would like to apply for cancellation of removal. In the alternative (meaning, if Gabriela isn’t granted cancellation), we would like to apply for voluntary departure instead of removal.” Or, “Respondent requests relief from removal in the form of Cancellation of Removal and Voluntary Departure in the alternative.”

Caution! Be careful of conceding allegations and charges even for someone who is facing charges of inadmissibility. Only admit allegations if you have thoroughly interviewed your client and have a case strategy. For example, even though you know your client is from Mexico, she might actually have an argument to suppress the information depending on how the government learned she was from Mexico. In addition, be very certain that your client did not enter through an official checkpoint, even if her documentation was not proper. You do not want to accidentally concede a fact that you later learn is not true. For instance, what if Gabriela actually entered a checkpoint as a passenger in a car? Although she had no documentation, if she was waived through she might have an argument that she is eligible to adjust status to lawful permanent resident.

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If the person is applying for asylum, the representative will say, “We decline to designate a country of removal, and request relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture.” “Declining to designate” a country of removal shows the court that the applicant fears she will not be safe in her home country and has no place to go. The court will then designate the person’s home country as the country of removal.

PRACTICE TIP: Before you appear at a master calendar hearing, it is a good idea to attend one or more hearings, preferably in the courtroom of the judge before whom you will appear, and watch the proceedings. Attendance at proceedings is a good way to learn the general manner in which the judges handle common situations.

§ 10.5 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order With or without counsel, the person must show up for her hearings! In 1990, Congress passed a law placing severe penalties on persons who “fail to appear” (don’t show up) for their removal hearings, asylum hearings, or ordered departures after receiving “adequate notice” from either the DHS or the courts. The law sets out DHS immigration officials’10 and the courts’ responsibility for giving both written and oral notice of hearings, and other appointments, as well as the immigrant’s responsibility to keep DHS and the court informed of current addresses and to appear at scheduled hearings and for departures after notice.

WARNING! Due to the penalties for immigrants, it is of utmost importance that all immigrants and advocates understand their responsibilities. Advocates need to make sure they are always aware of their clients’ addresses and that their clients are fully aware of all of the consequences of failing to appear for any scheduled appointment with DHS or the courts.

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Penalties for Failure to Appear for a Removal (Immigration Court) Hearing

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Summary. When a person fails to appear at her removal hearing, the immigration court must order her removal. The person also is barred for ten years after the date of the removal order from applying for voluntary departure, cancellation of removal, registry, adjustment of status or change of status. INA § 240(b)(7). This bar does not apply under three circumstances: (1) if the person’s failure to appear was due to exceptional circumstances, or (2) if ICE or the 10

Remember, though ICE is the DHS branch that opposes an immigrant in the hearing process, officials from all three DHS immigration departments have authority to issue the NTA.

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DHS failed to provide written and oral notice in the person’s native language or in a language he or she understands, stating the time and place of the hearing and the consequences of failure to appear or (3) if the person never received the NTA and therefore was never notified of her obligations to report her address to the immigration court.11

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A person whose failure to appear for a removal hearing was due to exceptional circumstances or ICE’s failure to provide proper notice must file a motion to reopen removal proceedings before the immigration judge who ordered his or her removal to prevent the order of removal from being carried out.12 If the failure to appear was due to exceptional circumstances, the motion to reopen must be filed within 180 days of the removal order; if the failure to appear was due to a lack of proper notice, the motion to reopen can be filed at any time. 1. A person who does not appear at her removal hearing will be ordered removed “in absentia” If an immigrant fails to appear at a scheduled removal hearing after receiving the NTA and being properly served the required notice of the hearing, he or she “shall be ordered removed … in absentia.” INA § 240(b)(5)(A). “In absentia” means in the person’s absence. The court is required to order a person who does not attend his or her removal hearing removed if the DHS proves it provided proper notice of the hearing and that the person is removable. 2. What must happen before a judge can enter a legal in absentia order? The judge can (and must) enter an in absentia order when ICE shows two facts by “clear, unequivocal and convincing evidence”: a. that the Attorney General (i.e., DHS or the court) sent written notice of the hearing to the immigrant’s most recent address, and b. that the person is removable. Generally, notice of the hearing by regular mail to the last address that the person or her representative gave to DHS is sufficient. There is an important exception to this rule, however: An immigration judge may not enter an in absentia order against someone who never received the Notice to Appear, and therefore never knew she was in removal proceedings, and also never knew of the obligation to keep DHS and the immigration court informed of her address. INA §§ 239(a)(1); 240(a)(5)(A). See Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). In that case, the Notice to Appear was sent to an address in an application that had been submitted to the former INS years earlier and the applicant was not on notice that he had to provide the court with a current address because the NTA was not received. The BIA held that the alien did not, and 11

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See Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). Technically, this motion is called a “motion to rescind” the in absentia order, but it is also often referred to as a motion to reopen. 12

could not be charged with, having received the NTA at a proper address under those circumstances. However, in a subsequent case, the Board held that notice sent to the correct address by certified mail that went unclaimed was proper notice. Matter of M-D-, 23 I&N Dec. 540, 545 (BIA 2002). In that case, the Board stated that “the respondent [was not allowed] to defeat service by neglecting or refusing to collect his mail.” Matter of M-D- at 547. Nevertheless, where someone has never received the NTA, it is possible to challenge service by mail. For example, in Matter of M-R-A, 24 I&N Dec. 665 (BIA 2008), the Board held that while there is a presumption that the NTA has been received if it is sent by regular mail, that presumption is weaker than when notice is sent by certified mail.13 The Board held that all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and others who are knowledgeable about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent’s prior appearance at immigration proceedings, if applicable. Matter of M-R-A, at 674. In M-R-A, because the respondent had filed an application for asylum, had appeared at a prior hearing, and had promptly filed a motion to reopen his in absentia order, the Board found that he had overcome the presumption that he had received the NTA that was mailed to him. The Board found it especially significant that he had exercised due diligence (acted quickly) to redress the situation. Matter of M-R-A at 676.14 Importance of Reporting Address Changes. Once an alien receives the NTA, however, the respondent has an obligation to inform the court of all address changes within five days of moving. If the DHS and the court have only an old address because the alien failed to report a change of address, all that is required is mailing of notice to the old address. Again, this rule applies only if the alien actually received the NTA, and therefore knew of the address reporting requirement.15 It is always best to ensure that address changes are always sent promptly by certified mail to both the court and ICE, with copy and proof of mailing and return receipt carefully kept in the client’s file or by the client in a safe place. To change an address with the Immigration Court, the person should send form EOIR33/IC to the correct court, and serve (send) a copy to ICE. See Appendix10-C for a sample EOIR-33/IC. Note that the form in the appendix is a sample only, and provides the address for the San Francisco Immigration Court. The person in proceedings must send the change of address to the correct court. The form is available on line, with all the various immigration court addresses at: www.usdoj.gov/eoir/eoirforms/eoir33/ICadr33.htm.

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Before IIRIRA, the charging document that began deportation proceedings was called the “Order to Show Cause” (OSC), and always was served either in person or by certified mail. 14 See also Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008), in which the Board reopened an in absentia order for similar reasons. 15 Matter of G-Y-R-, Matter of M-R-A, cited above.

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3. A person ordered removed in absentia may be barred for 10 years from requesting certain relief

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If the person is ordered removed in absentia, he or she is barred for 10 years from the date of the removal order from requesting voluntary departure, cancellation of removal, registry, adjustment of status, or change of status. However, this bar applies only if, in addition to the required written notice, the person received oral notice of the hearing in the person’s native language or a language he or she understands. See INA § 240(b)(7). DHS immigration officials must meet strict notice requirements in order to bar people from relief for 10 years. To be able to bar the person from relief for failing to show up at a removal hearing, DHS or the court must have given the required written and oral notice at the same time. See INA § 240(b)(7). It probably will be difficult for ICE to prove the person was provided oral notice at the same time she was given written notice, except perhaps in situations where oral and written notice were given at an earlier immigration court hearing that was recorded. Never assume that this bar applies to your client without checking to see if there is a record that oral and written notice was given at the same time. If necessary, you can go to the court and listen to a tape recording of the hearing to determine whether your client received the oral notice. Additionally, this bar can be overcome by showing the person missed the hearing due to exceptional circumstances. 4. A person ordered removed in absentia is inadmissible for 5 years A person ordered removed in absentia is also barred from showing admissibility for 5 years from the date of departure from the U.S. See INA § 212(a)(6)(B). Grounds of inadmissibility are discussed in detail in Unit 3. This ground of inadmissibility is distinct from the one that applies to all orders of removal under INA § 212(a)(9)(A). Unlike INA § 212(a)(9)(A), there is no waiver available for inadmissibility for a prior order of removal issued in absentia. An Example: What to Do in an Emergency. If the person cannot appear at a hearing for some reason, she or her legal representative must contact the court, state the reason she cannot attend, and ask for a different date. This is usually done by means of a written “motion for a continuance” (postponement of the court hearing). The motion generally must conform to the regulations and the Immigration Court Practice Manual. See note above on the Practice Manual.

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In an emergency, the legal representative can attend the hearing in the client’s absence and contest deportability, or request a continuance. If some emergency prevents the person from coming (for example, severe family illness or a car breaking down on the way to court), the client or her legal representative must call the court and ICE immediately and explain what happened, and go to the court as soon as possible. If the person has missed a morning hearing but can still get to the court by the afternoon, she should go and try to see the judge and the ICE attorney in charge of her case to explain what happened. The judge may still enter an order of removal, but your chances to reopen may be improved. Also, the applicant might be found to have breached (violated) the bond agreement, and lose any money she paid to get out of detention.

Example 10.5: Paula’s removal hearing is Tuesday morning at 8:30. Late Monday night Paula’s child becomes very ill, and Paula takes her to a hospital emergency room. Paula stays with her child at the hospital all day Tuesday. Tuesday afternoon she remembers to call you to say she missed her hearing. She can’t leave the hospital. You spring into action. You ask Paula to get copies of the hospital records and/or a letter from the doctor to prove that the child was seriously ill. You immediately call the immigration court and explain the situation, and state that you will send the court the medical papers within a week. You contact ICE (both the Office of Chief Counsel and the Enforcement and Removal Branch if she paid a bond) and the Immigration Judge and explain the situation to them. Ask the Enforcement and Removal branch not to make Paula forfeit the bond. Ask the Immigration Judge not to enter an order of removal, or to withdraw the order if she has already entered it. Set a date by when you will get them proof of the child’s illness. Do this before ICE or the court closes on that same day, if possible. If the immigration court has already ordered the person removed, you must immediately contact an experienced immigration lawyer or accredited representative who can try to submit a motion to reopen. Note that in Paula’s case, the extreme illness of her child fits even the limited definition of exceptional circumstances, to support a motion to reopen. A strict 180-day deadline applies, so don’t waste even a day before getting in touch with someone. See INA § 240(b)(5)(C)(i). But if Paula’s sister had been the one in the hospital, Paula might not have been eligible for a motion to reopen. In practice, she might have some hope of not getting an in absentia order if someone physically went to court and begged for a continuance, that very day. 5. Rescinding an in absentia order An in absentia order of removal may be rescinded or set aside (that is, overcome) in three situations: a. Exceptional Circumstances: If the person’s failure to appear was due to “exceptional circumstances” (defined as serious illness or death of alien’s immediate family member or serious illness of the alien, or a comparably serious circumstance) he or she can try to set aside the removal order by filing a Motion to Reopen. The motion MUST be filed within 180 days of the date of the order. INA § 240(b)(5)(C)(i).16 b. Improper Notice: If the respondent did not receive proper notice as defined in the law, the person can file a Motion to Reopen to set aside the order of removal, without any time limit. The law defines proper notice as written notice that is personally delivered or sent by mail to the alien (including mail that never reached the alien but where an attempt was

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Courts and the BIA have differed over what constitutes exceptional circumstances. See for example, the following cases where the respondent arrived late to court: Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997) (motion to reopen denied because explanation too general), Herbert v. Ashcroft, 325 F.3d 68, 72 (1st Cir. 2003) (30 min late but relatives in court thus motion to reopen granted]; Sharma v. INS, 89 F.3d 545 (9th Cir. 1996) (45 min late due to traffic, parking—motion to reopen denied).

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made to the last known address—unless the alien can prove she did NOT in fact receive it and it was not her fault).17 It must state:        

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The date and place of hearing (at least 10 days after service of notice); The nature of the proceedings; The legal authority under which the government is going forward with the proceedings; The acts or conduct of the alien alleged to be in violation of the law; The charges against the alien and the statutory provisions alleged to have been violated; Consequences of failing to provide ICE or DHS with a current address and telephone number; Consequences of failing to appear; Right to secure counsel; and A current list of legal services.

As noted above, there is a “presumption” that the notice to appear or notice of hearing sent by regular mail was received by the person, but this presumption is considered weaker than the “strong presumption” that certified mail reached the person. Where a person can rebut this “presumption” of receipt with some reasonable evidence that he or she never received the notice of hearing, through no fault of his or her own, then most courts, as well as the BIA, have ruled that a resulting in absentia order should be rescinded if a motion to reopen is filed by the alien.18 Some examples of evidence that the person could submit to the court in a motion to reopen that might rebut the “presumption” of receipt are:   

sworn statements by individuals with knowledge about postal service delivery problems, especially if the statements give specific examples of delivery failures or complaints. complaints filed with the post office or building management concerning postal delivery sworn statements by everyone in the household that no correspondence from DHS or ICE was received by alien, stating how they are certain of this, for example, that the

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But see Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), where the alien’s failure to appear was excused because she never received the NTA. 18 See Matter of M-R-A, 24 I&N Dec. 665 (BIA 2008), Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008) and the discussion above. See also: Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007 Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir.2006) (per curiam); Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir. 2006); Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005) (per curiam); Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir.2004); Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir.2004); Salta v. INS, 314 F.3d 1076, 1078-79 (9th Cir. 2002). The 10th Circuit however, disagrees, stating the same “strong presumption of receipt” for certified mail also applies to regular mail. Gurung v. Ashcroft, 371 F.3d 718 (10th Cir.2004).

        

alien asked him or her to watch for government letters and to let him or her know right away if anything arrived photographs of mail thrown around the apartment building lobby where the alien lives certified return receipt notices to U.S. Citizenship and Immigration Services (CIS) by the alien of change of address correspondence from CIS or ICE to the alien at a changed address proof of any filings by the alien to CIS with a later address proof of any other filings to CIS regardless of address which would give the alien a benefit certified return-receipt letters by the alien to CIS inquiring about the status of immigration applications around the time that the NTA or Notice of Hearing is issued proof that the alien attended previous interviews and hearings with CIS, and EOIR proof that the alien went to the immigration court on the originally scheduled date of hearing if the hearing was rescheduled for an earlier date filing a motion to rescind the in absentia order or otherwise complaining against the order within a short period of time after the order was issued19

It is also possible that DHS/ICE never even properly mailed the notice, so the EOIR and DHS files should be checked as well through a request to EOIR to review the court file or a FOIA (Freedom of Information Act request) to DHS (see previous discussion on what counts as proper service of the NTA). Sometimes through requesting these files you might learn that there was an error in the mailing address, such as a misspelled address, or wrong apartment number. See INA §§ 239(a)(1) & (2), and 240(b)(5).20

NOTE: Aliens who were charged under an Order to Show Cause may have more protection under former law for failure to receive adequate notice of hearing. It is recommended that clients with “in absentia” orders of deportation under these facts consult with an immigration attorney or very experienced accredited representative.

c. Person in Criminal Custody: If a person’s failure to appear was because he or she was in criminal custody, he or she may file a Motion to Reopen. There is no time limit for filing motions to reopen on this ground. INA § 240(b)(5)(C)(ii). See Matter of Evra, 25 I&N Dec. 79 (BIA 2009).

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From Lee, “In Absentia Hearings and Proper Service of NTAs and NOHs with Emphasis on Second Circuit Law Development,” in 84 Interpreter Releases 2157 (September 24, 2007). 20 For more information on rescinding in absentia orders of removal, see the Legal Action Center of the American Immigration Counsel’s Practice Advisory dated March 10, 2010 (AILA InfoNet Document No. 02051441, also available on the AIC website at: www.legalactioncenter.org).

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The timely filing of a Motion to Reopen based on an improper “in absentia” order of removal automatically stops the alien’s removal pending the decision on the Motion to Reopen. INA § 240(b)(5)(C). B.

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Penalty for Failure to Depart on Time

A person who received notice of voluntary departure and of the consequences of failure to depart on time, and who remains in the U.S. after the date given to depart, is barred from applying for cancellation of removal, registry, voluntary departure, or change or adjustment of status for 10 years from the scheduled date of departure or the date of unlawful reentry. INA § 240B(3)(d) & 8 CFR § 1240.26. The person is also subject to a civil penalty in an amount of $1000 to $5000. Id. The order granting the person voluntary departure must inform the person of the penalties for failing to depart. See INA § 240B(3)(d). The current regulations governing voluntary departure, made effective January 20, 2009, changed some of the consequences and obligation of receiving voluntary departure. Under the new framework, a failure to post the voluntary departure bond does not terminate the obligation to depart or exempt a person from the consequences of failing to depart under INA § 240B(d), 8 USC § 1229c(d). See 8 CFR § 1240.26(c)(4) (2009). This rule reverses the BIA’s decision in Matter of Diaz-Ruacho for grants of voluntary departure on or after January 20, 2009.21 Additionally, under the current regulations, the filing of a petition for review in federal court automatically terminates the grant of voluntary departure. 8 CFR § 1240.26(f). The current regulations also require the immigration judge to provide certain notices to individuals before granting voluntary departure. Under 8 CFR § 1240.26(c)(3), the IJ must advise the individual of: (1) the amount of the bond and the duty to post bond within five business days and any voluntary departure conditions beyond those enumerated in the regulations; (2) that voluntary departure will terminate automatically upon the filing of a motion to reopen or reconsider during the voluntary departure period and the alternate order of removal will take effect immediately; and (3) that if an appeal is filed, the individual must submit proof of having posted the voluntary departure bond within 30 days of having filed the appeal. After this notice is provided, the individual has the opportunity to accept or decline voluntary departure. C.

Penalty for Failure to Surrender for Removal When Ordered

Currently, when someone is ordered removed by an Immigration Judge, ICE sends out a notice telling the person the date, time and place he or she must surrender to ICE to be removed from the U.S. This notice is often referred to as a “Bag and Baggage” letter. On September 4, 1998, the former INS published a “proposed rule” that requires persons who have been issued an order of removal to surrender within 10 days of the order’s date irrespective of whether the government sends or the alien receives a “Bag and Baggage” letter. A supplemental proposed rule was published on May 9, 2002.22 This rule has yet to become final

22

Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). 67 Federal Register 31157, May 9, 2002.

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and has not been implemented in practice. Were this rule to become final, it would require those subject to a final order of removal to surrender to DHS and would establish procedures for them to do so. It also would bar people who fail to follow the new procedures from obtaining discretionary immigration benefits. (Specifically, most types of discretionary relief including: asylum, adjustment, cancellation, waivers of inadmissibility, registry, and voluntary departure.) Additionally, motions to reopen would not be granted in the event that an alien failed to surrender unless the alien can show that “exceptional circumstances” prevented her from surrendering and that she did surrender as soon as possible thereafter or the District Director waived the penalties. Advocates have raised several constitutional problems with these proposed regulations and they have yet to become final. Nonetheless, it is important to stay abreast of any changes in law. While the rule discussed above imposes penalties restricting immigration benefits for failure to surrender, the Act already created substantial penalties for someone who wilfully fails to depart within 90 days of a final order of removal or willfully fails or refuses to present himself for removal at the time and place designated in the bag and baggage letter. These people face a maximum of four years in jail (10 if they are deportable for certain criminal offenses) and/or a monetary fine. INA § 243(a)(1). D.

Failure to Attend Asylum Hearing or Interview

A person who has filed an asylum application and who fails to appear at the CIS asylum interview or hearing, runs the risk of CIS dismissing her asylum application and of sanctioning her. INA § 208(d)(5)(A)(v). CIS will mail a letter to asylum applicants who miss an asylum interview. This letter will inform individuals that missing an interview affects work authorization eligibility, giving them 45 days to show good cause for having missed the interview.23 A person who fails to appear at a CIS asylum interview without showing good cause in that time frame will have her asylum application dismissed and will be placed in removal proceedings, where she will have to renew the asylum application before an immigration judge. Additionally, if the person fails to appear at an asylum hearing before an immigration judge, the application shall be denied absent exceptional circumstances and the applicant will likely be ordered removed “in absentia” with all of the rights and penalties which normally apply to this action. See 8 CFR §§ 208.2(c)(3)(ii) & 1208.2(c)(3)(ii). E.

Automatic Reinstatement of Prior Order of Removal or Deportation

If a person reenters the United States illegally after having been removed or having departed voluntarily under an order of removal, the government will reinstate the prior order without letting the person apply for any relief other than “withholding of removal.” INA § 241(a)(5); 8 CFR §§ 241.8 & 1241.8. This applies both to orders of removal imposed in

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The 45 day timeframe to show good cause is a result of a recent settlement in a class action lawsuit. See B.H., et al. v. U.S. Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.) (referred to as the “ABT Settlement Agreement”). For updates and information, go to www.legalactioncenter.org/litigation/asylum-clock.

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absentia or with the person present. Reinstatement of removal is also being applied to people who were subject to expedited removal.

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While previously some federal courts held that the government could only reinstate a removal order under INA § 241(a)(5) if the person reentered the United States after April 1, 1997 (the date reinstatement of removal went into effect), the U.S. Supreme Court has now ruled that reinstatement of removal is retroactive and applies to those whose reentry after deportation or exclusion proceedings was before April 1, 1997. Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 165 L.Ed. 2d 323 (2006). However, after the Supreme Court decision, the 10th Circuit Court held there is still an exception to reinstatement for a person who, before the effective date or IIRIRA (April 1, 1997) had already taken steps to change their status, such as applying for adjustment of status. ValdezSanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007). The 7th, 11th and 1st Circuit Courts all agree that those that applied prior to April 1, 1997 for a benefit could proceed. The Ninth Circuit Court of Appeals has also stated that reinstatement of removal cannot be imposed on someone who was granted “voluntary return” before April 1, 1997 under INA former § 242(b) because those people were never given the benefit of a formal hearing before an immigration judge. Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001). Therefore, people who were given “voluntary return” (the right to return to their home countries without a formal hearing) at the border before April 1, 1997 are not subject to reinstatement of removal in the 9th Circuit. No other court, as of this writing, has ruled on this issue. Even though people subjected to expedited removal orders do not have the benefit of a formal hearing before an immigration judge, in the Ninth Circuit, at least, reinstatement of an expedited removal order has been upheld. Garcia de Rincon v. DHS, 539 F.3d 1133, 1140 (9th Cir. 2008). Reinstatement of removal is discussed in more detail in § 10.7.

§ 10.6 After a Final Removal Order: Surrender and Removal When someone is ordered removed by an Immigration Judge, ICE either sends out a “bag & baggage” letter telling the person the date, time and place he or she must surrender to ICE to be removed from the U.S, or, in the case of someone for whom a bond was paid, it sends a notice to the person who paid the bond to surrender the person for custody and deportation. ICE must remove the person within ninety days of the date the removal order becomes final, and may detain the person during this period. If ICE is not able to remove the person to his or her country of nationality (or other country which will accept the person) within the ninety day period, he or she will either continue to be detained (although a longer detention may be challenged) or have to appear at ICE periodically for identification, and, if ICE deems it necessary, undergo a medical and psychiatric exam at the expense of the government. The person must also give ICE information about herself

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and obey the restrictions that the government imposes. INA § 241(a)(3). Regulations governing detention of people with final removal orders are discussed in more detail in Part Two.

§ 10.7 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal” If a person reenters the country illegally after having been removed under a removal or deportation order, or after having left the U.S. following an order of voluntary departure, the DHS position is that it will reinstate the prior order to its original date. INA § 241(a)(5). The original decision cannot be reopened or reviewed and the person is not eligible for any relief from removal, with the exception of “restriction on removal” (formerly “withholding of deportation”) or the Convention Against Torture (CAT). See INA §§ 241(a)(5); 241(b)(3); 8 CFR §§ 208.16, 208.31, 241.8(d), 1208.16, 1208.31, and 1241.8(e). However, reinstatement of removal does not apply to aliens who have applied for adjustment of status under either § 902 of the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA) or § 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA).24 INA § 1241.8(d). Example 10.7-a: Miguel was deported in 1984. He came back to the U.S. with a fake visa in 1998. Now he wants to apply for adjustment of status through his U.S. citizen wife under INA § 245(a). Is it safe for him to do that? No! Miguel is subject to reinstatement of removal (in addition to having a fraud problem). The DHS may reinstate his prior deportation order when Maurice appears for his CIS interview or at any other time. In many districts, ICE arrests people in Miguel’s situation when they appear for their adjustment interview, reinstates the deportation or removal order, and removes them from the U.S. very quickly.

Effective Date: ICE has taken the position that it can automatically reinstate a prior deportation order even if the person illegally re-entered the United States before April 1, 1997 (the date this provision went into effect). Though several Courts of Appeal disagreed, holding that the DHS should not be able to reinstate deportation against an alien who illegally re-entered the United States before April 1, 1997, the U.S. Supreme Court subsequently upheld ICE’s position that reinstatement applies retroactively to all prior deportations and exclusions, even where the person re-entered before April 1, 1997. Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 165 L.Ed. 2d 323 (2006). Once the Supreme Court makes a decision, all the circuit courts must follow.

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Example 10.7-b: Maurice was deported in 1984, following a hearing before an immigration judge. He came back illegally to the U.S. in 1990. Now he wants to apply for adjustment of status through his U.S. citizen wife under INA § 245(i). Is it safe for him to do that? 24

HRIFA=Public Law 105-277; NACARA=Public Law 105-100.

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No! But if he married his wife and applied for adjustment of status prior to April 1, 1997, taking steps to change his status, he may qualify for an exception to reinstatement. ICE may still move to reinstate his prior deportation order when Maurice appears for his adjustment interview or court hearing. Unless he qualifies for the very limited exception just mentioned above that a few courts have supported, Maurice will be deported and will not be able to apply for either adjustment or cancellation.25 He can apply for family immigration through consular processing abroad, and at that time will also need to apply for a waiver of his prior deportation. See Units 3 and 6 for further information on grounds of inadmissibility and waivers.

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Example 10.7-b: What if Maurice was granted voluntary departure (agreed to leave instead of having a hearing before an immigration judge) before April 1, 1997, but reentered illegally after that date? In the 9th Circuit, Maurice would not be subject to reinstatement of removal if he had been granted voluntary departure by an immigration judge after waiving the right to a formal hearing and conceding deportability under former § 242(b), even if he returned illegally after April 1, 1997. Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001). The 9th Circuit found that because a person granted voluntary departure by a judge under former § 242(b) had not had the benefit of a full hearing before an immigration judge, and therefore had not left “under an order of deportation,” reinstatement of removal could not be applied to that person. However, other Circuit courts have not decided this issue. Therefore, if your client lives outside the 9th Circuit, and was granted “voluntary departure” by an Immigration Judge, after waiving his right to a hearing before April 1, 1997, and returned illegally, especially after April 1, 1997, you should refer him or her to an experienced attorney or accredited representative to decide how to handle his case. Note that this exception in the 9th Circuit would not apply if the person was granted voluntary departure after a full hearing. It would only apply to someone who waived his right to a formal hearing under former§ 242(b). Example 10.7-c: What if Maurice was caught at the border and removed under expedited removal proceedings rather than ordered deported at a hearing before an immigration judge?

