Inadmissibility & Deportability [5 ed.]

Citation preview

ILRC.InadmisDeport.Cov.5thEd.1.qxp_Layout 2 7/29/19 9:06 AM Page 1

Highlights • Easy-to-use reference for the most common grounds of inadmissibility and deportability • Chapter dedicated to unlawful presence and removal grounds of inadmissibility • Important new updates to the criminal grounds of admissibility and deportability • Up-to-date discussion of the categorical approach in immigration proceedings • Up-to-date discussion of the proposed rule related to public charge in the Federal Register • Includes a sample waiver argument, charts, tips, samples and practical suggestions

Inadmissibility & Deportability

Inadmissibility & Deportability is a practical and easy to use guide for beginning immigration attorneys, paralegals, nonprofit community-based organizations, and other advocates on the grounds of inadmissibility, deportability, and waivers. Written in plain English and filled with explanatory examples, charts and practical suggestions, this go-to resource helps assess whether your client is subject to the grounds of inadmissibility or deportability. This guide covers all common grounds of inadmissibility and deportability and features a chapter dedicated to explaining how to assess criminal issues and the grounds of removability.

Inadmissibility & Deportability TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

5th Edition

1458 HOWARD STREET

5th Edition By ILRC Staff Attorneys

Inadmissibility & Deportability 5th Edition By ILRC Staff Attorneys The Immigrant Legal Resource Center

A

Copyright 2019 Immigrant Legal Resource Center 1458 Howard Street San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit 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 

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



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



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

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.



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



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 

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.



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.



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]



Publications: [email protected]



Seminars: [email protected]



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

 Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

ACKNOWLEDGEMENTS We are pleased to present the fifth edition of Inadmissibility & Deportability, a go-to resource to assess your client’s removability and eligibility for relief. This manual is meant to provide a concise but practical overview of the grounds of inadmissibility and deportability to assist attorneys and legal workers in assessing their clients’ cases. Written with the practitioner in mind, this resource provides practical information, useful citations and clear examples to help assess inadmissibility and deportability factors facing immigrant clients, along with possible waiver options available. The ILRC wishes to acknowledge the many people who made this manual possible. The team of ILRC attorneys including Kathy Brady, Erin Quinn, and Grisel Ruiz who were instrumental in updating this edition. Additionally, ILRC attorneys Allison Davenport, Em Puhl, Ariel Brown, Veronica Garcia, and Ann Block contributed to this edition. We’d also like to thank the many people that contributed to past editions, including Angie Junck, Nora Privitera, Sally Kinoshita, Rachel Prandini, and Su Yon Yi. As always, this publication would not be possible without the excellent work and dedication of our publication team staff, especially Linda Mogannam and Timothy Sheehan. We are fortunate to have a community of talented individuals to support the ILRC in continuing to produce high quality materials. The Immigrant Legal Resource Center May 2019

iii

iv

iv

Inadmissibility & Deportability May 2019

INADMISSIBILITY & DEPORTABILITY 5TH EDITION TABLE OF CONTENTS Chapter 1 § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 Chapter 2 § 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 Chapter 3 § 3.1 § 3.2

Introduction Introduction ............................................................................................................ 1 Admission and the Grounds of Inadmissibility and Deportability ......................... 2 The Grounds of Inadmissibility and Grounds of Deportability.............................. 7 A Short History Lesson: Exclusion and Deportation Proceedings Before IIRIRA, Compared to Removal Proceedings Under IIRIRA ..................... 8 Burdens of Proof .................................................................................................... 9 The Grounds of Inadmissibility Health, Alien Smuggling, Visa and Document Fraud and Other Grounds Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction, and Abuse.......................... 18 Alien Smuggling: Grounds of Inadmissibility and Deportability ........................ 23 Fraud and Misrepresentation ................................................................................ 28 False Claim to U.S. Citizenship ........................................................................... 32 Inadequate Documentation and Document Fraud ................................................ 39 Likely to Become a Public Charge ....................................................................... 42 Security-Related Grounds of Inadmissibility ....................................................... 58 Other Grounds: Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors, Pornographers .................................................................................... 71

§ 3.6 § 3.7 § 3.8

Immigration Violations Relating to Unlawful Status and Removal Entry, Admission, and Effective Dates ................................................................ 77 Unlawfully Present in the United States without Being Admitted or Paroled, INA § 212(a)(6)(A) ................................................................................ 78 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission, INA § 212(a)(9)(B), and the Family Hardship Waiver.......................................................................... 82 “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, INA § 212(a)(9)(C)...................... 92 The Differences Between “Unlawful Presence” and “Unlawful Status” ................................................................................................ 99 Failure to Attend Removal Proceedings, INA § 212(a)(6)(B) ........................... 101 Past Removal, Deportation, or Exclusion, INA § 212(a)(9)(A) ......................... 102 Reinstatement of Prior Deportation or Removal Order ...................................... 104

Chapter 4 § 4.1 § 4.2

Non-Criminal Grounds of Deportability Removable for Being Inadmissible at Entry or Adjustment............................... 107 Present in Violation of Law................................................................................ 109

§ 3.3

§ 3.4

§ 3.5

Table of Contents

v

Immigrant Legal Resource Center May 2019

§ 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9

Violated Non-Immigrant Status ......................................................................... 109 Violation of Condition of Entry ......................................................................... 110 Marriage Fraud ................................................................................................... 110 Failure to Register and Falsification of Documents ........................................... 113 Public Charge ..................................................................................................... 114 Alien Smuggling ................................................................................................ 115 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility................................................................................................ 116

Chapter 5

Crimes and the Grounds of Deportability, Inadmissibility and Bars to Establishing Good Moral Character Clients with Criminal Records ........................................................................... 120 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings .......................................................... 121 What Is a Criminal Conviction? What Evidence Proves That It Exists? ............................................................................................................. 123 How to Analyze an Offense: The Categorical Approach ................................... 130 Overview of Immigration Consequences of Crimes .......................................... 140 Inadmissibility and Deportability Based on Drug Offenses ............................... 143 Crimes Involving Moral Turpitude .................................................................... 149 The Moral Turpitude Ground of Inadmissibility: Petty Offense and Youth Exceptions, Definition of Sentence Imposed, and Admissions ............... 153 The Moral Turpitude Ground of Deportability .................................................. 155 Firearms Offenses .............................................................................................. 159 Aggravated Felonies ........................................................................................... 161 Other Criminal Grounds of Deportability and Inadmissibility........................... 166 Clearing Up a Criminal Record .......................................................................... 173 The Good Moral Character Requirement ........................................................... 176

§ 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 Chapter 6 § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

vi

Waivers of Inadmissibility and Deportability Waivers of Grounds of Inadmissibility and Deportability ................................. 179 What Is a Waiver? .............................................................................................. 181 What Is Discretion? ............................................................................................ 181 How to Find the Waivers in the Act ................................................................... 183 Waiver of Inadmissibility for Visa Fraud and Waivers of Deportability for Persons Inadmissible at Admission ........................................ 184 Waiver for Certain Crimes Under INA § 212(h)................................................ 191 Alien Smuggling Waivers and Exemptions ....................................................... 195 Document Fraud Waiver of Inadmissibility and Deportability .......................... 198 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders Under INA § 212(g) ............................................ 201 Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses ......................................................................................... 205 Waiver of Deportability for Victims of Domestic Violence .............................. 216 “Cancellation of Removal” for Lawful Permanent Residents with Seven Years’ of Continuous Residence ............................................................. 217

Table of Contents

Inadmissibility & Deportability May 2019

§ 6.13 § 6.14

General Procedures for Applying for Waivers of Inadmissibility...................... 218 How Do You Establish Extreme Hardship? ....................................................... 220 INDEX OF APPENDICES

Appendix A Appendix B

Appendix C Appendix D Appendix E Appendix F Appendix G

Appendix H Appendix I

Appendix J Appendix K Appendix L

For Further Information Quick Reference Charts on Grounds of Inadmissibility and Deportability: Prior Statutory Sections and chart for which sections have waivers and which impact good moral character. Form I-864P, 2019 HHS Poverty Guidelines for Affidavit of Support Obtaining Criminal Record Checks Requesting Files through FOIA Unlawful Presence FAQs May 6, 2009 CIS Interoffice Memorandum, titled: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act USCIS Public Charge Fact Sheet USCIS Adjudicators Field Manual Chapter 40.6, Section 212(a)(6) of the Act – Illegal Entrants and Immigration Violators; USCIS Policy Manual Volume 8, Part J (Fraud and Willful Misrepresentation) and Part K (False Claim to U.S. Citizenship) Declaration in Support of Waiver of Unlawful Presence Bar to Admissibility USCIS Vaccination Requirements Sample Successful Waiver Application

Table of Contents

vii

Immigrant Legal Resource Center May 2019

viii

Table of Contents

Chapter 1

Inadmissibility & Deportability May 2019

CHAPTER 1 INTRODUCTION This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5

Introduction ............................................................................................................ 1 Admission and the Grounds of Inadmissibility and Deportability ......................... 2 The Grounds of Inadmissibility and Grounds of Deportability.............................. 7 A Short History Lesson: Exclusion and Deportation Proceedings Before IIRIRA, Compared to Removal Proceedings Under IIRIRA ..................... 8 Burdens of Proof .................................................................................................... 9

§ 1.1

Introduction

This manual is designed as an overview of the inadmissibility and deportability grounds, and an introduction to preparing waivers of inadmissibility. The grounds of inadmissibility and deportability are set out in their entirety in the Immigration and Nationality Act (INA). Together, the grounds of inadmissibility and deportability describe the classes of people the U.S. government will exclude from entering the United States and the classes of people our government will remove from the United States after entering. In order to properly assess whether your client faces issues of deportability or inadmissibility, it is important to understand conceptually the concept of an “admission” in immigration law. Those seeking an admission to the United States or adjusting status to lawful permanent resident are generally subject to the grounds of inadmissibility, while those that have already been admitted into the United States face grounds of deportability. In Chapter 1, we will explore the concept of admission and the various burdens of proof for those facing charges of removability. Thereafter, this concise guide will introduce the various grounds of inadmissibility and deportability, provide an introduction to analyzing crimes in the immigration context, and describe the various waivers for these grounds of removal. This manual is divided into six chapters, which are described below: Chapter 1. This chapter contains an overview of inadmissibility and deportability, discusses who is subject to the grounds of inadmissibility versus the grounds of deportability, and explains the differing burdens of proof. It also includes a short history lesson on what immigration law was like before our current system was established. Chapter 2 covers the grounds of inadmissibility relating to health issues, public charge, alien smuggling, misrepresentations and fraud, terrorism and some other miscellaneous grounds. Chapter 3 covers the grounds of inadmissibility relating to unlawful presence, removal orders, and illegal re-entry. These grounds are unique to inadmissibility. Chapter 4 covers the grounds of deportability (except for crimes). Chapter 5 describes the criminal grounds of inadmissibility and deportability and discusses how crimes and criminal records affect those grounds. This chapter includes information on how to

Chapter 1

1

Chapter 1

Immigrant Legal Resource Center May 2019

analyze a crime for immigration purposes and assess its impact on your client’s immigration situation. Chapter 6 introduces the waivers available to overcome common grounds of inadmissibility, as well as statutory waivers for certain grounds of deportability. § 1.2

Admission and the Grounds of Inadmissibility and Deportability

Our current immigration law divides people into two groups: those who are seeking admission and those who have already been admitted. Those who are seeking admission must show that they are admissible to the United States. For those who have already been admitted, the government must show that they are deportable. Generally, persons already within the United States whom the government believes are here illegally are placed in removal proceedings before an immigration judge where they can either show that they are admissible or defend themselves against charges of deportability. Depending on their current status in the United States, the immigrant will either be charged under the grounds of inadmissibility or the grounds of deportability. In order to know whether a person should be charged under laws of inadmissibility or deportability, we must find out whether they have been admitted to the United States. If one has already been admitted to the United States, the immigrant will be subject to grounds of deportability. If the person is present in the United States without ever having been admitted, they will be subject to the grounds of inadmissibility. Those that are seeking admission must show that they are admissible to the United States and have a basis for relief. For those that have already been admitted, the government must show that they are deportable. NOTE: In this chapter, because the grounds of inadmissibility and deportability come up before various agencies depending on the context, we will refer generally to DHS (Department of Homeland Security). In practice, however, you will need to identify the specific sub-agency with whom you are dealing, such as USCIS, ICE, or CBP. Some practitioners may refer to the INS (the Immigration and Naturalization Service), which has now been restructured, and its functions are divided among the new agencies under DHS. A.

Definition of admission

A key question in understanding which immigration laws will apply in a particular case is whether the person has been admitted into the United States. 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.” Those who have been admitted are subject to the grounds of deportability. In contrast, those who have not been admitted are considered “applicants for admission” and are subject to the grounds of inadmissibility. The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are found at INA § 237(a). Though they are similar, they are 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 manual. It is important to understand, however, that U.S. citizens are never affected by any ground of 2

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

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 be removed from the United States. The following people are subject to the grounds of inadmissibility: • • • • • •

People who are 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); Certain lawful permanent residents, including conditional residents, who fall within INA § 101(a)(13)(C). See below.

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 legally their situation is the same as if they are waiting 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). 2 A person in the United States who is in the middle of applying for adjustment of status or in certain other statuses can apply for “advance parole,” which is advance permission to go outside of the United States and be paroled back in. See 8 C.F.R. § 212.5(e). Additionally, 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 C.F.R. § 212.5. DHS’s position is that once in the United States, all of these persons are still deemed to be seeking admission, and if placed in removal proceedings, they will be subject to the grounds of inadmissibility. 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; 3

1

A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent resident until and unless they are 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 C.F.R. §§ 42.72-42.74(b). 2 This parole power has also given rise to a policy of “parole in place,” the term USCIS uses to grant parole to someone already within the United States without having been admitted. Currently, parole in place is granted only to certain family members of military or former military. See http://www.uscis.gov/. 3 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 United States.

Chapter 1

3

Chapter 1

Immigrant Legal Resource Center May 2019

• B.

Lawful permanent residents, including conditional residents, except those who fall within INA § 101(a)(13)(C). Lawful permanent residents who travel

Generally, a lawful permanent resident is not making a new admission upon re-entry into the United States. Most of the time, therefore, they are subject to the grounds of deportability rather than the grounds of inadmissibility. However, there are circumstances in which a lawful permanent resident will be considered an applicant for admission upon return from a trip abroad. These circumstances are described in INA § 101(a)(13)(C). 1. The special rules governing admission of returning lawful permanent residents under INA § 101(a)(13)(C) 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 they: 1. 2. 3. 4. 5.

have abandoned or relinquished permanent resident status; have been absent from the United States for a continuous period of more than 180 days; have engaged in illegal activity after departing the United States; have left the United States while under removal or extradition proceedings; have 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. are attempting to enter or have entered without inspection.

Lawful permanent residents who fall within any of these six exceptions will be in the same position as other noncitizens seeking admission and will be considered “arriving aliens.” In order to be admitted, they must prove that they are not subject to any ground of inadmissibility. Example: Marc is a lawful permanent resident (LPR). In 2012 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, even if 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 the circumstances listed in INA § 101(a)(13) that would make him an “applicant for admission.” Marc should lawfully reenter the United States without triggering removal proceedings. 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: What if LPR Marc takes another trip and this time stays outside the United States for 190 days? In that case, when he returns, he will be “seeking admission” for

4

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

having been absent for more than 180 days under INA § 101(a)(13)(C)(ii). DHS can place him in removal proceedings with a Notice to Appear and charge him with being inadmissible for having a communicable disease of public health importance (tuberculosis) in addition to charging him with abandonment of his lawful permanent residency. Marc may meet the requirements for a discretionary medical waiver or cancellation of removal. 2. The continuing validity of entry, re-entry and the Fleuti exception There is a limited exception for lawful permanent residents who were convicted of an offense described in INA § 101(a)(13)(C)(v) before April 1, 1997. 4 The law before April 1, 1997 under deportation proceedings allowed lawful permanent residents to make “brief, casual and innocent” departures without seeking a new admission to the United States. The Supreme Court has held that those who pled guilty to an offense prior to the change in law should be able to rely on the law as it was prior to April 1, 1997. Thus, those that would have a conviction described in INA § 101(a)(13) before April 1, 1997 will not be considered to be seeking an admission if they can show their departure was brief, casual and innocent. Before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) went into effect on April 1, 1997, there were different rules governing when a lawful permanent resident returning from a trip abroad made an entry (just as IIRIRA created special rules for when a returning lawful permanent resident is seeking admission). Entry is a term of art with a long history of judicial interpretation. Before 1997, the definition of “entry” included a presumption that all lawful permanent residents are seeking re-entry to the United States upon return from a trip abroad. In Rosenberg v. Fleuti, 5 the Supreme Court created an important exception. It stated that permanent residents can rebut the presumption that they are making an entry upon return from a trip abroad if they establish that the trip was brief, casual and innocent and not a meaningful departure interrupting their residency. (In contrast, the statutory definition of admission in INA § 101(a)(13), effective April 1, 1997, presumes that returning lawful permanent residents are not seeking admission unless they come within one of the six exceptions. 6 These exceptions do not look exclusively at the character of the absence, but also look to bad behavior on the part of the permanent resident.) The 1997 statutory definition of admission replaced the statutory language defining entry in the INA. 7 The old Fleuti definition applies to a lawful permanent resident who is charged with making a new “admission” upon return to the United States based on a conviction by plea from before April 1, 1997. Those who pled guilty before that date, traveled, and then sought to re-enter the United States after that date should still benefit from the Fleuti doctrine and should not be considered as applicants for admission. 4

See Vartelas v. Holder, 132 S.Ct. 1479 (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 United States as long as the departure was “brief, casual, and innocent.” 5 Rosenberg v. Fleuti, 374 U.S. 449 (1963). 6 See INA § 101(a)(13(C). 7 IIRIRA § 301(a), amending INA § 101(a)(13), 8 U.S.C. § 1101(a)(13).

Chapter 1

5

Chapter 1

Immigrant Legal Resource Center May 2019

Example: Mr. Camins is a lawful permanent resident who was convicted of a moral turpitude offense in January 1996. This was before the new definition of admission took effect on April 1, 1997. In December 2000, he went abroad for three weeks to visit a sick relative. Upon his return, the government asserted that he was making a new admission to the United States under INA § 101(a)(13), because he was permanent resident who traveled while inadmissible for crimes. The court disagreed and held that the new statutory definition did not apply, because this would attach new legal consequences to the LPR’s prior guilty pleas (an inability to travel abroad without becoming inadmissible) and thus be impermissibly retroactive if applied to such residents. The court rejected the government’s argument that IIRIRA was not impermissibly retroactive because it was enacted before Mr. Camins decided to travel abroad and held that Mr. Camins relied on the old law at the time he pleaded guilty, in 1996. Example: Susie was admitted as a permanent resident in 1989. In 2002, Susie committed one crime involving moral turpitude that would make her inadmissible. (A theft offense with a 7-month sentence.) Luckily, while she is here in the United States, as a permanent resident, Susie is subject to the grounds of deportability. She is not deportable for this one offense and is not subject to removal. Inadmissibility does not impact Susie as a permanent resident in the United States. But Susie decides to take a two-week trip in 2013 to visit her mother in Peru. Under INA § 101(a)(13), Susie has a crime that would make her inadmissible, and thus by traveling, she is now considered to be seeking an admission, and is inadmissible. She can be placed in removal proceedings as an arriving alien, and subject to grounds of inadmissibility. Example: If instead, Susie had committed the crime and pled guilty in 1995, then took a two week trip in 2013 to visit her mother, under Vartelas, she would argue that her trip was brief, casual, and innocent—it was just a short trip to visit her mother—and that she is not subject to INA § 101(a)(13) because her conviction was before April 1, 1997. This exception does not apply to LPRs who are found to be seeking admission for other reasons, such as a trip abroad of more than 180 days, or LPRs who are subject to non-crime grounds of inadmissibility. See INA § 101(a)(13)(C)(ii). This Fleuti exception only applies where the returning resident has been convicted of an offense triggering inadmissibility prior to April 1, 1997. C.

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. On the other hand, in most jurisdictions, a noncitizen who has used a fraudulent visa (e.g., a fake or borrowed border crossing card or foreign passport) has been admitted, even though the admission was not lawful. After the new definition of admission was enacted with the passage of IIRIRA, there was concern that INA § 101(a)(13)(A) would result in a finding that such an entry would not be an admission. Indeed, 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

6

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

in INA § 101(a)(13)(A). 8 The Ninth Circuit later granted the parties’ joint motion to dismiss the case, thus vacating its published decision following the BIA’s grant to reopen the case. 9 Subsequently, in Matter of Quilantan, 10 the BIA held that, at least for purposes of an adjustment under INA § 245(a), an “admission” only requires “procedural regularity.” Thus, under Matter of Quilantan, someone who enters fraudulently using another’s permanent resident card or other false document is considered admitted for purposes of adjusting status to lawful permanent resident under INA § 245(a). It is unclear in what other contexts procedural regularity might be sufficient. § 1.3

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 falls 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 an alien can be refused admission to and/or removed from the United States. A person who falls within a ground of inadmissibility is inadmissible. A person who does not fall 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 many immigration applications, including adjustment of status, registry, the old amnesty programs, Temporary Protected Status (TPS), and non-immigrant visas. A person who falls within certain grounds of inadmissibility—generally the ones that focus on crimes—is also barred from establishing “good moral character” under INA § 101(f) during the period of time that good moral character is required. Good Moral Character is a requirement for cancellation of removal for certain non-permanent residents, benefits under the Violence Against Women Act (VAWA), naturalization, registry, and some voluntary departures. Generally the grounds of inadmissibility and deportability affect people who have committed or been convicted of certain crimes, have violated immigration laws, have certain physical or mental diagnoses, 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 specific situations, can be waived (forgiven) by DHS or an immigration judge. If DHS or a judge grants the person’s application for

8

521 F.3d 1068 (9th Cir. 2008). Orozco v. Mukasey, 546 F.3d 1147 (9th Cir. 2008); http://www.legalactioncenter.org/litigation/adjustment-status-when-admission-involved-fraud-ormisrepresentation#cases. 10 Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). 9

Chapter 1

7

Chapter 1

Immigrant Legal Resource Center May 2019

a waiver, the person will not be refused admission or removed. Waivers are discussed in Chapter 6. NOTE: Guide to ever-changing citations, and the INS and DHS. 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 than cases from 1990-1997. The IIRIRA changed citations again by moving grounds of deportability from INA § 241 to § 237 and moving some of the grounds of inadmissibility. For a chart showing the old and current citations for the Grounds of Inadmissibility/Exclusion and the Grounds of Deportability, turn to Appendix B. * ADVOCACY TIP: Read the INA (the “Act”) as well as this manual. Practitioners should reference the statute regularly to determine whether a particular ground applies. You can become familiar with the grounds of inadmissibility at INA § 212(a). The grounds of deportability are at INA § 237(a). Although they are not something one would memorize, it is important to become familiar with where to find things in the statute and to consult the wording of various provisions regularly. It is important to form your own understanding about what the statute says. You might find arguments by thinking about the wording of the actual statute. Interpretation of the statute is also informed by case law and agency regulations. § 1.4 A Short History Lesson: Exclusion and Deportation Proceedings Before IIRIRA, Compared to Removal Proceedings Under IIRIRA Landmark legislation enacted on September 30, 1996 provided a new framework for U.S. immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) 11 amended the Immigration & Nationality Act (INA) to provide for a whole new structure to address entry, exclusion, deportation, and admission. (See § 1.3 for a discussion of how deportation and exclusion worked in proceedings that began before this legislation took effect.) Removal proceedings under IIRIRA began on April 1, 1997. (Court cases started before April 1, 1997 remain under the prior structure which had two types of proceedings—deportation and exclusion proceedings—instead of removal proceedings). Understanding the system that was in place before several changes created by IIRIRA went into effect is helpful in understanding preIIRIRA case law. In many instances, this case law is still the guide for establishing who is deportable and admissible. Also, because cases that began before April 1, 1997 will continue under the old system, in deportation or exclusion proceedings, it is useful to understand the prior framework. 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 refer to 11

8

Pub. L. 104-128, enacted 9/30/96; effective 4/1/97.

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

whether the person came within the grounds of exclusion or deportation, instead of grounds of inadmissibility or deportability. Within this framework, there were two types of hearings: deportation hearings, in which the Immigration and Naturalization Service (INS) had to prove the person was deportable, and exclusion hearings, in which the person had to prove that he or she was admissible. Generally, the INS had the burden of proving someone was deportable while the non-citizen had to prove they were not excludable in exclusion 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 deportation or exclusion 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 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. (Under pre-IIRIRA law, such people who were stopped by DHS inspectors were frequently paroled into the United States, but that still was not considered an entry, because they had been stopped). An admission is an entry after DHS inspection. 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, IIRIRA changed 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 current removal proceedings, people who enter without inspection have a disadvantage: since they have not been inspected, they are considered to still be seeking admission—even if they have lived in the United States for years. Under the current framework, this means that they must prove that they do not fall within a ground of inadmissibility. Example: Both 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. In 2005, ICE arrested Sam. Under the removal proceedings framework in 2005, the test is whether Sam was admitted, not whether he made an 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 fall within a ground of inadmissibility. § 1.5

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 in which they find themselves. The following is a brief synopsis of the differing burdens of proof, which are dealt with in more detail in subsequent chapters in the context of specific grounds of removability and forms of relief from removal.

Chapter 1

9

Chapter 1

Immigrant Legal Resource Center May 2019

A.

The burden of proof of alienage falls on the government

For noncitizens found within the United States without being admitted or paroled, the government bears the burden of proving alienage. 8 C.F.R. § 1240.8(c); see also Murphy v. INS. 12 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 under 8 C.F.R. § 1240.11(e). 13 Although the rules of evidence do not apply directly to removal proceedings, practitioners have succeeded in having the courts recognize constitutional rights. If the information of alienage was obtained by the government in gross violation of a person’s Fourth or Fifth Amendment rights, they can argue to suppress the evidence. See Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings; https://www.ilrc.org/motions-to-suppress. Once alienage has been established, the noncitizen must prove by clear and convincing evidence that they are lawfully in the United States pursuant to a prior admission, or are clearly and beyond a doubt entitled to be admitted to the United States and are not inadmissible as charged. 8 C.F.R. § 1240.8(c). 14 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. 15 B.

The burden of proof under the inadmissibility grounds in INA § 212(a) 1. 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. that they are “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212” or, 2. by clear and convincing evidence, that they are lawfully present in the U.S. pursuant to a prior admission. 2. 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

12

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). 13 Except for asylum and withholding of removal applications filed before USCIS (affirmative applications) on or after January 4, 1995. Defensive applications (first filed before EOIR) cannot be used to establish alienage. 14 Murphy v. INS, above; see also Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001). 15 INA § 291; see also Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).

10

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

§ 240. The government bears the burden of proof in removal proceedings where an LPR is charged with a ground of inadmissibility as an arriving alien. 16 Furthermore, in Kwong Hai Chew v. Colding, 17 and Landon v. Plasencia, 18 the U.S. Supreme Court 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 Kwong, the Supreme Court additionally held that if a returning lawful permanent resident is to be deprived of their 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. 19 No statutory scheme invented by Congress can override these constitutional protections. C.