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There was a case in the Ninth Circuit, Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which had held that those adjusting under INA § 245(i) would be exempt from reinstatement of removal if they filed a waiver of the prior deportation order (Form I-212) before the government began reinstatement of removal procedures. This case has since been overturned by Duran Gonzales v. DHS, 508 F.3d 1227, 1242 n.14 (2007). Therefore, in the Ninth Circuit as well as in all other circuits, you should be aware that adjustment under INA § 245(i) does not protect your client from reinstatement of removal or the permanent bar under INA § 212(a)(9)(C). For updates on a class action lawsuit to protect those that had already filed an adjustment application, please go to www.legalactioncenter.org/litigation/adjustment-status-under%C2%A7-245i-noncitizens-previously-removed-duran-gonzalez-class-action.

Maurice would still be subject to reinstatement of removal, and, in practice, ICE is reinstating removal orders against people who re-entered illegally after an expedited removal order (see Part Three: Expedited Removal Proceedings). In the 9th Circuit, a person who was subjected to expedited removal and subsequently entered illegally might be able to successfully argue that reinstatement of removal should not apply because he or she never received an “order” of removal from an immigration judge under the reasoning in that court’s decision in Gallo-Alvarez v. Ashcroft (see previous paragraph). If you have a client in this situation, you should refer him or her to an experienced attorney or accredited representative to explore this issue.26 A person in this situation, however, may have other problems: If he is subject to reinstatement of removal, he is most likely also subject to the so-called “permanent bar” to admission under INA § 212(a)(9)(C) [see Unit 3, § 3.12]. If the person whom the government believes is subject to reinstatement of removal expresses a fear of returning to the country of removal, an Asylum Officer will interview him to determine whether he has established a reasonable fear of persecution or torture. 8 CFR §§ 241.8(e) and 1241.8(e). Usually this interview takes place within 10 days of the person’s apprehension. 8 CFR §§ 208.31(a) and (b) and §§ 1208.31(a) and (b). If the Asylum Officer determines that a reasonable fear has not been established, the person can request that an immigration judge review the negative decision. 8 CFR §§ 208.31(f) and (g) and §§ 1208.31(f) and (g). This review will usually take place within 10 days of the immigrant’s request. If the immigration judge agrees with the Asylum Officer, the person will be removed, with no right of appeal to the Board of Immigration Appeals. However, if an Asylum Officer, or an immigration judge upon review of an Asylum Officer’s decision, decides that a reasonable fear has been shown, the person will be referred to an immigration judge for a consideration of the request for withholding of removal. If the immigration judge denies the request for withholding of removal, the person has the right to appeal to the Board of Immigration Appeals. 8 CFR §§ 208.31(e) and (g)(2)(ii) and §§ 1208.31(e) and (g)(2)(ii). This is a large change from prior law. Before, a person with an earlier order of deportation who returned illegally was entitled to a new deportation proceeding in which to either contest whether they were deportable, or to apply for any type of relief to which he or she was entitled.

WARNING! Criminal prosecution for re-entering illegally after deportation: A person who has been deported and then re-enters the U.S. illegally, can be charged with a federal crime carrying a

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However, a subsequent Ninth Circuit case has upheld reinstatement of expedited removal orders, so this argument may not be successful, though it may be worth trying. See Garcia de Rincon v. DHS, 539 F.3d 1133, 1140 (9th Cir. 2008) (the petitioner in this case did not make the argument that an expedited removal order was not an “order” within the meaning of reinstatement of removal, which is the rationale of GalloAlvarez v. Ashcroft).

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possible sentence of 20 years in prison! INA § 276(b)(2), 8 USC § 1326(b)(2). Warn clients that they face a severe risk if they illegally reenter the U.S. in these circumstances. Many people are presently being prosecuted for illegal reentry, especially if they have more extensive criminal history.

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PART TWO: BOND, BOND REDETERMINATION HEARINGS AND DETENTION § 10.8 Detention, Bonds and Procedure

NOTE: Effective April 17, 2002, the former INS issued interim regulations governing the release of information about immigration detainees. These regulations, found at 8 CFR §§ 236.6 and 1236.6, prohibits local prisons, jails, or other facilities from releasing any information about immigration detainees, and provides that only DHS immigration branches can release such information to the public. You can now search online to find someone brought into ICE custody: https://locator.ice.gov/.

If a person has been arrested by ICE or CBP and is being held in detention, it is critical to help him get out of detention as fast as possible. Not only is it usually very important to your client for other reasons, but it will be very difficult for the person to work closely with you on the case if he is in detention. Also, the immigration court puts the cases of people in detention on a fast track system. The person’s removal hearings and appeals will come up rapidly. This gives you less time to prepare, which can affect the outcome of the case. A.

Who Is Eligible to Be Bonded Out and Whom Can DHS Detain?

Allowing immigrants to post a bond and be released from detention (“bond out”) used to be the norm. In the past decade, a growing number of immigrants have been detained, in part due to the passage of IIRIRA in 1996 with its long list of people who must be detained and are not allowed to bond out. Persons who cannot bond out are said to be subject to “mandatory detention.” This list is set out below. See also INA § 236; and 8 CFR §§ 236.1, 1003.19(h) & 1236.1 for rules governing detention and bond. B.

Mandatory Detention

The harsh “permanent” rules for mandatory detention went into effect in October 1998. Under the permanent rules now in effect, the following groups of people are not entitled to

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a bond and must remain in detention while removal proceedings are pending against them.27 These rules are contained in INA § 236(c)(1): a. Persons who are inadmissible for having committed an offense described in INA § 212(a)(2) [crimes of moral turpitude and drug offenses]. b. Persons who are deportable for having committed any offense in INA § 237 (a)(2)(A)(ii) [multiple criminal convictions], 237(a)(2)(A)(iii) [aggravated felony], 237(a)(2)(B)[drug offense] 237(a)(2)(C)[firearms offenses], or 237(a)(2)(D) [crimes related to espionage]; c. Persons who are deportable under INA § 237(a)(2)(A)(i) [has been convicted of a crime of moral turpitude that was committed within five years of admission] and has been sentenced to a term of imprisonment of at least one year; and d. Persons who are inadmissible under INA § 212(a)(3)(B) or deportable under INA § 237(a)(4)(B) [involved in terrorist activities]

NOTE: For clients with criminal convictions, these mandatory detention rules apply only to persons who completed their criminal sentences on or after October 9, 1998, and whose latest release from state custody is directly tied to a crime listed in § 236(c). Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010).

1. Mandatory detention during “regular” removal proceedings A person who is convicted of a crime may not always come to the attention of ICE, even if he or she is deportable. Persons who serve little or no jail time sometimes escape ICE’s attention. However, ICE may later discover the person when, for example, he or she applies for an immigration benefit (including naturalization and replacement of the Alien Registration Card) or when he or she returns from travel abroad. You should always warn clients who have criminal convictions of the risks they face if they apply for an immigration benefit or they want to make a trip abroad. When ICE discovers persons serving jails sentences, it will place an “immigration hold” on them.28 People with “immigration holds” may be transferred directly from state custody to ICE custody upon completion of their criminal sentences.29 These are the people who are most affected by the harsh new mandatory detention rules set forth in INA § 236(c). Persons in

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This section discusses mandatory detention for people who were within the United States when placed in removal proceedings. There are other rules governing detention of arriving aliens and people subject to expedited removal. See INA §§ 208.5 and 235(b)(1)(B)(iii)(IV) for the rules governing detention of arriving aliens who wish to apply for asylum and see Part Three: Expedited Removal Proceedings for additional information re: arriving aliens and detention. 28 An ICE hold is also sometimes referred to as a detainer. 29 There are increasing efforts to adopt policies that limit or altogether eliminate the circumstances in which local law enforcement or a jail may enforce an immigration hold. Check your local jurisdiction for local policy and practice. See Unit 19 for more information.

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mandatory detention are disadvantaged in many ways. Not only are they deprived of the companionship of friends and family, but they are disadvantaged legally as well. This is because:

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a. Their confinement makes it difficult for them to find someone to represent them; b. If they are lucky enough to find a representative, it is very difficult for them to communicate with their representatives and prepare for their hearings; c. Because they are being detained, their hearings are expedited; and d. Because they are now in federal immigration custody, they can be transferred to another facility out of state, which makes it even more difficult to find representation and seek assistance and support from family members. Let’s see how mandatory detention can affect someone’s case: Example 10.8: Freddy Fast Fingers has been a lawful permanent resident for the past 15 years, since he was 5 years old. He has just finished serving an 8 month sentence for forgery. He also was convicted of receiving stolen property 2 years ago, when he was 18. He is transferred immediately to ICE custody and placed in removal proceedings. He is subject to mandatory detention under INA § 236(c) because he has been convicted of 2 crimes involving moral turpitude after admission. (Both of these offenses are crimes involving moral turpitude.) Conviction of two crimes of moral turpitude is also a ground of deportation under INA § 237(a)(2)(A)(ii). See Unit 3. Freddy is single. His parents, brothers and sisters all live in San Francisco, but ICE takes him to a detention facility in Bakersfield, several hours away by car. Freddy is eligible for cancellation of removal because he has been a permanent resident for more than 5 years, and because he has been legally in the US for more than 7 years. See Unit 12. Freddy has a master calendar hearing in San Francisco, where the nearest immigration court is located. ICE takes him to San Francisco by bus for his court hearing. The judge finds out he is eligible for cancellation of removal, and gives him 3 weeks to find an attorney or representative. His family can’t locate anyone in that time. The next time he is brought to court, the judge sets his case for a merits hearing to be held 4 weeks later. He has to file his application for cancellation of removal a week before the hearing. One of the things a person can show as a positive factor in order to be granted cancellation of removal is that he has been rehabilitated. See Unit 12, § 12.11. Freddy can’t do this, because he is in custody and can’t go out and find a job, help support his family, or do anything else that might show his rehabilitation. Without an attorney or an opportunity to show he has been rehabilitated, and without time to prepare much evidence, Freddy goes to his merits hearing and does his best, but the judge orders his removal. As you can see, mandatory detention can make it much harder for someone to succeed in his or her immigration case, even when eligible for relief from deportation. Compare Freddy’s case with that of Robert in Unit 12, Example 12.11-a.

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Much to the disappointment of immigration advocates, the U.S. Supreme Court, in a case called Demore v. Kim, 123 S.Ct. 1708 (2003) upheld the mandatory detention provisions of INA

§ 236(c), even for lawful permanent residents. In other words, the Supreme Court said that these harsh provisions do not violate the Constitution. Since the Supreme Court is the highest court in the country, no more appeals of this issue are possible. Only Congress can change the law, if it chooses to do so. 2. Mandatory detention after a final order of removal What happens if someone has a final order of removal, but no country will take him? This scenario occurs frequently. Countries such as, Laos and Cuba will not take people back after they have been ordered removed from the United States. INA § 241(a)(1)(A) mandates that a final order of removal must be carried out within a 90 day period, called the “removal period.” INA § 241(a)(2) requires that persons subject to final orders of removal may be detained during the removal period, and that persons who have been found inadmissible or removable for criminal or security related grounds must be detained during this time. In 2001, in a case called Zadvydas v. Davis, 533 U.S. 678 (2001), the U.S. Supreme Court decided that the detention of aliens with final orders of removal under INA § 241 is limited to a period that is reasonably necessary to bring about the person’s removal, and does not permit indefinite detention. The court designated six months as a “reasonably necessary period” to bring about deportation. After six months, if an alien provides good reason to believe that there is no significant likelihood that he’ll be removed in the reasonably foreseeable future, the Government must rebut that showing to continue detention. Even before the Supreme Court’s ruling, INA § 241(a)(3) provided that persons subject to final orders of removal could be released under supervision after the 90-day removal period was over. However, the government was detaining many people who had little or no possibility of being returned to their home countries for very long periods of time. That’s why the Supreme Court ultimately had to decide the issue. a. Regulations governing release of aliens up to six months after final order

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Regulations governing the terms and procedures for release are found beginning at 8 CFR §§ 241.4 and 1241.14. The former INS first issued proposed regulations to implement the Supreme Court’s decision in Zadvydas in November 2001. The proposed regulations left standing the established procedures to secure the release of individuals from detention in the first six months following a final order of removal. Those procedures are discussed in this section. However, the proposed regulations significantly modified the procedures after the six-month period. Under these regulations, persons who are inadmissible or removable for criminal or security grounds, for prior immigration violations, or who are determined to be “a risk to the community or unlikely to comply with the removal order” may be detained beyond the removal period. INA § 241(a)(6); 8 CFR §§ 241.4(a) & (b) and 1241(a) & (b). The regulations authorize

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local ICE Directors to continue to detain such individuals during the 90-day removal period plus an additional three months. 8 CFR §§ 241(c)(1) and 1241(c)(1).

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People detained under this section have a right to all notices, decisions, or other documents in connection with custody reviews made either by District Directors or the Headquarters Post-Order Detention Unit (HQPDU).30 The decision must specify the reasons for continued detention. 8 CFR §§ 241.4(d) and 1241(d). People detained under these sections also have the right to representation by an attorney or other representative. 8 CFR § 241.4(d)(3) and 1241(d)(3). If an individual can demonstrate that his or her release from custody will not pose a danger to the community or the safety of people or property, and he or she is not a flight risk, he or she may be released from custody. 8 CFR § 241.4(d)(1). However, before someone with a final order of removal can be released from detention, the District Director must make the following findings: 1. Travel documents are unavailable or immediate removal is not practicable or in the public interest; 2. The detainee is now a nonviolent person; 3. The detainee is likely to remain nonviolent if released; 4. The detainee is not likely to pose a threat to the community following release; 5. The detainee is not likely to violate the conditions of release; and 6. The detainee does not pose a significant flight risk if released. 8 CFR §§ 241.4(e) and 1241.4(e). The type of evidence the District Director will use to determine a person’s eligibility for release following the 90-day removal period is specified at 8 CFR §§ 241.4(f) and 1241.4(f). This evidence includes such things as the person’s criminal history, if any, disciplinary record, psychological or psychiatric reports, and evidence of rehabilitation. Someone who refuses to cooperate with ICE’s efforts to secure travel documents for their deportation will be denied release. 8 CFR §§ 241.4(g)(5) and 1241.4(g)(5).31 Detainees who remain in custody six months after the entry of the removal order must seek custody reviews from the Executive Associate Commissioner, acting through the HQPDU. 8 CFR §§ 241.4(c)(2) and 1241.4(c)(2) and may also file a habeas petition in federal court.

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District Directors and HQPDU are still referenced in the regulations, even though the Immigration & Naturalization Service has been dissolved and its functions taken over by the ICE, CBP, and CIS divisions of the Department of Homeland Security. Note that ICE is the division with authority over detained aliens. 31 Pro se guides for applying for release under Zadvydas are available at www.firrp.org/resources/prose/.

b. Regulations governing release of aliens more than 6 months following a final order of removal In November 2001, the former INS issued interim regulations designed to implement the Supreme Court’s decision in Zadvydas, and set forth the procedures to be followed after the sixmonth reasonably necessary period to bring about a person’s deportation has expired. Under 8 CFR §§ 241.13(g)(1) and 1241.13(g)(1), after six months (generally, the 90-day removal period plus another 90-days), the HQPDU will conduct a review to determine whether there is a significant likelihood that the alien will be removed in the reasonably foreseeable future. Until that determination is made, however, 8 CFR §§ 241.4 and 1241.4 continue to govern the terms of detention. In addition, if the alien fails to cooperate with the authorities to help effectuate his or her removal, the 90-day removal period can be extended, thereby subjecting the person to the requirements of 8 CFR §§ 241.4 and 1241.4 even though more than six months would have passed. A person who is detained and believes that there is no likelihood that he or she will be able to be removed does not have to wait six months after the final order to petition ICE for release. See 8 CFR §§ 241.13(d)(3) and 1241.13(d)(3). On the other hand, ICE has no obligation to consider the application for release until that six-month period is over. See 8 CFR §§ 241.13(b)(2)(ii) and 1241.13(b)(2)(ii). Once the HQPDU determines that there is no significant likelihood that the alien will be removed in the reasonably foreseeable future, then the person can be released subject to certain conditions deemed necessary. Even if released, the person can be detained again if he or she violates the conditions of release. See 8 CFR §§ 241.13(i) and 1241.13(i). Also if the HQPDU determines later on that due to changed circumstances removal has become likely once again, then the person’s custody status will once again be governed by 8 CFR §§ 241.4 and 1241.4, and he or she may be taken into custody once again. See 8 CFR §§ 241.13(i)(2) and 1241.13(i)(2). If after review, the HQPDU determines that there are special circumstances justifying continued detention, the person will continue to be detained. See 8 CFR §§ 241.13, 241.14, 1241.13 & 1241.14. If the person is denied release under 8 CFR §§ 241.13(g) and 1241.13(g), he or she can petition for another review every 6 months, or at any time if there are materially changed circumstances.

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You should note that practically speaking some aliens might be detained indefinitely if there are special circumstances justifying continued detention. The Supreme Court decision did not bar ICE from detaining deportable individuals per se. Rather, ICE must release detainees if there is no possibility for removal in the reasonably foreseeable future unless it is absolutely necessary to hold them in detention. Under 8 CFR §§ 241.14 and 1241.14. ICE defines these “special circumstances” meriting continued detention as cases where:  

the person has a highly contagious disease that is a threat to public safety; there are serious adverse foreign policy considerations;

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 

the person’s is suspected of being a threat to national security or a terrorist; or the person is determined to be “especially dangerous.”

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Persons whose continued detention is due to a finding that they are especially dangerous can have that finding reviewed by an immigration judge. They also have the right to appeal to the Board of Immigration Appeals. See 8 CFR §§ 241.14(g) & (h) and 1241.14(g) & (h). This is a change from previous regulations that prohibited review by the Board of Immigration Appeals. People whose continued detention is due to highly contagious disease, serious foreign policy considerations or terrorism grounds do not have a right to an immigration court hearing or BIA review.

PRACTICE TIP: Detention conditions can sometimes be challenged by litigation in federal court. Therefore, advise clients who are being subjected to mandatory detention, whether during removal proceedings or following a final order, to seek the advice of an experienced immigration attorney.

3. Prolonged detention while removal proceedings are pending While removal proceedings are either pending or have not yet concluded, a person’s right against prolonged detention is significantly less. This is particularly true for detainees with a criminal record. Due to the criminal grounds, many will be held in mandatory detention without the opportunity to go before an immigration judge to ask for release on bond. However, due to the increased prolonged detention of immigrants over the course of their removal proceedings and federal appeals process, which may and often lasts years, many district courts, and in at least one instance, a federal circuit court have found that this prolonged detention may still be unreasonable and violate due process, leading to release of immigrants from detention pending the outcome of their cases.32 See Unit 19 for more information. 4. Mandatory detention for suspected terrorists The Attorney General (AG) or the Deputy Attorney General (DAG) has the power to segregate from the above-noted detention rules any suspected terrorists. This rule was created by the USA-PATRIOT Act, passed by Congress in the wake of the terrorist attacks on the United States on September 11, 2001. Under INA § 236A, the AG or the DAG may certify an individual if there are reasonable grounds to believe the person falls within one of the terrorism grounds of

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See, e.g., Tijani v. Willis, 430 F.3d 1241, 1246 (9th Cir. 2005); Casas-Castrillon v. DHS, 535 F.3d 942, 948 (9th Cir. 2008); Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011); Rodriguez v. Robbins, 2:07-cv-03239 (C.D. Cal. Sept. 13, 2012).

inadmissibility or deportability.33 The AG or DAG may also certify an individual where there are reasonable grounds to believe that the person is engaged in any other activity that endangers the national security of the United States.34 Only the AG or DAG can certify someone for detention under § 236A. Once a person has been so certified, he or she is subject to special detention provisions. Under these provisions, the Attorney General must place the person in removal proceedings, or charge the person with a criminal offense, within seven days of commencement of detention. Otherwise the person must be released. INA § 236A(a)(5). Normally, ICE and CBP can detain someone only 48 hours before instituting removal proceedings or having to release the person. See 8 CFR § 287.3(d). While proceedings are pending, the person must remain in custody, even if he or she is eligible for, or is granted, relief from removal, unless the Attorney General determines that the alien no longer falls within one of the specified grounds. INA § 236A(a)(2). Following a finding that the person is removable, he or she may continue to remain in custody if the person’s release will threaten the national security of the United States, or the safety of the community or any person. The need for continued detention must be re-evaluated in six-month intervals. INA § 236A(a)(7). Although it is unlikely that one of your clients will be detained under this special national security provision, it is important to know that it exists. Someone detained under this section should be referred to an attorney or agency with experience in detention issues, such as the American Civil Liberties Union or the Detention Watch Network (www.detentionwatchnetwork.org).

NOTE: There have been many changes in U.S. immigration policy following the attacks on the World Trade Center and the Pentagon on September 11, 2001. Among them has been the secret detention of a number of aliens, mostly young men of Arabic or Middle Eastern origin, and the institution of secret immigration hearings that are closed to the public and press. The ACLU and other groups filed a lawsuit in the U.S. District Court for the Eastern District of Michigan, Southern Division to stop the secret hearings. On April 3, 2002, the court held that the post-9/11 policy and practice of closing certain immigration hearings to the public and the press violated the constitution. On August 6, 2002, the 6th District Court of Appeals affirmed the District Court’s Opinion. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). The government did not try to appeal this case to the Supreme Court, so it is final and must be followed in the 6th Circuit.

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These grounds were expanded under the so-called “Real ID Act of 2005” which was passed into law on May 11, 2005 as Division B of another, unrelated piece of legislation. [P.L. 109-13]. 34 INA §§ 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(A)(4)(A)(i), 237(A)(4)(A)(iii), and 237(A)(4)(B).

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C.

Bonding Out of Detention

For those people who are eligible for release from detention, ICE will usually set an immigration bond of at least $1500 following the person’s arrest and the initiation of removal proceedings. INA § 236(a)(2)(A). ICE also may release a person on “conditional parole.” INA § 236(a)(2)(B).

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A person for whom a bond has been set can only be released from custody if someone pays the full amount of the bond. The bond is called an appearance bond because it is set in order to guarantee the person’s appearance at all future hearings and appointments. The person who posts (pays) the bond is called the obligor.35 If the person absconds (doesn’t appear), she is said to breach the bond and the obligor loses the bond money. If the case ends someday—because the person either wins or loses their case—ICE will cancel the bond and return the bond money to the obligor, with interest, assuming the respondent has not missed any hearings and leaves the U.S. if she has been ordered to do so. The amount of bond set by ICE can be found on the Notice to Appear. This amount can vary greatly depending on ICE’s determination of how likely it is that the person will appear at later hearings. Since most of our clients don’t have much money or real property to use as collateral with a bond company, they need to get a low bond. Once ICE sets the bond, the person has a right to a bond redetermination hearing (often called a “bond hearing”) before an immigration judge. See 8 CFR §§ 3.19, 236.1, 1003.19 and 1236.1. At the bond redetermination hearing, the person asks the immigration judge to lower the bond or set bond in cases where ICE determined the person should not be released. Example 10.8-a: Manny is in custody, and his bond has been set at $5,000. His brother can come up with only $1,500 to get him released. Manny has a bond redetermination hearing. He persuades the judge that he is likely to come back for all future hearings, and the judge agrees to lower Manny’s bond to $1,500. Manny’s brother can now post the bond and Manny will go free. A person requests a bond redetermination hearing by signing a form entitled “Notice of Custody Determination” (Form I-286) at the time the officer interviewing the individual initially decides custody. See Appendix 10-E. If the person indicates they want a judge to review the determination of ICE, a bond hearing will be set. However, an individual may also request a bond redetermination hearing once before the immigration judge as well. Note, at a bond redetermination hearing, the judge also has discretion to raise the bond or take it away entirely.

NOTE: Do not confuse the bond redetermination hearing with the Master Calendar hearing. The Master Calendar hearing has to do directly with the person’s removal case. The bond The bond may be paid at any ICE field office in the U.S., found here: www.ice.gov/contact/ero/.

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redetermination hearing has only one purpose for the detained person: to try to get the bond lowered so the person can get out of custody.

D.

Alternatives to Physical Detention

In June of 2004, ICE announced a new pilot program providing a less restrictive alternative to detention, called “The Intensive Supervision Appearance Program” or ISAP. Under this program, aliens subject to detention may be offered an alternative in which they are closely supervised and/or subjected to electronic monitoring (bracelets) by a company specializing in such alternatives called Behavioral Interventions, Inc. A second alternative to detention called “Enhanced Supervision/Reporting” or “ESR” was first implemented by ICE in December, 2007. Both ISAP and ESR are operated by outside contractors. A third program, simply titled “Electronic Monitoring” or “EM” is operated by ICE, and was also implemented in December 2007. This program operates in areas not covered by ISAP and ESR. While this program is meant to be an alternative to detention, many on the program wish they had paid a bond instead. Sometimes paying a bond is not an option due to financial constraints. However, the reporting requirements under these programs can be overwhelming. Some individuals are expected to report weekly, with additional hours where they are required to be home. These restrictions make it difficult to hold a job.

§ 10.9 Bond Equities An immigration judge is supposed to make her decision about bond based on only one question aside from national security considerations: how likely it is that the person will come to future hearings. To decide this, the judge takes into consideration a large number of factors. These factors are known as bond equities. When we represent a client at a bond redetermination hearing, it is very important to present information which shows the judge that our client, once released, will show up at her future immigration hearings. This information includes our client’s community and family ties, the existence of other forms of immigration relief for our client, and our client’s character.36 A.

Community and Family Ties

Several factors may show strong community and family ties. These include:  

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Permanent Address: A stable address is very important. The longer a client has resided at one address, or in one town, the better. Employment: If a client is currently employed, it tends to show that she has a strong reason to remain in the area. Relatives with Legal Status: If a client has relatives (a spouse or children, for example) who are either U.S. citizens or lawful permanent residents, the judge will be more likely

See, e.g., Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).

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

B.

to believe that a client’s ties to the community are real and strong. This is especially true if the family has lived in the area for a considerable length of time. Other Community Ties: Any other evidence that we can present to show that a client has strong ties to the community and therefore is likely to remain for her future hearings is very important as well. Church membership or attendance, enrollment in classes, membership in organizations or sports clubs, and involvement in children’s school activities are examples of such community ties.