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 C.F.R. § 1240.8(a). “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” 20 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) the existence of 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 extensively in Chapter 5. 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 is not clear whether there is a difference between “clear and convincing” and “clear, unequivocal and convincing,” and some courts have held that there are differences in specific contexts. For example, in Ward v. Holder, the Sixth Circuit held that the Woodby standard is applicable to returning lawful permanent residents, and the clear, unequivocal and convincing standard is a higher standard than clear and convicting. 733 F.3d 601 (6th Cir. 2013). In Matter of Patel, the BIA stated that the clear and convincing standard “imposes a lower burden than the clear, unequivocal, and convincing standard applied in deportation and denaturalization proceedings.” 19 I&N Dec. 774, 783 (BIA 1988). However, because the Woodby decision is constitutionally based and is law of the Supreme Court, it should be the required standard of proof. In any event, there are some interesting examples of how the standard of proof for deportability has been applied in practice. For example, in Matter of Pichardo,21 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. 16

Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). See also Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 17 Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 18 Landon v. Plasencia, 459 U.S. 21 (1982). 19 Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 20 Kwong Hai Chew, supra; INA § 240(c)(3)(A). 21 21 I&N Dec. 330 (BIA 1996).

Chapter 1

11

Chapter 1

Immigrant Legal Resource Center May 2019

In Matter of Vivas, 22 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 allegedly belonging to the respondent’s spouse was actually that of the witness, and that she had never met the respondent. Under these circumstances, the BIA affirmed the immigration court’s decision finding the respondent deportable. Similarly, in Matter of Guevara, 23 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. Matter of Guevara also held, however, that the government cannot meet its burden of proof solely based on the respondent’s assertion of their 5th Amendment right to remain silent. In other words, where a noncitizen is subject to the deportability grounds, the government must submit 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 them. 24 Circuit court cases. There is a conflict among the Circuit Courts 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. Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004). The Eleventh Circuit’s decision contrasts with the BIA’s decision in Matter of Pichardo, discussed above. The Second Circuit, in Francis v. Gonzales 25 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 conclude that the proof did not rise to the level of clear and convincing evidence.” 26 Practitioners 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. D.

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 for a permanent resident, the next step in the removal hearing process is to determine if your client may be eligible for some form of relief from removal, and if so, to apply for that relief.

22

16 I&N Dec. 68 (BIA 1977). 20 I&N Dec. 238 (BIA 1991). 24 Matter of Guevara; see also Matter of Carrillo, 17 I&N Dec. 30 (BIA 1979). 25 Francis v. Gonzales, 442 F.3d 131, 138-39 (2nd Cir. 2006). 26 Id. 23

12

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

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. 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--(i) satisfies the applicable eligibility requirements; and (ii) 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 determines that the applicant should provide evidence that corroborates otherwise credible testimony, that evidence must be provided unless the applicant shows they do not have it and cannot reasonably obtain it. INA § 240(c)(4)(B). Furthermore, 8 C.F.R. § 1240.8(d) states that a noncitizen: … shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. 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 applications for relief from removal has been the subject of some controversy, and case law is still developing on this issue. Particularly, in cases where a vague record of conviction is an issue in the case, courts on conflicted on whether an applicant for a benefit can meet their burden of proof. For a complete discussion of criminal grounds of inadmissibility and deportability, see Chapter 5. For applicants for relief that are convicted of crimes, courts differ on whether an applicant has succeeded in meeting their burden of proof where the record of conviction is vague. This becomes an issue for those that have been convicted of a “divisible” statute, but the record relating to that conviction does not specify which piece of the divisible statute they violated. One example of divisible statutes are California drug statutes. They are divisible between the different substances—some of which are substances that also are on federal drug schedules (e.g., like ecstasy or methamphetamine), which would be a controlled substance conviction for immigration purposes, and some of which only appear on California drug schedules (e.g., chorionic gonadotropin), which would not trigger a ground of removal under our federal immigration law. If a person’s record of conviction says “ecstasy,” it is a controlled substance conviction for immigration purposes. But what if the record is vague and just says “a controlled substance”? Everyone agrees that if it is vague and ICE has the burden to prove the person deportable, the person wins because ICE can’t prove that “a controlled substance” refers to methamphetamine and not a drug that is not on the federal controlled substances schedule, like chorionic

Chapter 1

13

Chapter 1

Immigrant Legal Resource Center May 2019

gonadotropin. What happens in such cases where the person is trying to meet their burden to show eligibility for relief? Until July 2019, the Ninth Circuit operated under the holding in Young v. Holder. 27 The Young rule said that a vague record of conviction is not enough to establish eligibility for relief where the conviction raises a potential bar: Respondents bear the burden of proving that a conviction does not trigger deportability or inadmissibility which would disqualify the noncitizen from eligibility for relief from removal. 28 The Ninth Circuit held that this burden included a requirement that the respondent produce all “reviewable” conviction records, and that if the reviewable record is inconclusive, the respondent has not met her burden. 29 On July 18, 2019, the Ninth Circuit overruled its prior decision in Young v. Holder. Marinelarena v. Barr holds that a vague record is sufficient for a person applying for relief to show that they have met their burden of proof. 30 Example: Undocumented Marge whose record shows only that she was convicted of possession of “a controlled substance” in California still is eligible to adjust status or apply for non-LPR cancellation. Deportable LPR Lucy who was convicted of possession for sale of “a controlled substance” in California still can apply for LPR cancellation. In both cases, the generic term “controlled substance” includes both substances on the federal schedules and some that are not. As such, the conviction does not bar Lucy or Marge from applying for relief under Marinelarena because their convictions are not decisively convictions for a federally controlled substance. This reasoning is supported by two important U.S. Supreme Court cases, Young: Moncrieffe v. Holder, 569 U.S. 184 (2013) and Descamps v. Holder, 570 U.S.___, 133 S.Ct. 2276 (2013). The Supreme Court stated that whether a conviction has immigration consequences is clearly a legal question, and therefore no “burden of proof” exists for this issue. 31 If the government fails to establish that a conviction results in deportability or inadmissibility, for example for an aggravated felony or a crime involving moral turpitude, then that conviction cannot subsequently be used as a basis for one of the bars to relief from removal on the same grounds. Other Circuit Courts have held that Moncrieffe is controlling on the issue of burden of proof, finding that under Moncrieffe, an inconclusive record of conviction does not establish a conviction of a disqualifying offense and thus does not bar a noncitizen from establishing eligibility for relief from removal. 32 Thus, practitioners should continue to utilize Moncrieffe when arguing issues of

27

Young v. Holder, 697 F.3d 976 (9th Cir. 2012); see also Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). 28 Young v. Holder, 697 F.3d 976 (9th Cir. 2012); see also Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). 29 Young v. Holder, 697 F.3d 976, 989-990 (9th Cir. 2012). 30 Marinelarena v. Barr, --F.3d …, (9th Cir., July 18, 2019), 2019 WL 3227458. 31 Moncrieffe v. Holder, 569 U.S. 184 (2013). 32 See Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016); Martinez v. Mukasey, 551 F.3d 113 (2nd Cir. 2008); Syblis v. Att’y Gen., 763 F.3d 348 (3rd Cir. 2014). But see Mondragon v. Holder, 706 F.3d 535 (4th Cir. 2013); Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014); Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009).

14

Chapter 1

Chapter 1

Inadmissibility & Deportability May 2019

burden of proof for determining eligibility for relief from removal in circuits that do not have rulings in line Moncrieffe.

Chapter 1

15

Chapter 1

Immigrant Legal Resource Center May 2019

16

Chapter 1

Tab Position 1

Inadmissibility & Deportability May 2019

CHAPTER 2 THE GROUNDS OF INADMISSIBILITY HEALTH, ALIEN SMUGGLING, VISA AND DOCUMENT FRAUD AND OTHER GROUNDS This chapter includes: § 2.1

Chapter 2

§ 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8

Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction, and Abuse.......................... 18 Alien Smuggling: Grounds of Inadmissibility and Deportability ........................ 23 Fraud and Misrepresentation ................................................................................ 28 False Claim to U.S. Citizenship ........................................................................... 32 Inadequate Documentation and Document Fraud ................................................ 39 Likely to Become a Public Charge ....................................................................... 42 Security-Related Grounds of Inadmissibility ....................................................... 58 Other Grounds: Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors, Pornographers .................................................................................... 71

This chapter is the first of two chapters addressing the grounds of inadmissibility. As you read the sections, it is helpful to find the grounds in your copy of the Immigration and Nationality Act (INA), listed within INA § 212(a). While these chapters cover the most common issues more thoroughly, other complex areas, such as the terrorism bars will be discussed more generally. Additionally, crimes are very common grounds for inadmissibility and deportability and are discussed in their own chapter. See Chapter 5 for a complete discussion of the criminal grounds of inadmissibility. The ILRC website also regularly posts practice advisories with updates on criminal inadmissibility at https://www.ilrc.org/crimes, but it is always important for advocates to check for updates or consult an expert when tackling new areas. PRACTICE TIP: U.S. Citizenship and Immigration Services (USCIS) has undertaken a comprehensive review of their adjudication and customer service policies. The result of this review will be the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’s policies. 1 The USCIS Policy Manual will ultimately completely replace the Adjudicator’s Field Manual (AFM) and the USCIS Immigration Policy Memoranda. Although the USCIS Policy Manual supersedes many but not all previous policy memoranda and the AFM, the USCIS Policy Manual is not complete in many subjects. The ILRC urges advocates to check the USCIS website and Policy Manual regularly for updates, and advocates should utilize previous USCIS policy statements where the current USCIS Policy Manual is silent or incomplete.

1

See USCIS, Policy Manual, https://www.uscis.gov/policymanual/HTML/PolicyManual.html# (last accessed 4/12/2019).

Chapter 2

17

§ 2.1 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction, and Abuse

Chapter 2

There are four grounds of inadmissibility related to health. See INA § 212(a)(1)(A). To decide whether a person applying for an immigrant visa is inadmissible based on a health-related ground, DHS requires the person to undergo a medical exam. The applicant cannot go to any doctor they choose; they must be seen by a government-approved doctor from an official list. If the person is applying for adjustment of status, they must see a “civil surgeon” approved by DHS. If the person is consular processing, the medical exam doctor, or “panel physician,” must be approved and on the current list provided by the United States consulate. When the test results are ready, the doctor will give the person a sealed envelope containing the results to take with them to the DHS or consular appointment. The doctor may also have the exam delivered directly to the consulate. Because the person must keep the envelope sealed, they should also request a “patient copy” from the doctor before the envelope is sealed. 2 PRACTICE TIP: It is important to thoroughly prepare and screen clients on medical issues before they depart the United States to consular process. The advocate should explain the medical exam process and emphasize that issues may arise that negatively impact a client’s eligibility to immigrate. All clients must be thoroughly screened for physical or medical conditions that might impact a public charge finding, 3 as well as issues related to domestic violence and substance abuse, including alcohol and drugs, prior to departure. Finally, a medical exam will document any tattoos on your client, so it is important to screen your client for issues related to tattoos or any possible risk of perceived gang affiliation. A.

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

People who have certain communicable diseases are inadmissible. However, 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 Chapter 6 of this manual for more information about waivers. Generally, the Department of Health and Human Services (HHS) decides which diseases or conditions make a person inadmissible. Previously, the only condition specifically listed in the INA itself was “infection with the etiologic agent for acquired immune deficiency syndrome,” meaning anyone who was HIV-positive. However, in July 2008, President Bush signed the reauthorization of the President’s Emergency Plan for AIDS Relief (PEPFAR), which removed HIV as a communicable disease from the grounds of inadmissibility. 4 As a result, immigrants 2

Reviewing the “patient copy” in advance provides the applicant with critical information regarding potential grounds of inadmissibility that the doctor has ascertained. It can also allow time for errors on the form completed by the physician to be corrected in advance. Finally, a review provides the patient with information from laboratory tests and positive diagnoses for which the patient may otherwise be unaware. 3 See 9 FAM 302.2-3(G)(b). 4 Despite its elimination from the statute, those who were HIV+ continued to remain inadmissible for almost a year and a half because it had not been removed as a condition in the regulation promulgated by HHS. See 42 CFR § 34.2(b). 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 medical screening process for immigrants.

18

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

seeking admission are no longer inadmissible based solely on the ground that they are HIVpositive and will not be required to undergo HIV testing as part of the required medical examination.

Chapter 2

Other diseases that are designated communicable diseases are listed in the HHS regulations at 42 CFR § 34.2(b). Active tuberculosis and sexually transmitted diseases, such as gonorrhea and syphilis, are among those listed presently in the regulation as bases for inadmissibility. 5 A person testing positive for these illnesses can have the disease treated and cured and then qualify for admission, usually by proof of completion of a treatment regimen. 6 If an illness such as tuberculosis cannot be quickly cured, the person can apply for a waiver, but only in “exceptional medical situations.” 7 In October 2008, HHS further amended 42 CFR § 34.2(b) by adding two new categories of diseases that may trigger inadmissibility: (1) quarantinable diseases designated by executive order, and (2) diseases that qualify as a “public health emergency of international concern,” which require notification to the World Health Organization (WHO) consistent with the International Health Regulations (IHR) of 2005. 8 These new categories only apply to examinations performed for consular processing by “panel physicians” and will only take effect when HHS directly notifies panel physicians in the affected areas. 9 The focus of these provisions thus far has been to screen for severe acute respiratory syndromes. B.

Failure to prove vaccinations: INA § 212(a)(1)(A)(ii)

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) created a ground of inadmissibility where an applicant fails 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). 10 The ACIP has the power to recommend additional vaccinations. Effective December 14, 2009, the CDC adopted the following criteria to determine which ACIP-recommended vaccines applicants must receive when seeking admission: 1. the vaccine must be an age-appropriate vaccine as recommended by the ACIP for the general U.S. population; and

5

See 42 CFR § 34.2(b)(3)-(6). See, e.g., 9 FAM 302.2-5(B)(3) (explaining that an applicant is not inadmissible for TB where “the applicant was diagnosed with pulmonary TB and successfully completed directly observed therapy”). 7 9 FAM 302.2-5(D)(1). 8 See Centers for Disease Control and Prevention, CDC Immigration Requirements: Addendum to Technical Instructions for Medical Examination of Aliens, Updated Screening for Communicable Disease of Public Health Significance (August 6, 2014), http://www.cdc.gov/immigrantrefugeehealth/pdf/addendum-ti-panel.pdf. 9 See 85 Interpreter Releases 2714 (Oct. 13, 2008) and 85 Interpreter Releases 2830 (Oct. 27, 2008) for more information. 10 INA § 212(a)(1)(A)(ii). 6

Chapter 2

19

2. the vaccine must protect against at least one of the following: a. a disease that has the potential to cause an outbreak; or b. a disease that has been eliminated in the United States or is in the process of elimination in the United States. 11

Chapter 2

The current vaccine tables for children and adults based on the ACIP recommendations for the U.S. population can be found at http://www.cdc.gov/vaccines/schedules/index.html. For further information, see Technical Instructions for Panel Physicians and Civil Surgeons, http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. For a USCIS fact sheet on Vaccination Requirements, see Appendix K. In addition, the U.S. Department of State Foreign Affairs Manual (FAM) lists vaccination requirements, which should mirror those of USCIS. 12 The civil surgeon or panel physician will indicate successful completion of these requirements by using the required vaccination form that accompanies the medical examination record, Form I693. If an applicant does not have the requisite proof of previous vaccinations, this may be overcome if they receive the vaccinations, the civil surgeon or panel physician certifies that the vaccination would not be medically appropriate, or the vaccination would be contrary to the applicant’s religious or moral beliefs. 13 This provision applies to visa and adjustment applications filed after September 30, 1996. C.

Mental or physical disorder: INA § 212(a)(1)(A)(iii)

An applicant is also inadmissible if they 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.14 A history of both domestic violence and alcoholism can lead to inadmissibility under this ground. Arrests or convictions for domestic violence and driving under the influence can serve as evidence of a disorder. Likewise, this ground might affect people who have been committed to a mental institution for violent behavior; who have been diagnosed as a sex offender; or even who are suicidal. The CDC has released instructions on qualifying disorders and behaviors and advocates should consult these if they believe a client may fall within this category due to problems with domestic violence, alcohol, controlled substances, or mental health issues. 15 This ground may be overcome through the filing of a waiver. 16 The waiver requires substantial documentation, and the government may also require a bond. It is important to note that the CDC’s Technical Instructions for Panel Physicians and Civil Surgeons lists alcoholism as a threatening mental or physical disorder that can serve as a basis for 11

For more information, see Centers for Disease Control and Prevention, Current Vaccine Criteria for U.S. Immigration (Nov. 2009), http://www.cdc.gov/immigrantrefugeehealth/pdf/revised-fact-sheet-fed-regnotice-vaccination-immigration.pdf. See also Appendix K. 12 9 FAM 302.2-6(B). 13 INA § 212(g)(2). 14 INA § 212(a)(1)(A)(iii). 15 See Centers for Disease Control and Prevention, Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-related Disorders for Panel Physicians, https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-panel-technical-instructions.html (last updated Nov. 1, 2017). 16 See INA § 212(g), 8 CFR 212.7(b).

20

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

inadmissibility. 17 This has increasingly become an issue for those undergoing medical evaluation through panel physicians to consular process, because convictions for driving under the influence can serve as an indicator of alcoholism. However, the instructions also state that alcohol dependence or abuse must be considered the same as any other mental disorder and requires the physician to find associated harmful behavior to classify alcoholism as a medically inadmissible condition. Additionally, the individual’s indicators of alcoholism must be classified and must meet the guidelines of a disorder, so the person should be formally diagnosed under the DSM-V 18 before the physician can proceed to a determination that the condition poses a threat such that the person is inadmissible.

Chapter 2

PRACTICE TIP: As with other physical and mental health conditions, a person may avoid inadmissibility for alcoholism if they are in remission. It may be helpful to provide a civil surgeon or panel physician with an independent evaluation by a medical expert explaining how the client is in remission. See Subsection E below for policies related to conditions in remission. On January 28, 2014, USCIS updated its policy guidelines to require a medical re-examination for alcoholism if the applicant fails to disclose to the civil surgeon during the initial medical examination that they have a single alcohol-related driving arrest or conviction within the last five years, or two or more alcohol-related driving arrests or convictions within the last ten years, among other alcohol-related grounds. 19 This shows that the government is taking alcohol-related 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 of: (1) 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. 20 Note that under INA § 212(a)(10)(B), an “accompanying person” may be inadmissible. 21 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 them is also inadmissible if needed for the protection or guardianship of the helpless person. Historical Note: Until 1990, people whom officials perceived as gay were defined as “sexual deviants” and were inadmissible. This ground was eliminated, and “homosexuality” is no longer a bar to admission. 17

See Centers for Disease Control and Prevention, Technical Instructions for Panel Physicians and Civil Surgeons, http://www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html (last updated Oct. 31, 2017). See also 8 USCIS-PM B.7, available at http://www.uscis.gov/policymanual/HTML/PolicyManualVolume8-PartB-Chapter7.html, which sets out the current guidelines for physical and mental health disorders. These new instructions rely on World Health Organization’s classifications as well as the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 18 The Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, provides a common language and standard criteria for the classification of mental disorders. DSM-V was published May 18, 2013 and is the current version as of this writing. 19 8 USCIS-PM B.7; 9 FAM 302.2-7(B)(3)(b). 20 9 FAM 302.2-7(B)(3)(a). 21 9 FAM 302.12-3(A)-(B).

Chapter 2

21

D.

Drug addicts and drug abusers: INA § 212(a)(1)(A)(iv)

Chapter 2

Individuals who are deemed to be drug addicts and drug abusers are inadmissible. Because the statute applies to a person who is determined “to be” an abuser/addict, this ground of inadmissibility encompasses current, not past, abuse or addiction. 22 It is nevertheless important to note that current drug abuse or addiction will include any use in the past year. The Code of Federal Regulations defines “drug abuse” and “drug addiction” in relation to definitions in the DSM for “current substance use disorder or substance-induced disorder” when related to use of a substance listed in § 202 of the Controlled Substances Act, as amended (21 U.S.C. § 802). 23 In 2010, the CDC, which is part of HHS, changed the instructions for civil surgeon’s to determine whether an applicant is a drug abuser or addict, by releasing the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders for Panel Physicians.” 24 This document indicates that a finding of substance-induced disorder (drug addiction) or repetitively abusing substances (drug abuse), will only be made if the noncitizen uses a controlled substance “AND [m]eets DSM criteria for a substance use disorder.” 25 The current CDC standards are a vast improvement over prior versions, which classified as drug abuse any drug use that went beyond mere experimentation. The 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 referenced above, rather than on speculation or opinion of the adjudicator. E.

Remission of a mental or physical disorder or drug abuse

An applicant for admission may avoid inadmissibility based on either a mental or physical disorder or drug abuse if they are in remission. 26 The standard for full “remission” for “drug abusers” under the DSM is a 12-month period of no substance use or associated harmful behavior. 27 This was modified on June 1, 2010, from a prior three-year required remission period. In practice, the panel physician will often make a finding of “drug abuse” after referring the applicant to a “specialist” (usually a psychiatrist), even if the applicant admits to only abusing drugs on one or two occasions. The panel physician still retains discretion to determine a longer period of remission than one year and may suggest or require that the applicant undergo random drug testing, take drug abuse classes, or other steps, 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. 22

A person who has been an addict or abuser at any time since admission into the United States is deportable, however. See Chapter 4. 23 42 CFR §§ 34.2(g), (h) (2010). 24 See Centers for Disease Control and Prevention, Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-related Disorders for Panel Physicians, https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-panel-technical-instructions.html (last updated Aug. 25, 2017). 25 Id. 26 Id. (“Applicants diagnosed with substance abuse or addiction who are subsequently found to be in remission and reclassified as Class B do not need to apply for a waiver.”) 27 Id.

22

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Example: Rebeca admitted to the panel physician that she smoked marijuana two or three times, most recently nine months ago. She will be denied as a “drug abuser” but can reapply in three months when she will have been in “remission” for 12 months. She should arrange for random drug testing and take classes in her country while she waits for the expiration of the remission period. She should have the test results sent directly from the testing facility to the panel physician. There is no waiver available for this ground of inadmissibility. Thus, establishing remission is the only option is to establish that the applicant is no longer inadmissible.

Chapter 2

PRACTICE TIP: Persons whose blood tests reveal traces of marijuana or other drugs (which may remain in the blood for many months) may be found inadmissible. Warn your clients before they go to see a civil surgeon or to a visa appointment, especially in areas where marijuana use has been legalized on the local or state level! Additionally, advocates should always speak with younger applicants separately from their parents. Applicants who have grown up in the United States and will be returning to their home country for consular processing, must be thoroughly screened for this issue, preferably far in advance, such as at the time the visa petition is filed. They should be rescreened and prepared for the medical exam prior to departure for consular processing. Should this issue arise with derivative applicants, a derivative child may end up separated from parents until they can show remission. § 2.2

Alien Smuggling: Grounds of Inadmissibility and Deportability

Noncitizens who in almost any way and at any time help bring other noncitizens into the United States without authorization are inadmissible.28 These grounds of inadmissibility and deportability include anyone who “knowingly has encouraged, induced, assisted, abetted or aided” any other noncitizen to enter or try to enter the United States. 29 Unlike the deportation ground (discussed in Chapter 4), 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 is triggered when the act is committed at any time. A person who is inadmissible for alien smuggling also is ineligible to establish good moral character under INA § 101(f) during the relevant statutory period of time, which is a requirement for naturalization, cancellation of removal for non-permanent residents, registry, and post-conclusion voluntary departure. 30 See Chapter 5. Before 1990, only people who assisted noncitizens with entering unlawfully in exchange for money were inadmissible. The post-1990 law harshly imposes inadmissibility on all applicants, including people who have sympathetic reasons for helping family members enter the United States. Advocates must inform clients of the consequences of telling DHS that they helped family members or others to come in without authorization. If the person is not eligible for a waiver, the advocate may need expert advice to fight the case, as well as community support to persuade DHS not to place the person in removal proceedings.

28

See INA § 212(a)(6)(E). Id. 30 INA § 240B(b)(1)(B). 29

Chapter 2

23

Chapter 2

NOTE: Alien Smuggling is also a ground of deportability. 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 likely an aggravated felony, unless it was a first offense for smuggling only a parent, spouse, or child. See INA § 101(a)(43)(N) and Chapter 4. This issue has been arising frequently both in immigrant visa, adjustment, and naturalization interviews, particularly where it is clear that the applicant has children physically present in the United States who entered the United States without inspection or otherwise unlawfully. A.

Definition of alien smuggling

The statute explains that inadmissibility is triggered for “Any [person] who at any time knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter the United States, or to try to enter. 31 These provisions are worded very broadly and include sending money to pay for someone’s travel as part their unauthorized entry into the United States, as well as merely encouraging someone to enter the United States without authorization. 32 The person must know they are helping someone enter without authorization. If they were not aware that the person did not have lawful status or permission to enter the United States, they are not inadmissible under this ground. It is important to note that bringing one’s own family members is alien smuggling if the situation otherwise meets the definition for alien smuggling. Example: Maria went to Mexico and physically helped her younger brother cross the border without inspection. She is inadmissible for alien smuggling. Example: Sandra arranged for her elderly mother to enter the United States without inspection in 1987. Sandra contacted a coyote to bring her mother and helped pay for the expenses, although Sandra was not present when her mother entered the country. If Sandra were to apply for admission today, she would be inadmissible for alien smuggling. B.

Affirmative and knowing conduct

Several courts have interpreted the definition found at INA § 212(a)(6)(E). In Altamirano v. Gonzales,33 the Ninth Circuit found that a petitioner did not commit alien smuggling where she was a passenger in a vehicle and knew that someone was hiding in the trunk. The court held that: 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). 34 31

INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i) (emphasis added). Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (“An individual may knowingly encourage, induce, assist, abet, or aid with illegal entry, even if he did not personally hire the smuggler and even if he is not present at the point of illegal entry.”). 33 427 F.3d 586 (9th Cir. 2005). 34 Id. at 592. 32

24

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

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. 35 The Sixth Circuit similarly held that a lawful permanent resident (LPR) did not commit alien smuggling where he believed his undocumented friend could travel back and forth across the border because he was in the process of applying for a green card. 36 In contrast, the Second Circuit upheld a finding of alien smuggling where the petitioner “personally arranged to provide transportation for [a person previously deported] into the United States and purposefully deceived customs officials at the time of his attempted entry.” 37

C.

Chapter 2

These cases support 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 provide transport to undocumented noncitizens 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 Second, Sixth, and Ninth Circuits. 38 Prearranged plans, sending money, and transportation

An applicant may be inadmissible under § 212(a)(6)(E) for participating in the planning of bringing a person into the United States, including contributing financially and helping to carry out the entry into the country. The Fourth Circuit held that sending financial assistance constituted alien smuggling where a parent knew that the funds would be used for his children to cross the border unlawfully on multiple occasions. 39 Additionally, the Ninth Circuit found that a petitioner committed smuggling when he 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 after they were within the United States in order to drive them from Arizona to Washington. 40 IMPORTANT NOTE: The definition of smuggling within the aggravated felony definitions under INA §§ 101(a)(43)(N) and 274(a) is different from the definition of smuggling in the inadmissibility and deportability grounds in INA §§ 212(a)(6)(E) and 237(a)(1)(E). The important distinction is that the aggravated felony definition requires a conviction. Additionally, the inadmissibility and deportability grounds under §§ 212(a)(6)(E) and 237(a)(1)(E) only apply to people who have knowingly assisted, abetted, etc. the entry of an unauthorized person, while the

35

Aguilar Gonzales v. Mukasey, 534 F.3d 1204 (9th Cir. 2008) (petitioner agreed, after financial threats, to accompany father and lend him her son’s U.S. birth certificate to smuggle two infants into the United States). 36 Tapucu v. Gonzales, 399 F.3d 736, 739 (6th Cir. 2005). 37 Chambers v. Office of Chief Counsel, 494 F.3d 274, 279 (2nd Cir. 2007). 38 See Altamirano, 427 F.3d at 592; Tapucu, 399 F.3d at 741-43; Chambers, 494 F.3d at 279. 39 Ramos v. Holder, 660 F.3d 200 (4th Cir. 2011). 40 Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005).