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Eligibility for Immigration Relief

Another important consideration is whether a client has the legal means of staying in the United States. For example, if the person soon will immigrate through a family member or is eligible to apply for relief from removal, he has more invested in coming to court and is less likely to abscond. In that case the judge should be more willing to lower the bond. Example 10.9-a: In Gabriela’s case (in Example 10.1), ICE set a bond of $5,000. Gabriela’s family can only come up with $2,000. At her bond hearing, held two days after she is arrested, Gabriela and her legal worker ask the immigration judge to reduce the bond to $2,000. They present evidence to show that Gabriela is a stable person with many family ties and ties to the local community. Moreover, she is eligible to apply for cancellation of removal and she appears to have a strong case. The judge agrees to lower Gabriela’s bond. We will be learning about the legal ways to remain in the United States (which we call immigration solutions) in the following units in the manual. These forms of relief are summarized in Unit 1. Also see the Custody Hearing Checklist, Appendix 10-F, the Instructions for Submitting Certain Applications in Immigration Court, Appendix 10-D, and Unit 20. C.

Character of Client

A person who lacks a sense of responsibility is arguably less likely to appear at her removal hearings. Therefore, our client’s character is very relevant in bond redetermination issues. If we can show that our client is a responsible individual, we will be more successful in arguing for a bond reduction. Important factors to point out, whenever it is relevant or possible, are the following:    

Our client is dedicated to her family. Our client has had no serious criminal activity, and shows respect for the law. Our client has come to past proceedings, which tends to prove that she is responsible and will likely continue to show up at future proceedings. Our client has been steadily employed, or else has been looking hard for a job, or just obtained a job. Again, this tends to show responsibility.

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Questions for Discussion 10.9-b: In each of the following situations, for which one of the two people can you make a stronger argument for getting the bond reduced? 1. (A) Samira has three kids. She doesn’t work, since her husband is the family provider. She has been living with her family in the same house for three years. (B) Fito came over the Mexican border four months ago. He has no family here, and does work as a day laborer. 2. (A) Machiko’s husband of ten years has been petitioned by his sister. Machiko has been working in a flower shop for the past two years, and always participates in the activities of the local Japanese-American community. (B) Ilse is a single mother whose two young children were born in the United States. The oldest one just started first grade. Ilse has recently been promoted in her job.

D.

Portraying Your Client Positively

When you present your case to the judge, make sure you portray your client in the best light possible. Here are some tips to keep in mind:  



Try to get letters from employers, landlords, teachers, churches, etc. which tend to show your client has strong ties to the community. Try to get witnesses to come to the hearing. If you are saying your client is a good family provider, then it helps if the family is present. If you are saying your client has a good job and is liked by the boss, then it helps if the boss can also be present (although an employer’s appearance can be difficult to arrange). If negative factors are going to come out against your client, bring them up yourself. It is better if you mention negative factors first before the ICE attorney does. That way, you will have the opportunity to minimize their importance and focus instead on the positive factors. By admitting to any negative factors, downplaying them, and then moving on to the positive factors, you will be able to control the presentation and show the judge that your client, in spite of “a few minor slip-ups,” is indeed a good, responsible person. Moreover, if you do not bring up bad factors that will inevitably come out, it will look like you client is “hiding the ball” and this will hurt your client’s credibility.

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Example 10.9-b: Gonzalo, who is undocumented and from Honduras, is in ICE custody. ICE has set his bond at $3,000. He was recently convicted of theft, but only spent a few days in jail since it was his first offense. He has worked in a cafeteria for the past two years, has been a good worker and has had no other brushes with the law. He is not married. However, he lives at home with his mother, who is a lawful permanent resident, and his younger brother, who is twelve. You are representing Gonzalo at his bond redetermination hearing. What sort of things do you want to tell the judge?

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You would want to tell the judge that: 1) Gonzalo has a good, steady employment record; 2) he has had no other problems with the law; 3) his mother is a lawful permanent resident, 4) he has a fixed address, where he lives with his mother, who is willing to post bond and vouch for him, and 5) prepare Gonzalo to provide testimony on the circumstances of the theft offense.

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§ 10.10 Preparing for the Bond Redetermination Hearing When representing a client during a bond redetermination hearing, you often cannot have everything you would like. You would like to prepare thoroughly for the hearing, to sit down with the client and interview her, make sure you get all the information you need to build the strongest case possible, including employment history, family and community ties, and immigration remedies. You would like to have the opportunity to gather relevant documents (such as letters from employers and landlords) to show the judge. You would like to get witnesses such as family members and the employer to come to the hearing. Unfortunately, in the majority of the cases you do not have the luxury of time. The usual situation is that your client is in detention, and you have very little time both to meet with her and to prepare for the hearing. Since you have such a short amount of time, it is important that you make the best of it. In this time you must explain to your client what the situation is, what the law is, what she needs to show, and how she can get the bond lowered. The following are some suggestions for how best to use the short amount of time you will have in a bond hearing. First, spend the time to explain what is going on to your client. The client must understand what it is that you are trying to get across to the judge. By understanding why you are asking certain questions, your client will be much better able to think of things in her life that will help us to help her. It may also be helpful to give your client pro se bond materials that explain the process.37 Tell the client basic things, for example that the purpose of the hearing is to lower the amount of the bond so she can get out of custody. Therefore, you need to tell the judge things about the person’s life that show that she will come back for hearings and will not run away. Explain the factors (community ties, immigration relief, good character) that may influence this decision. You also should know about negative factors that ICE will know about, such as arrests or previous removal or a history of immigration violations. Ask the client to help you think of factors to use in the case. Second, use the bond hearing checklist found in Appendix 10-F. It will help you make sure you get all of the information quickly.

Samples available at www.firrp.org/resources/prose/.

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Exercise 10.10:      

How would you go about explaining to your client the procedure involved in bond redetermination hearings? How would you manage to get all the relevant information in the short amount of time you have? What other steps can you take to make sure you use the time as efficiently as possible? What would you do differently if you had more time to meet with your client? What questions would you want to ask your client (of both things that can help and things that might hurt)? At the end of this unit there is a Checklist you can use to make sure you get the information you need. See Appendix 10-F. Go over this checklist carefully. Do you think it is adequate? Is there anything you would add to it?

§ 10.11 Posting the Bond The following are some practical tips on posting (paying) the bond so that a person can get out of ICE custody. A. Who can pay the bond? Any person (a relative, friend, the legal worker) can post the bond. However, in practice, the person posting the bond should have legal status in the U.S. If ICE discovers that the person posting the bond, called the obligor, is not here legally, it can put him or her in removal proceedings. Example 10.11-a: Clem Clean, who resides in the U.S. without legal status, goes to the ICE office to post the bond for his friend, Tom Trouble. ICE discovers that Clem is here illegally, and arrests him, initiating removal proceedings. (We revisit this example in Unit 20.) B. Where can the obligor post the bond? The obligor can post the bond at ANY ICE Enforcement and Removal branch office.38 Example 10.11-b: Manny’s brother (from Example 10.8-a) has the $1,500 bond to post. Manny is detained in Texas. His brother can post the bond with the Enforcement and Removal Operations unit at the San Francisco ICE Enforcement and Removal Office. He does not have to send the money to Texas.

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C. How does the obligor make the payment to post the bond? The obligor can either post a bank’s CASHIER’S CHECK or U.S. POSTAL MONEY ORDER. The obligor 38

For a list of ICE offices nationally, see www.ice.gov/contact/ero/.

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cannot post a money order from any other business, such as Western Union—it must be from the post office. Additionally, a person can post the bond through a BOND COMPANY, which will require collateral (often real property like a house or condominium) and a non-refundable fee.

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D. What happens if the person released on bond fails to show up for a court hearing or an immigration appointment? If this occurs, it is possible that the obligor will lose the bond. (This is called a breach of the bond.) If the person misses a court hearing, he will also most likely be ordered removed in his absence by the judge- this is an in absentia order of removal.

PART THREE: EXPEDITED REMOVAL PROCEEDINGS § 10.12 Expedited Removal Proceedings under INA § 235 People who are trying to enter or be admitted to the United States who are charged with visa fraud or with having no documents may be removed from the United States without a hearing. INA § 235(b). The only grounds which may form the basis for removal in expedited proceedings at the time of entry are § 212(a)(6)(C) [misrepresentation], or § 212(a)(7) [improper documentation]. INA § 235(b)(1)(A)(i); 8 CFR §§ 235.3(b)(2) and 1235.3(b)(2). If a person appears inadmissible on any other ground, he or she will be referred to regular removal proceedings before an immigration judge. The government also has the option of putting people who entered the US illegally, and have been here for less than two years, in expedited removal proceedings, unless the person can show that he or she has been living in the United States for at least two years without any absences. INA § 235(b)(1)(A)(iii). In November 2002, the government decided to exercise this option with respect to the following people: … all aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to a determination of inadmissibility by a Service officer.… The alien has the burden affirmatively to show to the satisfaction of an immigration officer that the alien has been present in the United States continuously for the relevant two-year period. Federal Register: November 13, 2002 (Volume 67, Number 219); see also 8 CFR § 235.3(b)(ii) and 1235.3(b)(ii). This extension of expedited removal applied to most aliens who arrive by sea on or after November 13, 2002, except for: (1) people who arrive at United States ports-of-entry, (2) alien crewmen, (3) stowaways, and (4) Cubans.

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A further expansion of expedited removal was implemented on September of 2005, when DHS began to apply expedited removal to aliens who have spent 14 days or less in the United States, and were apprehended within 100 miles of the Southwest border with Mexico. On January 30, 2006, DHS Secretary Michael Chertoff announced that DHS would expand expedited removal even further: now it applies to those apprehended within 100 miles of the border with Mexico or Canada or who arrive by sea and are apprehended within 100 miles of a coastal border area. This expansion does not apply to people who have been in the United States for more than 14 days.39 If an immigration official decides that a person is inadmissible, the government will remove the alien without any hearing or review unless the person states that he or she wants asylum or indicates that he or she fears persecution in his or her country, or claims to be a lawful permanent resident, a refugee, an asylee, or a U.S. citizen. INA § 235(b); 8 CFR §§ 235.3(b)(5) and 1235.3(b)(5). A person ordered removed is barred for a period of five years from admission. Because of this, it may often be beneficial for a person to “withdraw” the “application for admission.” See 8 CFR § 235.4. Withdrawal is not a right of the applicant. It is a benefit conferred by the CBP in its discretion. The criteria for CBP officers at the border to permit withdrawal include:       

The seriousness of the immigration violation; Any previous findings of inadmissibility against the applicant; Whether the person intended to violate the law; The ability to overcome the ground of inadmissibility; The age or poor health of the applicant; Other humanitarian or public interest considerations; Where the visa is invalid because of an unknowing violation of INA § 222(g) [visa overstay].

Inspector’s Field Manual: Memo at Chapter 17.2, Dec. 22, 199740 Another point to bear in mind with expedited removal is that there is no right to legal counsel and, in fact, an arriving alien will not be allowed to call counsel or family by telephone. In addition, most of the time people subject to expedited removal, or where expedited removal is being contemplated, are subject to mandatory detention, although they can be paroled in to the U.S. to treat a medical emergency or for a law enforcement objective. See 8 CFR §§ 235.3(b)(2)(iii). Occasionally, however, the CBP will grant a person “deferred inspection.” This means that a person is “paroled” into the U.S. for one or even several weeks before they must go to an appointment for secondary inspection, which is usually held at the local DHS immigration office.

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For the DHS press release on this expansion of Expedited Removal, go to: www.dhs.gov/xnews/releases/press_release_0845.shtm. 40 Memo by Paul Virtue, Executive Associate Commissioner, reprinted in 75 Interpreter Releases No. 4, pp. 122 & 138-141 (January 26, 1998).

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This period can be very valuable for considering strategies to overcome possible deficiencies in a client’s admissibility.

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Consider the case of Consuela who enters the United States through the international airport at San Francisco. She is arriving on a B-2 tourist visa she secured at the US consulate in San Salvador. When she presents her passport to CBP agents they inquire as to the nature of her trip. She says she will be visiting her husband who is living in the United States. The agent tells Consuela that she must go to “secondary inspection.” She is immediately taken to an office where a second agent asks her questions related to her marriage, when her husband arrived in the U.S., whether he is a citizen or legal permanent resident. When the interview is over Consuela is given deferred inspection and asked to return in two weeks with proof of her intention to return to El Salvador. The CBP suspects that Consuela is not really a nonimmigrant, but rather, an “intending immigrant.” Because her husband lives here, they think that she will try to stay in the U.S. beyond the time on her visa and then file for an immigrant visa. (If Consuela says she intends to remain temporarily but in fact intends to stay permanently, she has made a misrepresentation, making herself subject to one of the grounds of inadmissibility). You help Consuela gather information via fax indicating that her children are attending school in El Salvador and that she has a job where she requested three weeks’ vacation. You also help draft a declaration signed under penalty of perjury in which Consuela states her reasons for the visit and that, although she wants to immigrate to the U.S., her current plans are to allow her children to finish school and to share some time with her husband before returning. Consuela presents this information at her deferred inspection appointment and is allowed to enter on her tourist visa. If the person facing possible expedited removal indicates that he or she wishes to apply for asylum, or states that he or she is afraid to return to his or her country, a CIS asylum officer must interview the person. The asylum officer will determine whether the person has a credible fear of persecution. 8 CFR §§ 208.30, 235.3(b)(1)(4), 1208.30 and 1235.3(b)(1)(4). A person has a credible fear of persecution if there is a significant possibility, taking into account the credibility of the statements made by the person in support of his claim and other facts known to the asylum officer, that the alien could establish eligibility for asylum. INA § 235(b)(1)(B)(v). If the asylum officer determines the person has a credible fear of persecution, the asylum officer will put the person in removal proceedings for a hearing on asylum and related applications only. If the asylum officer determines that the person does not have a credible fear of persecution, an immigration judge will review the case upon request by the applicant within seven days of the decision. The asylum officer must prepare and keep a written record of the interview process. The record must include a statement of the facts and the officer’s analysis of why the person has not met the credible fear standard. ICE must detain the person during this process. 8 CFR §§ 208.30, 235.3(b)(1)(4), 1208.30 and 1235.3(b)(1)(4).

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Unlike regular secondary inspection, applicants for asylum are allowed to contact legal representatives. However, they are given only 48 hours in which to do so in most instances. Mandatory detention is the unfortunate reality for most applicants for asylum who do not have an

otherwise valid visa and are apprehended at the time of inspection. Like other arriving aliens, however, applicants for asylum may be paroled for a medical emergency or law enforcement objective. 8 CFR §§ 235.3(b)(1)(4)(ii), and 1235.3(b)(1)(4)(ii). Many of these applicants must, therefore, wait in detention until an immigration judge finally decides their asylum case. In some cases after the applicant has passed the credible fear test, practitioners are able to persuade ICE or CBP to set a bond or otherwise arrange for release so that the person may get out of immigration detention while her asylum case is pending.

NOTE: Some arriving aliens, including but not limited to those who are admitted or attempt to be admitted to the United States under the Visa Waiver Program, are exempt from expedited removal if they express a desire to apply for asylum. See 8 CFR §§ 208.2, 217.4, & 1208.2; Matter of Kanagasundram, Int. Dec. 3407, 22 I&N Dec. 963 (BIA 1999). These asylum applicants are under the exclusive jurisdiction of the immigration court, but can only apply for asylum or withholding or deferral of removal. 8 CFR §§ 208.2(b)(1), 208.2(c), 1208.2(b)(1) and 1208.2(c). Visa Waiver Program applicants in this situation are not entitled to a bond redetermination hearing. See Matter of Werner, 25 I&N Dec. 45 (BIA 2009).41

A person who is placed in expedited removal proceedings cannot appeal the government’s decision denying his or her application for admission to the Board of Immigration Appeals, unless the person swears under penalty of perjury that he or she is a lawful permanent resident, an asylee, or a refugee who has already been admitted to the United States. INA § 235(b)(1)(C). People who arrive by airplane from Cuba are not subject to the expedited removal proceedings and, presumably, the government will put them in removal proceedings under INA § 240. See 8 CFR § 235.3(b)(i).

FOR MORE INFORMATION ON THIS SUBJECT, see: Immigration Law and Procedure, Chapter 7. Immigrants’ Rights Manual, Chapters 5–8.

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This case held that Matter of Gallardo, Int. Dec. 3263, 21 I&N Dec. 210 (BIA 1996), which had suggested that Visa Waiver entrants might be entitled to a bond redetermination hearing when requesting asylum at the border, was superseded by a subsequent regulation, 8 CFR § 1208.2(c).

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UNIT ELEVEN INTRODUCTION TO CANCELLATION OF REMOVAL UNDER INA § 240A(b), (FORMER SUSPENSION OF DEPORTATION) AND INTRODUCTION TO EVIDENCE FOR IMMIGRATION CASES

This Unit Covers:      

The law regarding § 240A(b), cancellation of removal proceedings for undocumented persons who have lived in the United States for 10 years and for victims of battery or extreme cruelty; The law regarding suspension of deportation, the predecessor to cancellation of removal, and how some undocumented persons in the Ninth Circuit still might apply for this today; The evidence and documentation necessary for proving eligibility in cancellation cases; The procedure for filing an application for cancellation of removal under INA § 240A(b); The impact of certain offenses on applying for cancellation of removal under § 240A(b); Cancellation under NACARA for some Guatemalans, Salvadorans, and persons from the former Soviet Union and Eastern European nations.

This Unit Includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 § 11.18

Overview of the Law ........................................................................................ 11-3 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1) ............................................................... 11-3 Continuous Physical Presence .......................................................................... 11-5 Documenting Continuous Physical Presence ................................................... 11-9 Good Moral Character and Criminal Bars...................................................... 11-10 Introduction to Exceptional and Extremely Unusual Hardship ...................... 11-21 Family Separation .......................................................................................... 11-25 Hardship to the Applicant’s Children ............................................................. 11-26 Community Ties ............................................................................................. 11-28 Medical Conditions ........................................................................................ 11-29 Conditions in the Country of Deportability .................................................... 11-30 Working with a Client and Her Family to Determine Hardship..................... 11-31 Putting It All Together ................................................................................... 11-32 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases.................................................................. 11-33 Overview of the Law ...................................................................................... 11-35 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal ................................................................................ 11-36 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation ...................................................................................... 11-37 Continuous Physical Presence under VAWA Cancellation ........................... 11-38

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§ 11.19 § 11.20 § 11.21 § 11.22 § 11.23 § 11.24 § 11.25 § 11.26 § 11.27 § 11.28 § 11.29 § 11.30 § 11.31 § 11.32 § 11.33 § 11.34

Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal......................................................... 11-39 Extreme Hardship under VAWA Cancellation of Removal .......................... 11-40 Children under VAWA Cancellation ............................................................. 11-42 VAWA Cancellation Compared with VAWA Self-Petitioning ..................... 11-42 Motions to Reopen ......................................................................................... 11-44 What Is Suspension of Deportation and Who Can Qualify? .......................... 11-44 Continuous Physical Presence in Suspension Cases ...................................... 11-47 Good Moral Character for Suspension of Deportation................................... 11-49 Hardship for Suspension of Deportation ........................................................ 11-49 Discretion in Suspension of Deportation Cases ............................................. 11-49 What Is Evidence? .......................................................................................... 11-50 Relevant and Irrelevant Evidence................................................................... 11-50 Analyzing the Strength of Evidence in Cancellation Cases ........................... 11-51 How to Use Evidence ..................................................................................... 11-53 Summary of Procedure ................................................................................... 11-53 Suspension of Deportation Benefits under NACARA ................................... 11-55

One of the most common types of relief for noncitizens in removal proceedings is called “cancellation of removal.” There are many different types of cancellation of removal. One, cancellation of removal for certain permanent residents, is found in INA § 240A(a) and discussed in Unit 12 of this manual. Another form of cancellation of removal is for nonpermanent residents and replaces what used to be suspension of deportation. This type of cancellation of removal is found in INA § 240A(b)(1). A third type of cancellation of removal is for victims of domestic violence. This type of cancellation of removal is found in INA § 240A(b)(2). A fourth type of cancellation of removal is for certain people from El Salvador, Guatemala and the former Soviet bloc countries under the NACARA program and is discussed at § 11.34 below. This unit will cover cancellation of removal for non-permanent residents, the old suspension of deportation law, cancellation for victims of domestic violence, and NACARA. This unit is divided into six parts: Part One discusses cancellation of removal for non-permanent residents [INA § 240A(b)] and the guidelines for eligibility. Part Two discusses cancellation of removal for spouses and children who have been battered or victims of extreme cruelty. Part Three discusses the old suspension of deportation law (part of which still may apply in removal proceedings, at least in the Ninth Circuit and for persons with criminal convictions from before April 1997).

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Part Four addresses the application of the rules of evidence in immigration court (with an eye towards cancellation applications) Part Five discusses the process of applying for cancellation of removal for nonpermanent residents and for suspension of deportation. Part Six discusses cancellation of removal/suspension of deportation under NACARA.

PART ONE: THE LAW OF CANCELLATION OF REMOVAL FOR NONPERMANENT RESIDENTS Gabriela Sanchez was picked up by the immigration authorities during a raid of her workplace last month. Gabriela entered the United States from her home country of Mexico without inspection in February 2001. She lives with her two U.S. citizen daughters, Juana, age 8, and Rosa, age 6. Her daughters rely on Gabriela for financial and emotional support. Gabriela now faces deportation by ICE. If Gabriela is removed, she will have to make a difficult decision. She either will have to leave her daughters with friends in the United States, or she will have to take her children with her to Mexico—a country about which they know almost nothing.

§ 11.1 Overview of the Law Gabriela may qualify for a form of immigration relief called cancellation of removal for non-permanent residents (“non-LPR cancellation). This form of relief replaced what used to be called suspension of deportation. Cancellation of removal allows some people who have lived in the United States for a long time and who are now in removal proceedings to stay in the United States and become lawful permanent residents, or “LPRs” (get a Green Card). The law of cancellation of removal for non-permanent residents is found in INA § 240A(b)(1). The whole cancellation section of the statute is reproduced in Appendix 11-C of this unit. This law was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and took effect on April 1, 1997. A person can only receive cancellation of removal one time.

§ 11.2 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1) A person qualifies for cancellation of removal under § 240A(b)(1) if she is in removal proceedings because she is inadmissible or deportable and: 1. she has been physically present in the United States continuously for at least ten years; 2. she has had good moral character for ten years;

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3. she has not been convicted of certain offenses [crimes listed in INA §§ 212(a)(2), 237(a)(2), or 237(a)(3)]—see Unit 3 for more information on these grounds of inadmissibility and deportability; and 4. to deport her would cause exceptional and extremely unusual hardship to her LPR or U.S. citizen spouse, child, or parent. Each of these requirements will be discussed in detail below. Cancellation is a “defensive” application, meaning that one can only apply for this if placed in immigration court and facing removal. A person cannot apply for cancellation by turning an application into CIS. The immigration judge has the discretion to grant or deny an application for non-LPR cancellation. This means that the judge may deny the case even if the applicant meets all the other eligibility requirements. As you can see, one of the requirements for non-LPR cancellation is that the applicant was not convicted of any offense listed in INA §§ 212(a)(2), 237(a)(2), or 237(a)(3). These include most of the criminal grounds of inadmissibility and deportability. See § 11.5 for more on this requirement, and see Unit 3 for a definition of conviction for immigration law purposes and for more information in general on these grounds of inadmissibility and deportability. Under INA § 240A(c), non-LPR cancellation of removal is not available to the following people: a. People who already have received cancellation of removal, suspension of deportation, or § 212(c) relief. b. People who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds. c. Crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors (those who either received graduate medical education or failed to satisfy their two-year requirement). There are many differences between cancellation of removal and its predecessor, suspension of deportation. Under the old suspension law, an applicant only needed to show seven years, not ten years, of continuous physical presence, and only needed to show extreme hardship, not “exceptional and extremely unusual” hardship as is required for cancellation. Additionally, hardship to the applicant herself constitutes hardship under the prior suspension law and does not count under cancellation law. The requirements of cancellation are therefore considerably more difficult to meet than those of the old suspension law.

WARNING! It Is Risky to Place Your Client in Removal Proceedings in Order to Apply for Cancellation. It is difficult to win a cancellation case, especially because of the “exceptional and extremely unusual” hardship requirement. Practitioners should not take steps to have removal proceedings initiated for their clients in order to apply for non-LPR cancellation except for extremely strong cases. For the most part, practitioners should pursue cancellation cases only

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when their clients are already in removal proceedings, as in the example of Gabriela Sanchez described at the beginning of this unit.

Exercise 11.2: How would you explain the legal requirements for cancellation of removal to your client who is in your office ready to apply for cancellation? See Appendix 11-A for a sample answer and for some practice tips on explaining areas of the law to your clients.

Adjustment of Status: Becoming a Lawful Permanent Resident After obtaining cancellation of removal or suspension of deportation, an applicant will then be able to adjust her status and become a lawful permanent resident. The Executive Office for Immigration Review (the Immigration Court) has interpreted the law to require that only 4,000 people can be granted suspension of deportation or cancellation of removal and adjust their status each year. See INA § 240A(e). Presently, the Executive Office for Immigration Review will only issue grants of suspension and cancellation of removal as long as the 4,000 spots are still available. Once the 4,000-person cap is reached during the year, the Immigration Court or the Board of Immigration Appeals will reserve their decisions (i.e., not make final decisions) on all other suspension or cancellation cases. Then, the following year or whichever year more slots become available, those cases that the court has reserved will be formally granted and the individuals will be able to adjust status. Put simply, the courts are essentially creating a waiting list for people granted suspension and cancellation once the 4,000 spots are used up. The 4,000-person cap does not apply to individuals granted suspension of deportation or cancellation of removal under NACARA (see § 11.34 of this unit). Adjustment of status in a cancellation of removal case is quite different than the adjustment of status explained in Unit 7. The adjustment of status process discussed in Unit 7 requires that an adjustment applicant complete Form I-485 and show that he or she is not inadmissible. In contrast, someone who is granted cancellation by the immigration judge is granted LPR status and does not need to file any further application. After the judge grants the case, the immigrant will make a follow up appointment with CIS to process her green card.

§ 11.3 Continuous Physical Presence To meet the first requirement for cancellation, the applicant must show that she has ten years of continuous physical presence in the U.S. See INA § 240A(b)(1)(A). This brings up two important questions. First, when does the ten-year period end (i.e., what “stops the clock”)? Second, what effect do absences from the U.S. have?

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A.

The Ten-Year Clock Stops with Service of the Notice to Appear

Under INA § 240A(d)(1), the applicant must acquire ten years of continuous presence before the Notice to Appear is served (given) to her. As you remember from Unit 10, a Notice to Appear is the charging document that begins removal proceedings.1 In it, ICE must state why it believes the person is deportable or inadmissible, and must give several warnings. Once the applicant has been served a Notice to Appear, the clock “stops,” and she cannot count any more time in the U.S. towards the ten-year requirement. Example 11.3-a: Jose Morales lived in the United States without leaving from 2003 until 2014. If Jose were served (given) a Notice to Appear in removal proceedings in 2012, he would not qualify for cancellation of removal, even if he is still in court proceedings in 2014. Although he has lived in the United States for more than ten years, he only has nine years of continuous residence because the clock stopped when he was served the Notice to Appear in 2012. The BIA and many courts have held that once a person has been served with a charging document, either a Notice to Appear in a removal hearing or an Order to Show Cause in a deportation hearing, time is generally stopped for good. In other words, the “clock” cannot be restarted by an additional ten-year period after service of the charging document. See Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000).2 However, in Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004), the BIA carved out an exception to this rule, holding that if a person was previously in deportation proceedings, which commenced by issuance of an Order to Show Cause, but is now in removal proceedings, commenced by issuance of a Notice to Appear, the Order to Show Cause in the previous proceeding does not stop the clock. In Matter of Cisneros, the person had been deported preIIRIRA, but later reentered without inspection and accumulated ten years of continuous physical presence before being apprehended by DHS and placed in removal proceedings. The BIA held that service of a charging document in a prior proceeding does not serve to end the period of continuous physical presence with respect to an application for cancellation of removal filed in the current proceeding.3 People who left under an order of voluntary departure and later returned to the United States might benefit from this decision. Unfortunately, this case is of little help to those who returned to the United States unlawfully after a previous deportation or removal order. Most of

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The charging document for pre-IIRIRA deportation cases is called the “Order to Show Cause.” Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001); Najjar v. Ashcroft, 257 F.3d at 1299-1300; McBride v. INS, 238 F.3d 371, 377 (5th Cir. 2001); Afolayan v. INS, 219 F.3d 784, 789 (8th Cir. 2000). 3 Id. at 672; see Okeke v. Gonzales, 407 F.3d, 585 (3d Cir. 2005) (holding that someone who had a criminal conviction that stopped time for cancellation purposes but re-entered the U.S. legally thereafter, accrued a new period of physical presence for cancellation eligibility); see also § 11.3(B). 2

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those people are subject to reinstatement of removal under INA § 241(a)(5) and are therefore not entitled to another hearing.4 As a way to try to overcome the stop time rule, advocates can argue that the NTA was not properly completed, executed, or served. These arguments, if successful, usually result in the client accepting service at the hearing, or the government reissuing a correct NTA. When the properly executed NTA is served, the clock stops. Any such argument is usually difficult to win in court, and there are court cases that rule against the immigrant. For instance, the BIA held that an NTA lacking the date and time of the initial hearing, as required by statute, still served to stop the clock in all cancellation cases.5 Additionally, the First Circuit has held that the first NTA date of service stands to stop the clock, even where the original charges were replaced by amending the NTA. Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012). If your client qualifies for Special Rule Cancellation under NACARA, very different rules apply to the continuous residence requirement. See § 11.34. B.

Continuous Physical Presence Also Ends When the Alien Commits Certain Offenses

The ten-year physical presence “clock” also stops when the person commits certain offenses. Under INA § 240A(d)(1), the ten years stop when the person commits an offense that is “referred to” in INA § 212(a)(2) and that also makes the person inadmissible under INA § 212(a)(2) or deportable under INA §§ 237(a)(2) or 237(a)(4) (grounds that deal with crimes and terrorism). In practice, this stop-time rule affects cases for LPR cancellation more than non-LPR cancellation. For non-LPR cancellation, any crime that would stop the clock would also entirely bar the person from applying for § 240A(b) cancellation because it would come within the criminal bar of § 240A(b)(1)(C). If your client has criminal issues, it’s best to first assess whether the crime bar applies. The criminal bars and good moral character are discussed in § 11.5 of this unit. C.

The Effect of Absences on Continuous Physical Presence

The continuous physical presence requirement does not mean the client must prove she has never left the United States. An applicant is barred from cancellation only if any one absence during the ten-year period is more than 90 days, or if all her absences total more than 180 days. See INA § 240A(d)(2).

4

For more information on whether there are any exceptions to reinstatement of removal for your client, see Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct. 2422 (2006) and other cases in your jurisdiction on reinstatement of removal. 5 Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011).

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Example 11.3-b: Yen has lived in the United States since 1986. She was recently picked up by the immigration authorities and placed in removal proceedings. Since coming to the United States, Yen has left the United States several times. Four years ago she left the United States for 75 days, two years ago she left for 80 days and last year she left for 50 days. Although none of Yen’s absences individually were more than 90 days, together they totaled 205 days. Yen is ineligible for cancellation because her absences total more than 180 days and therefore broke her continuous presence in the United States These rules on continuous physical presence do not apply to someone who: 1. has served for at least 24 months in an active duty status in the U.S. Armed Services, and if she stopped serving, it was under honorable conditions; and 2. at the time of enlistment, she was in the United States. See INA § 240A(d)(3). Absences or Departures under Threat of Deportation. Leaving the United States “under threat of deportation” will also interrupt presence, regardless of how long the absence is. If the person has been ordered removed and then leaves the United States, even for just a few days, she will have interrupted her continuous physical presence. Leaving after a removal order breaks continuous presence even if the person did not know about the order, such as if the person never received her NTA and was ordered removed in absentia. This also applies to those that are ordered removed without a court hearing, as in an expedited order of removal (which usually takes place at the border). Additionally, accepting voluntary departure in lieu of being removed by an immigration judge has also been found to interrupt the continuous physical presence necessary for cancellation of removal.6 However, if the acceptance of voluntary departure was not “knowing and voluntary,” it might not break continuous physical presence. In other words, if the person did not really understand or did not knowingly give up his or her right to a removal hearing and agree to depart voluntarily, then that departure does not necessarily interrupt their continuous physical presence in the United States.7 If your client ever left the United States and upon return was turned away at the border by a border official, it is important to determine whether this incident constitutes a break in his or her continuous physical presence. The BIA ruled in Matter of Guadalupe Avilez-Nava, 23 I&N Dec. 799 (2005), that an immigration official’s refusal to admit an applicant at a land border port of entry will not constitute a break in the applicant’s continuous physical presence unless there is evidence that the applicant was formally excluded or ordered removed; was offered and accepted the opportunity to withdraw his or her application for admission; or was subjected to any other

6

See Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002); Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. 2008); Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003). 7 See Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006); Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005).

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formal, documented process where the applicant was determined to be inadmissible to the United States. In Guadalupe Avilez-Nava, the applicant returned to Mexico for two weeks to provide support for her mother when her grandmother died. When she tried to cross the border back into the United States, an immigration official stopped her. The applicant admitted that she had no entry documents and was taken to a room where a man explained that she could not enter because she did not have documents. The applicant was then escorted to a door “back across the border,” returned to Mexico, and entered illegally via the same port of entry in a vehicle two days later. According to the BIA, this did not amount to a Voluntary Departure under threat of deportation, which would have caused a break in the applicant’s continuous physical presence. Thus, a “turn around” or even multiple “turn-arounds” do not necessarily break continuous presence. You should be on the lookout for the type of evidence that can be offered to show that the applicant’s departure was made under the threat of deportation—and thus breaking continuous presence—including testimony or documentary evidence of a legally enforced refusal of admission and return, affidavits or statements of the applicant or immigration officials, photographs, fingerprints, or other appropriate forms and official records of the DHS. However if the evidence establishes only that the applicant was turned away at the border for failure to have proper documents, the encounter will not cause a break in the applicant’s continuous physical presence.8

WARNING! Be cautious about any border encounters your client had with immigration officials, however, as the person could have experienced an “expedited removal” or an administrative voluntary departure. A border official carries out the “expedited removal,” and the person never goes before an immigration judge.9 Either expedited removal or an administrative voluntary departure probably IS a break in continuous physical presence.

§ 11.4 Documenting Continuous Physical Presence The immigration court needs to see proof of continuous physical presence. Usually a combination of affidavits and documentary evidence will be sufficient to demonstrate continuous physical presence for the ten-year period. The client, his family, and the legal worker should gather as much concrete evidence as possible to show that the person has been here. This evidence could include: rent receipts; school records; dental or medical records; social security records if they exist; payroll records; letters from a landlord, priest, employer, co-worker, 8

See also Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005) (holding that the existence of a record of a turnaround at the border does not by itself constitute a break in continuous physical presence); OrtizCornejo v. Gonzales, 499 F.3d 610 (8th Cir. 2005). 9 See Juarez-Ramos v. Gonzales, 485 F.3d 509 (9th Cir. 2007).

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neighbor, or friend; telephone or utilities bills; church records; children’s birth certificates; marriage licenses; or many other documents. Documents are crucial to proving the ten years of continuous presence. Ideally you should have some proof for every three or four months of each of the ten years. If the client cannot get that many documents then try to get at least one document from each of the ten years. If your client has not kept records and cannot find many documents, she must be prepared to explain to the judge why she does not have much proof of her stay in the United States. The need for documentation is a good reason to encourage all of the people who come to your office to keep their records organized and in files. If your client does not have many documents, she can still apply for cancellation of removal if she can show why she does not have documents and offer other types of evidentiary support instead, such as testimony. The lack of documents will make her case less strong but will not preclude her from receiving relief. The Ninth Circuit ruled in Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004), that an applicant’s inability to establish continuous physical presence through documentary evidence was not necessarily fatal to her claim for cancellation of removal, given her circumstances. In that case, Mrs. Lopez had limited documentary evidence available to establish her continuous physical presence because she had worked at home since being in the United States. The Ninth Circuit ruled that when a substantial number of individuals are willing to step forward and swear under oath that an undocumented immigrant has lived in the community for a particular period of time, the immigration judge cannot dismiss the collective weight of their declarations without a reasoned and persuasive explanation. Other circuits have ruled similarly. Different types of documents vary in how significant they will be to the court. The varying degrees of importance of these documents are largely governed by what we call the rules of evidence. Part Four of this unit explains what kinds of evidence help your case the most. Review that section and always use the strongest type of proof you can. Note that if your documents include statements by other persons, the statements must be in the form of an affidavit or a declaration sworn under penalty of perjury, and must be detailed and show how the witness has personal knowledge of the facts that she is attesting to. A list of some types of documents you can use to prove all aspects of a cancellation case (not just continuous physical presence) can be found in Appendix 11-D.

§ 11.5 Good Moral Character and Criminal Bars

PRACTICE TIP: In the Ninth Circuit only, an undocumented or documented individual may be able to apply for the old “10-year suspension” if before April 1, 1997 she pled guilty to an offense that made her deportable or inadmissible. In other words, a person who would not be eligible for § 240A(b) cancellation because of a conviction from before April 1, 1997 still may be able to apply for a similar kind of relief, even in removal proceedings begun today. See the discussion of

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Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006) in Part Three, below. Suspension is a great alternative because extreme hardship to the applicant herself can fulfill the hardship requirement (unlike cancellation which requires a showing of hardship to a qualifying family member). Advocates who are representing noncitizens outside the Ninth Circuit may want to consider arguing that their Circuit Court of Appeal adopt the Lopez-Castellanos rule, or consider referring the case to an attorney expert in federal appeals who can do this.

VAWA Note: The criminal bars to VAWA cancellation (INA § 241(b)(2)) are somewhat different from the bars to the regular non-LPR cancellation that we discuss in this section (INA § 240A(b)(1)). See boxes that refer to the VAWA cancellation bars and VAWA good moral character in this section, and see further discussion of VAWA bars at § 11.19, below.

A.

Introduction: Handling Criminal Cases

Before going into detail about the crimes bars to cancellation, let’s review the basics about representing clients with criminal convictions. First, educate your client and get all the facts. We know that sometimes applicants do not share information about their criminal histories and other personal facts because they are embarrassed, do not think it is important, or do not know that they were actually convicted of a crime. Here, client education is absolutely critical. Warn your client that ICE will have his or her record of arrests and convictions, obtained through an FBI check of the client’s fingerprints. You and the client need to have at least as good information to work with as ICE does, so you need to do an FBI records check. You should also request a criminal records check from your state’s department of justice (or whatever is the functional equivalent in your state). Sometimes convictions that do not appear in the FBI records do appear on the state records, and the immigration authorities often consult these state records as well. Second, know your limits. When in doubt, refer it out! The law governing convictions is complex and constantly changing, and the stakes to the client are very high. Unless you spend substantial time on crimes and immigration law and you feel confident of your expertise in this area, refer the case to an expert. To competently handle a case involving crimes, you must understand the substantive questions, for example which offenses currently can be characterized as “crimes involving moral turpitude.” You also must understand the “categorical approach,” which has to do with how to assess a particular conviction when the criminal statute at issue covers multiple kinds of conduct. Case law on the categorical approach addresses in what scenarios the immigration judge may consult the details of an individual’s record of conviction and what documents may be consulted as part of that record of conviction. The law on the categorical approach is ever-evolving. For the latest case law, please see Unit 3, Part 4. If you

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conclude that you should not handle the case but cannot refer it out, bring in an advocate or consult with a resource center that has expertise in immigration and crimes to request a thorough review. It is important not to guess or make assumptions without research: even a minor conviction might bar relief, and even a case that looks hopeless might turn out to have a solution. See Unit 3, Part Four for more information on crimes and immigration. B.

Bar to Cancellation: Convicted of an Offense under the Crimes Grounds of Deportation and Inadmissibility 1. “Convicted of an offense under” versus “deportable or inadmissible under” the crimes grounds

Let’s consider again the exact words of the bar to § 240A(b) cancellation. A noncitizen is barred from applying if she has been “convicted of an offense under § 212(a)(2), 237(a)(2), or 237(a)(3).” INA § 240A(b)(1)(C). Section 212(a)(2) lists most of the crimes-based inadmissibility grounds; § 237(a)(2) lists most of the crimes-based deportability grounds; and § 237(a)(3) lists the terrorist deportability grounds. Notice the unusual language in this bar. Usually in immigration law we talk about someone being “deportable under” or “inadmissible under” certain grounds, rather than “convicted of an offense under” certain grounds. The BIA has used this language to apply the bar to persons who are facing charges of inadmissibility in court, but have a conviction described in the criminal grounds of deportability. This means that those who (a) entered without inspection (and charged under INA § 212) AND (b) were convicted of an offense described in a deportation ground under INA § 237 are barred from applying for non-LPR cancellation of removal. The grounds of deportation only apply to a person who has been “admitted.” See INA § 237(a), para. 1. Therefore, a person who never was admitted—for example, who entered the United States without being inspected by a border agent—is not “deportable” under these grounds. However, the BIA’s reasoning is as follows: the cancellation bar does not require the person to be “deportable” under INA § 237(a). It just says he or she must be “convicted of an offense under” the deportation grounds. Based on this language, a person who entered without inspection is barred from cancellation if he or she was convicted of a crime “described in” the deportation grounds.10 Example: In 2001, Martin entered the United States, without inspection, by wading across the Rio Grande River. In 2013 he was convicted of an offense that is a “crime of domestic violence.” Even though Martin is not “deportable under” the domestic violence deportation ground because he never has been admitted, he still will be found to be barred

10

See Matter of Almanza, 24 I&N Dec. 771 (BIA 2009); see also Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). For more information, see the discussion of the difference between the grounds of inadmissibility and deportability at Unit 10.

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from non-LPR cancellation because he was convicted of an offense “described in” the deportation ground. 2. Which convictions will bar cancellation? Let’s construct a list of the offenses described in §§ 212(a)(2), 237(a)(2), 237(a)(3). The point of this is not to memorize the following lists. The point is to understand how carefully we must read every word in a statute. A person who is convicted of the following offenses described in §§ 212(a)(2), 237(a)(2) or 237(a)(3) will be held barred from § 240A(b)(1) cancellation:        

 

a crime involving moral turpitude (there are some exceptions; see further discussion below) an offense relating to controlled substances two or more offenses that brought a total sentence imposed of five years or more engaging in the business of being a prostitute aggravated felony high speed flight from immigration checkpoint firearms offense crime of domestic violence, stalking, crime of child abuse, neglect or abandonment, or violation of certain portions of a domestic violence protection order (only if they occurred on or after September 30, 1996).11 Espionage, treason, sedition, Selective Service Act or Trading with the Enemy violation, entry/departure permit fraud, importation of aliens for immoral purposes, threats against the president and military expeditions against friendly nations failure to register and document fraud under the listed federal acts; false claim to U.S. citizenship failure to register as a sex offender under a federal law; entry/departure permit fraud; importation of aliens for immoral purposes; threats against the president and military expeditions against friendly nations. 3. A conviction is required

A person who is inadmissible or deportable for conduct under §§ 212(a)(2), 237(a)(2) or 237(a)(3), but has not been convicted of an offense in those sections, should not be barred from § 240A(b)(1) cancellation under the “conviction” section. Thus a person who “engaged in” prostitution, or was a drug addict or abuser, or whom the government has “reason to believe” is a drug trafficker, is not barred under this provision as long as there is no conviction. 11

A conviction received before that date is not included in that deportation ground under a statutory effective date. See Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). But note that some of these offenses also may be “crimes involving moral turpitude.”

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However, recall that the person also must establish good moral character for the last ten years, and that the good moral character bar includes some grounds of inadmissibility that do not require a conviction. Therefore if the client became inadmissible for conduct within the last ten years, he or she still may be barred even without a conviction. See Subsection B of this section below. This is an area where VAWA cancellation rules are different. Under VAWA, if conduct actually makes the person deportable or inadmissible, it is a bar even if there is no conviction. See § 11.19 for more on crimes bars to eligibility for VAWA cancellation. 4. Special rule for crimes involving moral turpitude Conviction of even one crime involving moral turpitude (“CIMT”) is a bar to non-LPR cancellation, with one exception. The exception applies if (a) the person has committed only one CIMT, (b) a sentence of six months or less was imposed, and (c) the offense carries a maximum possible sentence of less than one year.12 This exception comes from looking at both the CIMT ground of inadmissibility AND the CIMT ground of deportability. A noncitizen applying for non-LPR cancellation must not have a conviction described in either the inadmissibility ground or the deportability ground. To avoid the CIMT inadmissibility ground, a crime that fits the petty offense exception would be sufficient. This is a crime that has a maximum possible sentence of one year or less, and the person received a sentence of six months or less. Unfortunately, to be eligible for cancellation, the person must also avoid a CIMT as described in the deportability ground. The deportability ground describes a CIMT with a one-year sentence or more. Thus, combining both of these, the maximum possible sentence must be under one year (to avoid the deportability description) and the actual sentence must be six months or less (to fit within the petty offense exception for the inadmissibility ground). This is distinct from the petty offense exception because to avoid the crime bar for nonLPR cancellation requires the offense to have a potential sentence of less than one year while the petty offense exception includes an offense with a potential sentence of one year or less. The requirement that the offense have a potential sentence of “less than one year” will bar many applicants who have been convicted of just one misdemeanor CIMT. Example: Kari and Harry both were convicted of misdemeanor shoplifting offenses that are CIMTs. Kari was convicted under a theft statute that carries a maximum possible sentence of one year. Harry was convicted under a different theft statute, which carries a maximum possible sentence of six months. Both Kari and Harry received probation with no jail, and for both of them this is the first CIMT that they have committed. Who is eligible for non-LPR cancellation?

12

Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).

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This no-jail misdemeanor will bar Kari from applying for non-LPR cancellation, while Harry still is eligible. They key is that Harry’s offense had a maximum possible sentence of less than one year, while Kari’s offense had a maximum of one year.

PRACTICE TIP: Advocacy on All Fronts. Is there anything to be done for a sympathetic client like Kari, or are she and her family doomed because of her single, no-jail misdemeanor? There are at least two possible things she might try. Given that Kari had such a minor conviction, and that she has USC and LPR family members who would suffer terrible hardship if she were deported (which we assume is true if she is trying to apply for non-LPR cancellation), then she could request that the case be administratively closed as a matter of prosecutorial discretion. Working with the community, with her elected representative, and with the press could support this approach. Or, if there are resources to litigate the case, she could fight for the right to apply for non-LPR cancellation. Arguably the BIA’s “less than one year” standard is too strict,13 and this issue could be appealed up to federal court. At the same time, you could investigate whether Kari could withdraw the plea in criminal proceedings and instead plead to a different offense that is not a bar. For example, in many states the maximum possible sentence for attempting to commit an offense is less than for committing it. Unfortunately this kind of litigation is an expensive and time-consuming process that is not guaranteed to win—but if Kari’s family faces extraordinary hardship, one could try to find pro bono counsel. In any of the above efforts, Kari, her family, and her community would be crucial to the process of gathering and presenting critical evidence about her family’s needs, her good character, and the disaster that her removal would cause.

5. Options for persons convicted of an offense that is an automatic bar to cancellation Although an immigrant might be able to waive these grounds of inadmissibility in other contexts, a waiver of inadmissibility cannot cure the bar to non-LPR cancellation. Advocates have litigated this issue to argue that if a non-LPR cancellation applicant is barred by, e.g., a conviction for a CIMT, then a waiver of the CIMT under INA § 212(h) ought to eliminate the bar. However, the BIA stated that it would not accept such a waiver to cure a bar to non-LPR cancellation under § 240A(b)(1).14 Three categories of persons may still be eligible for relief despite being convicted of one of these offenses:

13

You might look at the discussion in Brady, “Defense Strategies for Matter of Almanza-Arenas” at www.ilrc.org/crimes. This article focuses on a different issue that has since been re-addressed by the Ninth Circuit, but it provides helpful language about construing the statutory language that sets out the CIMT exception. 14 Matter of Bustamonte, 25 I&N Dec. 564 (BIA 2011).

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1. A noncitizen, whether documented or not, who was convicted of one or more offenses before April 1, 1997 may be able to waive those offenses under a prior law, “ten-year suspension.” See Part 3. 2. A noncitizen who applies for cancellation under the domestic violence provision at § 240A(b)(2), or for NACARA cancellation, may have a better chance at being eligible for relief. In those cases, if the person entered without inspection, then the convictions listed in the deportation ground do not apply to him or her. See Part Five. 3. There is a very different kind of cancellation of removal for lawful permanent residents, set out at INA § 240A(a). Permanent residents are not barred from applying for that type of cancellation by any conviction, except a conviction of an aggravated felony. The above lists do not apply to them. See Unit 12 for a discussion of § 240A(a) cancellation. C.

Bar to Cancellation: Failure to Show Good Moral Character (“GMC”) 1. Overview of the good moral character requirement

The applicant must establish “good moral character” for ten years immediately before submitting the cancellation application. See INA § 240A(b)(1)(B). The good moral character requirement has two parts. First, the person must prove that he or she is not automatically disqualified (“statutorily barred”) from demonstrating good moral character. The statutory bars for good moral character are found at INA § 101(f) and described below. If that hurdle is passed, the person still must convince the judge to find that he or she actually has good moral character. The judge will make a “discretionary decision” that the person is of good moral character. See further discussion of good moral character at Unit 3, § 3.28. If your client is permanently barred from showing good moral character, your client cannot win cancellation of removal. But if your client does not have any permanent bars and is trying to show good moral character, an important benefit to the good moral character bar is that it only has to be shown for a certain period of time, in this case the ten years prior to the decision on the case. A conviction or conduct that occurred before the period for which good moral character must be shown is not a statutory bar. The BIA held that the ten-year period for which good moral character must be established continues until the entry of a final administrative decision; that is, the final decision of the BIA. Note that this ten-year period for good moral character is quite different from the ten-year period for continuous physical presence. Remember that physical presence stops running the moment the NTA is served, among other things. In contrast, the period of time for good moral character continues until the final decision, and is the ten years immediately preceding the decision of the judge. Thus, your client can continue to take actions to bolster his moral character until the BIA has made its final decision. Be careful, however, because the adjudicator could determine that any acts of the applicant during the time the case is pending can show the applicant lacks good moral character as well.

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In contrast to good moral character which must be shown only for a ten-year period. A conviction that falls within the crime bar discussed above in Subsection A will permanently bar eligibility for non-LPR cancellation. Example: Sonia entered to the United States 20 years ago and was convicted of a drug offense 15 years ago. This conviction does not bar her from establishing good moral character for the past 10 years because it happened more than 10 years ago. However, the conviction is a permanent, automatic bar to § 240A(b)(1) cancellation because it is an offense described under §§ 212(a)(2) and 237(a)(2). When might a person have some criminal problems but still not come within the automatic bars to cancellation, and so have to consider the automatic bars to good moral character? There are two situations. 1. The statute says that to come under the automatic bars to § 240A(b)(1) cancellation, the person must be convicted of an offense under §§ 212(a)(2), 237(a)(2) or 237(a)(3). If the person has bad conduct (for example, is a drug addict, engaged in prostitution, or admitted a drug offense) but no conviction, this would not be an automatic bar to cancellation, but could be a bar to good moral character if it occurred within the time period during which good moral character must be established. 2. Some events that bar good moral character are unique to the good moral character statute, and are not described at all in the criminal conviction bar to cancellation. For example, a person who was in incarcerated due to convictions for 180 or more days in aggregate during the period for which good moral character must be shown is barred from establishing good moral character. This bar for 180 days or more in jail is not a ground of inadmissibility or deportability, or an automatic bar to cancellation; it only appears in the good moral character section of the statute, INA § 101(f). This is an example of a good moral character ground that might cease to be a bar to showing good moral character for the individual with the passage of time because the time in jail could end up being more than 10 years in the past from when the case is ultimately heard. 2. Statutory (automatic) bars to establishing good moral character As described above, under INA § 101(f), certain people cannot show that they have good moral character. If a person comes under the list provided in INA § 101(f) within the ten years before the judge hears her case, she cannot show good moral character and thus cannot qualify for non-LPR cancellation. Many of these bars only apply during the time period that good moral character must be established for the benefit sought, such as the 10 years for cancellation of removal. Others permanently bar someone from showing good moral character. As noted below, many of the grounds overlap with statutory bars to cancellation. The list includes:

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Ground

Conviction or admission of a drug offense, except a single conviction of possession of less than 30 grams of marijuana Conviction or Admission of a CIMT (see Unit 3 for exceptions) Having a total sentence of five years or more for two or more convictions Engaging in prostitution or other commercialized vice Immigration authorities having “reason to believe” she is or was a drug trafficker Alien smuggling, regardless of who is smuggled Being a habitual drunkard Living off of, or having had two or more convictions for, illegal gambling Giving false testimony to get or keep immigration benefits Coming to the U.S. to practice polygamy Spending 180 days or more in jail/prison for a conviction or convictions Murder conviction at any time Aggravated felony conviction on or after November 29, 1990

Permanent Bar to Cancellation Yes if conviction

GMC Bar if Within Prior 10 Years Yes, conviction or admission

Yes, if conviction Yes

Yes, conviction or admission Yes

Yes, if conviction No

Yes, conviction or admission Yes

Yes, if conviction No No

Yes, conviction or admission Yes Yes

No

Yes

No No

Yes Yes

Yes Yes

Yes Yes

Example 11.5-a: Robert is inadmissible under the CIMT ground in § 212(a)(2) because he was convicted of robbery five years ago. This bars him from applying for cancellation because it is a § 212(a)(2) conviction, and also because it makes him unable to prove that he has good moral character within the last ten years. Example 11.5-b: Over the last ten years Bertrand has been convicted three times for drunk driving and one time for being a public nuisance. He spent three days in jail for being a public nuisance and, all together, 115 days in jail for his drunk driving convictions. Can he qualify for cancellation? None of Bernard’s convictions is for one of the offenses listed in §§ 212(a) or 237(a) that would automatically bar him from cancellation. Therefore Bernard only has to focus on the good moral character requirement. Bernard is not barred from establishing good moral character based on spending 180 days in jail as a result of a conviction, because he spent only 118 days in total. But he may have another problem, in that he could be found to have been a habitual drunkard at some time over the last ten years. He needs to

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persuade the judge that he was not and he should argue that no doctor has declared him a habitual drunkard. He should also show the judge that he has stopped drinking. This is important because even if Bernard is not statutorily barred from proving good moral character, the judge could deny the case in an exercise of discretion. (See Subsection 3.) Most judges would want to see that Bernard has rehabilitated and would no longer pose a threat to public safety. Good moral character also is discussed in Unit 3, § 3.28. The text of § 101(f) can be found in Appendix 11-E. Please read INA § 101(f) for further information on good moral character. 3. Good moral character as a matter of discretion: convincing the judge to find good moral character Once an applicant has shown that he is eligible to establish good moral character, the next step begins. The applicant must present evidence to try to convince the judge that the person really does have good moral character. The judge may still deny the cancellation application for good moral character reasons even if the applicant has not committed any of the offenses listed above. Section 101(f) of the INA lists bars to showing good moral character, but the judge may consider other negative factors as well in reaching her decision. However, just because your client has done something “bad” does not mean he will not be able to show good moral character. If anything in your client’s past could be viewed negatively, ask your client to explain why the situation was not really so bad, or why it will not happen again. If he practices telling you, he will be better able to explain it to the judge. You can help advocate for your client by arguing that the immigration judge should not deny an applicant for lack of good moral character unless there is precedent for doing so. In the past, courts have found a lack of good moral character if a person has:    

failed to support dependents; failed to file tax returns; lied or refused to answer questions about one’s prior activities and arrests; and committed unlawful acts that adversely reflect upon the applicant, such as a restaurant owner selling liquor in violation of the law.