Chapter 2

25

aggravated felony smuggling ground includes convictions for transporting undocumented immigrants. 41

Chapter 2

Smuggling may also include affirmative assistance provided after the person entered the country without authorization, even though the assistor had no intention of helping the person enter in the first place. The Ninth Circuit held that an applicant commits smuggling by agreeing to pay a smuggler after the person is already in the United States, but before the smuggler releases or ceases to transport the person. 42 In that case, the petitioner knew that his brother planned on crossing the border without authorization, but did not agree to help him until he had already crossed the border. However, critical to the Ninth Circuit’s decision, he agreed to assist before the smuggler released and ceased to transport his brother. 43 On the other hand, a conviction for a federal crime of “bringing in and harboring aliens” or for transporting others does not necessarily result in inadmissibility for alien smuggling, especially if the person’s conduct and the facts do not indicate involvement or knowledge of the immediately prior illegal entry. 44 The Third Circuit held that an LPR was not inadmissible as an “alien smuggler” where he pled guilty to a “bringing and harboring” charge, pursuant to 8 U.S.C. § 1324(a)(B)(ii) and 18 U.S.C. § 2, after being paid by an “employer” to pick up people in upstate New York and transport them elsewhere.45 The Ninth and Fifth Circuits have also held that mere harboring or transporting of others alone is not enough to constitute alien smuggling. 46 Finally, the BIA has also found that transporting undocumented persons within the United States does not necessarily trigger inadmissibility for alien smuggling. 47 Thus, it is important never to assume that a conviction for “alien smuggling” will automatically trigger inadmissibility for alien smuggling.

41

See INA § 101(a)(43)(N) (referencing INA § 274(a)). INA § 274(a) includes “transporting.” See also Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999), affirmed by Ruiz-Romero v. Reno, 205 F.3d 837, 840 (5th Cir. 2000); U.S. v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002). 42 Urzua Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007); see also United States v. Lopez, 484 F.3d 1186, 1187–88 (9th Cir. 2007) (“We hold that although all of the elements of the ‘bringing to’ offense [under 8 U.S.C. § 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.”). 43 Id.; see also Dimova v. Holder, 783 F.3d 30, 39-41 (1st Cir. 2015) (petitioner assisted in friends’ attempted entry because an “entry” had not yet been completed by the friends at the point she picked them up at the border and facilitated their travel). 44 Parra-Rojas v. Attorney General, 747 F.3d 164, 172 (3rd Cir. 2014). 45 Id. at 170. 46 See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (reversing 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) (noting that the noncitizen’s conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting). 47 Matter of M-, 7 I. & N. Dec. 389 (BIA 1957) (transporting undocumented persons within the United States does not necessarily create inadmissibility).

26

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

WARNING! Before you concede that a client is inadmissible or deportable, make sure that they knew that the person(s) they were helping or encouraging did not have authorization to enter the U.S. If the client did not commit the violation knowingly, then their actions do not trigger this ground. Also make sure that the acts do not involve merely harboring or transporting others within the United States nor merely being present or acquiescing to the unlawful entry of others, as the person may not have engaged in alien smuggling. D.

Exemption and waiver

Chapter 2

In some cases, a waiver, or possibly an exemption, may be available for alien smuggling. While only certain types of people will qualify for a waiver or an exemption of this ground, one requirement is the same: the person must have smuggled only their parent, spouse, son, or daughter. Example: In the example above, Maria smuggled her brother. Because she smuggled a person other than a parent, spouse, son, or daughter, she will not be eligible for either the special waiver or exemption for alien smuggling. We will discuss waivers in detail in Chapter 6. NOTE: There is a difference between a waiver and an exemption—an exemption applies automatically and does not require an application. There is no discretionary element to an automatic exemption; if the conditions are met, it applies automatically. Conversely, a waiver requires an application and a favorable discretionary decision by an adjudicating officer. There is one exemption to this ground for those who could benefit from “family unity.” A person is automatically exempted from the alien smuggling ground of inadmissibility if they are eligible for “Family Unity” as originally enacted in 1990. In particular, the person must: •

• • •

Be an “eligible immigrant” for Family Unity—which includes the spouse, or child of a legalized alien, as of one of two applicable dates in 1988, 48 at which time the applicant must have also entered and since resided in the United States. A “child” must have been unmarried and less than 21 years of age on the applicable date in 1988. Have been physically present in the United States on May 5, 1988; Be immigrating as a second preference beneficiary, immediate relative, or someone who is applying for Family Unity; and Have smuggled only a spouse, parent, son, or daughter, before May 5, 1988.

Those that fit these criteria are automatically exempt from the ground of inadmissibility under INA § 212(a)(6)(E)(ii). They do not need to file for a waiver. However, as you can see, this exemption only serves a limited group of people. If the person helped a family member enter without authorization after May 5, 1988, you can rule out eligibility for this exception, and instead look to the waiver provision found at INA § 212(d)(11). See Chapter 6 for more information.

48

These two applicable dates are May 5, 1988 (INA § 245A), and December 1, 1988 (INA § 210).

Chapter 2

27

§ 2.3

Fraud and Misrepresentation

Section 212(a)(6)(C)(i) of the INA states that: Any 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.

Chapter 2

This 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 or the Department of State 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. 49 Also note that the misrepresentation must be to a U.S. government official; misrepresentations made to airline officials, for example, do not fall within this ground of inadmissibility. 50 If the lie was not material (important to deciding the case), the person is not inadmissible. Example: 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 and therefore was not a material misrepresentation. The second lie was material. If the officer had known Estella and her husband were divorced, he would not have granted the visa because it was based on the marriage. Estella committed a material misrepresentation. USCIS policies instruct officers to follow a “test” for materiality provided by the U.S. Supreme Court in Kungys v. United States. 51 This test provides that a false statement is material if it is “capable of affecting the decisions of the decision-making body.” 52 The policies further instruct officers to determine whether the misrepresentation had a natural tendency to influence the officer’s decision by considering whether: 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

49 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 governmental decision.”). 50 See Matter of D-L- & A-M-, 20 I. & N. Dec. 409 (BIA 1991). 51 485 U.S. 759 (1988). 52 8 USCIS-PM J.3(E)(2).

28

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

inquiry, which is relevant to the applicant’s eligibility and which might have resulted in a proper determination that he or she is inadmissible.” 53 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.” 54 This means that a misrepresentation cannot be based on “innocent mistake, negligence or inadvertence,” 55 and that the person must know that the statement was false at the time she made it. 56

Chapter 2

Individuals who are mentally incompetent, and small children incapable of forming an intent to deceive will not be inadmissible under this section, in the event that applications made on their behalf contain misrepresentations. 57 Special immigrant juvenile exemption. Applicants for adjustment of status under INA § 245(h) (special immigrant juvenile status) will also be exempt from inadmissibility under INA § 212(a)(6)(C)(i). C.

Silence or omission

In determining whether a misrepresentation has been made, it is also 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).” 58 Example: Maria adjusted her status to become a lawful permanent resident through her U.S. citizen husband. When she last came to the United States, she used a visitor visa that she had obtained earlier, before she decided to marry her husband. She used the visitor visa to enter the United States most recently, although she was already engaged to her husband and was planning to remain in the United States and become a permanent 53

Id. See also Matter of S- and B-C-, 9 I. & N. Dec. 436 (BIA 1961). Note that there is no longer a “per se” rule that using a false identity is always “material.” Matter of Ng, 17 I. & N. Dec. 536 (BIA 1980). 54 Matter of D-R-, 25 I. & N. Dec. 445, 451 n.3 (BIA 2011). 55 Emokah v. Mukasey, 523 F.3d 110, 117 (2nd Cir. 2008); Xing Yang v. Holder, 770 F.3d 294 (4th Cir. 2014) (clear and convincing evidence of a willful misrepresentation is required, and an adverse credibility finding may not be conflated with a finding of inadmissibility pursuant to INA § 212(a)(6)(C)(i)); but see Matter of Valdez, 27 I. & N. Dec. 496, 502 (BIA 2018) (respondents’ signatures on adjustment applications established a strong presumption that they knew the contents of the applications were false and “assented to them”). 56 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). But see Matter of Valdez, 27 I. & N. Dec. 496, 502 (BIA 2018) (respondents’ signatures on adjustment applications established a strong presumption that they knew the contents of the applications were false and “assented to them”). 57 USCIS, Memorandum: Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, Revisions to the Adjudicator’s Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD07-18), Appendix I. 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. 58 9 FAM 302.9-4(B)(3)(b).

Chapter 2

29

resident. However, upon her arrival to the U.S. port of entry, the CBP officer did not ask her how long she was going to stay or whether she had any relatives in the United States. He just looked at her passport and visa and granted her admission. Maria has not committed fraud or misrepresentation, because she never told a lie to a consular or immigration officer. Maria’s case is a good example of “pre-conceived intent.” While pre-conceived intent to act in a manner inconsistent with one’s status at entry is an adverse factor, the BIA has held that this factor by itself it is outweighed by the equity of an immediate relative relationship. 59

Chapter 2

On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance relating to the term “misrepresentation” as it relates to people in the United States “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission of for an immigration benefit.” 60 The new guidance replaces the “30/60day rule” with a “90-day rule” as the standard for consular officers in evaluating inadmissibility for visa fraud. This new standard subjects a person to a presumption of having made a willful material misrepresentation at the time of admission or application for a nonimmigrant visa, when the person enters the United States and, within 90 days, acts in a way that is inconsistent with their nonimmigrant status. The FAM enumerates the following examples of inconsistent conduct: • • • •

working without authorization; enrolling in school when academic study is not authorized by one’s nonimmigrant status; marrying a U.S. citizen or permanent resident and taking up residence in the United States when one is in B or F status; or undertaking any other activity for which a change of status or adjustment of status would be required, without the benefit of such a change of adjustment. 61

This update revises the prior “30/60” day policy generally followed by both DOS and DHS, where a person must overcome a presumption of fraud that applies where the person acts inconsistently with the terms of their visa within 30 days of entry. However, if the action took place more than 30 days but less than 60 after entry, there was no presumption of misrepresentation, but an officer could request the applicant to provide proof that no misrepresentation was, in fact, made. An inconsistent action occurring after 60 days generally provided no basis for a finding of inadmissibility due to misrepresentation. Presently, the USCIS Policy Manual update of May 15, 2018, acknowledges the “90-day” change made by DOS is actually only an analytic tool for consular officers, not a binding principal or decision, and is not binding on USCIS. 62 Despite the helpful USCIS language, an applicant for adjustment of status has the burden of establishing admissibility. Therefore, if an application will be filed less than 90 days from an 59 See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981). 60 9 FAM 302.9-4(B)(3). 61 Id. 62 USCIS Policy Manual, Vol. 8, Part J, Chapter 3.

30

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

entry with a nonimmigrant visa, substantial evidence should be submitted with the application to overcome any “presumption” that the applicant made a willful misrepresentation. In any case, it is not “fraud” or “misrepresentation” for the applicant to change their mind regarding future intentions after arrival in the United States.

D.

Chapter 2

Example: Maria is not yet engaged to her U.S.-citizen boyfriend. She owns her own small business in her home country, and though she enjoys the relationship, she is not ready to marry. She stays with relatives during her visits, and when the CBP officer asked about the details of her most recent visit, she truthfully said she was staying with her aunt, visiting friends and relatives, and planned to stay no longer than one month. However, when Maria arrived at her aunt’s home, Maria’s boyfriend stepped up the pressure for her to agree to marry him. Maria gave in and they married three days after she entered the United States. Maria should not be found inadmissible for visa fraud, but will need to submit substantial documentation of her intent upon entry and why that intent changed so rapidly, such as letters from family members describing the couple’s relationship in the past, Maria’s ongoing hesitation to marry and her then-boyfriend’s eagerness. She should also provide documentation of her business abroad; her round-trip air ticket; a declaration from her new husband and other proof of his increased eagerness to marry, as well as Maria’s own declaration explaining the facts of their situation. Burden of proof

In general, individuals seeking an immigration benefit must prove by a preponderance of evidence that they do not fall under any ground of inadmissibility. Absent evidence that the applicant used fraud or misrepresentation to obtain an immigration benefit, the applicant will have met the burden of proving that they are not inadmissible under INA § 212(a)(6)(C)(i). 63 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 any one of the following by a preponderance of the evidence: • • • • E.

There was no fraud or misrepresentation; Any fraud or misrepresentation was not intentional or willful; Any fraud or misrepresented fact was immaterial; or The fraud or misrepresentation was not made to procure a visa, admission, or some other benefit. 64 Timely retraction

An applicant who timely and voluntarily retracts a misrepresentation may use such retraction to eliminate the consequences, including inadmissibility. 65 A retraction is only timely if it is not in response to the fact that the individual’s misrepresentation has been exposed or is clearly about to be found out by DHS, a consular officer, or an immigration judge. The period of time in which the retraction is “timely” is subject to varying interpretations. Generally, the BIA and USCIS take 63

See Matter of D-L- & A-M-, 20 I. & N. Dec. 409 (BIA 1991). Appendix I at 19; USCIS Policy Manual Vol. 8, Part J, Chapter 3. 65 9 FAM 302.9-4(B)(3)(f); see Matter of R-R-, 3 I. & N. Dec. 823 (BIA 1949); Matter of M-, 9 I. & N. Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I. & N. Dec. 863 (BIA 1999)). 64

Chapter 2

31

the position that the retraction must be within a very short period of time of the misrepresentation, at the “first opportunity.” 66 However, the Sixth Circuit has held that the period of time is not as critical as a determination of whether the misrepresentation was about to be discovered by the government. 67

Chapter 2

A waiver of inadmissibility is available for people who have certain citizen or permanent resident relatives who can show that they would suffer extreme hardship if the person were to be removed, or for VAWA applicants. See INA § 212(i) and discussion in Chapter 6. In addition, inadmissibility is waivable without a qualifying relative for asylee adjustment applicants and U visa applicants. Applicants for adjustment of status under § 245(h) (special immigrant juvenile status) and under § 245(m) (U visa status) whose misrepresentations were waived at the time of the U visa application will also be exempt from inadmissibility under INA § 212(a)(6)(C)(i). Finally, applicants for a T visa may waive this provision if the misrepresentation was caused by, or incident to, the circumstances described in the T visa application. 68 § 2.4

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). This provision applies only to false representations of U.S. citizenship made on or after September 30, 1996, though false claims prior to that date may still fall within the material representation ground of inadmissibility. No conviction is required. This ground of inadmissibility is harsh because it is broadly written and because the INA generally provides no waiver. However, there is an exemption for Special Immigrant Juvenile Status applicants 69 and a waiver available for U and T nonimmigrant visa applicants. In addition, a false claim to U.S. citizenship is not a bar to asylum and withholding of removal, and asylees may apply for a waiver at time of adjustment, under INA § 209(c). This provision otherwise punishes people for claiming U.S. citizenship for entry into the United States and for any other purpose under any federal or state law. 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, someone who votes in an election not realizing that they are not permitted

66

Matter of Namio, 14 I. & N. Dec. 412 (BIA 1973) (retraction must be “timely and without delay”); Eid v. Thompson, 740 F.3d 118, 125 (3rd Cir. 2014) (retraction was not timely after bona fides of marriage were already called into question); Valadez-Munoz v. Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010) (retraction after being confronted with inconsistencies and biographical information not timely); Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). 67 Ruiz-Del-Cid v. Holder, 765 F.3d 635, 641 (6th Cir. 2014) (holding that four years later was not too long for retraction when there was no likelihood of discovery by the government). 68 INA § 212(d)(13)(B)(ii); see also INA § 245(l)(2)(B) (creating the same waiver for T adjustment applicants). 69 Section 235(d)(3) of the Trafficking Victims Protection Reauthorization Act of 2008 provides an automatic exception to the false claim to citizenship ground of inadmissibility for Special Immigrant Juvenile applicants.

32

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

to vote, or even someone who came to the United States as a baby and believes that they are a U.S. citizen. 70 A.

What constitutes a false claim to U.S. citizenship?

Chapter 2

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. There is no materiality requirement in order to show that the false statement was made for a purpose or benefit. In other words, it is not a defense that the purpose involved could have been achieved lawfully, without the false claim to citizenship. 71 Whether the false claim must have been made knowingly is now an open question. 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. 72 Both the USCIS policy manual and the Foreign Affairs Manual indicate that the false claim must be made knowingly. 73 There are also exceptions for false claims made by children of U.S. citizens and a defense for minors, discussed below. However, in June 2019,

the Board issued a decision finding that the parallel ground of deportability for making a false claim to citizenship does not require knowledge. 74 The Board found that the plain language of the statute does not require knowledge or specific intent when making the false claim, relying on reasoning from various other circuit court decisions. 75 Advocates should continue to argue that both the inadmissibility ground and deportability ground should require knowledge in order to rise to a false claim. For those arguing against an inadmissibility finding, they should also argue that the direct holding in Zhang applies only to the ground of inadmissibility. Nonetheless, advocates should be aware that the Board’s ruling in Matter of Zhang could defeat these arguments. Thus, cases filed with these issues are much riskier. According to several circuit courts and USCIS, 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 an I-9 Form or sworn statement. 76 70

There is an exception for children that meet specific requirements. See discussion following. Capener v. Napolitano, 981 F. Supp. 2d 1119, 1129 (D. Utah 2013); In Re: Wilton Reynoso A.K.A. Alexis Dias, 2004 WL 2374544 (BIA July 30, 2004) (unpublished) (“it is no defense to inadmissibility [based on a false claim to U.S. citizenship] that the same purpose could have been achieved, or the same benefit obtained, by lawful means”). 72 9 FAM 302.9-5(B)(1); AFM 40.6(c)(2)(B)(i). This guidance in the FAM references an opinion issued by the Department of Homeland Security’s (DHS) Office of the General Counsel in 2014. 73 See USCIS Policy Manual Vol. 8, Part K, Chapter 2 and 9 FAM 302.9-5. 74 Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). 75 Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) citing Patel v. U.S. Attorney General, 917 F.3d 1319, 1326 n.5 (11th Cir. 2019); Valadez-Munoz v. Holder, 623 F.3d 1304, 1309 n.7 (9th Cir. 2010); Richmond v. Holder, 714 F.3d 725, 729 n.3 (2d Cir. 2013). 76 Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010); Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007). 71

Chapter 2

33

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. passport, 77 Using a false U.S. passport to enter the U.S., 78 Using a false U.S. passport to obtain a state driver’s license, 79 and Claiming U.S. citizenship in an attestation on a Form I-9 for private employment. 80

Chapter 2

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 United States; a signature on a voter registration card that specifically asked the question “Are you a U.S. citizen?”; 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. Example: Martha claimed U.S. citizenship so that she could get in-state university tuition in 1995. DHS could assert that she is inadmissible for a false claim to citizenship. Luckily, she made this claim before September 30, 1996, and therefore she does not fall within INA § 212(a)(6)(C)(ii). Example: Silvia always thought she was a U.S. citizen, until she finally learned she had been born in Mexico. Silvia will not be inadmissible for any false claims to citizenship that she made if she can prove that she did not knowingly claim to be a U.S. Citizen. Example: Joaquin intentionally represented himself as a U.S. citizen at the border at San Ysidro on January 12, 2000, in order to gain admission to the United States. 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). Additionally, there is no waiver for his false claim. Thus, he will never qualify to adjust status through a family petition, for instance. However, he might still qualify for certain other relief, such as a U or T visa, asylum, or cancellation of removal, depending on other facts. Example: Barbara used her cousin’s U.S. birth certificate to apply for a Social Security card and a 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. However, how she used this social security number and driver’s license may cause her other problems.

77

Matter of Barcenas, 25 I. & N. Dec. 40 (BIA 2009); see also Jackson-Omier v. Gonzales, 246 F. App’x 1 (1st Cir. 2007) (unpublished); Suarez v. Attorney General, 2008 U.S. App. LEXIS 24013 (3rd Cir. 2008) (unpublished). 78 Almendarez v. Mukasey, 282 F. App’x 326 (5th Cir. 2008) (unpublished). 79 Lara-Rivas v. Mukasaey, 270 F. App’x 526 (9th Cir. 2008) (unpublished). 80 Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012); Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010); Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007).

34

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Example: Omid and Marianna each arrive at a U.S. port of entry. Marianna uses a false “green card” to claim that she is a lawful 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 be permanently inadmissible for his false claim to U.S. citizenship under INA § 212 (a)(6)(C)(ii), which is a much harsher consequence. 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? 81

Chapter 2

It depends upon the facts of the case, the language on the Form I-9 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, for example, by completing an employment verification form called the Form I-9. 82 The previous Form I-9 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 they were claiming to be a national, and therefore did not make a false claim to U.S. citizenship. Someone who signed this prior I-9 form could still make this argument, even today. However, a new version of the Form I-9 was instituted as of April 3, 2009, with separate boxes differentiating between “Citizen” and “Non-citizen National” of the United States. This revised form eliminates the ambiguity as to whether the person filling in the form has indicated that they were a citizen or national when they check the box. Thus, checking the “U.S. citizen” box will have clearer consequences under this ground. There are many cases finding that checking the box, coupled with testimony from the immigrant, is sufficient to find someone inadmissible or deportable under this ground. At least three circuit courts rejected the argument that checking the “U.S. citizen or national” box on the Form I-9 does not trigger the inadmissibility ground where other evidence in the record showed that the person claimed to be a U.S. citizen on the Form I-9 or because the person did not credibly testify that they intended to claim to be a national. 83 However, in an unpublished decision, the BIA held that a woman who checked the “U.S. citizen or national” box on the former I-9 form did not make a false claim to U.S. citizenship and thus was not barred from adjustment of status. 84 In that case, 81

Note that the Ninth Circuit has held that an applicant for employment does not make a false claim to U.S. citizenship if they claim to be a U.S. citizen on a document that is not a Form I-9. See Diaz-Jimenez v. Sessions, 902 F.3d 955, 963 (9th Cir. 2018) (finding that petitioner did not make a false claim of citizenship because “[t]here is nothing in the record showing that [he] ever filled out a Form I–9”). 82 8 U.S.C. § 1324a makes it illegal for almost any employer—public or private—to hire or continue to employ an unlawful or unauthorized alien. 8 U.S.C. § 1324a(b) requires employers to verify the eligibility of their potential employee. 83 Rodriguez v. Mukasey, 519 F.3d 773, 778 (8th Cir. 2008) (finding that petitioner falsely claimed to be a U.S. citizenship on Form I-9 because he obtained other identity documents using a Texas birth certificate, submitted such identity documents with his Form I-9, and did not testify that he intended to claim to be a national when checking the Form I-9 box); Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir. 2007) (burden is on respondent to prove that he intended to claim status as a national on Form I-9); Crocock v. Holder, 670 F.3d 400, 403 (2nd Cir. 2012) (same). 84 Matter of [Name Withheld] [A number withheld] (BIA April 27, 2007) (unpublished). See description of the case in 84 Interpreter Releases 1088 (May 14, 2007). See also In re Oduor, 2005 WL 1104203 (BIA

Chapter 2

35

the Board found that the respondent did not falsely claim U.S. citizenship because: she consistently testified that she claimed to be a U.S. national and not a U.S. citizen; she believed that, by claiming she was a national, she was claiming that she was born in the United States, not that she was a U.S. citizen; and her limited English abilities also contributed to checking the box.

Chapter 2

USCIS recognizes that merely checking the “citizen or national” box on the Form I-9 does not itself establish a false claim to citizenship, absent some evidence that the person intended to claim that they were a citizen. 85 Advocates should argue that there needs to be some evidence that, in marking the box indicating a “citizen or national,” the person intended to claim that they were a citizen. 86 However, INA § 212(a)(6)(C)(ii) will likely be found to apply if the applicant had no idea that checking the box meant they could be claiming to be a non-citizen national. 87 USCIS directs officers, therefore, to attempt to establish during an interview exactly what the individual intended to indicate by checking the box on the Form I-9. 88 Again, advocates should explore the defense that USCIS must find some evidence to prove that the applicant intended to specifically claim they were a citizen. This argument has succeeded in some criminal prosecutions for false claims to U.S. citizenship. B.

Exceptions and other defenses for false claim to U.S. citizenship 1. Narrow exception to both the inadmissibility and deportability provisions

In 1996, the INA was amended to provide a limited exception for certain children of U.S. citizens, if they meet the following requirements: 1. Each natural/adopted parent of the person is or was a U.S. citizen (by birth or naturalization); 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. See INA §§ 212(a)(6)(C)(ii)(II) and 237(a)(3)(D)(ii). Note that a determination of reasonable belief must take into consideration the totality of the circumstances. If this exception applies, this change in the law will cure false claims that took place on or after September 30, 1996. However, it 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. Furthermore, the Ninth Circuit in Romero-Ruiz v. Mukasey 89 held that individuals born out of wedlock who reasonably believe both parents are Mar. 15, 2005) (unpublished) (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). 85 Appendix I, supra, p. 27. 86 See U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004), cited in Appendix I at p. 27. 87 See In re Odour, 2005 WL 1104203 (BIA, Mar. 15, 2005) (unpublished) and Matter of Soriano-Salas, 2007 WL 2074526 (BIA June 5, 2007), cited in Appendix I, supra, at p. 27. 88 Appendix I, supra, p. 27. 89 538 F.3d 1057 (9th Cir. 2008).

36

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

U.S. citizens cannot fall under this exception where it can be established that either parent is not in fact a citizen.