It may not be too late to turn around some of these negative factors. You could advise your clients to file their back taxes (and they may even discover they are owed refunds). If payment is due to the IRS, usually a payment schedule can be arranged. A parent could start providing child support for his or her children, in addition to documenting what “in kind” support may have been provided in the past (clothes, food, school books and tuition, etc.) It is important to note that when determining good moral character, like other immigration consequences of criminal convictions, a judge can take into account a conviction for

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a crime even if that crime has been expunged.15 In general, expungements do not eliminate convictions for immigration purposes.16 The exception is that in immigration proceedings that arise in Ninth Circuit states, an expungement might eliminate a single conviction for simple possession if the plea occurred before July 14, 2011.17 In addition to the factors listed above, you can brainstorm with your client whether other negative factors might be present. Some other common situations include willfully and knowingly failing to register for the Selective Service, or the “Draft,” (For more information on the effects of failing to register for the selective service upon a good moral character determination, please see Unit 17 of this guide.) Another reason a court may bar relief is if an applicant did something disrespectful toward the laws of marriage in some way (concealed previous marriages, took part in a fraudulent marriage, or committed adultery which destroyed a marriage). If any negative factor exists in the case (not only those listed here), check the law in your circuit to see if it is a basis for finding a lack of good moral character. In addition to considering negative factors, a judge should also consider any positive factors indicating the applicant has good moral character. Judges must engage in a “balancing test”18 and consider positive factors as well as negative ones when deciding good moral character where one is not automatically precluded from showing good moral character under INA § 101(f). A person may present any kind of evidence to show good moral character, so you and your client can be creative. Example 11.5-c: At the end of their first meeting, Chiao, the advocate, asks Araceli, the client, to list all the ways she contributes to the U.S. At home, Araceli wrote down the following positive equities: she cares for her children and elderly father, belongs to her church choir, has always worked and been chosen worker of the month at her present job, and volunteered after the Los Angeles earthquake of 1994. To document good moral character, the client should try to get letters from current or previous bosses, co-workers, teachers, other volunteers, religious community members, and those who benefit from his or her activities. If a client has won any awards or been recognized in any other way, these documents should be included as well. The person may be a Girl Scout Troop leader, a beloved brother, an excellent employee, a devout church member, or someone who helps 15

See Ikenokwalu-White v. INS, 316 F.3d 798 (8th Circuit 2003). Matter of Roldan, 22 I&N Dec. 512 (BIA1999); see Unit 3, Part 4. 17 Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), overruled the holding in LujanArmendariz v. Ashcroft, 222 F.3d 728 (9th Cir. 2000), in finding that expungements of first offense for simple possession are still convictions for immigration purposes. However, the holding does not apply retroactively. Therefore with some restrictions, expungements of pleas entered before July 14, 2011 of first offenses for simple possession of a controlled substance will not be a conviction for immigration purposes. The Lujan rule applies only in immigration cases arising within Ninth Circuit states. For more, see “Practice Advisory: Lujan and Nunez” at www.ilrc.org/crimes. 18 See Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986), Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991); Matter of B-, 1 I&N Dec. 611, 612 (BIA 1943). 16

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an elderly neighbor by shopping for them. This kind of evidence is similar to the evidence presented to convince the judge that he or she should grant cancellation of removal as a matter of discretion. It is never too late to start participating in the community. See Part Four for more information on evidence.

§ 11.6 Introduction to Exceptional and Extremely Unusual Hardship Exceptional and extremely unusual hardship is often the most difficult requirement for people applying for cancellation of removal cases to prove. The applicant must show that deportation will cause exceptional and extremely unusual hardship to a qualifying relative. Only hardship to children, spouse, or parents who are U.S. citizens or lawful permanent residents qualifies under this requirement. Thus, hardship to an applicant’s undocumented child will not be a factor for the court in determining whether or not the required amount of hardship is present. The hardship requirement is analyzed at the time that the case is adjudicated. This can be good or bad for your client depending on his or her circumstances. The benefit is that the hardship requirement does not have to have been met by the time the notice to appear is served. For example, if your client does not have a qualifying relative when she is placed in removal proceedings, but has a U.S. citizen child by the time her case is adjudicated, she can meet the hardship requirement based on her U.S. citizen child. This principal comes from Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), where a 22-year-old who was in removal proceedings with her parents and could not qualify for cancellation because she had no qualifying relative, was allowed to reopen her case after her parents were granted cancellation, because her parents were then permanent residents and hardship to them could meet the requirement. But this also can cut against your client. The BIA held in Matter of Isidro-Zamorano, 25 I&N Dec. 829 (BIA 2012), that the noncitizen could not meet the hardship requirement because the qualifying relative was a child who turned twenty-one years old before the court adjudicated the case, and thus was no longer a “child,” or qualifying relative. The BIA discussed the standard for exceptional and extremely unusual hardship in Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (2001). The Board held that the standard requires a showing of hardship that is “substantially” beyond the ordinary hardship that would be expected when a close family member leaves the country and is limited to “truly exceptional” situations. The specific factors to be considered individually and together include the age, health, and circumstances of the qualifying relative. In Monreal-Aguinaga, the Board cited the following specific examples of what factors would be considered in determining exceptional and extremely unusual hardship:  

The fact that an applicant has elderly parents who are permanent residents or U.S. citizens living in the United States and who are solely dependent upon the applicant for support; The fact that an applicant has a U.S. citizen or permanent resident child living in the United States who has compelling health issues, or compelling special needs in school; and

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

The effects of forcing a U.S. citizen or permanent resident family member to live in a country with a lower standard of living or with adverse country conditions (such as civil war), but generally these effects will not be sufficient alone to show exceptional and extremely unusual hardship.

In denying cancellation of removal in Monreal, the BIA found that the applicant’s U.S. citizen children (the oldest of whom was 12 years old) and his lawful permanent resident parents would not suffer “exceptional and extremely unusual hardship” if the applicant were forced to return to Mexico. Over the last few years there has been more guidance regarding how to determine “exceptional and extremely unusual hardship.” There are three main cases that provide us with input on what will be considered exceptional and extremely unusual hardship. The first and perhaps most important case was the Monreal case, discussed above. Then, on April 3, 2002, the BIA decided an important case, Matter of Andazola, 23 I&N Dec. 319. Both of these cases demonstrate how hard the BIA makes it for cancellation of removal applicants to show “exceptional and extremely unusual hardship.” Andazola reiterates what the BIA stated in the Monreal case. The Andazola case states that an applicant for cancellation must show that the hardship that her U.S. citizen and permanent resident parents, spouse, or children would suffer must be substantially different from those hardships that would normally be expected upon deportation to a less developed country. Also in 2002, the BIA decided the case of Matter of Recinas, 23 I&N Dec. 467 (BIA 2002), another case on the subject of exceptional and extremely unusual hardship. In Recinas, the BIA granted the application for cancellation of removal and found that Ms. Recinas’ qualifying relatives (i.e., her U.S. citizen children who were 12, 11, 8, and 5) would suffer exceptional and extremely unusual hardship if their mother, the immigrant in removal proceedings, were deported to Mexico. The factors the BIA looked at included:     

the fact that Ms. Recinas’ qualifying relatives (i.e., her U.S. citizen children) know of no other way of life but the way of life in the United States, which includes the fact that they do not speak Spanish well or read or write in Spanish at all; the U.S. citizen children are extremely dependent on their mother, who is a single parent, for financial and emotional support, and there would be no one else in Mexico to depend on because the family has no family ties in Mexico; it would be very hard for a single mother to find work in Mexico that would allow her to continue to provide a safe and supportive home for her children, which would include finding adequate housing for all; the fact that the qualifying relatives had two undocumented siblings increase the hardship because it means the single mother has to support a larger family, thus making it more difficult on all including the qualifying relatives to receive what they would need; all the children’s relatives (grandparents and mother’s siblings) live in the U.S. lawfully and thus it would be unlikely any of the other family members would be returned to Mexico to be able to help out;

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 

the children would be separated from their LPR grandparents and the strong family support system they have in the United States; and the mother does not have any real alternatives for immigrating because, although she has U.S. citizen siblings and LPR parents, the waiting lists are so long that she would not be able to return any time soon.

The BIA did not base its decision on any one of the factors listed above, but on the cumulative effect of all the facts when looked at together. Thus, the BIA used a “totality of circumstances” approach saying all the factors, when combined, demonstrated that the U.S. citizen children would suffer exceptional and extremely unusual hardship if their mother were deported. The BIA might not find exceptional and extremely unusual hardship when only one of these factors is present. Example: In one case, the BIA found that removal would result in exceptional and extremely unusual hardship to the applicant’s U.S. citizen child. In this particular case, the applicant, a 32-year-old native and citizen of Mexico established that he has been the primary caretaker of his U.S. citizen son since 1997, and that the child could not travel back to Mexico with the father upon the father’s removal because of a divorce and child custody decree forbidding it. In addition, the father would be unable to provide the same level of financial support for the child if removed to Mexico. Matter of Pulido Sanabria, A70 927 094 (2005). The BIA has stated that the hardship presented in a cancellation case must meet a higher threshold than the hardship that would have met the former “extreme hardship” under suspension of deportation law. See Matter of Monreal, 23 I&N Dec. 56, at 61-62, which explains the limitations of relying on the application of the hardship standard from old suspension cases because they required a different threshold of hardship. Nevertheless, we can look to the same factors that were used in the past for determining hardship for the old ten-year suspension of deportation provision for some guidance. This old ten-year suspension provision was found in INA § 244(a)(2) prior to the passage of IIRIRA, and applied to immigrants who had committed certain crimes. Ten-year suspension of deportation no longer exists, however the hardship standard for this law was exactly the same as for cancellation of removal: exceptional and extremely unusual hardship. The problem with using the old ten-year suspension factors and definition for exceptional and extremely unusual hardship for cancellation of removal is that there were very few people who applied for it, and thus there isn’t much information to guide us. There are a few cases that shed some light on how courts defined “exceptional and extremely unusual hardship” under the old ten-year suspension rule. One BIA case in particular, called Matter of Peña-Diaz, 20 I&N Dec. 841 (BIA 1994), discusses exceptional and extremely unusual hardship in some detail. In Peña-Diaz, the BIA held that the respondent had shown exceptional and extremely unusual hardship because:   

he had spent almost half of his life in the United States; he had been steadily employed; he owned real property;

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  

his immediate family members were “well established” as members of society; he had no other way to immigrate to the United States presently nor in the future; and his child was undergoing treatment for a congenital heart defect.

The case contained numerous affidavits from the applicant’s employer as well as friends, neighbors and law enforcement officials. Many of the factors that were considered here are similar to the ones considered in Matter of Recinas. 23 I&N Dec. 467 (BIA 2002). The difference between the kind of hardship considered in Peña-Diaz and current cancellation cases is the degree of hardship, and whose hardship counts, not the types of factors to be considered. It is important to note that the legislative history of IIRIRA (the law that included cancellation of removal) indicates that Congress intended to make the requirements for cancellation of removal stricter than the requirements were for suspension of deportation. The BIA has noted that Congress intended to apply a higher standard for cancellation of removal and therefore a more stringent standard of hardship should apply.19 Cancellation of removal for nonpermanent residents should be granted only in compelling cases. Yet, this standard does not need to be so high that cancellation be granted only if one’s deportation would be “unconscionable.”20 A moderate position on this issue is that the “exceptional and extremely unusual” standard is higher than the “extreme hardship” standard, but is not so strict as to make relief available to only a few persons.

PRACTICE TIP: Although we can and should turn to the factors used in defining “extreme hardship” when defining the new “exceptional and extremely unusual hardship,” we must remember that the weight the court gives to each factor and how much hardship the applicant may ultimately need to win will be different when applying for cancellation than applying for the old seven year suspension. Additionally, please remember that in both the former seven and ten-year suspension of deportation cases, hardship to the applicant was taken into account. In cancellation cases, hardship to the applicant will not be considered. But, any hardship that a lawful permanent resident or U.S. citizen suffers because of the applicant’s suffering will be a factor. For instance, if the removal of a cancellation applicant were to cause hardship to the applicant because the applicant could not receive treatment for her severe medical condition, the judge could not consider the applicant’s hardship. Yet, if the applicant’s medical hardship were to cause

19

See Matter of N-J-B-, Int. Dec. 3415 (BIA 1999); see also Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). 20 See Matter of Monreal, supra and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).

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emotional and financial hardship to the applicant’s lawful permanent resident mother, then the judge could consider the hardship suffered by the applicant’s mother.21

§ 11.7 Family Separation Family separation is usually one of the most important factors in determining hardship. While we often think that family members will leave the U.S. with the person who is removed, that is not always true. In cases where the family will be (or might be) separated, the applicant and the legal worker must explore: a) how the applicant’s family will suffer hardship if they go with the applicant to live in a different country when the applicant is removed and b) how the applicant’s family will suffer hardship if they remain in the U.S. after the applicant is removed.

Exercise 11.7: Helen Lee is applying for cancellation of removal. She is married to Sam, a lawful permanent resident and they have a U.S. citizen child, Albert. Helen must show how being separated from Sam and Albert will cause them exceptional and extremely unusual hardship. Sam and Helen come together to your office. You explain the legal requirements of a cancellation of removal case to Sam and Helen. You explain that as one part of proving exceptional and extremely unusual hardship you need to describe the relationship between Sam and Helen now and compare it to what the relationship would be like if Helen were removed. a. What are at least four questions you would ask Sam and Helen to see how Sam would suffer extreme hardship if they were separated? b. Sam gives the following answers when you ask him what he would miss about Helen. Which answer will be more helpful to his case and why? 1. “I would miss her very much.” 2. “I have dinner with Helen every night and talk to her on the phone from work every day. She pays all our bills and balances our checking account. We make all major decisions together. I couldn’t care for our son, Albert, alone. It would be impossible to care for him alone both financially and emotionally. I don’t know what I would do without her.” See Appendix 11-A for sample answers.

21

Id.

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As mentioned above, the only relatives that the courts can consider in determining exceptional and extreme unusual hardship are spouses, children, and parents who are U.S. citizens or lawful permanent residents. Hardship to the applicant herself will not be a factor for the judge in deciding the case. Nonetheless, if hardship will result to the applicant or to another close family member, such as a grandparent or sibling, the legal worker should present that fact to the judge. Separation from these close relatives or any third party, or hardship suffered by the applicant, may cause additional hardship to the applicant’s spouse, child, or parent. Example 11.7-a: Sam’s brother is a lawful permanent resident who is HIV positive. Sam is very close to his brother and takes care of him and supports him financially. If Sam were removed, Sam’s elderly mother, who is a permanent resident, would have to take care of Sam’s brother. This would be something she probably couldn’t do either physically or financially. Although the court does not have to consider the hardship which Sam’s brother would suffer due to Sam’s removal, ask Sam how his mother would suffer if Sam were removed and she had to care for Sam’s brother. A judge deciding the case would consider Sam’s mother’s hardship. Additionally Sam could argue that because he is so close to his brother, Sam would be devastated if Sam were removed and no one could care for his brother. Sam’s emotional distress would cause additional hardship to his mother because he is her eldest son and she would be very worried about him. By putting these arguments in the context of the hardship Sam’s mother would suffer, Sam and the legal worker will also be able to show the judge how Sam and his brother would suffer if Sam were removed, even though the judge is not supposed to consider evidence about Sam’s and his brother’s hardships. Remember to show all types of hardship that will result from separation including economic, emotional, and medical.

§ 11.8 Hardship to the Applicant’s Children Many cancellation of removal applicants have children who are United States citizens or lawful permanent residents. These children have a right to remain in the United States no matter what happens to their parents. When facing removal, the parents face a terrible choice. They can take their children with them to a country the children might find strange and deny them opportunities in the U.S., or they can leave them behind with relatives or friends in the United States. The BIA decided that the test of hardship on U.S. citizen children is the hardship the children would suffer if they left the U.S. with their parent who is removed—and not any hardship the children would suffer if they remained in the U.S. alone, while their parent was

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removed. This means that there is a presumption that the children will go back to the parent’s country of origin with the parent. In order to have the separation of the parent and child factored into the hardship equation, the parent needs to submit a declaration that clearly states his or her intentions to have the child remain in the United States and to prove the child would be cared for in the United States.22 Only then will judges be required to take into account the hardship a child will face due to separation from the deported parent.23 The BIA recently clarified that this presumption does not apply if there are two parents, and only one parent is in removal proceedings.24 In other words, if the children live with two parents, and only one parent is in danger of being deported (even if the other parent does not have status), the BIA will not presume that the children will leave the country. When determining extreme hardship to children, it is usually best for the applicant to establish that he has a good relationship with his family and that he has provided child support.

PRACTICE TIP: Hardship to children is a central focus in cancellation cases. We suggest that clients and their legal workers continue to explore hardship that would be created under both scenarios—if the children are left in the United States and if they leave with the parent who is removed—and present the strongest case to the judge. The parent will be asked in court whether he or she intends to bring the children, why or why not, and the ensuing hardships of that particular choice.

It is important to note that the legal worker and client must do more than show the mere existence of U.S. citizen or lawful permanent resident children. We discussed the impact of separation above. But what happens to a child if she is uprooted from the only life she has known and taken to a new country? Such a move might be especially hard on school-age children. Clients know this well, and can tell you about educational opportunities that they lacked as children. Their children might be hurt by having to start a whole new system of education, or because of the poor quality or lack of schools in the new country. See Jara-Navarrete v. INS, 800 F.2d 1530 (9th Cir. 1986). School-age children have established lives for themselves in the United States. They have learned to read and write in English; they have been exposed through television, school, newspapers and friends to the American culture; and they have begun to think, dress and act American. Losing all of this by moving to a foreign country may result in hardship and trauma. Advocates should not overlook the effect of a forced move on children who are younger than school age, although it is a harder argument. These children may be in day care or nursery 22

See Perez v. INS, 96 F.3d 390 (9th Cir. 1996); Matter of Ige, 20 I&N Dec. 880, (BIA 1994). See Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998). 24 Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012). 23

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school and have become socialized into the American culture. They may have trouble with the parent’s native language. They may have friends and playmates they don’t want to leave. Once again, the court needs to see proof that removal will harm children. Declarations by psychiatrists or counselors can document psychological or emotional hardship. Any evidence showing that the child does not speak or write the language of the foreign country very well, that the child is a good student (submit report cards or letters from teachers), is active in school activities (like the band, school plays, sports, tutoring programs, etc.) and that he or she is otherwise well assimilated will help prove hardship. For examples, see Ramos v. INS, 695 F.2d 181 (5th Cir. 1983) and Ravancho v. INS, 658 F.2d (3d Cir 1981). Example 11.8: Sam and Helen Lee have one U.S. citizen child, Albert. Albert is seven years old. Albert is now in the second grade and he reads and writes English very well. He has never been to school in Taiwan and has no idea of what it would be like. Albert speaks very little Chinese. Sam tells you that the other children in Taiwan will tease Albert because of his terrible accent and poor vocabulary. Sam also is worried that Albert’s grades will drop because of his language problem. If you were working with Sam, how much would you need to know about Taiwanese or Chinese culture in the United States and whether or not these traditions bear directly on their case? This knowledge could very well lead to a better understanding of the case and build a stronger case to present to the judge.

§ 11.9 Community Ties Close ties to a community are important to all of us: clients, paralegals and even immigration judges. Historically, one way to prove hardship is to document the close ties that would be broken if the applicant and her family were forced to leave the United States. Now that hardship to the applicant is no longer a factor, advocates and their clients must argue that the ties to the community which the applicant’s spouse, children, and parents would have to sever if they left with the applicant who is going to be removed must be considered when deciding hardship. The applicant’s ties to the community will prove more than just hardship. The judge will be more inclined to exercise her discretion in favor of an applicant who is an asset to her community. See Salameda v. INS, 70 F.3d 447, 452 (7th Cir. 1995) and Matter of O-J-O, 21 I&N Dec. 381 (BIA 1996). You and your client need to show that the applicant and her family are valuable and productive members of the community in which they live. Present evidence about their activities. They may be active in their religious institutions or volunteer to visit the elderly or sick. Many parents help out at their children’s schools. Maybe they are active in citywide sports teams or volunteer for the Red Cross.

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Sometimes a client and her family do some important community activity that they do not think would make a difference to a judge. In order to bring out these types of activities, it may be helpful to break out of the ordinary paralegal/client interview format. Have coffee with the client outside of the office or talk with her in a different setting. This kind of more casual conversation is more like the type of conversation the client might have with a friend or neighbor and it might uncover a different set of community activities or hardship factors to consider. The judge should hear about the activities of all family members who would be forced to leave with the removed person. If neither your client nor her family is involved in their community, explain to them the importance of such activities and encourage them to become involved. Chances are you have several months before the final hearing, which could be plenty of time for them to start to be active in their community.

§ 11.10 Medical Conditions Sometimes an applicant, or someone in her family, has a medical condition that requires special care and attention that she can only receive in this country, or that would be difficult to obtain were she removed. This is always important to the hardship claim.

PRACTICE TIP: Although the judge will not consider medical hardship to the applicant, the judge should consider the hardship to other family members who have to worry about the inadequate medical care the applicant might receive if removed. Additionally, the applicant’s family members might have to devote almost all of their resources to providing health care to the applicant if he were removed, and possibly become bankrupt, whereas currently the applicant might receive medical attention through his wife’s insurance.

Generally clients and their families know whether or not the medical treatment they are receiving is available in their home country. To verify this, get a letter from a doctor explaining the condition, what the doctor knows about the availability of care in the place where the person will have to go, and what the doctor thinks could happen to the person if she moves and cannot get treatment. The treating doctor in the United States might not be an expert in the quality of care in the country of removal. It might be worth seeking an expert who can discuss medical care in the country of removal. In addition, there are many online resources that may help you determine whether certain kinds of medical treatment are available in the client’s home country.25 25

For example, resources on the availability of healthcare in Mexico can be found at the following website: www.mdri.org/pdf/mexico%20-%20english.pdf. In addition, the World Health Organization (WHO) and the Center for Disease Control (CDC) also have useful information on the availability of healthcare outside the United States. See www.who.int; www.cdc.org.

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Additionally, if an immediate relative depends on the applicant for support, transportation to doctors, assistance with household chores and companionship, there might be medical hardship to the relative if the applicant is removed. Example 11.10: Sam Lee’s wife is applying for cancellation. Sam, a lawful permanent resident, has stomach cancer. He is presently undergoing treatment. His medical insurance pays for all the treatment. He thinks the treatment may be available in Taiwan but it will be very expensive. If Sam’s wife is removed, Sam will suffer hardship. Either he will have to be separated from his wife, upon whom he is dependent for assistance because of his illness, or, he will go with her and not receive the treatment he needs. Sam explains his situation to his doctor. He asks his doctor to write him a letter, which describes his condition, the treatment he needs, and the possibility of treatment in Taiwan. The doctor agrees to write a letter for Sam, but tells Sam that he doesn’t know anything about medical care in Taiwan. Sam asks the doctor if he knows anyone else who could write a separate letter explaining conditions in Taiwan. The doctor remembers a classmate from medical school who might be able to help. In addition, Sam will ask his friends, neighbors and others from his community who they know who will be able to write the letter he needs. Finally, Sam’s legal worker searches online for information, which provides further details on the availability of treatment for his illness in Taiwan.

§ 11.11 Conditions in the Country of Deportability Many clients came to the United States to escape difficult conditions in their home countries. Your client can teach you how conditions where they came from make life harder than in the United States. These differences could be an important part of a cancellation case. For example, many immigrants come to the United States because they cannot find work to support themselves and their families at home. Many clients are concerned they will suffer economic hardship if they are forced to leave the United States. Although difficulty finding work in the home country could be important to a cancellation case and should be mentioned, it alone will not win the case. Complete inability to find work will be more helpful to show hardship. A lower standard of living, while not proving hardship by itself, may mean decreased health care, or poor schooling, which could impact the medical and educational factors mentioned above.

PRACTICE TIP: Be careful when using economic hardship in your cases. It is best not to make it the cornerstone of your hardship argument but instead make it merely one other type of potential hardship to be suffered by your client and her family. Although you and your clients value its importance for showing hardship, judges and courts may not value it as much.

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On the other hand, poverty in one’s home country will usually cause other hardships, which have been found to be important to cancellation cases. Hardships stemming from one’s economic situation include medical, nutritional, hygiene/sanitation, educational, psychological, and emotional problems, as well as difficulties in adjusting to a new country and environment. Starvation, for example, is more than “mere” economic hardship. There may also be family problems related to economic difficulties.