Chapter 2

In addition to the above exception, DHS 90 and the Department of State 91 still publish guidance indicating affirmative defenses to false claims to U.S. citizenship. First, DHS clarified that “[o]nly a knowingly false claim can support a charge that an individual is inadmissible under section 212(a)(6)(C)(ii).” 92 However, the Board’s ruling in Matter of Zhang discussed above puts this guidance into question. 93 The second affirmative defense is that, “the individual was (a) under the age of eighteen at the time …” 94 and “(b) at the time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.” 95 Again, the burden is on the applicant to make this showing by the appropriate standard of proof (clearly and beyond a doubt). Finally, advocates should argue that any false claims made by an applicant’s parents while the applicant was under 18 should not be imputed to the applicant. 96 2. Curing a false claim to citizenship with a timely and voluntary retraction As with a material misrepresentation, a timely and voluntary retraction may cure a false claim to citizenship, 97 just as timely and voluntary retractions have been held to cure other misrepresentations. 98 Whether a retraction is timely and voluntary is based on the circumstances. Generally, the retraction must be made of the person’s own volition, before discovery of the misrepresentation by the officer. The BIA held that a timely retraction was made where a person first stated that he lawfully resided in the United States and then volunteered that he had entered

90

Letter to the Honorable Harry Reid, Majority Leader, U.S. Senate, from Brian de Vallance, Acting Assistant Secretary for Legislative Affairs, U.S. Department of Homeland Security (Sept. 12, 2013). 91 9 FAM 302.9-5(B)(1); see also Letter to the Honorable Harry Reid, Majority Leader, U.S. Senate, from Thomas B. Gibbons, Acting Assistant Secretary, Legislative Affairs, U.S. Department of State (Aug. 29, 2013). 92 9 FAM 302.9-5(B)(1) (emphasis added). Similarly, a prosecution for a false claim to citizenship in violation of 18 U.S.C. § 911 requires willfulness where the defendant knew that the representation was false. United States v. Anguiano-Morfin, 713 F.3d 1208 (9th Cir. 2013). Nevertheless, the Fifth Circuit held that a false claim to citizenship under the INA does not require the same level of intent as the federal crime of false claim to citizenship under 18 U.S.C. § 911, which expressly requires a willful misrepresentation. Theodros v. Gonzales, 490 F.3d 396, 401 n.7 (5th Cir. 2007). 93 Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). 94 9 FAM 302.9-5(B)(1). 95 Id. 96 See Singh v. Gonzalez, 451 F.3d 400, 409 (6th Cir. 2006). 97 Appendix I, supra, p. 28. 98 9 FAM 302.9-4(B)(3); 8 USCIS-PM J.3 (D)(6) (“As a defense to inadmissibility for fraud or willful misrepresentation, a person may show that he or she timely retracted or recanted the false statement. The effect of a timely retraction is that the misrepresentation is eliminated as if it had never happened. If a person timely retracts the statement, the person is not inadmissible for fraud or willful misrepresentation.”); 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.”).

Chapter 2

37

the United States unlawfully during the same interview with an immigration officer. 99 The Ninth Circuit also found, in an unpublished opinion, that a petitioner made an effective retraction when, after a border patrol officer asked for documentation of the person’s U.S. citizenship, he promptly told the officer that he only had a work permit. 100 In that case, the court found that the petitioner understood little English and provided clear, consistent testimony that he stated he was a U.S. citizen only because he misunderstood the primary inspector’s question.

Chapter 2

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 would not deceive the DHS officer. 101 See Subsection 2.3(E) above for a more-detailed discussion of timely retractions. NOTE: USCIS may still find a person who made a false claim prior to September 30, 1996, inadmissible under INA § 212(a)(6)(C)(i), if the claim rises to the level of material misrepresentation to obtain an immigration benefit. 102 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 may have the additional consequence of being a crime of moral turpitude triggering inadmissibility and/or deportability. See Chapter 5. Finally, while the BIA has found that a false claim to citizenship is not a statutory bar to establishing good moral character, it may be considered in a discretionary determination of the applicant’s good moral character under INA § 101(f). 103 3. Options for false claim to U.S. citizenship The penalties for 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 and only some minor exceptions. The person may seek the exercise of discretion when applying for a non-immigrant visa under INA §§ 212(d)(3)(A) or (B). Additionally, if the person is in removal proceedings (present in the United States), non-LPR cancellation of removal might be an option. Note that, for those who are seeking non-LPR cancellation, a false claim to citizenship may be considered as part of the applicant’s burden to demonstrate good moral character. For those who 99

Matter of M-, 9 I. & N. Dec. 118 (BIA 1960) (discussing a timely retraction in the context of false testimony under INA § 101(f)(6)). 100 Olea-Reyes v. Gonzales, 177 F. App’x 697 (9th Cir. 2006) (unpublished). 101 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 (3rd. Cir 2006) (unpublished) (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); Llanos-Senarillos 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); but see Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014) (holding that four years later was not too long for retraction of false asylum claim when there was no likelihood of discovery by the government). 102 Appendix I, supra, p. 28. 103 Matter of Guardarrama, 24 I. & N. Dec. 625 (BIA 2008).

38

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

are LPRs, LPR cancellation may be available if the person has seven years of physical presence in the United States subsequent to initial lawful admission prior to the issuance of the Notice to Appear in removal proceedings. Finally, a false claim to U.S. citizenship is not a bar to asylum, restriction on removal, and can be waived for “U” visa and some other forms of relief. § 2.5

Inadequate Documentation and Document Fraud

A.

Chapter 2

The INA provides grounds for inadmissibility both for those found to have committed document fraud and for those without proper documentation at time of admission. These two grounds are distinct. A person can be charged as inadmissible for not having proper documents without a final order containing a finding of fraud. Often, someone presenting a false document can be found inadmissible for not having the proper document under INA § 212(a)(7). If an adjudicator makes a formal finding of fraud under INA § 274C, the same person could be charged as inadmissible under INA § 212(a)(6)(F). 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 INA § 212(a)(6)(C)(ii), there is no intent requirement. And unlike inadmissibility for document fraud under § 212(a)(6)(F), no “final order” for a violation of INA § 274C is required. A person is inadmissible under INA § 212(a)(7) for applying for admission without having proper documentation. Under § 212(a)(7)(A)(i)(I), immigrants who do not have “a valid unexpired immigrant visa, reentry permit, border crossing identification card … and a valid unexpired passport” or other documents needed for entry, are inadmissible. 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 nonimmigrant seeking a three-month tourist visa must have a passport valid for at least nine months, allowing the applicant to return to their country of origin, or some other country. 104 Individuals with a valid nonimmigrant visa or a border crossing identification card will avoid inadmissibility under § 212(a)(7)(B)(i)(II). Example: Elise presented herself at the border for admission, but the only document she had was an old California driver’s license. An officer could find Elise inadmissible under this provision. Example: Angel presented himself at the border with a fraudulent green card that he bought from someone 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.

104

See 22 CFR § 41.104(b).

Chapter 2

39

Tab Position 1

Immigrant Legal Resource Center May 2019

B.

Civil penalty for document fraud 1. What is document fraud?

Chapter 2

Section 274C of the INA defines document fraud, sets out rules for a civil court hearing, and provides penalties for people who commit document fraud. A person is inadmissible and deportable when they are found to commit document fraud by final order in a § 274C civil hearing. 105 Because this ground requires a final civil court order, this is distinct from the grounds under INA § 212(a)(7) discussed in the section above, where merely the conduct itself triggers the ground of inadmissibility. A lawsuit first brought by advocates in 1996 prevented DHS from enforcing the document fraud law for many years, and some people who were found inadmissible or deportable were able to reopen their cases because of this. However, at the time of this publication, DHS can enforce this provision again. See Subsection C, “Walters v. Reno Litigation” below for more information on the lawsuit. 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. Note that “document fraud” is more narrowly defined than the other misrepresentation grounds discussed above. Specifically, it relates only to misuse of documents and written articles and does not relate to false statements. However, it also encompasses borrowing another person’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 a Form I-9 to get a job. It also applies when a noncitizen uses such documents to board an airplane or other transport to the United States, even if they destroy the documents en route. In 1996, IIRIRA changed the law and added more actions to the definition of document fraud, including to “falsely make” a document for immigration purposes, which affects those who assist immigrants. The new section, INA § 274C(5), defines “falsely make” to include: 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. 2. Not inadmissible or deportable without a “final order” Section 274C of the INA also sets out rules for a civil hearing before an administrative law judge. The judge will issue a final order finding document fraud against a person if the individual either (a) waives their right to the civil hearing, or (b) is found to have committed document fraud. The result would be a civil penalty involving a fine, not a criminal penalty, although there are possible criminal penalties for the same type of activity.

105

40

See INA §§ 212(a)(6)(F), 237(a)(3)(C).

Chapter 2

Tab Position 1

Inadmissibility & Deportability May 2019

Remember, for a person to be inadmissible or deportable under this section, it is not enough that the person committed document fraud. Instead, they must have been notified to come to a § 274C civil hearing and be the subject of a final order from that hearing. Example: 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 § 274C civil hearing. She is not inadmissible or deportable for document fraud at this time.

Chapter 2

Example: Sally obtained a fake social security card and used it to complete a Form I-9. In a § 274C document fraud civil 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 they confess to committing document fraud to DHS when there is no final order against them? No. The DHS still has the opportunity to refer the person to a § 274C hearing. In addition, the person may be inadmissible for misrepresentation to obtain an immigration benefit. See § 2.3 above. Finally, the person may be found inadmissible for not being in possession of a valid unexpired visa or entry document. See § 2.5.A above. 3. Walters v. Reno litigation On February 22, 2001, a federal district court approved a class action settlement in the case of Walters v. Reno, 106 which challenged the implementation of § 274C by the former-Immigration and Naturalization Service (INS). 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, have them admit fraud, and agree to 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. Because of the confusing language, they did not realize that they were technically admitting to document fraud, accepting a final order, and making themselves deportable or inadmissible. In 1996, a federal district court judge ruled that the former INS’s document fraud enforcement procedures were unconstitutional, which then led to a settlement 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, recalendar, 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 http://www.nilc.org. 107

106

145 F.3d 1032 (9th Cir. 1998). A copy of the settlement can also be found at https://www.uscis.gov/laws/legal-settlementnotices/walters-v-reno. 107

Chapter 2

41

4. Waivers Limited waivers exist for inadmissibility and deportability for § 274C document fraud. These waivers are discussed in detail in Chapter 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. 108

Chapter 2

People who cannot qualify for these waivers might be able to clear up a document fraud problem with a waiver for visa fraud under INA § 212(i), if the document fraud they committed also constitutes visa fraud, and they have not yet been charged with document fraud. 109 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 Chapter 6. Clients should be advised not to engage in document fraud. Those clients who have false documents should be informed that DHS can prosecute them if an officer finds the false documents in their possession. 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 it is a first offense where the person can show they committed the offense to aid their spouse, child, or parent. See INA § 101(a)(43)(P). This includes a conviction for using or making false documents. See Chapter 4 for the deportation ground based on document fraud and Chapter 5 for information on aggravated felonies. § 2.6

Likely to Become a Public Charge 110

A person is inadmissible to the United States if the government finds they are “likely at any time to become a public charge.” 111 While the statute provides no definition of the term “public charge,” current policy interprets this provision to mean a person who is “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” 112 For the 108

See INA §§ 212(d)(12), and 237(a)(3)(C)(ii). But only if they have not received a final administrative order of document fraud under INA § 274C. See Chapter 6. Additionally, people who were wrongfully admitted to the United States due to a misrepresentation—i.e., those who were inadmissible at admission—may be eligible for a waiver of deportability under INA § 237(a)(1)(H). 110 The law governing public charge, and especially affidavits of support, is complex. This section will summarize the law. For a more complete discussion, see ILRC manual, Public Charge and Immigration Law, 1st Edition (2019), available at http://www.ilrc.org/publications. See also, U.S. Citizenship and Immigration Services, How do I financially sponsor someone who wants to immigrate?, http://www.uscis.gov/USCIS/Resources/F3en.pdf; U.S. Department of State, Establish Financial Support, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/collect-and-submitforms-and-documents-to-the-nvc/establish-financial-support.html. 111 INA § 212(a)(4). 112 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 286289 (May 26, 1999). 109

42

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

past two decades, this analysis has largely consisted of submitting a sufficient Form I-864, Affidavit of Support. 113 However, USCIS officers and consular officials have begun applying the totality of the circumstances test, which considers many other factors outlined in the statute and policy documents. This section will first provide an overview of who is subject to the public charge ground of inadmissibility. Next, it will discuss the legal standard to assess public charge. Finally, it will provide a brief explanation of the Form I-864 requirement. For more details about preparing the Form I-864, see the ILRC manuals Public Charge and Immigration Law, 1st Edition, and Families & Immigration: A Practical Guide, 5th Edition. Who is subject to the public charge ground of inadmissibility?

Chapter 2

A.

All individuals applying for admission to the United States or adjustment of status are subject to public charge inadmissibility unless they fall under certain statutorily exempted categories. Additionally, all noncitizens immigrating through a family-based petition also must submit a legally binding Form I-864, Affidavit of Support. 114 Example: Patricia has two children and wants to immigrate her mother. Because Patricia’s mother is applying for a family-based immigrant visa, she must show that she is not likely to become a public charge. Patricia will have to submit an affidavit of support showing that she has sufficient resources to support her mother, or 125% of the Federal Poverty Guidelines for a family of four. If Patricia earns only $9,000 a year, her mother may be inadmissible because she is likely to become a “public charge,” unless someone else can help sponsor her mother. Other groups of immigrants are subject to the traditional public charge ground discussed in this section. They do not need to submit Form I-864, but may need to file Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. These include diversity visa applicants, and abused spouses and children who self-petition under VAWA provisions. However, VAWA applicants are permitted to use all public benefits, including cash assistance, without affecting their public charge determination. 115 B.

Who is not subject to the public charge ground of inadmissibility?

It is important to remember that many applicants for immigration benefits are not subject to the public charge ground at all. For many noncitizens, some form of immigration benefit or relief might be available to them. The type of relief determines whether and how the public charge ground of inadmissibility may affect the person’s application. Some forms of relief are statutorily exempt from the public charge ground of inadmissibility while other forms of relief may be granted even if a person is likely to become a public charge. Finally, some forms of relief allow 113

See ILRC manual, Families & Immigration: A Practical Guide, 5th Edition (2017), available at http://www.ilrc.org/publications. See also See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 286289 (May 26, 1999); ILRC, Introductory Guide to the Affidavit of Support (April 2018), https://www.ilrc.org/sites/default/files/resources/intro_guide_affidavit_support20180410.pdf. 114 INA § 212(a)(4)(C). Note also that an applicant for an immigrant visa or adjustment of status based on an employment-based petition must file an affidavit of support where the petitioner is a relative of the applicant or is an entity in which a relative has a significant ownership interest. INA § 212(a)(4)(D). 115 INA § 212(s).

Chapter 2

43

for a waiver of the inadmissibility ground if the applicant is determined to be likely to become a public charge. The following categories of applicants have been exempted from the public charge ground of inadmissibility by statute or regulation:

Chapter 2

• • • • • • •

• • • • •

People entering as refugees 116 Refugees and asylees applying for adjustment to permanent resident status 117 Individuals applying for a T Visa 118 Individuals applying for a U Visa 119 Individuals who possess a U visa and are applying for adjustment to permanent resident status based on that U visa 120 Special immigrant juveniles 121 VAWA self-petitioners, 122 those who are applying for adjustment of status based on an approved VAWA self-petition, 123 and individuals applying for suspension of deportation or cancellation of removal under VAWA124 Applicants for Temporary Protected Status (TPS) 125 Amerasian Immigrants (for their initial admission) 126 Individuals granted relief under the Cuban Adjustment Act (CAA) 127 Nicaraguans and Cubans who are eligible to adjust status under the Nicaraguan Adjustment and Central American Relief Act (NACARA) 128 Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA) 129 Example: Jenin is an approved VAWA self-petitioner. She is eligible for many public benefits as a VAWA self-petitioner but is worried that her receipt of public benefits could impact her ability to get a green card later. However, if she adjusts as a VAWA selfpetitioner, she is exempt from the public charge ground of inadmissibility.

116

INA § 207(c)(3). INA § 209(c). 118 INA § 212(d)(13)(A). 119 INA § 212(a)(4)(E)(ii). 120 INA § 245(m). 121 INA § 245(h)(2)(A). 122 INA § 212(a)(4)(E)(iii); 8 U.S.C. § 1641(c)(1)(B). 123 INA § 212(a)(4)(E)(i). 124 INA § 212(a)(4)(E)(iii); 8 U.S.C. § 1641(c)(1)(B)(iii), (v). 125 8 CFR § 244.3(a). 126 INA § 101 note 5. 127 Matter of Mesa, 12 I. & N. Dec. 432, 437 (BIA 1967) (“We conclude that Congress … did not intend requiring application of [public charge] in light of the Congressional history showing the recognized impoverished circumstances of many of the refugees it proposed to benefit and the special legislation enacted to render them Federal assistance.”) 128 INA § 245 note 9. 129 INA § 245, note 10. 117

44

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Other individuals may apply for a waiver of the public charge ground of inadmissibility in certain circumstances. This means that, if USCIS finds that the person is likely to become a public charge, the person may still apply for a waiver and receive this status in spite of being likely to become a public charge: • • •

Chapter 2

Individuals who possess a T visa and are applying for adjustment to permanent resident status based on that T visa 130 Individuals applying for an S visa 131 Individuals who have an S visa and are applying for adjustment to permanent resident status based on that S visa 132

Finally, some forms of relief are exempt from public charge because these are not subject to most or any grounds of inadmissibility and thus may be granted to someone regardless of being a public charge. Therefore, applicants for such forms of relief do not have to show they are unlikely to become a public charge: • • • • • • •

Applicants for asylum 133 Recipients of Deferred Action for Childhood Arrivals (DACA) who are applying to renew their deferred action134 Applicants for cancellation of removal for certain nonpermanent residents 135 Applicants for cancellation of removal for permanent residents 136 Applicants for suspension of deportation under former INA § 244 Individuals applying for suspension of deportation or cancellation of removal under the Nicaraguan and Central American Relief Act (NACARA) 137 Individuals who are applying for registry 138

It is important to remember that applicants for the above forms of relief will be subject to the public charge ground of inadmissibility if they subsequently apply to adjust status through a family member. Example: Maya was approved for Temporary Protected Status (TPS). When she applied for TPS, she did not have to address public charge concerns, as the ground of public 130 INA § 245(l)(2). For advocacy and arguments on whether the waiver should be required, see resources provided by CAST, https://www.castla.org. 131 INA § 212(d)(1). 132 8 C.F.R. § 245.11(c)(1)-(2) (explaining that the ground of inadmissibility can be waived if it was disclosed to the Attorney General prior to admission and specifically waived pursuant to INA § 212(d)(1)). 133 See INA § 208(b). 134 USCIS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf. 135 INA § 240A(b). 136 INA § 240A(a). 137 See INA § 101 note A-9. 138 INA § 249.

Chapter 2

45

charge does not apply to TPS applicants. Now she is married to a U.S. citizen and ready to adjust status. Even though she has TPS status, she will be subject to a public charge determination when she applies to adjust status because there is no special exemption for TPS holders at the time of adjustment through a family member.

Chapter 2

Finally, lawful permanent residents are not subject to a public charge test at the time of applying for naturalization. However, they may be subject to the public charge inadmissibility test if they spend more than 180 days outside of the United States at one time and then seek to reenter the country. 139 Additionally, a permanent resident who re-applies to adjust status as a defense to a deportation charge will be subject to the public charge inadmissibility ground at the time of the new adjustment. C.

The “public charge” inadmissibility ground

Under INA § 212(a)(4), a person is inadmissible if they are likely to become a public charge. 140 The statute sets out criteria or factors that an immigration officer must consider, as well as the affidavit of support process. The basic elements are that the officer: 1) looks to the “totality of the circumstances,” 2) at time of application for admission, 3) to determine the applicant’s likelihood of becoming (in the future), 4) a public charge. Some applications for immigration status also require a fifth element of a sufficient affidavit of support. The test created by the statute is forward looking—the officer should assess the person’s future likelihood of needing cash aid or long-term care. However, officers can consider current and past circumstances in order to make an assessment of a person’s likelihood to become a public charge in the future. Because the statute does not define the term “public charge,” this concept has been shaped by policy and case law. The current interpretation of this term has been in effect since at least 1999. In its 1999 field guidance, legacy INS (now USCIS) adopted the definition of public charge as a person who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” 141 No other types of public services or benefits are counted against a person in this assessment. Therefore, the current test assesses the future likelihood that the person will be 1) “primarily dependent on” 2) cash aid and long-term care only. Although the Trump administration has proposed radical changes to the definition of public charge, this definition continues to guide USCIS public charge determinations to this day. PROPOSED CHANGES: In October 2018, the Trump Administration published a Notice of Proposed Rulemaking (NPRM), proposing a new regulation that would redefine public charge as a person “who receives one or more public benefits.” 142 The proposed rule also intends to impose new penalties on families who have accepted forms of public assistance beyond cash benefits and

139

INA § 101(a)(13)(C). See INA § 212(a)(4). 141 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999). 142 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51114-01. 140

46

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

long-term institutionalization at government expense. 143 The announcement of the proposed new rule is causing many families to decline needed health and other benefits, even though there is presently no legal effect. The proposed regulation remains just that—a proposal. Thus, until a final rule is published, USCIS must continue to define public charge as a person who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” For updated information, check ILRC’s Public Charge website at http://www.ilrc.org/public-charge. Adjudicating public charge—overview of public charge tests

Chapter 2

D.

There are two tests that immigration officials use to assess public charge, as outlined in the INA. The first is a “totality of the circumstances” test, which considers several factors listed at INA § 212(a)(4)(B). The second test requires certain applicants to submit a contract signed by the petitioner, Form I-864 Affidavit of Support, and, if necessary, an additional Form I-864 signed by a joint sponsor. 144 This second requirement of an affidavit of support applies only to persons immigrating through a family visa petition and in some cases, certain employment-based petitions. There are some exemptions, and those who fall into these exemptions must file form I-864W instead. The I-864 affidavit of support requires the sponsor signing the form to have a certain level of income or assets, and it is legally enforceable. Family visa petitioners are required to submit an affidavit of support, regardless of their income, and even if they have no income at all. In these situations, a joint sponsor is required. See Part II for more information about the I-864 process and who is exempt from filing the affidavit of support. Example: Jean is a U.S.-citizen who is petitioning for her spouse, Marie. Because Marie is applying for a family-based green card, Marie must show that she is not likely to become a public charge. Jean, as the petitioner, will also have to submit a Form I-864 affidavit of support showing that Jean has sufficient resources to support Marie. If Jean does not have sufficient income or assets, Marie may be inadmissible because she is likely to become a “public charge.” Jean and Marie can avoid a public charge finding if they can convince another person to be a joint sponsor for Marie. Part I below discusses the totality of the circumstances test generally and specifically in the context of consular processing cases. Part II gives an overview of the affidavit of support test and who is exempt from the affidavit of support requirement. For more details about joint sponsors, preparing the Form I-864, Affidavit of Support, and how to support clients with complex cases, see the ILRC manuals Families & Immigration: A Practical Guide, 5th Edition, and Public Charge and Immigration Law, 1st Edition.

143

See discussion in NILC Fact Sheet, “The Trump Administration’s ‘Public Charge’ Attack on Immigrant Families: Information About an Upcoming Proposed Rule” (last updated April 12, 2018) at http://www.nilc.org/wp-content/uploads/2018/01/Public-Charge-Fact-Sheet-2018.pdf. 144 INA § 212(a)(4)(C).

Chapter 2

47

Part I: Totality of the Circumstances A.

Totality of the circumstances—generally

Chapter 2

The “totality of the circumstances” test requires adjudicators to “at a minimum” consider the person’s age, health, family status, assets, resources, financial status, education and skills to determine whether they are likely to become a public charge. 145 In this general evaluation, the officer can also consider an affidavit of support. 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 the factors as a whole to determine whether the intending immigrant is likely to become a public charge. 146 Additionally, no one negative factor should be dispositive in a person’s individual case. The field guidance requires that specific factors must demonstrate a likelihood the individual will become dependent on the government: ‘‘[s]ome specific circumstances, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public.” 147 This general assessment of factors to determine whether someone is likely to become a public charge applies to all applicants subject to this ground of inadmissibility. Under the totality of the circumstances test, a person “who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge.” 148 A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, “especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of an emergency.” 149 Thus, in most cases before USCIS, the affidavit of support requirements and policies ensure the applicant will not be found to be public charge. 1. Public benefits considered in the public charge assessment In 1996, Congress engendered a strong sense of fear among immigrant communities when it prohibited the use of federal benefits programs by many noncitizens in the Personal Responsibility and Welfare Reform Act (PRWORA) and created new public charge criteria in IIRIRA. Many intending immigrants in desperate situations became afraid to accept public benefits for fear that it would make them a “public charge” and bar them from immigrating in the future. In 1999, the former INS 150 issued a proposed rule and immediate guidance to ensure that immigrants who really need to accept public benefits will do so. 145

INA § 212(a)(4)(B); Matter of A-, 19 I. & N. Dec. 867, 869 (BIA 1988). See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999). “Fed. Reg.” stands for Federal Register. This document can be accessed at http://www.gpo.gov/fdsys/pkg/FR-1999-05-26/pdf/99-13202.pdf. 147 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999). 148 Matter of Harutunian, 14 I. & N. Dec. 583, 589–90 (BIA 1974). 149 Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421–22 (BIA 1962). 150 The Immigration and Naturalization Service (INS) was for many years the main federal government agency that administered U.S. immigration law within the borders of the United States, and the Department 146

48

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

The INS provided a critical guarantee in the field guidance, stating that immigrants can safely rely on the proposed rules and field guidance and collect the public benefits listed there. If the rules changed later, no one who accepted public benefits by relying on this proposed rule would be penalized. This guarantee will be particularly important if any current or future administration changes policies and will help argue against applying any potential future policy change retroactively. 151

•

•

Chapter 2

The current concept of public charge is thus limited to describe a person primarily dependent on cash aid or long-term care. Based on the current definition and policy guidance on this issue, therefore, the only programs currently considered determinative that someone is likely to be a public charge are: Cash assistance for income maintenance, including: o Supplemental Security Income (SSI) o Temporary Assistance for Needy Families (TANF) (may have other names at the state level) o State and local cash assistance programs (often called “General Assistance” programs) Institutionalization for long-term care at government expense: o In a nursing home or mental health institution, and o Covered by Medicaid

Note that some states or cities, such as California and New York City, administer cash assistance for income maintenance for special groups of people, such as People Living with HIV/AIDs (PLWHA) or for noncitizens who do not otherwise qualify for assistance under SSI. Receipt of benefits under these programs will count in a public charge test if the person is applying for a form of relief subject to public charge inadmissibility. Finally, if an individual receives public cash assistance, the length of time during which the individual received this assistance may be significant in determining inadmissibility pursuant to the public charge ground. The INS has stated that the more time that has passed since an individual received cash benefits or was institutionalized, the less weight these factors will have as a predictor of future receipt of benefits.152

of State and its embassies and consulates was the corollary federal agency administering immigration laws abroad for those wishing to obtain visas to enter the United States. However, on 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: U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE). 151 Note that the Department of State has made changes to the FAM to allow consular officials to consider an applicant’s or family member’s use of “public assistance of any type” in the “totality of the circumstances” analysis. See 9 FAM 302.8-2(B)(2)(f)(1)(b). See Subsection I.B below for more information about the effect of this change. 152 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999). For additional resources on public charge, see Affidavit of Support and Sponsorship

Chapter 2

49

Chapter 2

Example: Kar Wai will be eligible soon to adjust status through a petition filed by his permanent resident spouse. At the time of his green card interview, he should be prepared to show that he is not likely to be primarily dependent on government aid to survive. Although Kar Wai’s family received cash assistance from the government years ago, he has since graduated from high school and is in a job training program. His prior receipt of cash assistance will not be the only factor considered in determining whether he is likely to be a public charge in the future. The government will consider the fact that Kar Wai has not received cash assistance for many years, along with his new job skills and the financial support that his spouse can provide. 2. Public benefits exempt from the public charge assessment The USCIS Fact Sheet on Public Charge, dated April 29, 2011, and last updated October 16, 2018, describes the public benefits that will and will not trigger the public charge ground of inadmissibility. 153 The Fact Sheet confirms that past, current, or future receipt of non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. These benefits include: • • •

• •

• • • • •

Non-cash benefits (other than institutionalization for long-term care) Non-cash TANF benefits such as subsidized childcare and transit subsidies Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; 154 use of health clinics, short-term rehabilitation services, and emergency medical services), other than support for long-term institutional care Children’s Health Insurance Program (CHIP) Nutrition programs, including Food Stamps (SNAP), the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs Housing benefits Childcare services Energy assistance, such as the Low-Income Home Energy Assistance Program (LIHEAP) Emergency disaster relief Foster care and adoption assistance

Requirements: A Practitioners’ Guide by the National Immigration Law Center (NILC) and Catholic Legal Immigration Network. To keep abreast of important new developments, practitioners should check ILRC’s Public Charge website: http://www.ilrc.org/public-charge. See also U.S. Citizenship and Immigration Services, How do I financially sponsor someone who wants to immigrate?, http://www.uscis.gov/USCIS/Resources/F3en.pdf. 153 USCIS, Public Charge Fact Sheet, https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet (last updated October 16, 2018). 154 For example, the federal government provides a variety of HIV-related medical care through the Ryan White HIV/AIDS Program, including AIDS Drug Assistance Program (ADAP-Medication Assistance) and Continuation of Health Insurance Coverage (CHIC-Premium Assistance). These services do not count against an applicant in a public charge determination.