The political situation in the home country may also be more dangerous than in the United States. Many cancellation of removal clients come from countries where there is widespread political violence or even civil war. Many people have fled to the United States to escape this violence. Although political instability may not be sufficient alone, political persecution is relevant to a showing of exceptional and extremely unusual hardship and must be stressed in the case. Merely having difficulty readjusting to a different country will not be sufficient to show the required hardship for a cancellation case. You must show specific factors that will make life hard. Economic and political troubles are not the only conditions that could cause hardship. Other issues might include persecution based on religion or ethnic group, or discrimination based on gender, race, or sexual orientation. It can be difficult to obtain specific information about the home country. Furthermore, legal workers often meet clients from countries about which the legal worker knows nothing at all. For both of these reasons, the applicant should describe as fully as possible life where she came from. Ask the client why she came to the United States, what life is like in her home country, and how it differs from the United States. You and the client should also obtain letters from people living in the home country, or who have visited or lived in similar kinds of communities. Reports, newspapers, magazines and books document living conditions throughout the world, and can be introduced to prove how difficult life would be in the home country. The Department of State has a list of annual reports online for each country documenting the conditions in that country. Amnesty International also has a list of country conditions reports. See http://amnesty.org/en/annual-report/2013. These documents could be very helpful resources to document the situation your client would face upon return. However, they may also contradict your clients’ fears of return, such as providing information of increased security or educational opportunities in the home country. It is important to read the reports carefully and submit only reports and articles that support your client’s case. Often, the government will submit the Department of State report to show that the country conditions are not dire, and the applicant will submit articles and reports from other sources to explain what the problems might be in the home country.

§ 11.12 Working with a Client and Her Family to Determine Hardship As you can see, in order to prepare a strong cancellation case, you need your client and her family to help with the case. They know best how their lives will change if she is removed;

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they often will have the best sense of where to find helpful information; and they can help judge who may be an effective witness. Helping out with the case will also make your client and her family better witnesses. See Unit 2. In order to get the most from your relationship with your client and her family, try some of the approaches that are listed below. Also see Appendix 11-B for checklists to help you involve your client in the case. Ask the client which family members and friends to speak with about gathering information for the case. Discuss with each family member and friend the same questions you discussed with the client. See the answer to Exercise 11.7 for sample questions to ask about hardship. Give your clients and their family members written tasks to help them think hard about their case. As the first step, explain to your client and her family what they need to prove and what the process of the case is. Then have the client and her family return to their home and describe their lives in writing. Ask them to list the activities they do together, how the applicant and the family support each other financially and emotionally, and what they like best about being together. As the second step have them write what would be missing from their lives if the applicant were removed. Ask them to include the exact details of what they would miss and why. To make this exercise less confusing, you may want to have your clients complete step one after their first visit, and then complete the second step another time.

§ 11.13 Putting It All Together We have discussed some of the many ways in which removal might cause exceptional and extremely unusual hardship. You need to consider how these different factors work together to result in exceptional and extremely unusual hardship. For example, a client might feel that the economic hardship that would result from the unemployment crisis in Mexico would affect the family’s well-being in many ways. Not only will it be a struggle just to scrape by day to day, but it may also be impossible (as a result of lack of money) to obtain medical care, or to enroll a child in school, or to create a new life along standards of basic human decency. This is all part of meeting the hardship requirement. Some of the evidence that may be presented to establish exceptional and extremely unusual hardship includes:   

Evidence of the situation in the “home” country, including evidence of political strife, poverty, corruption, violence, and social conditions that would negatively impact the applicant and/or especially a qualifying relative. Testimony by qualifying relatives, such as the children or the spouse. Affidavits by psychiatrists or counselors to show psychological or emotional hardship.

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  

Medical reports to document any medical condition of the applicant, a family member and/or a qualifying relative. School records to show the children’s community ties and/or any learning disabilities Letter from a church or mosque to document religious belief if applicant would suffer religious persecution upon return.

This list is not exhaustive but sets out some of the types of evidence that may be helpful in supporting your case.

§ 11.14 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases The final decision to grant cancellation of removal is left to the discretion of the judge. This means that, while it would be unusual, a judge could deny a cancellation case even though the applicant has met all of the criteria explained above: established ten years continuous physical presence, good moral character, and exceptional and extremely unusual hardship. Discretion involves a judgment as to whether the applicant is the “sort of person” that should be allowed to stay in the United States. Because of this power and how slippery the idea is, it is best to use all the evidence you have that your client is an upstanding, productive, likeable person. If the judge wonders why you are introducing this type of “character” evidence, tell him it is relevant to discretion. The government might also try to introduce character evidence that shows your client is not the sort of person that should be allowed to stay. You and your client should practice how to discuss negative information, so that your client is ready to respond to evidence by the government that makes her look bad during the hearing. Sometimes cases have “bad” facts, such as a string of arrests for driving without a license, or juvenile offenses. You and your clients cannot ignore these. Working with the client, see if there is a way of presenting this information in a more positive way. Maybe there is a positive side to the information. Develop a strategy to work with these “bad” facts. For example, the client might want to bring out the bad information herself, rather than letting the ICE trial attorney bring it out first, to lessen the sting of the information and to make the client look honest and forthright. Additionally, bad facts might relate to one single source of trauma or incident that your client can discuss to explain a string of prior bad behavior. Hopefully, the client can also explain how she has overcome this bad period. Of course, think carefully before introducing “bad” facts to the judge if the facts are the type that neither the judge nor the ICE attorney would find out about anyway. In using her discretion, the judge must carefully weigh and balance all factors, both negative and positive, in determining whether the applicant should be allowed to stay in the United States. Factors that a judge may use in denying a cancellation case in her discretion include:

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   

the applicant’s preconceived intent to remain in the United States even though he or she entered with a non-immigrant visa; the fact that the applicant’s entire family lives in the foreign country; the applicant’s poor reputation in her community; any other indications that the applicant would not be a productive and moral resident in the United States.

You should check the law in your circuit to see if these, or other, factors apply. For instance, Cases across the country are divided on the question of whether a judge can discretionarily deny suspension of deportation (and thus maybe cancellation of removal) because the applicant relied on welfare or other public benefits. Because cases are divided, it is usually safest to help a cancellation of removal applicant get off of welfare and get at least a part-time job out of the house, if possible, prior to having a cancellation of removal hearing in front of a judge. Nevertheless, even though an applicant is on welfare, it does not automatically mean the cancellation of removal application will be denied. Much of it might depend on the case law in your circuit regarding the effect of receiving welfare benefits so you should check the law in your circuit if your client is on welfare. None of these factors will absolutely dictate the outcome. Because a cancellation of removal applicant has had to meet the statutory requirements for cancellation, a judge should rarely deny an eligible applicant as a matter of discretion. If the judge does deny cancellation based on discretion, she must give a definite reason for doing so. Because it is hard to predict exactly what discretionary factors a judge might care most about, the best strategy is to put forward a wide range of evidence showing that your client is an upstanding member of society, such as letters from co-workers, landlords, neighbors; proof of paying taxes; proof of paying child support, if applicable; or educational records. A.

Judicial Review

Based on laws passed in 1997, federal courts are not authorized to review BIA determinations of discretionary issues for cancellation cases.26 This means that the BIA’s decision on hardship or discretion in cancellation cases cannot be appealed to the circuit courts. Nevertheless, the REAL ID Act,27 amended the INA to provide that none of IIRIRA’s restrictions on judicial review can eliminate the courts’ power to review constitutional claims or questions of law. See INA § 242(a)(2)(D).28 What this means is that unlike some of the other eligibility criteria for cancellation (such as hardship), federal courts are permitted to review BIA 26

See De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005); Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003); Ventura v. Garcia, 348 F. 3d 1259 (10th Cir. 2003). 27 Sec. 106(a)(1)(A)(iii), Title I, REAL ID Act of 2005, Pub. L. No. 109-13, codified at INA § 242(a)(2)(D). 28 See also Cabrera-Alvarez v. Gonzales, 423 F.3d 1006 (9th Cir. 2005); Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010).

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determinations of continuous presence because it is a question of law rather than a discretionary determination. B.

Abandonment of Application

A departure from the United States while a removal appeal is pending can constitute a withdrawal of the application for cancellation of removal. If a person has appealed a decision of an immigration judge to the BIA and leaves the United States for as little as five minutes, the government may determine that the person has waived their right to appeal or has withdrawn the appeal. The Ninth Circuit might be more lenient if the person did not have notice of the possible effect of a departure on his or her appeal and can show that her case was damaged by this lack of warning. For example, in Martinez-De Bojorquez, 365 F.3d 800 (9th Cir. 2004), the immigrant had been a lawful permanent resident since 1987. At her deportation hearing, she was not told that her appeal would be deemed waived if she left the country for even a few minutes. During the four-and-a-half years the BIA took to decide her appeal, she left the country for brief periods of time. The Ninth Circuit held that under the circumstances, considering her departure as a withdrawal of her appeal without any notice whatsoever constituted a violation of her constitutional right to due process. It is best to advise your client to not leave the United States at any time while in removal proceedings or during the appeals process in order to avoid these complications. But if your client did leave, check the law in your jurisdiction if your client has departed to see if there are any arguments to be made that her case should not be considered withdrawn.

PART TWO: CANCELLATION OF REMOVAL FOR SPOUSES AND CHILDREN WHO HAVE BEEN BATTERED OR VICTIMS OF EXTREME CRUELTY § 11.15 Overview of the Law In 1994 Congress created the Violence Against Women Act (“VAWA”), which allows abused spouses and children of LPRs or U.S. citizens to apply for cancellation of removal (and in some instances, suspension of deportation). Amendments to VAWA enacted in 2000 and 2005 make it easier for an abused spouse or child to qualify for cancellation and suspension. This section provides an overview of VAWA cancellation of removal. For a fuller discussion of VAWA cancellation, including the special motion to reopen rules for VAWA applicants, please see the ILRC publication entitled, The VAWA Manual. Like other forms of cancellation of removal, VAWA cancellation stops removal proceedings and allows the applicant the opportunity to become a lawful permanent resident. Unlike the ten-year requirement for regular cancellation, VAWA cancellation only requires the applicant to have continual physical presence for the last three years. In addition, VAWA applicants are not subject to the “exceptional and extremely unusual” hardship requirement, but must only show that removal would cause “extreme” hardship to the applicant and/or her child or

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parent. However, they must satisfy additional requirements beyond proving continuous physical presence, good moral character, and extreme hardship. The basic requirements for VAWA cancellation are listed below, and described in more depth throughout this section. 1. The applicant has been battered or subject to extreme cruelty by a spouse, former spouse, or parent who is or has been a U.S. citizen or LPR, or the applicant is the parent of a child who has been battered or subjected to extreme cruelty by a U.S. citizen or LPR parent; 2. The abuser must be or have been either a U.S. citizen or LPR; 3. The applicant has been continuously physically present in the U.S. for at least three years before applying for cancellation; 4. The applicant has had good moral character for three years immediately prior to the application; 5. The applicant is not inadmissible under most of the criminal grounds of inadmissibility and is not deportable under certain grounds of deportability, and has not been convicted of an aggravated felony; 6. The removal of the applicant would cause extreme hardship to the applicant, the applicant’s child or to the applicant’s parent; and 7. The judge has the discretion to grant or deny the case even if the applicant meets all the other eligibility requirements.

§ 11.16 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal Immigration judges often refer to VAWA self-petitioning guidelines for the definition of battery and extreme cruelty. “Battered” and “extreme cruelty” are described as “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” 8 CFR § 204.2(c)(1)(vi). Violence is then defined as “psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution,” including “other abusive actions … that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence.” 8 CFR § 204.2(c)(1)(vi). Many practitioners argue that extreme cruelty includes children witnessing abuse. For more information on these definitions, please see Unit 5. VAWA applicants will be required to show proof of the abuse. Evidence can include a civil protection order, police records, criminal court records, complaints filed by the applicant, medical records, school records, evidence of torn clothing or broken furniture, photographs of injuries, a declaration from the client detailing her relationship with the abuser, affidavits from witnesses (friends, relatives, neighbors who can corroborate the client’s statements), or affidavits from shelter workers, counselors, social workers, clergy, and experts on domestic violence. Because children of abused spouses cannot be derivative beneficiaries of their abused parent’s cancellation application, they may apply for VAWA cancellation (or self-petition under VAWA) themselves and try to argue that witnessing the abuse of their parent constitutes extreme cruelty.

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Otherwise, children will receive parole after the approval of the parent’s VAWA cancellation application (see § 11.21). Please note the victim’s declaration is essential to a VAWA cancellation case. The declaration submitted by the victim should include beginning dates of domestic abuse, description of each incident of physical injury, verbal threats or other kinds of extreme cruelty, attempts to leave or seek help, difficulty in leaving, and feelings about the abuse. However, because cancellation takes place in a court setting, a declaration alone probably will need to be augmented by other proof like those described above. An affidavit from an expert in domestic violence, such as a shelter worker, provides essential corroboration. The judge will probably expect the applicant to testify about the abuse during the court hearing. Additionally, it is a good idea to have any experts, such as domestic violence counselors, testify too, because many judges are not familiar with the dynamics of domestic violence.

§ 11.17 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation The applicant needs to show that the abuser is or ever was either a U.S. citizen or LPR. The cancellation applicant does not have to show that the abuser’s loss of status was connected to the abuse (unlike in the VAWA self-petitioning process, see Unit 5). Moreover, the abuse did not have to occur while the abuser had lawful permanent residence. If the abuser is an LPR, the judge may want to see a copy of his permanent resident card or other proof of the abuser’s LPR status. The regulations governing proof of the abuser’s immigration status allow applicants to submit multiple forms of evidence. Additionally, the statute requires judges to consider “any credible evidence.” Minimally, the spouse/child should submit the abuser’s “A” number, if the victim knows the number. A proof problem may arise if the abuser was born in the United States and has never filed a visa petition on behalf of any family member because CIS will have no record of the abuser. If so, an applicant must obtain the abuser’s U.S. birth certificate or U.S. passport. A request for the birth certificate may be made by writing to the Department of Vital Statistics, an agency found in every state. Family court judges may also be able to help by requiring abusers to provide information about their status. The cancellation applicant must be one of the following:    

a spouse, former spouse, son, daughter, or child of an abuser who is or was a U.S. citizen; a spouse, former spouse, son, daughter, or child of an abuser who is or was an LPR; the parent of a child who is abused by the child’s other parent so long as the abuser is a U.S. citizen, even if the undocumented parent is not married to the abuser and regardless of the child’s status; the parent of a child who is abused by the child’s other parent so long as the abuser is or was an LPR, even if the undocumented parent is not married to the abuser and regardless of the child’s status.

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It is important to note that, unlike VAWA self-petitioners, VAWA cancellation applicants need not be currently married to the abuser nor have terminated the marriage due to the abuse within two years before filing a VAWA self-petition. (See Unit 5 for information on selfpetitioning.) Unlike the special requirement that VAWA self-petitioners submit evidence of good faith marriage, spouses applying under VAWA cancellation do not have to submit documentation proving the bona fides of their marriage (although a fraudulent marriage may keep the applicant from showing good moral character or admissibility). However both spouses and children applying under VAWA cancellation need to prove their relationship to the abuser. This means spouses must submit their marriage certificates and proof of legal termination of any prior marriages of both the victim and her spouse. Children need to submit their birth certificates and other records like report cards or medical records that list the name of their parent. If the abuser is a stepparent, the child should also include the marriage certificate between his natural parent and the stepparent. A VAWA applicant who believed that he or she was married to the abuser and intended to marry the abuser, but whose marriage is invalid because of the abuser’s bigamy, is also eligible for VAWA cancellation (in other words, if the abused spouse believed he or she was married, but was deceived by the abuser, he or she is still eligible for this benefit). See INA § 240A(b)(2)(i)(III). Children born out of wedlock who apply for cancellation based upon abuse by their fathers must also show that they meet the special requirements found at INA § 101(b)(1). These requirements are shown if the father legitimated the child before the child turned 18 and while the child was in the father’s legal custody, or if the child and the father had a bona fide parent-child relationship. A bona-fide parent-child relationship exists where the father has shown an actual concern for the child’s support, instruction and general welfare. Examples of such “actual concern” could include actions such as the father holding the child out as his own; sending support, presents, or letters; caring for the child; or even communicating with the child or the child’s mother about the child. See Unit 4 for more information on the definition of child.

§ 11.18 Continuous Physical Presence under VAWA Cancellation VAWA cancellation of removal applicants must show three years of continuous physical presence in the United States immediately prior to the application for VAWA cancellation or suspension. However, two of the requirements for accrual of continuous physical presence are relaxed for applicants for VAWA cancellation and suspension. First, the issuance of a Notice to Appear or Order to Show Cause does not stop the accumulation of time towards the three-year period. This means applicants may qualify for cancellation even if they receive their hearing notices before they acquire three years’ presence in the United States, as long as they acquire the three years by the time they present their cancellation case in front of the immigration judge. However, the accumulation of time does end

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if and when the applicant commits an offense that is referred to in INA § 212(a)(2) and that makes him or her inadmissible under the criminal grounds of inadmissibility or deportable under criminal or security grounds of deportability. See INA § 240A(d)(1). Second, single absences over 90 days, or total absences over 180 days, will not break the period of continuous physical presence if the applicant demonstrates a connection between the abuse and the absence. However, such absences will be deducted for purposes of computing the 3-year presence requirement. See INA § 240A(b)(2)(B).

§ 11.19 Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal The statutory bars and good moral character requirements for regular non-LPR cancellation under INA § 240A(b)(1) and for VAWA cancellation under § 240A(b)(2) are similar, but not identical. The bars to non-LPR cancellation are discussed in detail at § 11.5 of this manual. This section will point out how the bars to VAWA cancellation differ from the bars to non-LPR cancellation. Bars Based on Crimes Grounds of Inadmissibility and Deportability. Some bars to cancellation are tied to the grounds of inadmissibility and deportability that relate to crimes, security and terrorism, marriage fraud and certain document fraud deportability grounds. The crimes grounds are discussed in detail at § 11.5, above, for purposes of the non-LPR cancellation application. The bar to VAWA cancellation is different from the bar to non-LPR cancellation in two ways. First, a VAWA applicant is only subject to the grounds of inadmissibility if she is seeking admission, or the grounds of deportability if she has already been admitted. Remember that applicants for non-LPR cancellation are barred if they have a conviction that falls under either the criminal deportation grounds or inadmissibility grounds—regardless of whether the person actually is deportable or inadmissible. INA § 240A(b)(1)(C). By contrast, a VAWA applicant has an advantage in that the person is barred only if she actually is inadmissible or deportable under the crimes grounds. INA § 240A(b)(2)(A)(iii). Therefore a VAWA applicant who entered without inspection is not barred by conviction of an offense if it is described only in a deportation ground—because she is also subject to the grounds of inadmissibility. Example: Eva entered the United States without inspection. She later was convicted of a “crime of child abuse,” that comes within the definition in the domestic violence deportation ground at INA § 237(a)(2)(E)(i). This conviction would bar Eva from applying for non-LPR cancellation, because it is an offense described in the deportation grounds. It would not bar Eva from applying for VAWA cancellation, however, because she is not subject to the grounds of deportability. Since she entered without inspection, she is not technically deportable under any ground. Note that if the same crime would make her inadmissible, she would have a problem.

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The second difference does not benefit VAWA applicants. The bar to non-LPR cancellation requires a conviction, and will not be imposed based solely on conduct. (The conduct might be a bar to good moral character if it occurred within the last ten years, however. See § 11.5, above.) In contrast, conduct without a conviction can be a bar to VAWA cancellation, if the conduct made the person inadmissible or deportable. Example: Although Cecily never was convicted of prostitution, she has admitted that she worked as a prostitute. This fact would not bring her within the automatic bar to nonLPR cancellation because that requires a conviction. However, it may bring her within the statutory bar to VAWA cancellation because she is inadmissible for “engaging in” prostitution. For applicants who may be found ineligible for VAWA cancellation because of a domestic violence or stalking conviction or a violation of domestic violence protective order, a waiver may be available if the applicant has been subjected to domestic abuse. See INA § 240A(b)(2)(C)(iv). Good Moral Character Bar. If the VAWA applicant is inadmissible or deportable under the grounds discussed above, he or she is barred from applying for VAWA. If the VAWA applicant is not inadmissible or deportable under these grounds, we can go on to consider whether the person is barred from establishing good moral character. Good moral character is discussed in detail at § 11.5, above. For VAWA, purposes the applicant must prove good moral character for the three years preceding that date the application is heard by the judge. The immigration judge also has the discretion to review the applicant’s record for good moral character for periods of time preceding the three years. See INA § 240A(b)(2)(C).

§ 11.20 Extreme Hardship under VAWA Cancellation of Removal In order to qualify for VAWA Cancellation of Removal, applicants need to show that removal from the United States would cause extreme hardship to the applicant, her child(ren) or her parents. If the applicant does not clearly establish extreme hardship, the application will be denied, even if the applicant meets all of the other requirements. Note that this is a lower standard than the higher standard of “exceptional and extremely unusual hardship” to certain qualifying relatives that is required for non-LPR cancellation of removal. Section 11.6 provides an explanation of the types of hardship that qualify under the general hardship category of “Exceptional and Extremely Unusual Hardship.” All of the factors discussed in § 11.6 can also be used when proving VAWA cancellation or suspension hardship even though the standard for VAWA cancellation and suspension is not as rigorous as that of the non-LPR cancellation. Federal regulations now require immigration judges to apply the extreme hardship factors as tailored to domestic violence. See 8 CFR § 1240.58(c). These regulations should help VAWA cancellation applicants because they are targeted towards the kind of hardship that VAWA applicants are likely to suffer. These factors are similar to the hardship factors that used to be factors used in VAWA self-petitioning cases before hardship was

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eliminated as a requirement from VAWA self-petitions in 2000. Hardship factors in VAWA cancellation and suspension cases include: 1. The nature and extent of the physical or psychological consequences of abuse; 2. The impact of loss of access to the U.S. courts and criminal justice system, including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations, and prosecution of court orders regarding child support, maintenance, child custody, and visitation; 3. The likelihood that the abuser’s family, friends, or others acting on behalf of the abuser in the home country would physically or psychologically harm the applicant or the applicant’s child(ren); 4. The applicant’s needs and/or needs of the applicant’s child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country. The existence of laws and/or social practices in the home country that punish the applicant or the applicant’s child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and 5. The abuser’s ability to travel to the home country and the ability and/or willingness of authorities in the home country to protect the applicant and/or the applicant’s child(ren) from future abuse. In documenting extreme hardship, a VAWA cancellation applicant should provide in his or her declaration and supporting documents as many examples as possible of events and concerns related to the hardship factors described above. Example 11.20: Maria is married to an LPR who has been abusing her. She left him about six months ago. She was recently picked up by ICE during a raid at her work site and she is in removal proceedings. Maria has documented all of her fears about returning to her country of origin in her declaration. Although Maria has no children who would suffer hardship, she would suffer extreme hardship if she were removed to her home country, Mexico. If she were forced to return to Mexico, her family would ostracize her and blame her for the separation from her husband because she has violated social mores about women’s roles by leaving him. Her husband has continued to threaten to harm her. Maria is fearful that he might follow her back to Mexico and carry out his threats if she is forced to leave the United States. This is a reasonable fear because he is from the same small town in Mexico as she is. Maria submitted documentation showing Mexican laws and authorities will not protect her from her husband’s abuse if he follows her back to Mexico. Maria is also seeing a domestic violence counselor here in the United States and has included documentation that such counseling is not available in Mexico, showing that she needs resources that are unavailable in Mexico. The domestic violence counselor is willing to testify to this in court on Maria’s behalf.

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§ 11.21 Children under VAWA Cancellation Children of abusive U.S. citizen and LPR parents can also apply for VAWA cancellation. A “child” under VAWA cancellation is defined more broadly than the traditional immigration definition of “child,” and is not limited only to children who are under 21 or unmarried at the time the application is adjudicated. The statute states only that the abuse must have been committed by a “parent.” See INA § 240A(b)(2)(i). Therefore, sons and daughters of abusive U.S. citizens and LPRs are also eligible for VAWA cancellation. A child victim of abuse may file his own VAWA cancellation application, and have his application consolidated with his parent’s case. Witnessing domestic violence may constitute a form of extreme cruelty. VAWA cancellation does not allow parents to include their children as derivative beneficiaries, like they may under the VAWA self-petitioning process (see below). However, as soon as the parent is granted VAWA cancellation, the Attorney General is required to parole the child(ren) into the United States. See INA § 240A(b)(4). Parole will give the child(ren) legal permission to enter and live in the United States, as well as eligibility for work authorization. Parole will last until the child adjusts status under a family visa I-130 petition filed by the parent who won VAWA cancellation. Approved child VAWA cancellation applicants can follow the same procedure to parole his or her parents into the United States. Example 11.21: Salvatore, an LPR, abused his wife Sophia five years ago. As soon as their daughter Maria was born, Sophia moved herself and Maria out of the home. Neither Sophia nor Maria had legal immigration status in the United States. Maria did not live with Salvatore and thus she did not witness the domestic violence her mother suffered. Sophia was put into removal proceedings after a raid on her workplace, and applied for and won VAWA cancellation of removal based on the abuse by Salvatore. As soon as she was granted cancellation, Sophia asked CIS to grant parole to her daughter. Because the statute requires CIS to grant parole in such a situation, CIS granted Maria parole status. Even though Maria is not old enough to work, she can apply for work authorization to have a form of identification. Sophia then submitted a family second preference visa petition on behalf of Maria. When Maria’s second preference visa becomes available, she will be able to adjust her status to that of an LPR and will no longer need the parole status.

§ 11.22 VAWA Cancellation Compared with VAWA Self-Petitioning Under VAWA, battered spouses and children have two routes to obtaining LPR status without the help of their abuser: cancellation and self-petitioning. There are six main differences between the two forms of immigration relief. 1. A VAWA self-petitioner must show that the abuser is currently in legal immigration status, or only lost it within the two years before the application was filed because of the

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abuse. Under VAWA cancellation, the abuser must only have been a U.S. citizen or LPR at some time. 2. A VAWA self-petitioner must show that she is currently married to the abuser, or that the marriage was terminated within the two years before the application was filed because of the abuse. Spouses of abusive U.S. citizens (but not spouses of abusive LPRs) may also self-petition up to two years after the abuser’s death. Under VAWA cancellation, the marriage can have been terminated at any time, even before the abuse occurred, and the abuser’s death does not end the victim’s eligibility. 3. A VAWA self-petitioner does not have to show that removal will cause extreme hardship, while a VAWA cancellation applicant does have to meet this requirement. 4. Children of abusive U.S. or LPR parents can apply for relief through a VAWA selfpetitioner or VAWA cancellation. A “child” under VAWA self-petitioning is limited to children who are under 21 years of age and not married. Under VAWA cancellation, “child” is defined more broadly and includes anyone who suffered abuse from a U.S. or LPR “parent.” 5. VAWA self-petitioners can include their children as derivative beneficiaries. VAWA cancellation does not allow parents to include their children as derivative beneficiaries, but as soon as the parent is granted VAWA cancellation, the Attorney General is required to parole the child(ren) into the United States. 6. VAWA self-petitioning is an option for the abused parents of U.S. citizens. VAWA cancellation is not available to parents who have been abused by their U.S. citizen children, sons or daughters. 7. VAWA self-petitioners are subject to the family visa preference system, which means that self-petitioning relatives of abusive LPRs may have to wait many years to adjust status. VAWA cancellation applicants are not subject to the preference system. However, there is a yearly limit of 4,000 VAWA cancellation grants. Persons approved for cancellation after the 4,000 cap is reached are placed on a waiting list until a cancellation grant becomes available. 8. Perhaps most importantly, VAWA cancellation is available only in removal proceedings, which poses the risk of removal for an applicant whose case is denied. Many VAWA self-petitioners do not have to take that risk because CIS has adopted a policy of not referring denials to DHS to be placed in removal proceedings. All VAWA applicants in proceedings who are also eligible to self-petition under VAWA should do so. If the Vermont Service Center approves the petition, the immigration judge may be able to adjust the applicant’s status to that of an LPR. Many judges will continue a case to wait for a decision on a VAWA self-petition. If your client has a strong self-petition, this is good for your client. However, for someone who is already in removal proceedings, in some cases it might be better to push to move forward with VAWA cancellation before

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the self-petition is decided. This is a strategy decision that should be discussed with your client.