50

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

• • • • •

Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education Job-training programs In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) Prison, jail, incarceration costs Privately funded treatment programs

Chapter 2

State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes. Finally, any programs that are entirely funded by private entities are not considered for public charge determinations. 3. Considering past use of benefits Not all publicly funded benefits are relevant to deciding whether someone is likely to become a public charge as described above. In addition, past use is only relevant as it relates to the possibility the person will become a public charge in the future. By current policy, past or current use of public benefits other than cash assistance, such as food stamps, health insurance, and rental assistance, are not considered negative factors in the public charge determination. 155 In assessing the totality of the circumstances, an adjudicator may consider receipt of public cash assistance for income maintenance or institutionalization for longterm care at government expense to determine whether that person is likely to become primarily dependent on the government for subsistence. Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing field guidance. At the time of publication of this manual, the May 1999 “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” remains accurate guidance regarding how past receipt of public benefits may affect a person’s inadmissibility as a public charge when applying for adjustment of status in the United States. Under this guidance, past use of cash-income benefits or long-term care is only one factor to be considered in assessing whether the person is likely to become a public charge in the future. The guidance explains: 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,

155

Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28693.

Chapter 2

51

the less weight these factors will have as a predictor of future need. Also, the “length of time an applicant has received public cash assistance is a significant factor.” 156 Again, 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. 4. Receipt of benefits by family members

Chapter 2

The current public charge analysis by USCIS does not consider receipt of cash benefits or longterm institutionalization by every member of a household. Presently, for individuals applying for status or relief from removal within the United States, only benefits received by the individual applying for admission or to adjust status are considered. Public benefits received by family members who are not applying will not count against the person applying for admission or adjustment for public charge purposes, unless the cash benefits are the sole support of the family. Many noncitizen parents can apply for and receive cash assistance on behalf of their U.S.-citizen children, even if the parents have no lawful status or are not otherwise eligible. In these cases, the child is the actual applicant and beneficiary of the benefit. To confirm that the U.S.-citizen child is, in fact, the recipient of cash assistance, the parent should request a benefits letter or statement from the social services office that issues such benefits. Example: D.J. is a DACA recipient with two U.S.-citizen children. D.J.’s younger daughter has a severe developmental disability and receives SSI as a form of financial support. Although the SSI payments are paid to D.J. as the parent, their daughter officially receives this cash assistance. Therefore, this SSI assistance would not count against D.J. if they were to apply for adjustment of status in the future, unless D.J. has no other sources of income. B.

Totality of the circumstances in consular processing cases and recent changes to the Foreign Affairs Manual

Unfortunately, the public charge determination may play out differently for visa applicants who are consular processing (applying for a nonimmigrant visa or a family-based immigrant visa at a U.S. consulate abroad). In January 2018, the Department of State revised the FAM, governing public charge determinations in consular processing cases. The FAM public charge revisions allow consular officials to consider additional factors in order to find an applicant likely to become a public charge, utilizing the totality of the circumstances test. This determination includes a deeper look at use of public benefits by sponsors, joint sponsors, and family members. The changes encourage officers to look beyond the affidavit of support submitted by the applicant and consider all other factors present in the case. In addition, the changes encourage officers to question and investigate the sponsor’s ability and willingness to contribute financial support if needed. These FAM revisions have already gone into effect, and practitioners are starting to see more visa denials based on public charge inadmissibility at the consular interview.

156

Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (emphasis added).

52

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Below is a summary of the Department of State’s revisions to the totality of the circumstance factors in the FAM: •

•

•

• •

Chapter 2

•

Applicant’s age: According to the FAM, age is a negative factor if the applicant is under 18 and unaccompanied; advanced age may also be a negative factor if viewed as reducing the applicant’s employability and increasing the applicant’s possible healthcare costs. Applicant’s health: This includes health issues that might affect the applicant’s prospects for employment, future medical expenses, and/or the applicant’s ability to provide for themselves or dependents. Applicant’s family status: This factor considers the number of dependents for whom the applicant would have financial responsibility. The fact of having many dependents may be a negative factor in an applicant’s case. Applicant’s and sponsor’s assets, other financial resources, and financial status: Current or prior receipt of public assistance by applicant, sponsor, or their family members may be a negative factor and is “relevant” to determining whether the applicant is likely to become a public charge. “[B]ut the determination must be made on the present circumstances,” 157 and if applicant’s financial circumstances are much improved since past receipt of public benefits, that is a positive factor (whereas being in similar financial straits would be a negative factor). The FAM also states that income above 125% of Federal Poverty Guidelines “generally constitutes sufficient resources.” 158 Applicant’s education, work experience, and skills: This includes length of employment, frequency of job changes, employment plans, and job offers. “[A]ny other reasonable factors considered relevant by an officer in a specific case” 159

Due to these changes, consular processing applicants need increased screening of red flags and must undergo additional interview preparation in order to avoid being inadmissible as a public charge. In evaluating these factors for a client’s case, advocates should take the perspective of a consular officer who may be less forgiving or generous. If any red flags or factors of particular concern apply to a client, the advocate should be cautious about sending the client to their consular interview, especially if they have an approved Form I-601A provisional waiver, which will likely be revoked if the consular officer finds insufficient documentation to overcome public charge inadmissibility. Additional documentation might be essential to overcoming concerns at the consular interview. 160 In some circumstances, it may be best to delay the consular interview for a client until their financial situation improves.

157

9 FAM 302.8-2(B)(2)(f)(1)(b) (emphasis added). 9 FAM 302.8-2(B)(2)(f)(2)(a). 159 9 FAM 302.8-2(B)(2). 160 For more information about how to prepare consular processing cases, see ILRC, Consular Processing Practice Alert on Public Charge and Affidavit of Support Issues (July 2018), https://www.ilrc.org/sites/defa ult/files/resources/consul_process_pract_alert_pub_charge_affid-20180702.pdf. 158

Chapter 2

53

Below are some important questions for advocates to use when screening a client for possible public charge issues: •

•

Chapter 2

• • •

• •

• •

•

• •

Is the applicant especially old or young (younger than 18 or older than 60, roughly)? If so, will they be able to work in the United States? If not, who will provide them financial support? Does the sponsor or beneficiary have any serious health conditions or disabilities that require costly care? If so, how do they pay for that care? How much money does the applicant have in their bank account? Is the applicant currently employed? If so, how much are they earning? If the applicant is not currently employed, do they have a degree or skills that can help them get a job? Document the applicant’s educational history, training, degrees, and licenses. Explain what the applicant will do to look for a job upon entering the United States. Do other household members contribute financially? If so, how much are they earning? How many people are in the sponsor or joint sponsor’s household? If they have a large family, how will they ensure that they can support the applicant along with the dependents they are already responsible for supporting? Does the income for the affidavit of support meet the financial requirements, with income to spare? Who is the joint sponsor? If a joint sponsor is not a family member, explore how long the applicant has known this individual, and how they know this individual, and the joint sponsor’s commitment to the visa applicant. Does the applicant have a history of unemployment during periods of time when they were old enough to work? If so, explain the reasons why the applicant was not working (e.g. were they pursuing higher education?) and how the applicant will overcome obstacles to obtaining employment in the future. Are any of the applicant’s family members or sponsors currently receiving public benefits? Have any family members or sponsors received public benefits in the past? If so, has their financial situation has changed since then? Have the public benefits helped them achieve financial independence, earn an income, and support themselves?

If any of the above negative factors are present in a client’s case, a consular official may decide to deny the client’s visa application for “likely to become a public charge.” However, it is important to remember that the officer cannot rely on any one factor to the exclusion of other positive factors. The advocate should take care to submit documentation explaining the applicant’s current and future access to financial support from family and friends, as well as current employment or prospects for future employment.

54

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Part II: The I-864 Affidavit of Support 161 In addition to overcoming a “totality of the circumstances” test, some applicants for admission and adjustment of status must submit a sufficient Form I-864, Affidavit of Support. This requirement applies only to persons immigrating through a family visa petition and in some cases, certain employment-based petitions. However, there are some people who are exempt from this requirement, including VAWA self-petitioners and individuals who have 40 qualifying quarters of work history. Those who fall within these exemptions must file a Form I-864W instead. A Form I-864W can be filed under the following circumstances: 162

Chapter 2

1. People who can “self-petition” under the battered spouse, child, or parent provisions under VAWA; 2. People who file as widows or widowers of U.S. citizens; 3. People who already have earned or can be credited with forty “qualifying quarters” of employment with social security payments; or 4. Persons under age eighteen who will become U.S. citizens at the same time that they become permanent residents because their parents are U.S. citizens. 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 a Form I-864 affidavit of support or an I-864W, though they were generally required to submit the prior, non-contractual affidavit of support, on Form I-134. The requirements for Form I-864, Affidavits of Support 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 Form 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 for more generous interpretations of the affidavit of support provisions in the 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 be reunited with their loved ones.

161

On October 20, 1997, the INS published interim (temporary) regulations implementing the affidavit of support requirement and creating three new forms. In June 2006, however, USCIS and the Executive Office of Immigration Review (EOIR) published final regulations on affidavits of support, which made some significant changes to the original rules. 71 Fed. Reg. 35732-57. The final rule is codified at 8 CFR § 213a. The final regulations took effect on July 21, 2006 and apply 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 USCIS and EOIR,” 83 Interpreter Releases 1296 (July 3, 2006) and “Analysis of Final Affidavit-of-Support Rule and Forms” by Charles Wheeler located at https://www.nilc.org/aosupp021.html. 162 For more information about applicants who may file a Form I-864W, see ILRC, Introductory Guide to the Affidavit of Support (April 2018), https://www.ilrc.org/sites/default/files/resources/intro_guide_affidavit_support-20180410.pdf.

Chapter 2

55

A.

Who can submit the affidavit of support

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 or U.S. national 163 or a permanent resident, of at least eighteen years of age. The sponsor must live in the United States or a U.S. territory or possession or reside abroad temporarily and establish that they will live in the United States on or before the intending immigrant obtains lawful permanent resident status.

Chapter 2

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: 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 submit an affidavit of support, even though she will have no income except for SSI, and even though he supports her. If the petitioner/sponsor has insufficient income, either a contributing household member (who signs a Form I-864A) or a joint sponsor who signs another Form I-864 will be needed, and the same requirements apply. It is important to note that the FAM specifically states that the joint sponsor does not need to be a relative, but rather any U.S. citizen or permanent resident is acceptable. 164 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. B.

The sponsor must earn 125% percent of the poverty income guidelines

A sponsor signing an affidavit of support must demonstrate that they earn enough income to support the immigrant, family members applying with the immigrant, and the sponsor’s entire household at a level at least 125 percent above the federal poverty income guidelines. Sponsors who are active in the Armed Forces only need to demonstrate earnings at 100 percent of the poverty line. Each year the federal government decides the amount of income that brings families at or above the official poverty level and publishes this as the poverty income guidelines. A copy of the poverty income guidelines for 2019 along with a calculation of 125 percent of these guidelines (Form I-864P), is at Appendix C, and the most recent version may be found at http://www.uscis.gov/forms. 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 Form I-864 affidavit of support was filed, and not at the time of adjudication of the adjustment or immigrant visa application. Example: 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 2019 Guidelines in Appendix C, you should see that a family of four must 163

A U.S. national may only be a joint or substitute sponsor. 9 FAM 302.8-2(C)(7). Unfortunately, The U.S. Consulate at Ciudad Juarez (CDJ) has denied recent visa applications where an applicant’s joint sponsor is not a relative. However, the FAM states: “The joint sponsor is not required to be a household member. The joint sponsor can be a friend or third party who is not necessary financially connected with the sponsor’s household.” 164

56

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

earn $25,750 to meet the poverty line, and 125 percent of that is $32,187. Rebeca will have to show income of $32,187 a year in order to be able to sponsor her husband by herself. Some sponsors do not earn enough income by themselves to reach 125 percent of the poverty income guidelines. There are three other ways in which a sponsor may satisfy the 125 percent requirement:

Chapter 2

1. Add a household member’s income to the sponsor’s income; 2. Find a joint sponsor who meets the poverty guideline amount independently; and/or 3. Use “significant assets.” For more information about calculating the household size and income sufficient for an affidavit of support, see the ILRC manuals Families & Immigration: A Practical Guide, 5th Edition, and Public Charge and Immigration Law, 1st Edition. 165 C.

Obligations of the sponsor under the affidavit of support

The Form I-864 Affidavit of Support is legally enforceable against the sponsor, as well as any joint sponsor or contributing household member. 166 The Form I-134 Affidavit of Support, which was used for all immigrants before December 1997 and now may be used for fiancés and nonfamily immigrants, is not legally enforceable against the sponsor. By signing the Form I-864: • • •

A government entity can sue to recover the cost of means-tested benefits. 167 The sponsored immigrant can sue the sponsor to be supported at a level equal to 125 percent of the poverty guidelines. 168 Sponsors must notify the government if they change their address. 169

The sponsor’s and joint sponsor’s obligations begin when the intending immigrant obtains lawful permanent resident status. This means that a sponsor may withdraw the affidavit any time before the intending immigrant is granted permanent resident status. Additionally, the statute states that the Form I-864 is enforceable until the sponsored immigrant becomes a U.S. citizen or is credited for forty “qualifying quarters” of employment as reflected by social security payments. 170 Finally, the sponsor’s obligation ends when the sponsored immigrant ceases to be a lawful permanent resident and has left the United States; becomes a U.S. citizen; the sponsored immigrant, the sponsor, or the joint sponsor dies; the sponsored immigrant is credited with forty quarters of work in the U.S.; or the sponsored immigrant obtains a new grant of adjustment of status in removal

165

See also ILRC, Introductory Guide to the Affidavit of Support (April 2018), https://www.ilrc.org/sites/default/files/resources/intro_guide_affidavit_support-20180410.pdf. 166 See INA § 213A(a)(1)(B), (b). 167 See INA § 213A(b)(2)(C). 168 See INA § 213A(a)(1)(B), (e)(1). 169 See INA § 213A(d)(2). 170 INA § 213A(a)(3). See also ILRC, Introductory Guide to the Affidavit of Support (April 2018), https://www.ilrc.org/sites/default/files/resources/intro_guide_affidavit_support-20180410.pdf. Note that the sponsored immigrant may be credited with some quarters worked by a spouse or parent, in some cases.

Chapter 2

57

proceedings as relief from removal. 171 Importantly, the sponsor’s obligation does not end because of divorce, because the immigrant disappears and doesn’t communicate with the sponsor, or for other personal reasons. For more information about the obligations of a sponsor, see the ILRC manuals Families & Immigration: A Practical Guide, 5th Edition, and Public Charge and Immigration Law, 1st Edition. 172 § 2.7 A.

Security-Related Grounds of Inadmissibility

Security and political grounds: INA § 212(a)(3)

Chapter 2

The grounds of inadmissibility in INA § 212(a)(3) apply to a number of groups and individuals who are believed to be considered dangerous to United States security. It includes people who are suspected of engaging in espionage, sabotage, or terrorist activity, as well as people whose entrance into the United States would have “serious adverse foreign policy consequences,” members of Communist or totalitarian parties, Nazis, and people who have been involved in genocide. The IIRIRA amendments found in INA § 212(a)(3)(B)(III) make any noncitizen inadmissible “who, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity.” This provision was effective on enactment and applies to inciting activity, regardless of when it occurs. DHS refers to these grounds as TRIG, which stands for the “Terrorism-Related Inadmissibility Grounds.” TRIG can be quite expansive. For example, this can include providing “material support” to a “terrorist organization” described in the INA, which is explained further below. 173 These grounds may even apply to the spouse or child of a person who is determined to fall within these grounds, rendering that spouse or child inadmissible as well. 174 Because of the broad language of the TRIG provisions, this ground of inadmissibility may exclude people who are active in political movements that oppose the United States, as well as people who are not terrorists, but who are linked to groups that the United States views as terrorist, such as guerrillas and groups fighting U.S.-backed governments. Clients arrested in political demonstrations run the risk of being inadmissible under this ground as do many of those who have provided food or medical assistance, whether voluntary or coerced, to members of groups considered to fall within the TRIG classification. 175 The various laws which encompass these grounds, as well as applicable exceptions, are described below.

171

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. 172 See also ILRC, Introductory Guide to the Affidavit of Support (April 2018), https://www.ilrc.org/sites/default/files/resources/intro_guide_affidavit_support-20180410.pdf. 173 INA § 212(a)(3)(B)(iv)(VI) 174 See INA § 212(a)(3)(B)(i)(IX). 175 For assistance in such a case, contact the National Lawyers Guild National Immigration Project: http://www.nationalimmigrationproject.org/.

58

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

1. Grounds of inadmissibility created by the Patriot Act and REAL ID Act In response to the attacks of September 11, 2001, Congress enacted wide-ranging legislation commonly known as the U.S. Patriot Act. Among other things, the legislation: •

•

•

•

•

Chapter 2

•

Added new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorist activity, and for spouses and children of people who are inadmissible under any of the terrorism-related grounds; Provided 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; Made 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; Made providing material support to groups not officially designated as “terrorist organizations” (Tier III organizations) a deportable offense. o However, if the person can prove by clear and convincing evidence that they “did not know, or should not reasonably have known, that the organization was a terrorist organization,” 176 then the ground does not apply; Created three different types of terrorism organization tiers: 177 o Tier 1: Organizations designated as a Foreign Terrorist Organization (FTOs) under INA § 219. The Secretary of State may make a Foreign Terrorist Organization designation if 1) the organization is foreign, 2) the organization engages in terrorist activity, terrorism, 178 or retains the capability and intent to engage in terrorist activities or terrorism, and 3) the terrorist activity threatens the security of U.S. nationals or national security; o Tier II: The Secretary of State in consultation with the Attorney General may designate organizations that have engaged in terrorist activity, which designations are published in the Federal Register; and o Tier III: Any group of two or more individuals, whether organized or not, which engages in or has a subgroup which engages in terrorist activity. Placed 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;

176

Real ID Act of 2005. Pub. L 109-13, 119 Stat. 302 § 103. The current list of “Tier I” organizations can be accessed by visiting the Department of State’s website. See Foreign Terrorist Organizations, http://www.state.gov/j/ct/rls/other/des/123085.htm. “Tier I” organizations are listed in the “Foreign Terrorist Organizations” list, and “Tier II” organizations are listed in the “Terrorist Exclusion List” which can presently be accessed at http://www.state.gov/j/ct/rls/other/des/123086.htm. 178 As defined in § 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989. See 22 U.S.C. § 2656f(d)(2). 177

Chapter 2

59

•

Chapter 2

• • • •

•

•

Provided 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 had granted. If the person is finally determined not to be removable, they may no longer be detained under this section; Allowed 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; Provided habeas review of the detention and the basis for the certification; Provided judicial review by habeas in any district court otherwise having jurisdiction to entertain it; Provided that for any person with a final order of removal who is detained under this section beyond the removal period, the Attorney General must review such detention every six months. Continued detention is only allowed upon establishing that “the release of the alien will endanger the national security of the United States, the safety of the community, or any person;” Provided the Attorney General shall review the certification of every detained 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 detainee may request a reconsideration of their certification and submit documents or evidence to support that request every six months; and Required that the Attorney General submit a report to Congress on the use of this section every six months.

The Real ID Act of 2005, which became effective May 11, 2008, expanded the terrorism grounds seen in the U.S. Patriot Act in the following ways: •

•

•

• •

60

Expanded the definitions of “terrorist activity” and “terrorist organization,” thereby triggering the expansion of the terrorism-based grounds of inadmissibility and deportability; Broadened the terrorism-based grounds of inadmissibility in INA § 212(a)(3)(B) and made inadmissible 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; Made the terrorism-based grounds of deportability the same as the terrorism-based grounds of inadmissibility and therefore, extended deportability to those persons who have never engaged in terrorist activity; Made anyone who is inadmissible under TRIG ineligible for asylum; and Gave 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.

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

2. Spouses and children of applicants subject to INA § 212(a)(3)(B) Under INA § 212(a)(3)(B)(i)(IX), spouses and children of persons inadmissible because of the TRIG bar are also barred from admission if the activity that is the subject of the bar occurred during the five years immediately prior to their application for admission. 179 However, there are exceptions to the close-relative bar if 1) the spouse or child did not know or should not reasonably have known of the barred activity, or 2) the spouse or child has renounced the barred activity. 180 Children and spouses may apply for admission and be eligible for the exception even if the subject who committed the barred behavior is not an applicant for admission. 181

Chapter 2

3. Exemptions from the security and terrorism related inadmissibility grounds In addition, INA § 212(d)(3)(B)(i) authorizes the Secretary of State or the Secretary of Homeland Security to exempt certain people from the terrorism-related grounds of inadmissibility. The Secretary of Homeland Security has delegated the administration of these exemptions to USCIS. These determinations are not reviewable by any other government agency, including the Executive Office for Immigration Review, which oversees the administration of immigration courts. Over the last couple of years, several exemptions have been created. USCIS separates exemptions into 1) group-based and 2) situational exemptions. There is no affirmative process to request an exemption. The USCIS adjudicator bases their exemption decision solely on the information acquired in any affirmative application, adjustment of status interview, and on any other records that DHS has related to the applicant. It is therefore imperative to develop the record in any affirmative application and related interview, as the applicant will not be offered a subsequent opportunity to produce additional evidence, testimony, or arguments. 182 For each of the categories, the applicant will be subject to a totality of the circumstances analysis to determine whether the individual merits a discretionary exemption, once an adjudicator finds that the applicant satisfies the criteria for the exemption. B.

Group-based TRIG exemptions

Over the last few years, the Secretary of Homeland Security has exercised the authority to implement several exemptions. All exemptions may be viewed on the USCIS “Terrorist Related Inadmissibility Grounds (TRIG): Group-Based Exemptions” webpage. 183 The first group-based USCIS Implementation Memorandum exempted ten organizations from TRIG. 184 Since then, the 179

See INA § 212(a)(3)(B)(i)(IX). See INA § 212(a)(3)(B)(ii)(I)-(II). 181 USCIS, Policy Memorandum: Implementation of the Discretionary Exemption Authority under INA Section 212(d)(3)(B)(i) of the Immigration and Nationality Act for the Provision of Insignificant Material Support, (May 8, 2015), https://www.uscis.gov/sites/default/files/files/nativedocuments/20150508_Insignificant_Material_Support_PM_Effective.pdf. 182 Cheri Attix, Practice Pointer: Making Sense of the New TRIG Exemptions, AILA Asylum and Refugee Liaison Committee (Mar. 25, 2015). 183 See http://www.uscis.gov/unassigned/terrorism-related-inadmissibility-grounds-trig-group-basedexemptions#CAA (last updated December 29, 2016). 184 USCIS, Implementation Memo: Implementation of Section 691 of Division J of the Consolidated Appropriations Act, 2008, and Updated Processing Requirements for Discretionary Exemptions to Terrorist Activity Inadmissibility Grounds, (July 28, 2008) (exempting 1) Karen National Union/Karen National Army (KNU/KNA) - Burma, 2) Chin National Front/Chin National Army (CNF/CNA) - Burma, 180

Chapter 2

61

Chapter 2

Secretary has also exempted certain activities related to the following groups: 1) All Burma Student’s Democratic Front (ABSDF); 2) All India Sikh Student’s Federation-Bittu Faction (AISSF-Bittu); 3) Iraqi National Congress (INC), Kurdish Democratic Party (KDP), and Patriotic Union of Kurdistan (PUK); 4) the Kosovo Liberation Army (KLA); 5) Farabundo Marti para la Liberación Nacional (FLMN) and Nationalist Republican Alliance (ARENA); 6) Ethiopian People’s Revolutionary Party (EPRP); 7) Oromo Liberation Front (OLF); 8) Tigray People’s Liberation Front (TPLF); 9) Democratic Movement for the Liberation of Eritean Kunama (DMLEK); and 10) Eritrean Liberation Front (ELF); and 11) certain Burmese groups that were not already exempted in 2008. 185 C.

Situational TRIG exemptions

Situational exemptions from TRIG are available for certain people who have supported terrorist organizations. 186 Situational exemptions are available for providing or receiving 1) material support under duress, 2) solicitation under duress, 3) military-type training under duress, 4) voluntary provision of medical care, 5) certain applicants with existing immigration benefits, 6) Iraqi uprisings, 7) certain limited material support, and 8) insignificant material support. Material Support Exemptions: 1. What is material support? The “material support” language has been the most problematic provision of the terrorismrelated inadmissibility grounds because of its overreaching definition of “support.” It includes “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.” 187 Despite stating that the bar will not apply where the applicant can prove by clear and convincing evidence that they did not know and should not reasonably have known that the organization to which they provided material support engaged in terrorist activities, 188 in practice, this provision has been problematic. 189 For example, over the last few years, this language has prevented the approval of many otherwise valid asylum applications. Courts have found that activity as tangential as making monthly payments of dues and the hanging of posters, providing food and setting up of tents are sufficient to constitute 3) Chin National League for Democracy (CNLD) - Burma, 4) Kayan New Land Party (KNLP) - Burma, 5) Arakan Liberation Party (ALP) - Burma, 6) Tibetan Mustangs - Tibet, 7) Cuban Alzados - Cuba, 7) Karenni National Progressive Party (KNPP) - Burma, 8) “Appropriate groups affiliated with the Hmong” Vietnam, 9) “Appropriate groups affiliated with Montagnards” - Vietnam, and 10) African National Congress (ANC) - South Africa). 185 For an updated list of groups, see http://www.uscis.gov/unassigned/terrorism-related-inadmissibilitygrounds-trig-group-based-exemptions#CAA (last updated December 29, 2016). 186 See USCIS, Terrorism-Related Inadmissibility Grounds (TRIG): Situational Exemptions, http://www.uscis.gov/unassigned/terrorism-related-inadmissibility-grounds-trig-situational-exemptions (last updated December 29, 2016). 187 INA § 212(a)(3)(B)(iv)(VI). 188 INA § 212(a)(3)(B)(iv)(VI)(dd). 189 See Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014) (stating in dicta that the “immigration agency erred by assuming that “knowledge of kidnapping and violence [is] per se sufficient to preclude an individual from invoking the [knowledge] exception”).

62

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

“material support.” 190 The Ninth Circuit has found that that substantial evidence of likelihood to engage in terrorist activity or provide material support to a terrorist organization is sufficient to bar an applicant. 191 While we now have policy guidance from USCIS on duress, there is no duress exception built into the statute for providing material support. 192 Finally, in the Ninth Circuit, the bar has been found to apply retroactively to all Tier III terrorist organizations. 193 2. Material support under duress

Chapter 2

On May 24, 2007, USCIS published a memo creating an exemption for people subject to the TRIG bars after providing support to an undesignated (Tier III) terrorist organization while under duress. 194 The exemption focuses on duress, which requires at a minimum that the support was provided in response to a reasonably perceived threat of serious harm, and an analysis of whether, in the totality of the circumstances analysis, a favorable exercise of discretion is justified. 195 An example of support under duress, as provided by USCIS, would be providing money or a service (such as transporting fighters and supplies or providing food) to a rebel group when threatened at gunpoint to comply with such a demand. 196 At minimum, if an applicant believes that they might be subject to the TRIG bars because they provided support under duress, they need to show in their application and during their interview that: 1) they are otherwise eligible for the immigration benefit or protection that they seek, 2) they can pass all background checks, 3) they fully disclosed the nature of the material support, and 4) they do not pose a danger to the safety and security of the United States. 197 Once an applicant meets the above threshold requirements, USCIS will determine whether the support was provided under duress by considering: 1) whether the applicant could have avoided, or took steps to avoid, the provision of material support, 2) the severity and type of harm inflicted 190 Matter of A-C-M-, 27 I. & N. Dec. 303 (BIA 2018). See also Rayamajhi v. Whitaker, 912 F.3d 1241 (9th Cir. 2019); Hosseini v. Nielsen, 911 F.3d 366 (6th Cir. 2018); Viegas v. Holder, 699 F.3d 798, 803 (4th Cir. 2012); Singh-Kaur v. Ashcroft, 385 F.3d 293, 298–99 (3rd Cir. 2004). 191 See Abufayad v. Holder, 632 F.3d 623 (9th Cir. 2011). 192 Matter of M-H-Z-, 26 I. & N. Dec. 757, 764 (BIA 2016) (holding that “the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act includes no exception for duress”); see also Hernandez v. Sessions, 884 F.3d 107, 110 (2nd Cir. 2018) (deferring to the holding in Matter of M-H-Z-); Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013); Sesay v. Attorney General, 787 F.3d 215, 224 (3rd Cir. 2015); Barahona v. Holder, 691 F.3d 349, 354 (4th Cir. 2012) (holding that Congress did not intend to create an involuntariness exception to the Material Support Bar, otherwise the voluntary support exception to the waiver provision would be rendered superfluous); Annachamy v. Holder, 733 F.3d 254, 256 (9th Cir. 2012). 193 See Bojinoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir. 2014). 194 See USCIS, Interoffice Memorandum: Processing the Discretionary Exemption to the Inadmissibility Ground for Providing Material Support to Certain Terrorist Organizations 4-5, (May 24, 2007) [hereinafter 2007 TRIG Memo], https://www.uscis.gov/sites/default/files/files/pressrelease/MaterialSupport_24May07.pdf. 195 Id. 196 See, USCIS, Terrorism-Related Inadmissibility Grounds (TRIG): Situational Exemptions, http://www.uscis.gov/unassigned/terrorism-related-inadmissibility-grounds-trig-situational-exemptions (last updated 12/29/2016). 197 2007 TRIG Memo at 4.

Chapter 2

63

or threatened, 3) to whom the harm or threat of harm was directed, 4) the perceived imminence of the harm threatened, 5) the perceived likelihood that the threatened harm would be inflicted, and 6) other relevant factors. 198

Chapter 2

If the adjudicator finds that the support was provided under duress, then USCIS will analyze whether the totality of the circumstances justify the exercise of discretion by considering: 1) type and amount of support provided, 2) frequency of support provided, 3) nature of the terrorist activities committed by the terrorist organization, 4) the applicant’s awareness of the terrorist activities, 5) length of time since the applicant provided support, 6) the applicant’s conduct since the time when they provided support, and 7) other relevant factors. 199 3. Certain limited material support In May 2015, USCIS released a Policy Memorandum that lessens the impact of providing material support in certain limited circumstances where the material support provided was incidental to routine commercial transactions, routine social transactions, certain humanitarian assistance, or was provided in response to sub-duress pressure. 200 This exemption is made available to people applying for asylum, refugee status, those otherwise adjusting their status, and others. 201 In order to seek an exemption, the applicant must first be able to meet threshold requirements. The applicant will have to show: 1) they are eligible for immigration benefits or relief; 2) they are able to pass all background checks; 3) they fully disclosed the nature and circumstances of their support; 4) they did not provide support to a designated group (Tier I and II organizations); 5) they did not provide material support to a group that they knew targeted noncombatant persons, U.S. citizens or interests; 6) they did not provide support involving weapons, ammunition, or explosives; 7) they did not provide military training; 8) they did not engage in any other terrorist activity; and 9) they do not pose a danger to the safety and security of the United States. Once the applicant succeeds in proving these threshold requirements, they will then need to satisfy the three criteria below: 202 1. Knowledge: The applicant cannot have known nor should have reasonably known that the support they provided could be directly used to engage in violent or terrorist activity. Food, water, or shelter will generally not disqualify an applicant from receiving the exemption. a. Limitations: Providing weapons, explosives, ammunition, similar military-type equipment or material is specifically excluded from this exemption. Additionally, any other material support the applicant knew or should have known could be

198

Id. at 5. Id. 200 See USCIS, Policy Memorandum: Implementation of the Discretionary Exemption Authority under Section 212(d)(3)(B)(1) of the Immigration and Nationality Act for the Provision of Certain Limited Material Support, (May 8, 2015), https://www.uscis.gov/sites/default/files/files/nativedocuments/20150508_Certain_Limited_Material_Support_PM_Effective.pdf. 201 Id. 202 See id. at 4-6 for a full description of these requirements. 199

64

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Chapter 2

used to directly engage in violent or terrorist activity will exclude applicant from consideration. 2. Intent: The applicant must establish that they did not intend to support an undesignated terrorist organization. Intent may be inferred from statements and surrounding circumstances. 3. Activities Constituting Certain Limited Material Support: The applicant must establish that their provision of material support falls within any of the following categories: a. Routine Commercial Transactions: These transactions are those in which a person could or would engage in with any individual in the ordinary course of business based on substantially the same terms as other transactions and consistent with established practice. i. Limitations: A commercial transaction will not be considered routine if it is motivated by the status, goals, or methods of an undesignated organization or by the individual’s connection to the undesignated organization. b. Routine Social Transactions: These transactions are limited to those that satisfy and are motivated by specific, compelling, and well-established or verifiable family, social, or cultural obligations or expectations. i. Limitations: These social transactions do not include those that are motivated by a general desire to “help society” or “do good.” c. Certain Humanitarian Assistance: Aid provided by individuals or employees or volunteers of humanitarian organizations with the purpose of saving lives and alleviating suffering. This assistance is generally triggered by an emergency situation and should address basic and urgent needs including food, water, shelter, and hygiene. Individuals considered for this exemption may include employees and volunteers of humanitarian organizations. i. Limitations: Long-term improvement of economic or chronic problems is excluded from the exemption. d. Sub-Duress Pressure: In order to qualify for the exemption under sub-duress pressure, the applicant must show that they reasonably perceived a threat of physical or economic harm, restraint, or serious harassment, leaving them with little or no reasonable alternative to complying with the demand. This does not require an immediate or direct threat of harm and is separate from the duressbased exemption. 4. Insignificant material support In May 2015, the USCIS released a memo providing an exemption for people who provided insignificant material support to an undesignated terrorist organization even if the individual knew or reasonably should have known that the organization had committed or planned to commit a terrorist activity. 203 203

See USCIS, Policy Memorandum: Implementation of the Discretionary Exemption Authority under Section 212(d)(3)(B)(1) of the Immigration and Nationality Act for the Provision of Certain Limited

Chapter 2

65

Chapter 2

To determine whether the applicant is eligible for the insignificant material support exemption, they must show that they: 1) are otherwise eligible for the immigration benefit sought; 2) can pass all background checks; 3) fully disclosed any material support and other contact with terrorist organizations; 4) did not provide material support to a Tier I or II organization; 5) did not provide material support to activities that they knew targeted noncombatant persons, U.S. Citizens, or U.S. interests; 6) did not provide material support that they knew or should have known involved providing weapons or transportation or concealment of such items; 7) did not provide militarytype training; 8) have not engaged in other terrorist activity; and 9) do not pose a danger to the safety and security of the United States. Additionally, to qualify, the applicant must show: 1) they did not know and reasonably should not have known that the support they provided could be used to engage in violent or terrorist activity, 2) they did not intend to further the organization’s violent or terrorist activities, and 3) that the support was insignificant because it was both minimal and the individual believed the support was inconsequential in effect. 5. Solicitation of funds or members under duress In January 2011, USCIS issued a policy memorandum that provided an exemption for applicants who are subject to TRIG bars because they solicited funds or other things of value, or members for a terrorist organization while under duress. 204 Before establishing the qualifying criteria, the applicant must meet the following threshold criteria: 1) be otherwise eligible for the immigration benefit sought, 2) pass all required background and security checks, 3) fully disclose, in all relevant applications and interviews, the nature and circumstances of each instance of solicitation, and 4) do not pose a danger to the safety and security of the United States. To establish duress, USCIS may consider the following, non-exhaustive list of factors: 1) whether the applicant reasonably could have avoided, or taken steps to avoid, soliciting; 2) the severity and type of harm inflicted or threatened and to whom the harm was directed; and 3) the perceived imminence of the harm threatened and the perceived likelihood that the harm would be inflicted. Importantly, “[a] threat of serious harm need not be expressly communicated or demonstrated; an alien may reasonably perceive a threat from the context and circumstances of his or her encounter with a terrorist organization.” 205 Once duress is established, the applicant will also have to prove that their actions fall within the conduct exempted by the statute. This exemption explicitly applies only to soliciting funds and

Material Support, (May 8, 2015), https://www.uscis.gov/sites/default/files/files/nativedocuments/20150508_Certain_Limited_Material_Support_PM_Effective.pdf. 204 See USCIS, Policy Memorandum: Implementation of New Discretionary Exemption Under INA Section 212(d)(3(B)(i) For the Solicitation of Funds or Members under Duress, (Feb. 23, 2011), https://www.uscis. gov/sites/default/files/USCIS/Laws/Memoranda/2011/February/TRIG_SolicitationPM.pdf. 205 Id.

66

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

members for terrorist organizations for non-terrorist activities. It does not apply to soliciting members or funds for terrorist activities. 206 Note that in addition to the exemption, INA § 212(a)(3)(B)(iv)(IV)(cc) includes a built-in exception for anyone who solicited funds or other things of value for a terrorist organization who can prove by clear and convincing evidence that they did not know and should not reasonably have known that the organization was a terrorist organization. 6. Military-type training under duress

Chapter 2

On February 23, 2011, USCIS published a memo which provides an exemption to INA § 212(a)(3)(B)(i)(VIII), which finds inadmissible anyone who has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization. USCIS, in collaboration with ICE, may exempt applicants who received military training under duress from a terrorist organization. 207 “Military-type training” includes “training in means or methods that can cause death or serious bodily injury, destroy or damage property, or disrupt services to critical infrastructure, or training on the use, storage, production, or assembly of any explosive, firearm or other weapon, including any weapon of mass destruction.” 208 This exemption is applicable to all applicants who received training by any terrorist organization at a time when the organization could be categorized as a terrorist organization. It does not apply to anyone who received the military training voluntarily. 209 Before satisfying the other requirements, the applicant must prove the threshold eligibility criteria: that they: 1) are otherwise eligible for the immigration benefit sought, 2) can pass all required background and security checks, 3) fully disclosed the nature and circumstances of each instance of military-type training, 4) have not received training that would pose a risk to the U.S. or U.S. interests, and 5) do not pose a danger to the safety or security of the United States. 210 To determine whether duress was present, USCIS will review the following factors: 1) whether the applicant reasonably could have avoided, or taken steps to avoid, receiving military-type training, and whether the applicant left or escaped the training at the earliest opportunity; 2) the severity and type of harm inflicted or threatened and to whom it was directed; and 3) the perceived imminence of the harm and perceived likelihood that the harm would be inflicted. Notably, the threat is not required to be expressly communicated or demonstrated.211

206 Id. (“[T]he Exercise of Authority does not include the activities described in INA subsections 212(a)(3)(B)(iv)(IV)(aa) (solicitation for ‘a terrorist activity’) and 212(a)(3)(B)(iv)(V)(aa) (solicitation ‘to engage in [terrorism-related] conduct’). The exemption applies to subsections (bb) and (cc) of each form of solicitation. This exemption is not limited to undesignated terrorist organizations … but also includes Tier I and II terrorist organizations.…”). 207 See USCIS, Policy Memorandum: Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Receipt of MilitaryType Training Under Duress, (Feb. 23, 2011), https://www.uscis.gov/sites/default/files/USCIS/Laws/Mem oranda/2011/February/TRIG_SolicitationPM.pdf. 208 Id. 209 Id. 210 Id. 211 Id.

Chapter 2

67

Lastly, the application will be subjected to a totality of the circumstances analysis in which USCIS will consider the length and nature of the training; the amount, type, frequency, and nature of the organization’s activities; the applicant’s awareness of the organization’s activities; whether the applicant participated in violent activities; the applicant’s conduct since the training; and the length of time since the training. 7. Voluntary provision of medical care

Chapter 2

In November 2011, USCIS published a memorandum exempting an individual who provided medical care to a person or organization that the person knows, or reasonably should know, has committed or plans to commit a terrorist activity. 212 This exemption does not apply to cases where medical services were provided under duress—those cases should seek exemption through the 2007 material support under duress exemption. See § 2.7.C.2 above for more information about this exemption. Additionally, the definition of “provided medical care” refers to services offered by both medical professionals and non-medical professionals. 213 Importantly, this exemption also does not apply to individuals who voluntarily and knowingly provided medical care on behalf of a Tier I or Tier II organization. 214 Applicants who provide services on behalf of Tier III organization remain eligible for the exemption. To qualify for the exemption, the applicant will have to satisfy the same threshold requirements mandated by the other exemptions: 1) show eligibility for the immigration benefit sought; 2) pass all required background and security checks; 3) fully disclose the nature and circumstances of medical care provided and other activity associated with the undesignated terrorist organization; and 4) show they are not a danger to the security of the United States. Finally, the applicant will be subject to an exercise of discretion determination based on a totality of the circumstances analysis, which will focus on: 1) the purpose, extent, frequency, and nature of the care provided; 2) the circumstances under which it was provided; 3) the applicant’s involvement with the terrorist organization; 4) the nature of the activities committed by the terrorist organization; 5) the applicant’s awareness of those activities; and 6) the applicant’s conduct since providing care. 8. Certain applicants with existing immigration benefits In September 2012, USCIS issued a memorandum which exempts applicants of adjustment of status and asylee and refugee following-to-join petitions who have existing immigration benefits, other than nonimmigrant visas, but who are inadmissible because they 1) solicited funds or other things of value, 2) solicited an individual, 3) provided material support, or 4) received militarytype training from an organization that was a Tier III terrorist organization. 215 This exemption

212

See USCIS, Policy Memorandum: Implementation of New Exemption under INA Section 212(d)(3)(B)(i) for the Provision of Material Support in the Form of Medical Care, (Nov. 20, 2011), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/VoluntaryMedical-Care-PM-602-0052.pdf. 213 Id. at 2. 214 Id. See also INA § 212(d)(3)(B)(i) for more details about individuals who are not included in this exemption. 215 See USCIS, Policy Memorandum: Implementation of the New “Limited General” Discretionary Exemption Under Immigration and Nationality Act (INA) Section 212(d)(3)(B)(i) for Qualified Applicants with Specified Associations and Activities with Qualified Undesignated or “Tier III,” Terrorist

68

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

applies to, but is not limited to, current asylees and refugees. It also applies to applicants who currently have Temporary Protected Status (TPS), adjustment of status under the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugee Immigration Fairness Act (HRIFA), and similar benefits other than a nonimmigrant visa. The exemption also applies to beneficiaries of an I-730: Refugee/Asylee Relative Petition. 216 To be eligible, the applicant must have been admitted in one of the exempt statuses on or before August 10, 2012, or be the beneficiary of an I-730 filed by a petitioner who was an asylee or refugee on or before the same date.217

Chapter 2

To qualify for the exemption, the applicant must be solely inadmissible because of a TRIG bar related to a Tier III organization and the Tier III organization must not have: 1) targeted or planned attacks on U.S. interests or persons; 2) engaged in a pattern or practice of torture, genocide, or the use of child soldiers; 3) been identified in either Executive Order 13224, as amended, or otherwise designated by the Secretary of State or the Secretary of the Treasury pursuant to the Specially Designated Nationals List (SDNL), or in lists established by United Nations Security Council Committee pursuant to Resolutions 1267 (1999) or 1988 (2011) concerning Al-Qaida and the Taliban and associated individuals and entities; or 4) been designated as a Tier I or Tier II terrorist organization. If the applicant meets the group eligibility requirements above, then they will also be required to meet the following individual requirements: 1) show they are otherwise eligible for the immigration benefit sought; 2) pass all required background and security checks; 3) fully disclose the nature and circumstances of all pertinent activities; 4) show they have not knowingly provided material support to any terrorist activities that targeted noncombatant persons or U.S. interests; 5) show they have not received training that itself poses a risk to the United States or U.S. interests; 6) not be in removal proceedings or subject to a final order of removal, unless the applicant is the beneficiary of an I-730 Refugee/Asylee Relative Petition; 7) be associated with a qualified group as set forth in the Group Eligibility paragraph; 8) pose no danger to the safety and security of the United States; and 9) warrant an exemption in the totality of the circumstances. PRACTICE TIP: Persons charged under the security and terrorist grounds of inadmissibility and deportability need expert legal assistance. Information about the law and referrals can be found on the National Immigration Project of the National Lawyers Guild’s website. 218

Organizations, (Sept, 26, 2012), https://www.uscis.gov/sites/default/files/USCIS/Laws/TRIG/Limited%20General%20Exemption.pdf. 216 Id. 217 Id. at 3. 218 See http://www.nationalimmigrationproject.org/.

Chapter 2

69

D.

USCIS case holds based on terrorism related inadmissibility

If USCIS determines that an individual seeking immigration benefits is eligible for the benefit but is subject to the Terrorism Related Inadmissibility Grounds, then USCIS may place the case on hold. These cases remain on hold indefinitely. 219 Currently, USCIS holds cases where:

Chapter 2

1. Applicants are inadmissible under the terrorist-related provisions of the INA based on any activity or association that was not under duress relating to any Tier III organization, other than those for which an exemption currently exists; 2. Applicants are inadmissible under the terrorist-related provisions of the INA, other than material support, based on any activity or association related to a Tier I, or Tier II terrorist organization where the activity or association was under duress; 3. Applicants voluntarily provided medical care to Tier I, Tier II, or Tier III terrorist organizations, to members of terrorist organizations, or to individuals who have engaged in terrorist activity; and 4. Applicants are inadmissible under INA§ 212(a)(3)(B)(i)(IX) as the spouses or children of individuals described above, whether or not those the spouse or parent has applied for an immigration benefit. 220 In a November 2011 memo, USCIS created an exception from the hold policy for groups 1 and 2 if the adjudicator determines that the applicant would not warrant a favorable exercise of discretion. 221 In this case, the application will be denied and not placed on hold. In other words, if the applicant would not be granted an exemption in the exercise of discretion, using a totality of the circumstances test, their case will not be placed on hold, but will be denied. The Immigration Court does not place TRIG barred cases on hold—they are adjudicated under applicable case law. If you are in Immigration Court and have terrorism-related inadmissibility concerns, consult with an expert in litigating these issues and make sure you understand the position of ICE counsel and the judge. 222 The applicant should be aware that the BIA and several

219

Applicants whose adjudication abeyance period has lasted many years have resorted to filing a mandamus suit and suits using the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1), to ask a federal court to compel USCIS to adjudicate the application. 220 See USCIS, Memorandum: Revised Guidance on the Adjudication of Cases involving Terrorist-Related Inadmissibility Grounds and Amendment to the Hold Policy for such Cases, (Feb. 13, 2009), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/terrorrelated_inadmissibility_13feb09.pdf; see also USCIS, Policy Memorandum: Revised Guidance on the Adjudication of Cases Involving Terrorism-Related Inadmissibility Grounds (TRIG) and Further Amendment to the Hold Policy for Such Cases, (Nov. 20, 2011). 221 See USCIS, Policy Memorandum: Revised Guidance on the Adjudication of Cases Involving TerrorismRelated Inadmissibility Grounds (TRIG) and Further Amendment to the Hold Policy for Such Cases, (Nov. 20, 2011), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/TR I-%20Hold-pm-602-0051.pdf. 222 See Anwen Hughes, Thomas K. Ragland, and David Garfield, Combating the Terrorism Bars Before DHS and the Court, American Immigration Lawyers Association (2010), available at https://www.ilw.com/seminars/201008_citation2e.pdf.

70

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

circuit courts have issued decisions on whether the INA allows duress exceptions—as of the writing of this manual, no court decision has been favorable. 223 E.

Collateral estoppel of TRIG bars

§ 2.8

Chapter 2

For applicants who have already been granted asylum or adjustment of status, it is important to note that they may not be subject to the material support bar if they seek additional immigration benefits. In Amrollah v. Napolitano, 224 the Fifth Circuit found that DHS cannot deny an adjustment of status petition based on terrorism grounds that were also present when they were granted asylum because the asylum determination necessarily included a finding that material support had not been provided. Other Grounds: Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors, Pornographers

The following are several of the less common grounds of inadmissibility. A.

Ineligible for citizenship; draft dodgers: INA § 212(a)(8)

People who are permanently ineligible for U.S. citizenship are inadmissible. 225 This is a specific term, referring to a narrow group of people who have evaded military service—not just anyone who does not meet the requirements to naturalize. 226 In Matter of Kanga, the BIA found that this ground includes those who leave or remain outside the U.S. to avoid training or performing service in the Armed Forces in time of war or a period declared by the President to be a national emergency. 227 However, if a deserter is unconditionally pardoned by the President, they may apply to naturalize. 228 Nonimmigrants who departed during a time of war or a period declared a national emergency by the President and who are now seeking re-admission as nonimmigrants are not subject to this ground of inadmissibility. 229 The term used by the statute, “ineligible for citizenship,” does not refer to those who are ineligible for U.S. citizenship for other reasons, such as people convicted of aggravated felonies. 230 Because this section refers to an individual’s act of

223

Matter of M-H-Z-, 26 I. & N. Dec. 757, 764 (BIA 2016) (holding that “the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act includes no exception for duress”); see also Hernandez v. Sessions, 884 F.3d 107, 110 (2nd Cir. 2018) (deferring to the holding in Matter of M-H-Z-); see also Sesay v. Att’y Gen., 787 F.3d 215 (3rd Cir. 2015) (finding that material support, regardless of whether voluntary or involuntary, bars an applicant from immigration benefits); Ay v. Holder, 743 F.3d 317 (2nd Cir. 2013) (the court remanded the case to the BIA to address in the first instance whether the statute allows a duress exception to the material support bar); Alturo v. U.S. Att’y Gen., 716 F.3d 1310 (11th Cir. 2013) (finding no implied duress exception to the material support bar); Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2012) (finding that the material support bar does not include an implied exception to the material support bar for people engaged in legitimate political violence or for those subject to duress). 224 710 F.3d 568 (5th Cir. 2013). 225 INA § 212(a)(8)(A). 226 Matter of Kanga, 22 I. & N. Dec. 1206, 1212 (BIA 2000). 227 22 I. & N. Dec. 1206 (BIA 2000). 228 See 31 Op. Atty. Gen. 225, 231-32 (1918). 229 See INA § 212(a)(8)(B). 230 Kanga, 22 I. & N. Dec. at 1212, 1215.

Chapter 2

71

departing from the United States or remaining outside of the country, it does not apply to applicants who simply failed to register for selective service.231

Chapter 2

People who are convicted of desertion or those who apply to be relieved from training or service in the armed forces are permanently ineligible for citizenship under other sections of the INA. 232 This ineligible group is very small. It includes only people who requested an exemption from compulsory service in the U.S. armed forces on the ground of being an alien, or people convicted of deserting the U.S. armed forces during World War II, the period 1971–1973, and during other conflicts. 233 Note that the amnesty given by President Jimmy Carter to individuals who avoided the draft during the Vietnam War also protects eligible aliens from this ground of ineligibility. Keep in mind that while many different kinds of exemptions from military service are available, only a few of them bar a person from citizenship. Some people who received an exemption from military service may still be eligible for naturalization. The Ninth Circuit held that a person who is exempted or discharged on the basis of voluntary service as opposed to compulsory service is not barred from naturalizing. 234 Other circuit courts have not agreed with this distinction by the Ninth Circuit, however, and have held that if the release or discharge from voluntary service was based on alienage, the person is permanently ineligible to naturalize. 235 A person might also still be eligible for citizenship if the person qualified for one of the various exemptions set out in the USCIS Policy Manual, including lack of “liability” for service; being unable to make an intelligent choice between an exemption and citizenship because the individual was misled by a military official; having been granted automatic exemption by the government without request; receiving an exemption not based on alienage; having performed prior service with a NATO nation or a treaty national country of a certain period; and subsequent induction after requesting an exemption. 236 Although there has not been a draft in the United States in many years, advocates should make sure a client is not ineligible based on these grounds. B.

Stowaways: INA § 212(a)(6)(D)

Stowaways are people who have boarded onto a ship without permission. They are inadmissible under INA § 212(a)(6)(D). However, stowaways may still seek parole into the United States pursuant to INA § 212(d)(5). They may also seek other forms of lawful status depending on the

231

See INA § 212(a)(8)(B). See INA §§ 212(a)(8), 314, and 315. 233 See, e.g., Cernuda v. Neufeld, 307 F. App’x 427 (11th Cir. 2009) (unpublished) (non-citizen filed an Application by Alien for Relief from Training and Service in the Armed Forces with his local Selective Service office, which was accepted, but the court found that while he could be a permanent resident, he would never be eligible for naturalization); but see Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007) (holding that INA § 315 bars citizenship only for those who request and receive exemption, relief, or discharge from liability for the draft and not for those who request early release from voluntary military service). 234 See Gallarde, 486 F.3d at 1143. 235 See Dicicco v. U.S. Dep’t. of Justice INS, 873 F.2d 910, 913 (6th Cir. 1989); see also Sakarapanee v. Dep’t of Homeland Sec., 616 F.3d 595 (6th Cir. 2010). 236 12 USCIS-PM I.4. 232

72

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

circumstances of their case, including but not limited to, adjustment of status under INA § 245(h) (special immigrant juvenile status), asylum, and “U” or “T” visa status. C.