§ 11.23 Motions to Reopen If someone was in deportation or removal proceedings in the past, that individual must get back into proceedings to either adjust status with an approved VAWA self-petition, or request VAWA cancellation. The way to get back into proceedings is through a Motion to Reopen. Although there are rules about who can qualify for a motion to reopen, the new rules on motions to reopen for VAWA applicants make it easier for VAWA applicants to get back into proceedings. It is important to check that the person did not re-enter the United States after being deported or removed by an immigration judge. People who re-entered the United States without permission after being removed may be immediately deported when ICE or CBP reinstates removal proceedings under INA § 241(a)(5). See § 10.9.

PRACTICE WARNING: Motions to reopen can be difficult and can pose a big risk to your client if he or she is removable. It is important to investigate your client’s immigration and criminal history very thoroughly before filing a motion to reopen and to make sure that only accredited representatives or immigration lawyers with lots of experience handle VAWA cases that are in removal proceedings, especially those cases involving motions to reopen.

PART THREE: THE LAW OF SUSPENSION OF DEPORTATION § 11.24 What Is Suspension of Deportation and Who Can Qualify? With one exception, there are very few suspension of deportation cases now, because the relief can only be applied for in deportation proceedings begun before April 1, 1997, and most of these proceedings have concluded. The exception is that, at least in the Ninth Circuit, undocumented persons with certain very old criminal convictions still can apply for the former 10-year suspension of deportation, even in removal proceedings.

PRACTICE TIP: In the Ninth Circuit only, a noncitizen may be able to apply for the old “10year suspension” if she pled guilty to an offense before April 1, 1997 that made her deportable or inadmissible. The person can apply for suspension even in removal proceedings begun today. This can be a fantastic form of relief for undocumented persons, or even lawful immigrants who become deportable and do not have any other defense against removal. See the discussion of Lopez-Castellanos v. Gonzales in Subsection B, below.

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Advocates who are not representing noncitizens in the Ninth Circuit may want to consider arguing that their Circuit Court of Appeal adopt the Lopez-Castellanos rule, or consider referring the case to an attorney expert in federal appeals who can do this.

PRACTICE TIP: Except for the Lopez-Castellanos situation in the Ninth Circuit that is described above, anyone who was placed in proceedings on or after April 1, 1997 will not be able to apply for suspension of deportation, but instead might be able to apply for cancellation of removal. Some people from El Salvador, Guatemala, and the former Soviet bloc countries may be able to apply for cancellation of removal under NACARA using the old extreme hardship standard that was also used for suspension of deportation cases. See Part Six for more information on this topic.

A.

The Former Seven-Year Suspension

Suspension of deportation was a form of relief that allowed noncitizens who were longtime residents of the United States to defend themselves against deportation. A noncitizen who was granted suspension could stay in the U.S. and get permanent resident status. You can find suspension of deportation law at former § 244(a) of the INA and 8 CFR §§ 1240.55-58. Only people who still are in deportation proceedings can apply for “seven-year” suspension of deportation now. Suspension of deportation was eliminated under IIRIRA and replaced with cancellation of removal under INA § 240A(b)(2). But see Subsection B, below, describing 10-year suspension. Applicants for suspension of deportation must meet three basic requirements. First, the applicant must have lived in the United States continuously for the past seven years. Second, the applicant must show she has had “good moral character.” Third, the applicant must show that her deportation would result in “extreme hardship” to herself or to her spouse, parent, or children who are United States citizens or LPRs. See old INA § 244(a)(1). Even a person who meets these three requirements must get over one more hurdle. Suspension of deportation is a discretionary form of immigration relief. This means that the judge has the ultimate power to deny relief if she feels the applicant does not deserve to remain in the United States. There are several bars to suspension. See former INA § 242B(e). An applicant for suspension could not qualify for five years after the act, if he or she (1) was found deportable in absentia, after having received written and oral notice of the hearing and the consequences of failing to appear; (2) remained in the United States after a scheduled voluntary departure; or (3)

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failed to appear, after written and oral notice of the consequences, for an asylum hearing after expiration of any period of authorized stay, or a scheduled deportation after having been ordered deported. There was an exception under former INA § 242B(f)(2). In addition, persons who assisted in Nazi persecution or genocide were barred (former INA § 241(a)(4)(D)), as were alien crewmen who entered the United States after June 30, 1964, and certain non-immigrants (former INA § 244(f)). B.

The Former Ten-Year Suspension and the Current Rule in the Ninth Circuit

The former “ten-year suspension of deportation” was a form of relief that allowed noncitizens who were longtime residents of the United States to defend themselves against deportation, even if they had become deportable for having one or more criminal convictions. Thus, someone who was ineligible for the former seven-year suspension because of being deportable or inadmissible for crimes could seek relief under ten-year suspension if she met the criteria outlined below. A noncitizen who was granted ten-year suspension could stay in the U.S. and get permanent resident status. See the former INA § 244(b), and 8 CFR §§ 1240.55–58. The applicant had to show ten years of physical presence and good moral character for ten years immediately following the conviction. Ten-year suspension would waive any conviction except an aggravated felony conviction received on or after November 29, 1990. An aggravated felony conviction on or after this date destroys eligibility for ten-year suspension because it is a permanent bar to establishing good moral character. Ten-year suspension was eliminated as of April 1, 1997. In 2006 the Ninth Circuit held that people who pled guilty to offenses before April 1, 1997, and who otherwise qualify for tenyear suspension, are able to apply for this in removal proceedings today. Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006). The court used the same rules about retroactivity that the Supreme Court set out in the § 212(c) case, INS v. St. Cyr, 533 U.S. 289 (U.S. 2001). See discussion of § 212(c) in Unit 13. To be eligible for ten-year suspension under the Ninth Circuit’s rule in LopezCastellanos, the applicant     

Can be deportable under the crimes grounds based on a conviction by plea that occurred before April 1, 1997 Can be convicted of an aggravated felony, but only if the conviction was before November 29, 1990, so that it is not a permanent bar to establishing good moral character Must establish good moral character for at least ten years following conviction or status that makes the person deportable under crimes ground Must establish ten years continuous presence in the United States Must show exceptional or extremely unusual hardship to oneself and/or U.S. citizen USC/LPR family members

Who would be eligible for this relief?

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Example 11.24 (the Lopez-Castellanos case): In 1989, after he had been undocumented for several years, Mr. L-C was convicted of a moral turpitude offense. Now it is 2014. His conviction is for an offense that has since been classified as an aggravated felony. Today he is eligible to establish good moral character because the aggravated felony conviction occurred before November 29, 1990 and was not a permanent bar to good moral character. He has amassed 21 years of good moral character. In removal proceedings that are held in Ninth Circuit states, Mr. L-C can apply for suspension of deportation. Example: Bernardo is convicted of one or more drug offenses in 1993. The convictions are not aggravated felonies, but they make him inadmissible and deportable. They would have barred him from seven-year suspension of deportation, but not from ten-year suspension, which can waive a drug conviction if ten years have elapsed from the date of conviction until the date of application. Arguably Bernardo is eligible for suspension of deportation. The fact that Bernardo did not have the ten years before suspension was eliminated in 1997 does not bar relief under Lopez-Castellanos. Advocates who are not in the Ninth Circuit should consider arguing that the Ninth Circuit was right to hold in Lopez-Castellanos that noncitizens have a right to apply for the former tenyear suspension in removal proceedings. Because this issue will have to go before federal court, it will require an advocate who is expert in federal court argument.

§ 11.25 Continuous Physical Presence in Suspension Cases An applicant must show that for the seven (or ten) years immediately before applying for suspension, she has lived in the United States without significant absences. If the applicant has served in the U.S. Armed Forces for two years or more, she does not need to prove the seven-year continuous physical presence requirement. See former INA § 244(b)(1). Example 11.25: Juana Martinez lived in the United States without leaving from 1973– 1981. From 1981–1986 she lived in Argentina. In 1986 she returned to the U.S. and has lived here continuously since then. Juana was placed in deportation proceedings in 1991. She did not qualify for suspension because she did not live in the United States for seven years immediately before applying for suspension. The continuous physical presence requirement does not mean the client must prove she has never left the U.S. Clients qualify for suspension even if they have left the United States during the seven years so long as their absences were only “brief, casual and innocent and did not meaningfully interrupt continuous physical presence.” See the old INA § 244(b)(1). It is impossible to specify an exact period of time that will always be considered “brief” because courts determine what constitutes “brief” on a case-by-case basis. For example, the

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Ninth Circuit has found that absences of six weeks, three months, and even a rare six-month absence did not break continuous physical presence.29 This does not mean that the Ninth Circuit, or any court, will always find that a six-month absence will not break continuous physical presence; it depends on the circumstances. By contrast, the BIA found that much shorter absences broke the continuous physical presence requirement. Often the circumstances surrounding the absence (that is, why the applicant left the United States, how long she planned to leave for, and why she stayed as long as she did) are as important as the actual length of time the applicant was gone. Always remember that every circuit has its own law and you must research what rules apply in the area where you work. See Unit 8 on legal research. Some of the factors that tend to show the absence was “brief, casual, and innocent” include:     

the absence was for a short period of time; the absence was due to an emergency; the absence was for a business reason; the applicant left the United States with the intent to be gone a short period of time and an emergency forced her to stay longer; and the applicant did not move out of her house or apartment and did not quit her job before she left the United States,

Whereas some factors which might show the absence was not “brief, casual, and innocent” include:     

the absence was for a long period of time; the reason for the absence was to commit a crime or help someone else commit a crime; the applicant obtained a fraudulent visa in order to re-enter the United States; the applicant intended to leave the U.S. and live in another country; and the applicant left the United States because he or she was deported.

In determining when the “clock stops” counting towards physical presence for suspension of deportation, the BIA has ruled that an alien cannot accrue time for physical presence in a suspension case once he or she has been served a Notice to Appear or an Order to Show Cause. Immigration courts must follow this rule, according to the BIA, regardless of whether the Notice to Appear or Order to Show Cause was served before, on, or after the enactment of IIRIRA.30

29

See Heitland v. INS, 551 F.2d 495 (9th Cir. 1977); Delgallardo v. INS, 624 F.2d 85 (9th Cir. 1980); Toon-Ming Wong v. INS, 363 F.2d 234 (9th Cir. 1966). 30 Matter of Nolasco-Tofino, Int. Dec. 3385 (BIA 1999); see also Matter of Mendoza-Sandino, Int. Dec. 3426 (BIA 2000).

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Although this holding has been challenged, the Circuit Courts that have addressed this issue, including the Ninth Circuit, have ruled in favor of the BIA decisions.31 Advocates issued guidance in opposition to this position on April 6, 2000 in a memo entitled Practice Advisory: Suspension of Deportation after IIRIRA Retroactivity, Reaccrual and the Stop Time Rule. This memo discusses the fact that there are two types of physical presence. The first period is acquired before the Order to Show Cause or Notice to Appear is issued. The second period of physical presence is that time that one accrues after an Order to Show Cause or Notice to Appear has been served. Unfortunately, the circuit courts to have addressed the issue follow the Ninth Circuit in holding that one cannot accrue a new seven years sufficient for suspension of deportation following the serving of an Order to Show Cause.32

§ 11.26 Good Moral Character for Suspension of Deportation For purposes of the definition of good moral character under suspension of deportation, advocates must look at the guidelines found in § 11.5. The definition of good moral character for suspension and cancellation of removal is the same.

§ 11.27 Hardship for Suspension of Deportation Seven-year suspension of deportation applicants need to show only extreme hardship, not exceptional and extremely unusual hardship. The factors the court will use will be the same as those mentioned starting in § 11.6, but it should be easier to show hardship under suspension than it will be for cancellation of removal cases. Ten-year suspension applicants have the same standard for showing hardship as do current applicants for § 240A(b) cancellation: exceptional and extremely unusual hardship.

§ 11.28 Discretion in Suspension of Deportation Cases In suspension of deportation cases, the Ninth Circuit has ruled that a judge must give individual consideration to all health factors affecting U.S. citizen children, and must consider adverse consequences of deportation cumulatively in determining whether “extreme hardship” exists. Failure to consider all relevant facts when deciding extreme hardship will constitute an abuse of discretion.33 31

See Pinho v. INS, 249 F.3d 183, 187 (3d Cir. 2001); Rojas-Reyes v. INS, 235 F.3d 115, 121 (2d Cir. 2000); Ashki v. INS, 233 F.3d 913, 918 (6th Cir. 2000); Afolayan v. INS, 219 F.3d 784, 787-88 (8th Cir. 2000); Sibanda v. INS, 282 F.3d 1330, 1335 (10th Cir. 2002); Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001). 32 Ram v. INS, 243 F. 3d 510 (9th Cir. 2001). Please note the Ninth Circuit has ruled that judicial review exists for decisions based on the “continuous physical presence” requirement because it does not involve a decision based on discretion. Castillo-Perez v. INS, 212 F. 3d 518 (9th Cir. 2000). 33 Prapavat v. INS, 662 F.2d 561, 562 (9th Cir. 1981).

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PART FOUR: INTRODUCTION TO EVIDENCE IN CANCELLATION OF REMOVAL AND SUSPENSION CASES § 11.29 What Is Evidence? Evidence is anything that is used to prove something in a case. In an immigration case, the CIS, ICE, CBP, Department of State, or immigration judge is supposed to base its decision only on evidence that was given in the case. Evidence is more than just written documents. It includes written and spoken testimony, photos, charts, diagrams, objects or whatever else you and your clients may think of using to prove they qualify for immigration relief. In state and federal court, a large body of complicated rules, called the law of evidence, governs what evidence the judge or jury can consider. When evidence fits within these rules it is called “admissible,” which means it can be introduced in court to help your client or the government prove their argument, and it becomes part of the record of the case. Although the specific rules of evidence do not apply in immigration court, or in applications to the DHS, the theory behind them does. The theory is that a judge should only consider evidence that is 1) relevant and 2) reliable and believable. This section will talk about how to tell which evidence most strongly supports your case, and how to present it correctly. This is an area in which to use your common sense.

§ 11.30 Relevant and Irrelevant Evidence Francisco has applied for cancellation of removal. At his hearing, he offers to submit evidence that the medical care in his home country is inadequate to treat leukemia. The ICE trial attorney exclaims, “I object, that is irrelevant!” Can you tell how the judge should rule on this objection? The most basic rule of evidence is that everything submitted to the court must be relevant. That means that there must be a direct relationship between the evidence you want the judge to consider and an element of the case that you need to prove. From the story above, you don’t have enough information about Francisco’s case to say if the fact that medical care in his home country is inadequate will help prove a specific element to win the cancellation case. Now add to the facts above that Francisco’s U.S. citizen daughter has leukemia, is receiving treatment for it, and because he is the only parent, she would have to go with Francisco if he were removed. Now can you tell how the judge will rule on the objection? With these additional facts you can see that the judge should allow Francisco to present evidence about the medical care for treating leukemia patients in his home country. You know from reading about non-LPR cancellation that the applicant must show exceptional and extremely

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unusual hardship to his parents, children, or spouse if the applicant were removed. You also know that one factor which tends to prove hardship is the difference in medical care provided in the United States compared with the applicant’s country of origin. Therefore, the fact that Francisco’s home country has inadequate medical care to treat leukemia, and that his daughter has leukemia, are directly related to the possibility that Francisco’s daughter will suffer exceptional and extremely unusual hardship if Francisco were removed. Below we discuss some specific rules which apply to what evidence you may present to the judge. But keep in mind that all evidence must meet the first test—it must be relevant to an element of your case. We will discuss how to make sure this is so in the following sections.

§ 11.31 Analyzing the Strength of Evidence in Cancellation Cases The manner in which you present evidence affects its reliability and believability. Everything about each item should convey to the judge that she should believe the content of evidence. For example, in a cancellation case you could submit a letter from a child’s second grade teacher saying the child’s education would suffer if she had to return to Mexico. But the letter is much stronger if the teacher signs it under penalty of perjury and offers to come to court and testify personally. The letter is even stronger if the teacher makes clear that she has personal knowledge of all the facts in the letter. For example, if possible, the teacher should state that she is familiar with the education that the child would obtain if living in Mexico and how that is different from the education he or she is receiving in the United States. See Appendix 12-E-4 for an example of a formal letter called a declaration. In practice, it is generally best to submit copies of the documents at the time of submission and keep the originals available for inspection at time of hearing. Often times the immigration judge will insist on seeing original documents or certified copies to verify that the information contained in them is true. For example, the immigration judge may insist on seeing a certified copy of a criminal record that shows that your client’s criminal charges were dismissed, and thus that your client qualifies for cancellation of removal. You should check the Immigration Court Practice Manual and the specific instructions given by the immigration judge hearing your case for more information about which documents need to be certified.34 Here are some common problems that can make evidence unbelievable or unreliable from the perspective of the adjudicator: 

A close relative or other interested party gives the evidence. The judge might think this person would be more inclined to lie.

34

Note that best practices for filings with CIS differs from filings with the immigration court, so make sure to check the CIS website for tips for how to file with CIS.

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

      

The person who gives the evidence does not have firsthand knowledge of the facts and is relating something told to her by another person (this is called hearsay, which you have probably heard Perry Mason or Matlock object to on television. Hearsay is a complicated rule, which will not be covered in detail in this book); The evidence does not tell how the person has knowledge of the facts she testifies about. Documents are not originals. Official documents are not certified by the correct person or agency. Documents are not signed or are not dated. Statements are not signed under penalty of perjury. Statements that do not tell who the writer is, where she resides (her address), and that she is willing to come testify in person. The person who wrote the statement is not available for testimony.

Any documentary evidence and pre-hearing briefs, which you plan on submitting to the immigration court (EOIR) prior to the hearing, must be submitted in accordance with the rules set forth in the Immigration Court Practice Manual.35 If the immigration judge hearing your case imposes additional requirements, you need to follow those as well. You cannot always get perfect evidence. However, you usually are able to avoid the problems listed above. If you know that the material you want to present has any of the problems listed above, be prepared to explain to the judge why the evidence is reliable and believable in spite of those problems. Nonetheless, because the rules of evidence do not apply in immigration court, you’ll want to submit anything that helps your client’s case. The judge should admit anything that is relevant, but might give certain pieces of evidence less weight if it seems unreliable. Letters and statements from those that know the applicant are given more weight if the person comes to court to testify. All these rules about evidence apply to the CIS and ICE as well as to you. Do not let the CIS or ICE get away with basing a claim about a client on “bad” evidence. If the government has an argument that your client is inadmissible or deportable, make them prove it using reliable evidence!

Exercise 11.31: You need to show that your abusive father is a U.S. citizen for purposes of VAWA cancellation. You want to show that your father was born in the United States and thus is a U.S. citizen. Which of the following is the strongest proof that someone was born in the United States? Why is one stronger than the others? a) a statement from the applicant b) an original baptismal certificate from a church 35

The Immigration Court Practice Manual can be downloaded from the EOIR website at: www.justice.gov/ eoir/vll/OCIJPracManual/ocij_page1.htm.

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c) a California driver’s license d) a certified copy of a birth certificate For answers see Appendix 11-A.

§ 11.32 How to Use Evidence It is important to determine how to use the evidence you have. To do this we suggest you do a three-part analysis of the case. Conduct this analysis with every immigration case, not just those that are going before an immigration judge. First, write down on one side of a piece of paper a list of each issue that you and your client need to prove in the case. That is, what are the legal elements that need to be proven? Unless you know what you are trying to prove, you will not know if your evidence is relevant. Second, determine who has the burden of proof for each of the elements to be proven. By burden of proof, we mean which side must prove each of the legal elements. Most of the legal elements to show that your client is eligible for relief, such as cancellation of removal, need to be proven by the client, but some things need to be proven by the CIS or ICE. Third, work with your client to determine what evidence is available to prove each of the legal elements. On the same paper where you wrote the legal elements, write across from each element the evidence you will use to prove it. See Appendix 11-F for a sample completed chart to help you visualize this method.

PART FIVE: THE PROCESS OF APPLYING FOR CANCELLATION OF REMOVAL § 11.33 Summary of Procedure Before applying for cancellation or advising anyone about cancellation of removal, you must read the Immigration Court Practice Manual to see what the procedures are. The manual can be found online at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm. In addition, refer to the “Instructions for Filing Certain Applications in Immigration Court” which is reproduced in this manual as Appendix 10-D. Applications for cancellation of removal for non-permanent residents (except if applying under NACARA) must be submitted to the Executive Office for Immigration Review (the immigration court) directly on Form EOIR-42B. People who apply for cancellation of removal/suspension of deportation pursuant to the Nicaraguan Adjustment and Central American

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Relief Act (NACARA) apply on Form 881 and must follow different procedures.36 (See §§ 11.34 and 16.25.) The normal time to apply for cancellation will probably be after the master calendar hearing. At this hearing you will tell the judge that your client wants to apply for cancellation, and the judge will set a deadline for you to turn in the application. Submitting the application is a two-step process. First, you must submit a copy of the completed cancellation of removal form (without any supporting documents) to the CIS Texas Service Center along with the filing fee (or proof that the judge has granted a fee waiver), biometrics fee, Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative if the person is represented, and a copy of the filing instructions for cancellation, found at www.uscis.gov/sites/default/files/files/article/Pre OrderInstr.pdf. Once these five items have been received at the CIS Texas Service Center, you will receive 1) a CIS fee receipt notice showing that you have paid the application fee (unless waived) and the mandatory biometrics fee, and 2) a CIS notice with instructions to appear for a biometrics appointment at a nearby Application Support Center. The second step is to file the original application form, all supporting documentation, and the CIS fee receipt notice with the immigration court by the deadline set by the immigration judge. You should also make sure your client goes to her biometrics appointment and brings the biometrics confirmation to future immigration court hearings as proof that her biometrics were taken, and bring it to your future. After submitting the application, the applicant can also apply for work authorization.

WARNING! Do not miss the deadline for applying for cancellation that the judge sets! If you miss this date, your client probably will be ordered removed in absentia.

Many clients will be able to complete a draft of the cancellation of removal application on their own. If you can, we suggest translating the form into the client’s native language if he or she cannot read or write in English. This will help the client complete the application herself, become more familiar with the case, and increase the chances of winning. The legal worker should revise the final form before it is sent to the court. It is the advocate’s job to make sure that the application and supporting documents cover the legal requirements and reflect answers that understand the legal meaning of the questions asked. A copy of the final form must be served on (sent to) the ICE trial attorney also. The applicant and paralegal must collect, organize, and submit evidence proving the requirements for cancellation. In most cases the bulk of this evidence will consist of documents. These documents should conform to the rules regarding evidence discussed above. The 36

For example, applicants must include a passport-style photograph. Check the instructions on CIS website for what to include in the application before filing. See www.uscis.gov/sites/default/files/files/for m/i-881instr.pdf.

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Immigration Court Practice Manual requires that you number your exhibits (Exhibit A, Exhibit B, etc.) and prepare a table of contents, identifying the exhibits by number or letter. It is also helpful to the immigration court if you organize the documents by the legal element for which they are being submitted as proof (continuous physical presence, good moral character, etc.) See an example in Appendix P of the Practice Manual at www.justice.gov/eoir/vll/OCIJPracManual/app endix_P.pdf. Both the legal worker and the client should keep copies of everything submitted to the court in their own files. Either the legal worker or the client also should keep any original documents that haven’t been submitted in a safe place. Originals should be brought to each hearing in case the judge or government counsel wants to review the originals. After the application has been turned in, but before the merits hearing, the paralegal and the client normally will have time to continue to strengthen the case. You can still submit further evidence. Such evidence must be submitted according to the rules in the Immigration Court Practice Manual, unless the immigration judge has ordered otherwise. For non-detained clients, most cases usually require submissions 15 calendar days prior to the hearing. This 15-day filing rule includes all evidence, briefs (see below), and lists of witnesses who will testify on behalf of your client. Besides the application forms and documentation, an accredited paralegal should submit a pre-hearing brief. A pre-hearing brief is a written summary of your case, including the law of cancellation and the evidence you have which proves the legal elements. Although a pre-hearing brief is not required, it can help strengthen your client’s case. It might be helpful to ask local practitioners whether the judge in your case prefers to receive such a brief, as local practice varies.

PART SIX: NACARA FOR GUATEMALANS, SALVADORANS AND FORMER SOVIET BLOC NATIONALS § 11.34 Suspension of Deportation Benefits under NACARA Congress passed NACARA37 on November 19, 1997. Section 202 of the legislation allows many Nicaraguans and Cubans who entered the United States before December 1, 1995 to adjust their status to permanent residence. The deadline for that application was April 1, 2000; see discussion at Unit 16, § 16.25. Section 203 of the legislation covers Salvadorans, Guatemalans, and nationals of former Soviet bloc and Eastern European nations who entered the United States over twenty years ago. 37

Nicaraguan Adjustment and Central American Relief Act, enacted as Title II of the District of Columbia Appropriations Act for fiscal year 1998, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997); see also 8 CFR §§ 240.61-240.66.

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The legislation gives them the opportunity to apply for cancellation of removal under rules similar to the suspension of deportation that preceded the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This section will discuss that relief. A.

Eligible Individuals

Under NACARA suspension/cancellation of removal, certain individuals from El Salvador, Guatemala, and former Eastern Bloc countries are eligible for cancellation of removal under the old, former INA § 244 suspension of deportation rules, which are more generous than non-LPR cancellation of removal. The following persons are eligible for suspension/cancellation benefits, provided that they have not been convicted of an aggravated felony: 1. Salvadoran nationals 1. who first entered the United States on or before September 19, 1990 and registered for benefits under the American Baptist Churches v. Thornburgh (ABC)38 settlement agreement on or before October 31, 1991 (either by submitting an ABC registration or by applying for temporary protected status (TPS)), unless apprehended at the time of entry after December 19, 1990, or 2. who filed an application for asylum with the INS on or before April 1, 1990. 2. Guatemalan nationals 1. who first entered the United States on or before October 1, 1990 and registered for ABC benefits on or before December 31, 1991, unless apprehended at the time of entry after December 19, 1990, or 2. who filed an application for asylum with the INS April 1, 1990.