Miscellaneous grounds

Miscellaneous inadmissibility grounds are listed in INA § 212(a)(10). The grounds include: •

Chapter 2

• • • •

Practicing polygamists (who believe in and who are coming to the United States to practice polygamy); People who abduct children across international borders; A guardian who is required to accompany a helpless and inadmissible applicant; Noncitizens who vote in an election in violation of any federal, state, or local law; People who renounce their U.S. citizenship in order to avoid U.S. taxation. 1. Practicing polygamists

Persons coming to the United States to practice polygamy are inadmissible.237 The relevant statute, regulation, and case law set out different tests for polygamy. While case law requires belief in the ideology of polygamy, 238 the regulations and USCIS policy manual require that the person “has practiced or is practicing polygamy,” 239 and the statutory language requires the person to practice polygamy in the United States. 240 However, advocates should point to the relevant statute, regulation, and case law, to argue that all three of these factors must exist for the bar to apply. 241 Example: Joe married Sally and never divorced her. They have not lived together for many years. Joe then marries Kim in Las Vegas. Joe is not inadmissible under this ground because he does not believe in the practice of polygamy. He simply did not legally terminate his initial marriage. Additionally, 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 their relationship is the basis of any immigration status or benefit, but he is not inadmissible for polygamy. 2. Unlawful voting: INA § 212(a)(10)(D) In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added inadmissibility and deportability provisions to the INA to address unlawful voting. 242 Any 237

It is important to note that polygamy, the ideology or religious practice of having many wives, is different from bigamy, the crime of being married to more than one person at a time. See Matter of G-, 6 I. & N. Dec. 9, 11 n.5 (BIA 1953). 238 See id. at 11 (holding that, for someone to be a polygamist, it must be shown that the person subscribes to the historical custom or religious practice of polygamy). 239 See 8 CFR § 316.10(b)(2)(ix), 12 USCIS-PM F.5(H). 240 See INA § 212(a)(10)(A). 241 See INA § 212(a)(10)(A); 8 CFR § 316.10(b)(2)(ix); Matter of G-, 6 I. & N. Dec. 9 (BIA 1953). 242 See INA § 212(a)(10)(D)(i); see also INA § 237(a)(6)(A) (“[a]ny alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable”).

Chapter 2

73

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 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. As with the false claim to U.S. citizenship ground, this is a harsh provision with no waivers except for cancellation of removal for permanent residents under INA § 240A(a), or other special forms of relief, such as a U visa.

Chapter 2

If this ground is raised against your client, get expert help. Noncitizens who violate these provisions may face criminal sanctions if they have voted in any federal election. It should be cautioned that a noncitizen who votes unlawfully but who has not been convicted under 18 USC § 611 still may be deemed inadmissible. a. What constitutes unlawful voting? The definition of unlawful voting in both INA § 212(a)(10)(D)(i) and INA § 237(a)(6) does not require knowledge that the voting was unlawful; it includes people who mistakenly and innocently believed that they were entitled to vote. The key to assessing whether unlawful voting has occurred is not just if the person voted, but also if they did so in violation of some federal, state or local law. Practitioners should identify and analyze the voting law that applies to the election in which the applicant voted and determine if there was a requirement of guilty knowledge or some other specific intent. For example, in some states, one can only violate local election law if one voted with fraudulent intent, or knowledge that they were not allowed to vote. 243 Thus, accidentally voting in these local elections would not be unlawful voting. In contrast, federal law makes unlawful any voting by an alien in a federal election, with no intent or knowledge requirement. 244 A noncitizen, therefore, who voted in a federal election could be found removable even if they had no knowledge that they were prohibited from doing so. Note that, even if the noncitizen voter did not violate an election law, DHS may argue that they violated other laws, such as laws establishing voter eligibility, which could still be a basis for a finding of inadmissibility or deportability. Additionally, if the voting occurred on or after September 30, 1996, this could also constitute a false claim to U.S. citizenship and thus trigger removability on a different basis. Finally, it is important to note that some municipalities allow lawful permanent residents and/or nonresident aliens to vote in municipal elections, 245 so practitioners should check whether the

243

See, e.g., MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005). 18 USC § 611; Matter of Fitzpatrick, 26 I. & N. Dec. 559, 560–61 (BIA 2015) (explaining that 18 USC § 611 is “a general intent statute, which does not require ‘proof that the alien knew that it was unlawful for him to vote.’”); see also Kimani v. Holder, 695 F.3d 666, 669 (7th Cir. 2012) (finding petitioner inadmissible for voting in 2004 presidential election because “a conviction under § 611(a) does not depend on proof that the alien knew that voting is forbidden”). 245 Id. See Virginia Harper-Ho, Note, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. 271 (2000); Tara Kini, Note, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 Calif. L. Rev. 271 (2005). 244

74

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

noncitizen voted in a federal, state, or municipal election since the requirements differ depending on the type of election in which the noncitizen voted. b. Exceptions and waivers for unlawful voting i.

Narrow exception to the unlawful voting inadmissibility and deportability provisions

Under INA §§ 212(a)(10)(D)(ii) and 237(a)(6)(B), individuals who meet the following requirements will not be subject to the immigration consequences of having voted unlawfully:

Chapter 2

1. Each natural or adopted parent of the person is or was a U.S. citizen; 2. The person permanently resided in the U.S. before the age of sixteen; and 3. The person reasonably believed at the time of such violation that they were a citizen of the U.S. Effective Date: The Child Citizenship Act of 2000 (CCA) amended the statute to include this exception. This change in the law cures unlawful voting that took place before or after its enactment. Example: Sofia told her daughter Claudia that she was a U.S. citizen. Under the belief that she was a citizen when she turned 22, she applied for a U.S. passport using the birth certificate her mother said belonged to her. In fact, the birth certificate was false, and Sofia had lied to Claudia all those years. Both Claudia and her mother were in fact undocumented. Claudia, thinking that she was a U.S. citizen, had also voted. Unfortunately, Claudia is subject to the immigration penalties for unlawful voting because she does not qualify for the narrow exception. However, Claudia should not fall within the inadmissibility ground for false claim to U.S. citizenship since USCIS recognizes that a false claim to U.S. citizenship requires knowledge of the falsity. See § 2.5 above. ii. Waivers for unlawful voting Like false claims to U.S. citizenship, there is no inadmissibility waiver for unlawful voting. However, some forms of relief, like cancellation of removal for long-time permanent residents, can waive both inadmissibility and deportability grounds. The act of or conviction for unlawful voting is not a statutory bar to cancellation of removal. Additionally, while those seeking nonLPR cancellation of removal may be barred from showing good moral character based on unlawful voting during the statutory period, the non-criminal grounds of inadmissibility are not a specific bar for this form of relief. However, there is no waiver for individuals seeking admission to the United States, such as through a family petition. WARNING! Unlawful voting may carry other possible immigration consequences. With very few exceptions, 246 only U.S. citizens are authorized to vote in federal, state, and local elections. 246

Some municipalities allow lawful permanent residents and/or nonresident aliens to vote in municipal elections. For more information, see Virginia Harper-Ho, Note, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. 271 (2000); Tara Kini, Note, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 Calif. L. Rev. 271 (2005).

Chapter 2

75

Chapter 2

Consequently, when a noncitizen votes in an election, they may face adverse immigration consequences: grounds of inadmissibility or deportability, criminal sanctions, or a discretionary finding of that the applicant lacks good moral character for naturalization purposes, if within the statutory period. Additionally, unlawful voting and false claim to U.S. citizenship are often intertwined. If a client may be subject to one of these grounds, be mindful to screen for issues arising from the other ground. The act of unlawful voting could also be considered a crime of moral turpitude if there was a specific intent or guilty knowledge requirement involved. See Chapter 5.

76

Chapter 2

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

CHAPTER 3 IMMIGRATION VIOLATIONS RELATING TO UNLAWFUL STATUS AND REMOVAL This chapter includes: § 3.1 § 3.2 § 3.3

§ 3.4

§ 3.5

Chapter 3

§ 3.6 § 3.7 § 3.8

Entry, Admission, and Effective Dates ................................................................ 77 Unlawfully Present in the United States without Being Admitted or Paroled, INA § 212(a)(6)(A) ................................................................................ 78 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission, INA § 212(a)(9)(B), and the Family Hardship Waiver.......................................................................... 82 “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, INA § 212(a)(9)(C)...................... 92 The Differences Between “Unlawful Presence” and “Unlawful Status” ................................................................................................ 99 Failure to Attend Removal Proceedings, INA § 212(a)(6)(B) ........................... 101 Past Removal, Deportation, or Exclusion, INA § 212(a)(9)(A) ......................... 102 Reinstatement of Prior Deportation or Removal Order ...................................... 104

Violating the immigration laws can be a basis for inadmissibility. This chapter summarizes 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, especially the memoranda published by the U.S. Department of Homeland Security (DHS) giving its interpretation of the laws. 1 § 3.1

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 is subject to the grounds of inadmissibility. Chapter 1 includes a detailed explanation of when a person is considered to be seeking admission. For purposes of understanding the grounds of inadmissibility in this chapter, it is important to remember that someone already within the United States may be subject to the grounds of inadmissibility if they entered the United States without inspection. 2 Pay attention to when each of the following sections in this chapter uses words like “entry,” “admission,” or “parole.” Some

1 See, e.g., USCIS, Interoffice Memorandum: Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual, (March 3, 2009), attached as Appendix I. 2 Review Chapter 1 for a detailed explanation of how the term “admission” is defined under INA § 101(a)(13).

Chapter 3

77

inadmissibility grounds only apply if the person remains in the United States; 3 other inadmissibility grounds only apply if the person leaves the United States after a violation.4 It is also important to pay attention to the effective dates—when certain grounds imposed by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (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 either 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 ten-year bars” and the “permanent bar,” based on unlawful presence. Frequently asked questions and a chart relating to these grounds appear at Appendix F. In addition, Appendices G & I consist of memoranda published by U.S. Citizenship and Immigration Services (USCIS) as amendments to its Adjudicator’s Field Manual that describe in detail its interpretation of these grounds. 5 § 3.2 A.

Unlawfully Present in the United States without Being Admitted or Paroled, INA § 212(a)(6)(A)

Present without being admitted or paroled

Chapter 3

Under INA § 212(a)(6)(A)(i), a noncitizen 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, is inadmissible. 6 This ground penalizes people who entered without inspection (“EWI”) and remain in the United States. Additionally, it renders anyone attempting to enter the United States at a place other than a designated checkpoint, inadmissible. For those facing removal, entering without inspection is the most common charge in immigration court proceedings. Note that this ground is “cured” upon departure from the United States, so it does not impact those who have left and are now immigrating through consular processing, although

3

See INA § 212(a)(6). See INA § 212(a)(9). 5 USCIS, Interoffice Memorandum: Consolidation of Guidance Concerning Unlawful Presence, (May 6, 2009) (attached as Appendix G) and USCIS, Interoffice Memorandum: Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual, (March 3, 2009) (attached as Appendix I). Note that the USCIS Policy Manual, available at https://www.uscis.gov/policy-manual, will ultimately replace the Adjudicator’s Field Manual but for now the sections of the USCIS Policy Manual pertaining to unlawful presence and related grounds of inadmissibility have not yet been released. Additionally, an August 9, 2018 USCIS Policy Memorandum superseded parts of the May 6, 2009 unlawful presence memo as it pertains to foreign students and exchange visitors, although at the time of this manual’s writing this new policy is subject to a legal challenge and is currently enjoined. See USCIS, Policy Memorandum: Accrual of Unlawful Presence and F, J, and M Nonimmigrants (Aug. 9, 2018), available at https://www.uscis.gov/sites/default/files/USCI S/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-MNonimmigrants.pdf; Guilford College v. McAleenan, No. 1:18CV891, 2019 WL 1980132 (M.D.N.C. May 3, 2019). 6 Immigration advocates who practiced before April 1, 1997 will note that this ground of inadmissibility replaces the former “entry without inspection” deportation ground. 4

78

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

other grounds of inadmissibility related to unlawful presence may apply depending on the length of time spent in the United States without status. See § 3.3. Example: Sonia entered the United States without inspection in 2000 and has not left since. She is inadmissible under 212(a)(6)(A)(i) due to the fact that she is within the United States without having been inspected or paroled. She could be placed in removal proceedings for being inadmissible. Example: Sonia’s sister Tania was admitted to the United States in 2000 on a visitor’s visa and has not left since. Tania is not inadmissible under this ground, because she was lawfully admitted. (Note, however, that Tania is deportable under INA § 237(a)(1)(B) because she is “present in violation of the law,” for remaining beyond the expiration of her authorized stay and could be placed in removal proceedings for being deportable. See Chapter 4 of this manual.) Example: Tania’s friend George entered the United States by crossing the border undetected. Shortly thereafter he was apprehended by CBP (Customs and Border Protection) and taken into custody. DHS, looking at the circumstances of his case, granted George parole into the country on the basis of urgent humanitarian reasons. Is George inadmissible under INA § 212(a)(6)(A)(i)?

Chapter 3

Under current USCIS policy, George is not inadmissible under this provision once he has been paroled. 7 Because George is paroled into the United States, he is not present without inspection or parole. Additionally, although George did not enter through a designated checkpoint, current guidance indicates that this provision would only apply to someone at the time of entry. 8 In a policy memorandum issued November 15, 2013, USCIS reasoned that the grant of parole for someone like George eliminates this ground of inadmissibility. USCIS pointed out that it would be illogical to have both the first prong, present without inspection or parole, and the second prong, regarding an arrival at an undesignated place or time, apply to someone present within the United States. USCIS indicated that the verb “arrives” is in present tense, intentionally to describe those currently attempting entry at an undesignated place.9 Thus, once someone receives parole, they are no longer inadmissible under § 212(a)(6)(A)(i). Following this same logic, once someone departs the United States, they would be able to consular process even if they were once present in the United States without inspection or parole. After departure, they are no longer present and are not currently attempting entry at an undesignated place.

7

See USCIS, Policy Memorandum: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), (Nov. 15, 2013), available at https://www.uscis.gov/site s/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf. 8 See id. 9 Id.

Chapter 3

79

Any form of parole granted under INA § 212(d)(5)(A) will ameliorate inadmissibility under this provision. However, USCIS 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). 10 B.

Exceptions and exemptions

Chapter 3

This ground of inadmissibility does not bar eligibility for adjustment of status in the following situations: •

Exception for those who are eligible for adjustment of status under INA § 245(i). 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).11 The Board of Immigration Appeals (BIA) has also upheld this position, finding that to hold otherwise would defeat the purpose of § 245(i), and run contrary to Congressional intent. 12

•

Exemption for those who are eligible for adjustment of status as VAWA selfpetitioners. Violence Against Women Act (VAWA) self-petitioners are exempt from this ground of inadmissibility for adjustment of status under INA § 245(a). 13 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. 14 For more information about this, see the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants.

In addition, here are a few examples of other forms of relief that also waive or exempt applicants from this ground: •

Temporary protected status. USCIS has found as a policy matter that § 212(a)(6)(A) and grounds of inadmissibility under § 212(a)(9) should not apply to applicants seeking temporary protected status (TPS). 15 Additionally, a TPS applicant can get a waiver of certain grounds of inadmissibility for humanitarian purposes, to assure family unity, or

10

INA § 236(a)(2)(B) (so-called “conditional parole”), see Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010) (agreeing with DHS that “conditional parole” under INA § 236(a)(2)(B) does not constitute parole under INA § 212(d)(5)(A)). See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). 11 See Louis D. Crocetti, Jr., 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 (Mar. 24, 1997). 12 See Matter of Briones, 24 I. & N. Dec. 355, 365 (BIA 2007). 13 Adjustment of status is the process of obtaining an immigrant visa within the United States. 14 See INA § 245(a); see also Michael L. Aytes, Assoc. Dir. Dom. Opers., USCIS, RE: “Adjustment of status for VAWA self-petitioners who is present without inspection,” April 11, 2008, p. 2, available at https://www.uscis.gov/archive/archive-news/fact-sheet-uscis-issues-guidance-approved-violence-againstwomen-act-vawa-self-petitioners. 15 See 8 CFR § 244.3. This regulation specifically exempts TPS applicants from grounds of inadmissibility under INA §§ 212(a)(4), 212(a)(5)(A)-(B), and 212(a)(7)(i). In a draft memorandum circulated in 2011, USCIS indicated that INA §§ 212(a)(6)(A) and 212(a)(9) will not be applied to those seeking TPS. USCIS indicated that to do so would be contrary to the statute. At this time, USCIS is not requiring waivers for these grounds.

80

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

when granting the waiver would be in the public interest. 16 TPS grantees are considered to be in lawful status from the date they apply for TPS. 17 There is currently a division among federal courts regarding whether a TPS grant constitutes an “admission” and thus cures a person’s initial illegal entry for purposes of qualifying for adjustment of status under § 245(a). 18 In other words, depending on the circuit, a person with TPS can still be considered inadmissible under INA § 212(a)(6)(A)(i), disqualifying them from adjustment of status through a family or employment visa petition under INA § 245(a) if they initially entered the United States without permission. •

Discretionary waiver for legalization applicants under INA §§ 245A and 210. This inadmissibility ground was introduced subsequent to the legalization programs. Even if DHS were to apply this newer inadmissibility ground to any old legalization applications still pending, DHS has the authority to grant a waiver of INA § 212(a)(6) inadmissibility for humanitarian, family unity, or public interest reasons, for applicants for both legalization or special agricultural worker status under INA §§ 245A or 210. 19

•

Additional exemptions. In addition to these exceptions and waivers, inadmissibility under INA § 212(a)(6)(A)(i) does not apply to individuals seeking the following relief:

o o o o o o

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 under INA §§ 208(a)(1), (a)(2) and (b)(2); Family Unity under § 301 of the Immigration Act of 1990 (IMMACT 90); and Some applicants for adjustment under the Cuban Adjustment Act of 1966.

Chapter 3

o o

16

8 CFR § 244.3(b). INA § 244(f)(4). 18 See, e.g., Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) (TPS grant is an “admission” for adjustment of status purposes under 245(a)); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) (TPS grant is an “admission” for adjustment of status purposes under 245(a)); Serrano v. U.S. Attorney General, 655 F.3d 1260 (11th Cir. 2011) (TPS grant is not an “admission” for adjustment under 245(a)); Bonilla v. Johnson, 149 F.Supp.3d 1135 (D. Minn. 2016). 19 See 8 CFR §§ 245a.2(k)(2), 245a.3(g)(2), 245a.18(c), and 210.3(e). 17

Chapter 3

81

§ 3.3

A.

Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission, INA § 212(a)(9)(B), and the Family Hardship Waiver

The three- and ten-year bars

The three- and ten-year bars for unlawful presence are found at INA § 212(a)(9)(B)(i)(I) & (II). These grounds of inadmissibility penalize people who stay beyond a specific period in the United States without lawful status, leave, and then apply for admission. These grounds are only triggered when the person departs the United States (see Subsection E). They apply to people who originally were admitted or paroled but then stayed past the expiration of their authorization; 20 those who entered without inspection; and those who knowingly made a false claim of U.S. citizenship to obtain permission to enter.21 Only unlawful presence beginning on April 1, 1997 counts as part of the time period; see Sections C and D, below, for more rules governing which time periods do and do not count for 212(a)(9)(B) unlawful presence.

Chapter 3

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). Fortunately, there is a waiver for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents. See Family Hardship Waiver information below (Subsection F). Effective date of April 1, 1997. 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 before September 27, 1997 (within 180 days after April 1, 1997) will not be inadmissible under this ground. 20

An August 2018 USCIS memorandum ended a longstanding beneficial twist for those who entered with F or J student or exchange visas who were accorded “duration of status” at entry. See USCIS, Policy Memorandum: Accrual of Unlawful Presence and F, J, and M Nonimmigrants, (Aug. 9, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf. Previously, individuals admitted for duration of status who overstayed or violated their status in some way did not immediately begin accruing unlawful presence for purposes of § 212(a)(9)(B). According to the August 2018 memo, Canadians not issued I-94s upon entry (“non-controlled nonimmigrants”) are also considered to have been admitted with “duration of status” for purposes of 212(a)(9)(B) unlawful presence. At the time of this manual’s writing, however, this new policy is subject to a legal challenge and is currently enjoined. See Guilford College v. McAleenan, No. 1:18CV891, 2019 WL 1980132 (M.D.N.C. May 3, 2019). 21 See Appendix G at 22; Matter of S--, 9 I. & N. Dec. 599 (BIA 1962).

82

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Continuous period. The 180 days or one year must be continuous. A person who is unlawfully present 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 fall within the three- or ten-year bars. 22 If, however, a person accrues several periods of unlawful presence during one single stay, interspersed with other periods of lawful presence, USCIS will add the multiple periods together for purposes of the three- and ten-year bars. 23 Example: Alan entered the U.S. for the first time on a visitor visa in 2005. On that trip, Alan stayed two months past his authorized stay. Alan entered the United States again in 2008. During that trip, Alan stayed for five months past his authorized stay on his visitor visa before departing. He has not triggered any unlawful presence bar under § 212(a)(9)(B) because he never stayed over 180 days continuously.

B.

Chapter 3

Example: John was admitted to the U.S. as a B-2 visitor on January 1, 2008 and his authorized stay expired on June 30, 2008. He did not leave but married Amanda, a U.S. citizen, and filed for adjustment of status through her on November 1, 2008. While his adjustment application was pending, he did not accrue unlawful presence (see Subsection C for time periods that do not count for 212(a)(9)(B) unlawful presence). His adjustment application was denied on April 1, 2010 and all appeals have been exhausted. His unlawful presence begins to accrue again upon the final adjustment denial (see below for more on exceptions to unlawful presence). Because John has never left, each period of unlawful presence can be added up. Nonetheless, John has not triggered these bars unless and until he leaves the United States. If he adjusts status without having left the United States, these grounds of inadmissibility will not apply to him. Departing voluntarily versus under court order and the three- and ten-year bars 1. Three-year bar: voluntarily depart before placed in proceedings The inadmissibility ground for unlawful presence for more than 180 days but less than one year (the “three-year bar”) is only triggered when a person leaves the U.S. voluntarily 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 immigration judge or is ordered deported after 180 days have lapsed but before accumulating a year unlawful presence, they do not fall under this provision. 2. Ten-year bar: any departure In contrast, the inadmissibility ground for one year or more of unlawful presence in the United States (the “ten-year bar”) is triggered regardless of the circumstances under which the person leaves the United States (unless the person leaves pursuant to a grant of advance parole, see

22 Note, however, that the even more dangerous “permanent” bar to admission for those who attempt to enter illegally is cumulative. For purposes of the permanent bar, DHS does add different periods of unlawful presence together. A year or more of unlawful presence in total will trigger the permanent bar. The permanent bar is discussed in the next section. 23 See Appendix G, p. 13.

Chapter 3

83

below). It will include any departure from the United States whether the person decides to leave on their own or is required to pursuant to removal proceedings. 24 3. Gap in the statute The difference in the type of departure that triggers each of these bars creates 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 removal or a grant of voluntary departure) is not inadmissible under this ground at all. 25 This creates the odd result that someone who was removed has more benefits under this part of the statute than someone who voluntarily left either on their own volition or under a voluntary departure grant before removal proceedings were initiated.

Chapter 3

PRACTICE TIP: A person can avoid inadmissibility under the three-year unlawful presence bar if they receive voluntary departure from the judge and depart before a year of unlawful presence. This is especially helpful for those who have a family member who can file a visa for them and are eligible to consular process. If your client is placed in proceedings before accruing a year of unlawful presence, evaluate whether your client is eligible to consular process to become a permanent resident through a family member. If so, it might be useful to advance the hearing for voluntary departure to allow your client to consular process without waivers after accruing more than 180 days but before accruing one year of unlawful presence. This is a good option for someone who is not eligible to adjust status and does not face other inadmissibility grounds. C.

Time periods that do not count as unlawful presence under INA § 212(a)(9)(B) 1. Statutory exceptions

Under the statute, certain periods of time will not count in calculating the period of unlawful presence. 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: • •

•

Is under eighteen years of age; Has a pending bona fide asylum application or bona fide Asylee-Refugee Relative Petition, unless the noncitizen works without authorization during that time (DHS has said that the term “bona fide” will be defined generously, as an asylum application that has any arguable basis in law and fact); 26 Is the beneficiary of Family Unity protection under § 301 of the Immigration Act of 1990; 27

24 See INA § 212(a)(9)(B)(i)(II); Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007); vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 25 See 75 Interpreter Releases 543 (Apr. 20, 1998). 26 See Appendix G, 29–31. 27 By USCIS 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 (see below).

84

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

•

•

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 or parent’s family (VAWA self-petitioner), where there was a substantial connection between the battery or cruelty and the unlawful presence; Is a victim of a severe form of trafficking in persons (T nonimmigrant visa applicant), where the individual can demonstrate that the trafficking is at least one central reason for their unlawful presence in the United States. 2. Other cases when unlawful presence is not counted

Other kinds of immigration status or procedures also affect whether unlawful presence is “counted” for the three- and ten-year bars under INA § 212(a)(9)(B). Some of these exceptions are policy determinations by USCIS, rather than statutory exemptions, and are thus subject to change. Affirmative adjustment of status applications (i.e. an application for adjustment before USCIS and not as a defense in removal proceedings). USCIS 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 not eligible for the benefit in the first place: Registry under INA § 249 and adjustment of status under: (1) INA § 209, § 245 and § 245(i); (2) NACARA § 202(b); (3) HRIFA § 902; and (4) Cuban-Haitian Adjustment Act of § 202. 28

•

Voluntary departure. The period during which DHS, an immigration court, or the 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, however, 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. 29

•

Authorized stay for nonimmigrants. If the person was admitted to the United States as a nonimmigrant, “unlawful presence” is counted after the expiration date on the person’s I-94 entry document. However, F, J, and M nonimmigrants are subject to a new policy that outlines other events that can trigger unlawful presence, such as a violation of the terms of the visa. 30 This policy is the subject of a legal challenge and, at the time of this manual’s writing, is not being implemented due to an injunction. For more information,

Chapter 3

•

28

See Appendix G, 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. 29 See Appendix G, 39–42, for additional information regarding the effect of reinstatements of voluntary departure, petitions for review, and motions to reopen. 30 See USCIS, Policy Memorandum: Accrual of Unlawful Presence and F, J, and M Nonimmigrants, (Aug. 9, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf.

Chapter 3

85

Chapter 3

see Guilford College v. McAleenan. 31 For other nonimmigrants, unlawful presence only begins when there is a formal determination that they are no longer in status. INA § 212(a)(9)(B)(ii). •

Duration of status for nonimmigrants. If the person was admitted to the United States as a nonimmigrant for “duration of status” usually indicated by “D/S” on I-94 or on passport stamp, different events can trigger unlawful presence depending on the type of visa in question. Traditionally and for many nonimmigrants, neither the expiration of lawful status nor a violation of the nonimmigrant’s lawful status triggers the start of unlawful presence. Only a formal finding of a status violation or an order of removal entered by an immigration judge triggers unlawful presence. However, F, J, and M nonimmigrants are subject to a new policy that outlines other events that can trigger unlawful presence, such as a violation of the terms of the visa or the end of program of study. This policy is the subject of a legal challenge and, at the time of the writing of this manual, is not being implemented due to an injunction. For more information, see Guilford College v. McAleenan. 32 Canadians who enter “uncontrolled” as B-1/B-2 tourists or business visitors, but without an I-94, are also considered here for “duration of status” though the maximum lawful status for such nonimmigrants is an initial one year of admission, that is subsequently extendable for most people in increments of up to six months. See 8 CFR 214.1(b).