NOTE: Some NACARA cases can be adjudicated by CIS Asylum offices. To be eligible for such adjudication, Salvadorans must have filed an asylum application by February 16, 1996 or within 90 days of issuance of Notice 5 (Notice 5 informed Salvadorans of the requirement to file the asylum application) and Guatemalans must have filed an asylum application by January 3, 1995. Salvadorans and Guatemalans who had filed asylum applications before the ABC Settlement Agreement was entered into on January 1991 were not required to file a new application, although they could if they wished to.39

38

American Baptist Church v. Thornburgh, 60 F. Supp. 796 (N.D. Cal. 1991). For more information about the ABC settlement, see CIS, www.uscis.gov/laws/legal-settlementnotices/american-baptist-churches-v-thornburgh-abc-settlement-agreement. 39

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3. A national of the Former Soviet Union, Russia, any Republic of the Former Soviet Union, Latvia, Estonia, Lithuania, Poland, Former Czechoslovakia, Romania, Hungary, Bulgaria, Albania, Former East Germany, Yugoslavia or any state of the Former Yugoslavia 1. who entered the United States on or before December 31, 1990, 2. who applied for asylum on or before December 31, 1991, and 3. who was a national of one of the above mentioned countries at the time the asylum application was filed.40 8 CFR §§ 240.61 & 1240.61. Dependents. The spouse or an unmarried child under 21 years of age of a person who is granted suspension under the NACARA provisions can be granted NACARA benefits as long as the family relationship exists at the time that the decision to grant the suspension or cancellation benefit is made. 8 CFR §§ 240.61, 1240.61. The VAWA 2000 amendments extended this relief to noncitizens who were battered or abused by a parent or spouse who is a NACARA recipient. The rules are different for unmarried sons or daughters over 21 years of age of an individual granted suspension under the NACARA provisions. They must have entered the United States on or before October 1, 1990 in order to qualify for NACARA based on the principal applicant’s grant of relief. 8 CFR §§ 240.61, 1240.61. According to the statute, ABC Salvadorans and Guatemalans apprehended at the time of entry on or after December 19, 1990 are not eligible for NACARA benefits. However, Salvadorans and Guatemalans who qualify as dependents of a NACARA-eligible spouse or parent or as persons who applied for asylum before April 1, 1990 are not subject to this bar. B.

Requirements

The applicant must meet the following additional requirements41 in order to qualify for seven-year suspension/cancellation: 1. maintain continuous presence in the United States for seven years; 2. not be inadmissible under INA §§ 212(a)(2) or (3) (criminal and security grounds) or deportable under INA §§ 237(a)(2), (3) or (4) (criminal, security, and terrorism grounds) or described in INA § 241(b)(3)(B)(i) (participation in the persecution of others) 3. possess good moral character; 4. demonstrate that returning to the country of origin would result in extreme hardship to the applicant or to the applicant’s child, spouse, or parent who is a U.S. citizen or LPR; and 5. merit a favorable exercise of discretion.

40

Some of these countries are no longer in existence. See IIRIRA § 309(f), as created by NACARA § 203(b); see also 8 CFR §§ 240.65 1240.65, 240.66 & 1240.66. 41

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NACARA is more generous than non-LPR cancellation of removal with respect to physical presence, because a single absence of 90 days or aggregate absences of 180 days or more will not stop physical presence. In addition, there is no stop time rule as there is for non-LPR cancellation of removal, so the commission of an offense or the filing of the NTA will not stop accumulation of the required physical presence. NACARA suspension/cancellation is also much more generous than non-LPR cancellation of removal with respect to the hardship requirement. There is a rebuttable presumption of extreme hardship for principal applicants for NACARA. See 8 CFR §§ 240.64(d) & 1240.64(d). Moreover, not only is the standard of hardship lower (“extreme” instead of “exceptional and extremely unusual”) but hardship to the applicant him or herself counts, in addition to hardship to U.S. citizen or LPR family members. The factors that can be considered to establish extreme hardship are also established by regulation. See 8 CFR §§ 240.58(b), 1240.58(b). NACARA-eligible persons who were placed in deportation proceedings prior to April 1, 1997 may apply for suspension of deportation. 8 CFR §§ 240.65(a), 1240.65(a). Individuals who were not placed in deportation or exclusion proceedings by this date may apply for “special rule” cancellation of removal.42 The eligibility requirements for NACARA suspension and cancellation are similar, but not identical. Therefore, it is important to determine under which of the two forms of NACARA relief your client is eligible. The most important practical differences between the two are issues concerning absences from the United States and limitations to relief. See 8 CFR §§ 240.65 1240.65, 240.66, 1240.66. C.

Ten-Year NACARA Suspension and Special Rule Cancellation Eligibility

Under both NACARA suspension and special rule cancellation of removal, a much more restrictive eligibility standard applies to individuals who are deportable or inadmissible because of criminal convictions or certain other enumerated grounds that make them ineligible for sevenyear NACARA suspension and cancellation. These individuals must establish that they would have been able to qualify under the former “ten-year” suspension: they must show that they were continuously present in the United States for a period of 10 years after the commission of the crime or conduct that made them deportable or inadmissible, and they must show that their deportation would cause “exceptional and extremely unusual hardship” to themselves or their spouse, parent, or child. 8 CFR §§ 240.65(c), 1240.65(c), 240.66(c), 1240.66(c). Ten-Year Suspension. This heightened standard applies to applicants for NACARA suspension if they are deportable or inadmissible because of criminal or security grounds under former INA § 241(a)(2), (3), or (4). See 8 CFR §§ 240.65(c), 1240.65(c). This includes all of the 42

In the Second Circuit, a noncitizen is not eligible for relief under NACARA if he was paroled into the U.S. and later ordered to be excluded. Because a parolee was never admitted into the U.S., the court found that NACARA relief was only available for deportable aliens and not those in exclusion proceedings. Tanov v. INS, 443 F.3d 195 (2d Cir. 2006).

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criminal grounds of deportability;43 failure to register; having a conviction for falsification of documents or being the subject of a civil document fraud final order;44 and any of the national security or terrorist grounds of deportability.45 Ten-Year Special Rule Cancellation. Similarly, applicants for special rule cancellation who are deportable or inadmissible under criminal and certain other grounds are subject to the statute’s heightened eligibility standards.46 The application of the heightened standards applies differently to those who are inadmissible compared to those who are deportable. For those who are deportable, the heightened standards apply in more specific circumstances (see below). The rationale for this distinction is similar to that of the general inadmissibility/removal grounds—the burden is higher for the government in removing (deporting) someone than in proving inadmissibility. An applicant for special rule cancellation is subject to the heightened eligibility standards if he or she is inadmissible under INA§ 212(a)(2) (the crimes grounds of inadmissibility) or deportable under INA § 237(a)(2) (the crimes grounds of deportability) or § 237(a)(3) (false claims of U.S. citizenship on or after September 30, 1996, failure to register, falsification of documents or having a civil document fraud final order). 8 CFR §§ 240.66(c), 1240.66(c). See Unit 3 for more on grounds of inadmissibility and deportability. Good Moral Character. Applicants under both suspension and special rule cancellation must also satisfy the good moral character requirement. See INA § 101(f). If the applicants have convictions, the ten years of good moral character are counted from the date of the conviction. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Practice Exercise: Cancellation of Removal. Here is an exercise to help you become familiar with an application for cancellation of removal. In Appendix 11-G you will find a copy of a form EOIR 42-B. Complete the form as if you were the applicant. Try to answer the questions based on your own life. After completing the form, take out a blank piece of paper and try to list all the ways you would show that if you were removed your U.S. citizen or LPR children, spouse or parents would suffer exceptional and extremely unusual hardship. Once again, try to use facts from your own life to complete the exercise. If you do not want to use your own facts, or cannot use them, then makeup facts to fill out the form and list hardship factors. This exercise gives you a sense of what a client is facing when applying for cancellation. In many of the exercises in this manual you are provided with hypothetical facts to complete the work. This exercise is different in order to provide you with a client’s perspective when

43

Former INA § 241(a)(2), former 8 USC § 1251(a)(2). Former INA § 241(a)(3), former 8 USC § 1251(a)(3). 45 Former INA § 241(a)(4), former 8 USC § 1251(a)(4). 46 IIRIRA § 309(f)(1)(a), as amended by NACARA § 203(b); 8 CFR § 240.66(c). 44

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completing an immigration application. In Appendix 11-H you will find a copy of a completed form.

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APPENDIX 11-A ANSWERS TO EXERCISES

Sample answer to exercise 11.2 Practice Tips: 1. Break down legal requirements into smaller, easily understood sections; 2. Write the requirements on paper as you explain them; 3. Discuss with your clients the reasons for the requirements, so you both understand the law better; 4. Encourage your client to ask questions about the law. There are many ways to explain the legal requirements. Here is one explanation you might find helpful: “You may be able to qualify for cancellation of removal. This allows you to stay in the United States legally as a permanent resident. There are four things we, together you, your family, friends and I, have to show the judge to get cancellation. First, we must show the judge that you have lived in the U.S. for the last ten years. People who have lived in the U.S. for ten years or more have contributed a lot to the U.S. and it would be bad for you and the United States to deport you.” Note: This is where the paralegal would write the first requirement on a piece of paper for the client. “Second, we have to show you are a person of good moral character. This means you have not been convicted of certain bad crimes. We also must show the judge that you are a good person, you are well liked in your community, and you have contributed to your community.” Note: This is where the paralegal would write the second legal requirement on a piece of paper for the client. “Third, if you are deported we must show that your family would suffer because of it. If we show that if you are deported, your parents, spouse, and children who are U.S. citizens or permanent residents will suffer then it will help show the judge why you should stay here. If you have to take your family with you to Mexico, what problems would it cause for your family? If you have to return to Mexico and your children live in the U.S. without you, what problems would it cause you and your family? I know it would be horrible for all of you. But we want the judge to know exactly why it would be horrible. We all need to explain this in detail to the judge when we have the hearing. You and your family probably already have thought about how you and they would suffer if you were deported. Proving hardship will take most of the time in preparing your case. We all need to work very hard to win your case.” Note: This is where the paralegal would write down this requirement.

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“Finally the judge could deny your case because she does not think you should be able to remain in the U.S. What we need to show is that you are responsible, hard working, and you contribute to your community and your family.”

Sample answer to exercise 11.7(a) Can you please describe what your relationship is like? Can you please compare your relationship now to what it would be like if Sam were deported? What would you miss most if you were separated? Sam, if you were back in Taiwan explaining to an old friend why being deported back to Taiwan would be hard for your family, what would you tell him? Other more specific questions include: How do you spend a typical day? What do you do for fun? What kinds of things do you do with Albert? Are you involved in Albert’s school? Who supports the family financially? Does one of your jobs provide health insurance? How do you divide responsibility for caring for Albert?

Sample answer to exercise 11.7(b) Answer number (2) is much more helpful. It contains many details that show the strong relationship between Helen and Sam. The details make the answer more believable and show how much Sam and Albert count on Helen. Answer number (1) is vague.

Sample answer to exercise 11.31: The certified copy of the birth certificate is the strongest. The problem with the baptismal certificate and the California driver’s license is that in both cases the applicant or her family gave

Appendix 11-A-2

the agency the information about place of birth, and it is therefore not as reliable as when the hospital recorded the act. The problem with the statement from the applicant is that she could be lying. Even if she thinks she is telling the truth, she knows where she was born only because someone else told her; obviously she cannot remember the day she was born.

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APPENDIX 11-B CANCELLATION OF REMOVAL APPLICATION CHECKLISTS Below are three different checklists which will help you prepare a cancellation of removal case. The first one is the “Legal Worker To Do List.” As the paralegal completes each task she can place a check on the left-hand side. If this sheet is kept on the left-hand side of the client’s file with just the activity sheet, intake sheet, and the other “To Do Lists,” it will help the file be organized. The second checklist is called the “Client To Do List.” Translate this checklist into the client’s native language and give it to the client at the beginning of the case. This checklist explains to the client the legal requirements for cancellation of removal and gives her certain tasks to help prepare the case. Before giving this sheet to the client, the paralegal should explain what it is used for and review its content in detail so the client understands her tasks. Additionally, the paralegal should explain why it is important for the client to participate in preparing her own case. The paralegal can also tell the client the following to help explain how the preparation will work:     

the client knows the facts of the case better than the paralegal; the paralegal knows the legal requirements; since the client and the paralegal know different parts of what needs to done in the case, they will work as a team; each member of the team will have part of the work to do and there may be others working with the team (that is, relatives and friends of the client as well as others from the paralegal’s office); and this teamwork approach will help build a stronger case.

The third checklist is called the “Client Preparation List.” This list is a useful guide to prepare the client for her cancellation case. The goal of the list is to help the paralegal involve the client in her case so that she understands what needs to be done to make the case a winner.

Appendix 11-B-1

Legal Worker “TO DO” List for Cancellation of Removal (To be kept in client’s file) 1. Interview client and complete intake sheet.

________

2. Explain legal requirements, procedures, your organization, and the entire Cancellation of Removal process to client.

________

3. Together with your client, determine eligibility for Cancellation of Removal. ________ 4. Complete Cancellation of Removal Application.

________

5. Submit application, photos, and fee to the Court.

________

6. Serve the ICE Attorney.

________

7. Complete and submit application for work authorization.

________

8. Together with client write notes on what kind of hardship the client’s family will suffer if the client is deported.

________

9. Together with the client and her family, collect documentation to prove she has lived in the U. S. for the past 10 years and to prove hardship to her family if she is deported.

________

10. Obtain criminal records if your client has an arrest record.

_______

11. Prepare client for direct examination, cross-examination and what will happen in court.

_______

12. Do practice session for direct examination and cross-examination.

_______

13. Submit prehearing brief and any other documentation for hearing.

_______

14. If you and the client win the case, go for Green Card Processing and get work authorization extension.

________

15. If you and the client lose the case, discuss with your client whether she wants to appeal. If so, complete the appeal notice within the time limit required and pay the fee. ________

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CLIENT “TO DO” LIST For Cancellation of Removal Cases Dear Client: To qualify for Cancellation of Removal, we need to prove three things:  You have lived in the United States for at least10 years before you received the Notice to Appear.  If you were deported from the United States, it would cause hard times for your family.  You are a person of good moral character. 1. To help with your case, please try to get the following documents: ____Tax records

____Social Security records

____Pay stubs

____School records

____Rent receipts

____Bank records

____Utility records

____Birth Cert.

____Marriage Cert.

____Medical records

____Affidavits

Other:___________________________________________________________ ________________________________________________________________ 2. To prove hardship, please get: ____Medical Records ____School Records

____Work letters

____Church letters

____Letters from Organizations

___Birth Cert.

____Affidavits from friends & relatives

____Marriage Certificates ____Letters from friends, relatives

____Other:______________________________________________________ _________________________________________________________________ 3.____Photos 4.____Fee 5.____Other:___________________________________________________

Appendix 11-B-3

Client Preparation List (To be kept in client file)

Yes

No

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

____

1. Have we explained the legal requirements and procedures for the client’s Cancellation of Removal case so she understands them? Notes:______________________________________ 2. Has our client completed the Cancellation of Removal application?

Notes:______________________________________ 3. Have we encouraged our client to write down (or at least, think about) how she will prove her 10 years of continuous physical presence? Notes:_____________________________________

4. Have we encouraged our client to write down (or at least, think about) how her family will suffer if she is deported? Notes:______________________________________

5. Has our client collected documentation for her case? Notes:______________________________________

6. Have we encouraged our client to help organize all the documents for her case? Notes:_____________________________________

7. Have we encouraged our client to help formulate and write declarations? Notes:____________________________________

8. Has our client been involved in all the decisions for her case? Notes:___________________________________

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APPENDIX 11-C CANCELLATION OF REMOVAL STATUTE INA 240 / 8 U.S.C. § 1229b. Cancellation of removal; adjustment of status (a) Cancellation of removal for certain permanent residents The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. (b) Cancellation of removal and adjustment of status for certain nonpermanent residents (1) In general The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. (2) Special rule for battered spouse or child

Appendix 11-C-1

(A) Authority The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that-(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent); (II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or (III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy; (ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States; (iii) the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C); (iv) the alien is not inadmissible under paragraph (2) or (3) of section 1182(a) of this title, is not deportable under paragraphs (1)(G) or (2) through (4) of section 1227(a) of this title, subject to paragraph (5), and has not been convicted of an aggravated felony; and (v) the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent. (B) Physical presence Notwithstanding subsection (d)(2) of this section, for purposes of subparagraph (A)(ii) or for purposes of section 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection between the absence and the battering or extreme cruelty perpetrated against the alien. No absence or portion of an absence connected to the battering or extreme cruelty shall count toward the 90-day or 180-day limits established in subsection (d)(2) of this section. If any absence or aggregate absences exceed 180 days, the absences or portions of the absences will not be considered to break the period of continuous

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presence. Any such period of time excluded from the 180-day limit shall be excluded in computing the time during which the alien has been physically present for purposes of the 3-year requirement set forth in this subparagraph, subparagraph (A)(ii), and section 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). (C) Good moral character Notwithstanding section 1101(f) of this title, an act or conviction that does not bar the Attorney General from granting relief under this paragraph by reason of subparagraph (A)(iv) shall not bar the Attorney General from finding the alien to be of good moral character under subparagraph (A)(iii) or section 1254(a)(3) of this title (as in effect before the Title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), if the Attorney General finds that the act or conviction was connected to the alien's having been battered or subjected to extreme cruelty and determines that a waiver is otherwise warranted. (D) Credible evidence considered In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General. (3) Recordation of date With respect to aliens who the Attorney General adjusts to the status of an alien lawfully admitted for permanent residence under paragraph (1) or (2), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of the Attorney General's cancellation of removal under paragraph (1) or (2). (4) Children of battered aliens and parents of battered alien children (A) In general The Attorney General shall grant parole under section 1182(d)(5) of this title to any alien who is a-(i) child of an alien granted relief under section 1229b(b)(2) or 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996); or (ii) parent of a child alien granted relief under section 1229b(b)(2) or 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996).

Appendix 11-C-3

(B) Duration of parole The grant of parole shall extend from the time of the grant of relief under subsection (b)(2) of this section or section 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) to the time the application for adjustment of status filed by aliens covered under this paragraph has been finally adjudicated. Applications for adjustment of status filed by aliens covered under this paragraph shall be treated as if the applicants were VAWA self-petitioners. Failure by the alien granted relief under subsection (b)(2) of this section or section 1254(a)(3) of this title (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) may result in revocation of parole. (5) Application of domestic violence waiver authority The authority provided under section 1227(a)(7) of this title may apply under paragraphs (1)(B), (1)(C), and (2)(A)(iv) in a cancellation of removal and adjustment of status proceeding. (6) Relatives of trafficking victims (A) In general Upon written request by a law enforcement official, the Secretary of Homeland Security may parole under section 1182(d)(5) of this title any alien who is a relative of an alien granted continued presence under section 7105(c)(3)(A) of Title 22, if the relative-(i) was, on the date on which law enforcement applied for such continued presence-(I) in the case of an alien granted continued presence who is under 21 years of age, the spouse, child, parent, or unmarried sibling under 18 years of age, of the alien; or (II) in the case of an alien granted continued presence who is 21 years of age or older, the spouse or child of the alien; or (ii) is a parent or sibling of the alien who the requesting law enforcement official, in consultation with the Secretary of Homeland Security, as appropriate, determines to be in present danger of retaliation as a result of the alien's escape from the severe form of trafficking or cooperation with law enforcement, irrespective of age. (B) Duration of parole (i) In general The Secretary may extend the parole granted under subparagraph (A) until the final adjudication of the application filed by the principal alien under section 1101(a)(15)(T)(ii) of this title.

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(ii) Other limits on duration If an application described in clause (i) is not filed, the parole granted under subparagraph (A) may extend until the later of-(I) the date on which the principal alien's authority to remain in the United States under section 7105(c)(3)(A) of this title is terminated; or (II) the date on which a civil action filed by the principal alien under section 1595 of Title 18, is concluded. (iii) Due diligence Failure by the principal alien to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) of subparagraph (A), or in pursuing the civil action described in clause (ii)(II) (as determined by the Secretary of Homeland Security in consultation with the Attorney General), may result in revocation of parole. (C) Other limitations A relative may not be granted parole under this paragraph if-(i) the Secretary of Homeland Security or the Attorney General has reason to believe that the relative was knowingly complicit in the trafficking of an alien permitted to remain in the United States under section 7105(c)(3)(A) of Title 22; or (ii) the relative is an alien described in paragraph (2) or (3) of section 1182(a) of this title or paragraph (2) or (4) of section 1227(a) of this title. (c) Aliens ineligible for relief The provisions of subsections (a) and (b)(1) of this section shall not apply to any of the following aliens: (1) An alien who entered the United States as a crewman subsequent to June 30, 1964. (2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 1101(a)(15)(J) of this title, or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 1182(e) of this title.

Appendix 11-C-5

(3) An alien who-(A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 1101(a)(15)(J) of this title or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training, (B) is subject to the two-year foreign residence requirement of section 1182(e) of this title, and (C) has not fulfilled that requirement or received a waiver thereof. (4) An alien who is inadmissible under section 1182(a)(3) of this title or deportable under section 1227(a)(4) of this title. (5) An alien who is described in section 1231(b)(3)(B)(i) of this title. (6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under section 1182(c) of this title, as such sections were in effect before September 30, 1996. (d) Special rules relating to continuous residence or physical presence (1) Termination of continuous period For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest. (2) Treatment of certain breaks in presence An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. (3) Continuity not required because of honorable service in Armed Forces and presence upon entry into service The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) of this section shall not apply to an alien who--

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(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and (B) at the time of the alien's enlistment or induction was in the United States. (e) Annual limitation (1) Aggregate limitation Subject to paragraphs (2) and (3), the Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 1254(a) of this title (as in effect before September 30, 1996), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment, or such suspension and adjustment, and whether such an alien had previously applied for suspension of deportation under such section 1254(a) of this title. The numerical limitation under this paragraph shall apply to the aggregate number of decisions in any fiscal year to cancel the removal (and adjust the status) of an alien, or suspend the deportation (and adjust the status) of an alien, under this section or such section 1254(a) of this title. (2) Fiscal year 1997 For fiscal year 1997, paragraph (1) shall only apply to decisions to cancel the removal of an alien, or suspend the deportation of an alien, made after April 1, 1997. Notwithstanding any other provision of law, the Attorney General may cancel the removal or suspend the deportation, in addition to the normal allotment for fiscal year 1998, of a number of aliens equal to 4,000 less the number of such cancellations of removal and suspensions of deportation granted in fiscal year 1997 after April 1, 1997. (3) Exception for certain aliens Paragraph (1) shall not apply to the following: (A) Aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by the Nicaraguan Adjustment and Central American Relief Act). (B) Aliens in deportation proceedings prior to April 1, 1997, who applied for suspension of deportation under section 1254(a)(3) of this title (as in effect before September 30, 1996).

Appendix 11-C-7

APPENDIX 11-D DOCUMENT CHECKLIST I.

General: ____ EOIR-28 ____ EOIR -42B, Cancellation of Removal Application ____ photographs ____ affidavit of employer ____ affidavit of witnesses (2) ____ proof of relationship of USC/LPR spouse, parent or unmarried minor child ____ I-151 or I-551, birth or naturalization certificate ____ birth certificate ____ marriage certificate, death or dissolution decrees ____ filing fee ____ client declaration

II.

Establishing "Continuous Physical Presence" ____ employment (offer letters, pay stubs, bank statements) ____ taxes ____ church ____ school ____ licenses ____ deeds or leases ____ receipts ____ letters ____ bank records ____ social security _____ telephone or power service records

III.

Establishing “Exceptional and Extremely Unusual Hardship" to Relatives a. declarations from qualifying relatives b. medical problems ____ doctor's letter ____ copies of medical records, hospitalizations ____ copies of prescriptions c. psychiatric or psychosocial problems ____ letter from psychologist, LCSW, or psychiatrist ____ copies of medical/treatment records d. educational/adjustment problems of LPR/USC children ____ letter from teacher, principal, counselor ____ IEP records ____ report cards, school records ____ affidavits from experts e. ties to the community

Appendix 11-D-1

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____ church letter ____ letters from organizations client participates f. economic hardship ____ articles on conditions in country of citizenship g. misc. hardship factors _____ country conditions in country of origin IV.

Establishing "Good Moral Character" ____ letters re: character from friends, employer, church ____ criminal records - certified copies ____ letters from probation officers ____ proof of paying taxes, child support, any criminal fines

Appendix 11-D-2

APPENDIX 11-E Excerpts from INA SECTION 101(f) - Good Moral Character (f) For the purposes of this Act-No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is or was-(1) a habitual drunkard; (2) stricken by Sec. 2(c) (1) of Pub. L. 97–116. (3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2) (D) , (6) (E) , and (9) (A) of section 212(a) of this Act; or subparagraphs (A) and (6) of section 212(a) (2) and subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana) ; if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period; (4) one whose income is derived principally from illegal gambling activities; (5) one who has been convicted of two or more gambling offenses committed during such period; (6) one who has given false testimony for the purpose of obtaining any benefits under this Act; (7) one who during such period has been confined, as a result of conviction, to a penal institution for an’ aggregate period o:[ one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period; (8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a) (43) ). The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. (9) one who at any time has been convicted in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commissions of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violation of religious freedom). The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided the United States prior to attaining the age of 16,

Appendix 11-E-1

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and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be based on it. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.

Appendix 11-E-2

APPENDIX 11-F IMMIGRATION CASE ANALYSIS CHART Elements of Case

Facts

How Proved

1. The applicant is an alien.

The applicant is a citizen of Zaire.

Birth certificate and passport.

2. Applicant has 10 years continuous physical presence.

Applicant entered in 1986 and has lived here since without leaving.

Tax returns, rent receipts, school records, and affidavits.

3. Good Moral Character.

Applicant has never been arrested and is an upstanding member of the community.

Letters from community members.

4. Exceptional and extremely unusual hardship to USC or LPR spouse, parent, and/or child.

Applicant has LPR spouse and two young USC children. One child has a severe learning disability and is enrolled in a special education class in public school. Such classes are not available in the applicant's country of origin.

Spouse's I-551, birth certificates of children, testimony of applicant, spouse and children. Letter from school teacher or counselor explaining hardship to child with the disability. Affidavits from friends, employer, and relatives.

Appendix 11-F-1

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Appendix 11-G-1

Appendix 11-G-2

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Appendix 11-G-3

Appendix 11-G-4

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Appendix 11-G-5

Appendix 11-G-6

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Appendix 11-G-7

Appendix 11-G-8

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Appendix 11-G-9

Appendix 11-G-10

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Appendix 11-G-11

Appendix 11-G-12

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Appendix 11-G-13

Appendix 11-H-1

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Appendix 11-H-2

Appendix 11-H-3

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Appendix 11-H-4

Appendix 11-H-5

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Appendix 11-H-6

Appendix 11-H-7

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Appendix 11-H-8

Appendix 11-H-9

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