•

Application to extend or change nonimmigrant status. The statute indicates that unlawful presence is tolled (stopped) for people who apply to extend or change their nonimmigrant status for 120 days. 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, USCIS 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 individuals’ status has not lapsed prior to the filing of the request. 33

•

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. 34

•

Lawful temporary residents. Unlike conditional residents (see below), LTRs pursuant to INA § 245A(b) do not automatically begin accruing unlawful presence following the

31

No. 1:18CV891, 2019 WL 1980132 (M.D.N.C. May 3, 2019). Id. 33 See Appendix G, 35–38, for additional information regarding the effect of departure while EOS/COS applications are pending, motions to reopen, etc. 34 See Appendix G, 44. 32

86

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

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 tolls unlawful presence), or until the commencement of removal proceedings. 35 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.36

•

Family Unity. 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. 37

•

Pending applications for temporary protected status (TPS), if properly filed, 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.38

•

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 in absentia removal order. 39

•

Deferred action. Individuals granted discretionary deferral of removal or deferred action will not accrue unlawful presence during the period for which deferral is granted. 40 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, even if after the person turns eighteen years old, USCIS will consider that person not to have accrued unlawful presence.

•

Withholding of removal or deportation. Unlawful presence ceases during the period for which withholding of removal or deportation is granted. 41

•

Withholding or deferral of removal under the Convention Against Torture (CAT) stops accrual of unlawful presence through the period of the grant.42

•

Deferred enforced departure (DED) commences authorized stay on the date specified and ends when the DED is no longer in effect. 43

Chapter 3

•

35

See Appendix G, 22–23. See Appendix G, 38. 37 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 a policy exception for both Sections 212(a)(9)(B) and (C). 38 See Appendix G, 38–39. 39 See Appendix G, 42. 40 See id. 41 See Appendix G, 42–43. 42 See Appendix G, 43. 43 See id. 36

Chapter 3

87

•

D.

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 individual remain following the expiration of this period, unlawful presence begins to accrue the day after expiration. 44 Time periods that do count as unlawful presence under INA § 212(a)(9)(B)

Chapter 3

The following time periods will count towards the accrual of unlawful presence under § 212(a)(9)(B) for purposes of the three- and ten-year bars:

E.

•

Time in removal/deportation proceedings. Time spent in removal/deportation proceedings counts as unlawful presence unless the person has a valid nonimmigrant visa during the proceedings or is renewing an affirmatively filed adjustment or asylum application in removal proceedings (or unless they are an LPR, of course). A nonimmigrant in removal proceedings does not accrue unlawful presence until their nonimmigrant 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. 45

•

Conditional residents who fail to petition to lift the conditions on their residency. Conditional residents who do not timely file a petition to lift the conditions on their permanent residency 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. 46

•

Persons admitted due to false claim of citizenship. Such persons are regarded by USCIS as not having been admitted or inspected, and thus all time spent in the United States subsequent to such an entry is regarded as unlawful presence unless some other subsequent authorization exists. The person must leave the United States in Order to trigger 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, these bars do not apply as long as the person never departs the United States, no matter how long a noncitizen has been unlawfully present. Some people are eligible to immigrate through family members at their local USCIS office, in a process called adjustment of status. If a person is able to adjust status in the United States, they can sometimes avoid this ground of inadmissibility if they remained in the United States after any period of unlawful presence. Others must leave the United States and go to a U.S. consulate in their home country in order to immigrate through a family member. By leaving the United States, even to 44

See id. Note, however, that if someone files a defensive application for adjustment of status in removal proceedings, meaning the application was never filed with USCIS, the applicant does accrue unlawful presence in removal proceedings. See Appendix G, 45. 46 See Appendix G, 23. 45

88

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

attend the consular interview, they trigger this ground, and their unlawful presence will be counted against them. These individuals must qualify for a waiver excusing such unlawful presence or else they will not be able to obtain permanent residence. Some individuals may qualify for an I-601A Provisional Unlawful Presence Waiver, that enables them to waive unlawful presence in anticipation of travel to attend their consular interview, before they have actually triggered the three- or ten-year unlawful presence bars. 47 If travel is necessary for any other reason, your clients should try to obtain advance parole if at all possible to avoid triggering the three- and ten-years bars with their departure. BEWARE! Those with more than a year of unlawful presence, who then depart and subsequently re-enter or attempt to re-enter without inspection are inadmissible under both INA § 212(a)(9)(B) and § 212(a)(9)(C), the very harsh “permanent” bar, which is discussed in the next section. Unlike § 212(a)(9)(B), there is no way to overcome inadmissibility under § 212(a)(9)(C) until the person spends ten years outside the United States. 48 For those in removal proceedings, these persons might still qualify for some forms of relief, such as cancellation of removal or asylum, but there is no direct waiver of this ground of inadmissibility as there is for 212(a)(9)(B). What is a “departure” for purposes of unlawful presence grounds?

Chapter 3

Departure on one’s own volition or by order of a judge will trigger these grounds of inadmissibility if the person has accrued the requisite unlawful presence. Travel with advance parole, however, should not be considered a departure that triggers the unlawful presence grounds of inadmissibility. 49 In Arrabally and Yerrabelly, the BIA found that 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. Although the BIA case specifically addressed a person with a pending adjustment application who travelled with advance parole, the reasoning of this decision arguably applies in other contexts. Since this decision, those with TPS and DACA (Deferred Action for Childhood Arrivals) who previously accrued unlawful presence have also successfully travelled 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, USCIS indicated that it agrees with this broad interpretation. 50 Note, however, this interpretation could be revisited at any time, so always check for updates. Departure with refugee travel document. According to prior USCIS guidance, asylees who have secured valid refugee travel documents will trigger the three- or ten-year bars upon attempting to re-enter the country. 51 47

The provisional unlawful presence waiver requirements and process is discussed in more detail in Chapter 6. 48 After ten years outside the United States, someone subject to the permanent bar can file a waiver-like “request for permission to reapply for admission.” 49 Matter of Arrabally and Yerrabelly, 25 I. & N. Dec. 771 (BIA 2012). 50 USCIS, Policy Memorandum: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces and the Effect of Parole on Inadmissibility under Immigration and Nationality Act (Nov. 15, 2013), available at www.uscis.gov/sites/dafult/files/USCIS/Laws/Memoranda/20131115_Parole_In_Place_Memo_.pdf. 51 Appendix G, 17, 19.

Chapter 3

89

Persons who re-enter the United States as asylees with valid refugee travel documents will be permitted to re-enter the United States, but will be inadmissible upon subsequent attempts to adjust status to lawful permanent resident. 52 Following the logic of the Board’s case regarding advance parole, asylees should argue that their departure is not a departure that triggers unlawful presence for purposes of INA § 212(a)(9)(B). However, it is not yet clear how USCIS will treat these or other cases after the decision in Arrabally and Yerrabelly. 53 F.

Family hardship waiver

A waiver of the three- and ten-year unlawful presence bars is available for people who are the spouses, sons, or daughters of U.S. citizens or lawful permanent residents. DHS or an immigration judge can grant this waiver if refusing admission to the applicant would result in extreme hardship to the U.S. citizen or permanent resident spouse or parent, and DHS determines that the waiver applicant warrants a favorable exercise of discretion. INA § 212(a)(9)(B)(v). Note that this particular waiver requires a U.S. citizen or lawful permanent resident spouse or parent as a qualifying relative. Children cannot be qualifying relatives for waivers of the three- and tenyear bar, unlike other types of waivers. Also, DHS will not consider hardship to the waiver applicant themselves. 54

Chapter 3

Certain individuals who are presently in the United States but will be leaving to consular process (and triggering unlawful presence with this future departure) can apply for the waiver before leaving the country. This is called a “provisional waiver” and uses Form I-601A, 55 rather than the traditional Form I-601 that can be used to waive unlawful presence and other waivable grounds of inadmissibility. The provisional waiver takes away some of the risk of leaving to consular process without knowing whether a waiver for the three- or ten-year unlawful presence bars would be granted, and reduces the time someone whose only inadmissibility issue is 212(a)(9)(B) unlawful presence must remain outside the country while awaiting their immigrant visa. The I-601A waiver requirements and process are discussed in more detail in Chapter 6. Example: Sonia lived illegally in the United States for seven months. Then, last week, she left to visit her home country, where she is now. Sonia now wants to immigrate through her lawful permanent resident mother. Is Sonia inadmissible? Why or why not? If so, is a waiver available? Yes, Sonia is inadmissible and falls within the three-year unlawful presence 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 52

Asylees adjusting status may apply for a waiver of inadmissibility for unlawful presence and other grounds under INA § 209(c). 53 Matter of Arrabally and Yerrabelly, 25 I. & N. Dec. 771. 54 This waiver is applied for using Form I-601 or, in some cases, Form I-601A. Applying for this waiver through the consular process raises many distinct hurdles and concerns which must be thoroughly addressed prior to the applicant leaving the country. See Chapter 6 for more information. See also ILRC publication, Hardship in Immigration Law, for in-depth treatment of this topic. 55 The regulations relating to the provisional waiver may be found at 8 CFR § 212.7(e).

90

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

waiver is not granted. If the waiver is denied, Sonia cannot immigrate until she has lived outside the United States for three years. Example: 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, 2012. Later his U.S. citizen son turned twenty-one years old and applied to immigrate Quan. Is Quan inadmissible? Why or why not? If so, is a waiver available?

G.

Chapter 3

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. Unfortunately, if Quan’s son is his only lawful permanent resident or U.S. citizen relative, Quan will not qualify for the family hardship 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 try to return. If, however, Quan’s spouse 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 spouse or parent will suffer extreme hardship if the waiver is denied. If the waiver is denied, Quan cannot immigrate until July 25, 2022. 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. Additional waivers and exemptions

Waivers. In addition to the Family Hardship Waiver discussed above, several other classes of individuals may be eligible for waivers of the three- and/or ten-year bars, including: • • • •

Nonimmigrants, who may apply for advance permission to enter pursuant to the discretionary waiver available under INA § 212(d)(3); Asylees and refugees, pursuant to INA § 209(c); Applicants for TPS, pursuant to INA § 244. See also 8 CFR § 244.2 (however a separate waiver may still be required to adjust status); 56 and Certain legalization applicants pursuant to INA §§ 245A or 210.57

56

See Flores, 718 F.3d. 548. In Flores, 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. Id. at 554. 57 See Appendix G, 46–48.

Chapter 3

91

Additional exemptions. In addition to these waivers and exceptions listed above, inadmissibility under INA § 212(a)(9)(B)(i)(I) or (II) does not apply to individuals eligible for: • • • • • •

Adjustment of status under INA § 245(h) (special immigrant juvenile status); 58 Adjustment of status under § 902 of the Haitian Refugee Immigration Fairness Act (HRIFA); Adjustment of status under INA § 249 (Registry); Adjustment of status under § 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA); Change of status to V nonimmigrant status under 8 CFR § 214.5 (however, a waiver may be required to subsequently adjust status to a legal permanent resident); and Adjustment to LPR status pursuant to the LIFE Act. 59 § 3.4 “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, INA § 212(a)(9)(C)

Chapter 3

A more severe ground of inadmissibility punishes people who are deported or have a period of lawful presence, leave the United States, and then re-enter or try to re-enter illegally. A noncitizen is subject to this ground if: •

They have been unlawfully present in the United States for an aggregate period of more than one year beginning on April 1, 1997, 60 and then enter or attempt to re-enter the United States without being admitted. See INA § 212(a)(9)(C)(i)(I); OR

•

Were ordered deported or removed (regardless of how much unlawful presence the person has accrued), and then enter or attempt to re-enter the United States without being admitted after April 1, 1997. 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 does not expire after a period of time, unlike the three- or ten-year bars. Those subject to this provision cannot even apply for a discretionary waiver-type 61 application of this ground until ten years after their last departure from the United States. INA § 212(a)(9)(C)(ii). Because this provision is so harsh, and unless an “exception” is granted this bar to inadmissibility lasts 58

See INA § 245(h)(2). See Appendix G, 20. 60 The date that unlawful presence counts from could change in a subsequent court case. See, e.g., Carrillo de Palacios v. Holder, 651 F.3d 969 (9th Cir. 2011), vacated by Carrillo de Palacios v. Holder, 662 F.3d 1128 (9th Cir. 2011), withdrawn and superseded by Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013). 61 Very technically, the statute provides for an “exception,” rather than a “waiver,” to INA § 212(a)(9)(C). See USCIS Policy Manual, Vol. 9, Ch. 2-C, available at https://www.uscis.gov/policymanual/Print/Policy Manual-Volume9.html. As a practical matter, however, the “exception” has the effect of allowing a person to qualify for admission despite being inadmissible, much like a waiver. 59

92

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

permanently, 62 it is referred to as the “permanent bar.” Notice that an important difference between the permanent bar and the three- and ten-year bars is that the person must enter or attempt to enter without admission to come within the permanent bar. Immigration advocates should see a red flag any time a person says they entered the United States illegally after April 1, 1997. If the person ever was deported at any time prior to that entry, or if the person spent one year or more in the United States after April 1, 1997 and before that entry, the new illegal re-entry triggers the permanent bar and destroys hope of immigrating through a family petition until the person has spent a minimum of ten years outside the United States. Once ten years have passed, a person who is inadmissible under 212(a)(9)(C) may ask for consent from DHS to reapply for admission; the passage of time itself does not eliminate this requirement that they seek consent to reapply 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 then apply for admission. 63 WARNING: Clients who have accumulated over one year of unlawful presence since April 1, 1997 or who have been deported any time in the past should not leave the United States and then attempt to re-enter illegally. While many people may want to return to their home country for holidays or because a loved one is ill, they should be informed that if they depart and re-enter or attempt to re-enter the United States illegally, they could be subject to the permanent bar.

Chapter 3

A.

Parole and the permanent bar

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 United States, then enter or attempt to enter the United States without being admitted. Parole is not an “admission” as defined in the INA. See INA § 101(a)(13). However, USCIS 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 United States has obtained official permission, and because a person with parole is still considered an applicant for admission. Therefore, re-entry by parole does not trigger the permanent bar.64 B.

Exceptions to unlawful presence for the permanent bar

As noted in § 3.3, USCIS has interpreted the term “unlawful presence” differently for the threeand ten-year bars in INA § 212(a)(9)(B) and for the permanent bar in INA § 212(a)(9)(C). Nonetheless, there is some overlap. The following is a list of situations during which an 62

Note there is a very limited waiver of the permanent bar in the statute, which is available only for VAWA self-petitioners who can establish a connection between the abuse underlying their VAWA petition and their departure, re-entry, or attempted re-entry. See INA § 212(a)(9)(C)(iii). Most applicants, however, must use Form I-212 to seek consent to reapply, after ten years outside the country, instead of this waiver which is only available for VAWA applicants. See Subsection E for information on other limited waivers. 63 This “consent” is obtained through the filing and approval of an I-212 “waiver,” officially titled Form I212, “Application for Permission to Reapply for Admission into the United States After Deportation or Removal.” 64 See Appendix G, 16–18.

Chapter 3

93

individual is not considered to be accruing “unlawful presence” for purposes of either the permanent bar or the three- and ten-year bars under current USCIS policy. 65 The exceptions are listed below; please see § 3.3 above for details on each. • • • • • •

Chapter 3

• • • • • • • • • C.

Unlawful presence before April 1, 1997; People who have affirmatively applied for adjustment of status or registry; Voluntary departure; Application to extend or change nonimmigrant status; 66 Lawful permanent residents (until a final order of removal); 67 Lawful temporary residents (until termination or commencement of removal proceedings); 68 People with Family Unity protection; Pending applications for legalization or special agricultural worker status; 69 Pending applications for TPS; 70 Stay of removal; 71 Deferred action; Withholding of removal or deportation; Withholding or deferral of removal under the Convention Against Torture (CAT); Deferred enforced departure (DED); and Satisfactory departure granted under 8 CFR § 217.3. 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 USCIS interprets the 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 in how unlawful presence is counted.72

65 Remember, however, that the permanent bar can be triggered either by a year of unlawful presence in the aggregate after April 1, 1997 prior to departure and illegal return, or by a prior deportation, removal, or exclusion order occurring before or after April 1, 1997, if the noncitizen re-enters or attempts to re-enter the U.S. illegally after April 1, 1997. 66 For additional information regarding the effect of departure on certain immigration applications, such as applications for extension of status or change of status or motions to reopen, see Appendix G, 35-38. 67 Id. at 44. 68 Id. at 22–23. 69 Id. at 38. 70 Id. at 38–39. 71 Id. at 42. 72 The ILRC believes that some of the distinctions USCIS 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 legally challenges these interpretations, they will be difficult to overcome.

94

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

•

Under certain circumstances a person applying for benefits under VAWA will not be subject to the permanent bar. See INA § 212(a)(9)(C)(iii). 73

•

Minors are not exempt from accumulating unlawful presence for the permanent bar, according to USCIS policy and the U.S. Consulate in Ciudad Juarez. 74 For the three- and ten-year bar, unlawful presence does not begin to accrue until the minor turns eighteen years old, but unlawful presence at any age counts for purposes of the permanent bar.

•

USCIS takes the position that other statutory exemptions from unlawful presence found in INA § 212(a)(9)(B) (listed under § 3.3, Subsection C) are not deemed to apply to unlawful presence in INA § 212(a)(9)(C). 75

•

The permanent bar will “aggregate” (add together) all the periods of unlawful presence beginning on April 1, 1997 in calculating one year or longer unlawful presence. In contrast, for the three- and ten-year bars DHS only considers continuous unlawful presence of 180 days or one year. If a person was unlawfully present from July to December 2013 then left and returned from February to November of 2014, they would not have a total of one year or more for the ten-year bar because there would be no continuous one-year period. However, they would have over one year of unlawful presence for the permanent bar, because for purposes of the permanent bar DHS counts the total time spent in unlawful presence since April 1, 1997.

Chapter 3

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, providing that while under the age of eighteen they do not accrue unlawful presence, there is no such exception under the permanent bar provisions at INA § 212(a)(9)(C). Example: Joaquin, a citizen of Mexico, entered the United States unlawfully in 2004 at age three with his parents. The whole family stayed in the United States for over a year and then returned to Mexico in 2005. In 2006, Joaquin and his family returned to the United States again without inspection. Joaquin applied for and was granted DACA in 2016. Joaquin has triggered the permanent bar because he had more than a year of unlawful presence, followed by an entry without inspection. The fact that he was a minor does not protect him from triggering the permanent bar under INA § 212(a)(9)(C). The fact that he has had DACA the last few years does not cure the permanent bar. Note: some minors may be eligible for a waiver of the permanent bar depending on the type of immigration application. D.

Prior deportations or removals and the permanent bar

The permanent bar can also be triggered either 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 73

See the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants for additional information. Regarding the U.S. consulate in Ciudad Juarez’s change in policy on minors and the permanent bar, see AILA, “Practice Alert on Unlawful Presence Applied to Minors,” available at https://www.aila.org/infonet/dos-unlawful-presence-applied-to-minors. 75 See Appendix G, 28-29. 74

Chapter 3

95

United States. 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 reentry after April 1, 1997. The BIA and courts have upheld this position. 76 To date, this provision has not been applied to those who have both been deported before April 1, 1997 AND re-entered before April 1, 1997. While INA § 212(a)(9)(C)(i)(II) has not been applied to those who reentered after a removal order but before April 1,1997, reinstatement of removal provisions still apply. See § 3.8. This means that if DHS determines the person has already been ordered removed, DHS can act to deport that person without further proceedings. Thus, any prior order of removal puts an applicant at risk, apart from a possible permanent bar issue. PRACTICE TIP: Remember that if the client was deported or removed and then re-enters illegally, they are subject to the permanent bar even if they had no unlawful presence before the deportation or removal. 77 Additionally, this person is also subject to reinstatement of the prior order. If someone is subject to reinstatement, but receives a notice to appear in immigration court, counsel can argue to pursue relief in removal proceedings. However, ICE will likely argue to terminate proceedings and reinstate the prior order. E.

Waivers and other waiver-type applications of the permanent bar

There are some narrow circumstances in which the permanent bar can be overcome: Consent to reapply after 10 years abroad. Once ten years have passed, a person subject to the permanent bar may ask for consent from DHS to reapply for admission, before trying to re-enter the country from outside the United States or attempting to be readmitted from abroad, on Form I-212. 78 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, once consent to reapply is granted. See INA § 212(a)(9)(C)(ii).

•

HRIFA and NACARA applicants. 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 245.15(e)(3).

•

Legalization, SAW, LIFE Act legalization, and legalization class settlement agreement applicants. INA § 212(a)(9)(C) can be waived for these applicants based on humanitarian reasons, to ensure family unity, or if it is in the public interest.

•

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 applying for adjustment of status.

Chapter 3

•

76 See, e.g., Carrillo de Palacios v. Holder, 708 F.3d 1066 n.3 (9th Cir. 2013); Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1079 (9th Cir. 2010) (finding noncitizen inadmissible because of a September 14, 1994 order of removal). 77 Such an individual would also be subject to reinstatement of removal. See § 3.7 below. 78 Consent to reapply is not technically a “waiver,” but rather an “exception” to INA § 212(a)(9)(C) inadmissibility, if certain conditions are met and the request is approved.

96

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

VAWA self-petitioners. The statute itself at § 212(a)(9)(C)(iii) provides for a special waiver of the permanent bar for VAWA self-petitioners, if they can establish a connection between the abuse suffered and the unlawful presence and departure or the removal and the subsequent illegal re-entry. Such a waiver is available using Form I-601.

•

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 USCIS (without use of the waiver application form). The waiver can be granted based on humanitarian reasons, to ensure family unity, or if it is in the public interest.

•

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. 79

•

U nonimmigrants. U nonimmigrant applicants can apply for a waiver of § 212(a)(9)(C), using Form I-192, and are eligible to adjust status notwithstanding § 212(a)(9)(C). 80 The waiver can be granted at time of the U nonimmigrant application if it is in the public or national interest. 81 U nonimmigrants may also request a waiver under INA § 212(d)(3).

•

T nonimmigrants. T nonimmigrant visa applicants can apply for a waiver of § 212(a)(9)(C) using Form I-192. The waiver can be granted if it is in the public interest, and there is a connection between the immigration law violation and the trafficking victimization. 82 At time of adjustment, the permanent bar can be waived using Form I601. 83

•

Special immigrant juveniles. 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). They may submit the waiver at time of adjustment, using Form I-601.

Chapter 3

•

In addition to the availability of these waivers for certain persons, in a few situations the permanent bar will not prevent an applicant from certain relief, without needing a waiver or waiver-type application: •

Non-LPR cancellation of removal. 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, however, as those who have a prior deportation order are likely to be subject to reinstatement of removal, 84 and thus would not have a right to a hearing

79

These exceptions are found in Appendix G, 49–50. See INA § 245(m) (U adjustment of status provisions). 81 INA § 212(d)(14). 82 See 8 CFR § 212.16. 83 See 8 CFR § 245.23. 84 See § 3.7 below. 80

Chapter 3

97

before an immigration judge or an opportunity to pursue cancellation of removal as a remedy. 85 •

F.

Registry. Registry under INA § 249 permits someone who has been residing continuously in the United States since January 1, 1972, possesses good moral character, 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. 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 United States in order to be eligible to adjust status. Except for immediate relatives, 86 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 relative or employer filed an immigrant visa petition or labor certification on their behalf on or before April 30, 2001 and they pay a penalty fee. 87

Chapter 3

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)(I) and (II), are ineligible for adjustment of status under INA § 245(i). 88 USCIS’s position is based on several BIA decisions. 89 At the time of this manual’s writing, most courts have found either that the BIA’s interpretation is reasonable, or that they must give deference to the BIA’s interpretation of the law. 90 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, 91 an application for adjustment under INA § 245(i) does not cure a violation of the permanent bar. Section 245(i) only cures manner of entry and the applicable bars at § 245(c). A person can only adjust under § 245(i) if they did not trigger the permanent bar.

85

It is possible, although uncommon, that someone who could be subject to reinstatement of removal is given a removal hearing instead. 86 Immediate relatives are the parents, spouses, and minor children of U.S. citizens, and some battered parents, spouses, and children under the Violence Against Women Act (VAWA). 87 Those whose visa petitions or labor certifications were filed on their behalf between January 15, 1998 and April 30, 2001 must also prove that they were physically present in the U.S. on December 21, 2000. Derivative children and spouses also benefit from this provision. 88 See Appendix G, 20. 89 Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). 90 See Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (reversing the Ninth Circuit’s previous holding in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006)); Mora v. Mukasey, 550 F.3d 231, 239 (2nd Cir. 2008); Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th Cir. 2008); Matter of LemusLosa, 24 I. & N. Dec. 355 (BIA 2007), vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 91 See Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).

98

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

§ 3.5

The Differences Between “Unlawful Presence” and “Unlawful Status”

The term “unlawful presence” is a “term of art,” meaning that it has a distinct legal meaning that does not necessarily coincide with its common sense meaning. As we have seen in Sections 3.3 and 3.4, “unlawful presence” under INA § 212(a)(9)(B) is not even the same as “unlawful presence” under § 212(a)(9)(C), mainly because of the way USCIS has chosen to interpret these statutory provisions. While USCIS’s interpretations may be arbitrary, and subject to challenge, until and unless they are overturned by case law or subsequent USCIS interpretation, practitioners need to be mindful of these differences. It is also important to distinguish between “unlawful presence” that may trigger one of the inadmissibility 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 also have other immigration consequences. Relatedly, lack of lawful status, where an application or petition is denied by USCIS, may result in referral to removal proceedings. 92 The best way to understand the differences between “unlawful presence” and “unlawful status” is through examples: 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 United States illegally before April 1, 1997 is in “unlawful status.”

•

Children under eighteen who entered without inspection or overstayed a visa have “unlawful status” yet are not unlawfully present under INA § 212(a)(9)(B), although they are unlawfully present under INA § 212(a)(9)(C).

•

People who have affirmatively applied for adjustment of status before USCIS 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 they have some other currently valid status, such as nonimmigrant visitor, through which to claim lawful status for purposes of 245(a) adjustment, if required. See Matter of Rotimi. 93

•

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. 94

•

Voluntary departure is not unlawful presence, but it is unlawful status.

Chapter 3

•

92

See USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, (June 28, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 93 24 I. & N. Dec. 567 (BIA 2008). 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. 94 Id.

Chapter 3

99

Chapter 3

•

Nonimmigrant visa holders: Under a recently revised policy, F, J, and M nonimmigrants begin to accrue unlawful presence on the day after they engage in activity in violation of their status, the day after they finish their program or course of study, the day after their I-94 expires, if applicable, or the day after an immigration judge orders them removed, excluded, or deported. 95 However, this policy is the subject of a lawsuit for its discriminatory impact on international students and, at the time of this manual’s writing, an injunction has halted its implementation.96 Others with nonimmigrant visas begin to accrue unlawful presence only once their I-94 expires; an application for a stay or extension of status expires or is denied; or a USCIS officer or an immigration judge makes a determination that the status has been terminated. However, any nonimmigrant visa holder who works without authorization has violated the terms of their nonimmigrant status and is in unlawful status.

•

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.

•

People who are granted TPS status do not accrue unlawful presence from the date the application is filed to the end of TPS status, even though they may have no legal status when they apply for TPS. 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. 97 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).

•

Time during stays of removal does not accrue unlawful presence but is unlawful status.

•

People with deferred action, including DACA, do not accrue unlawful presence, but are in unlawful status, because although DHS has chosen not to try to remove them, they have no formal legal status.

•

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 (and have, in fact, been issued a removal order that is being withheld) but cannot be returned to their home countries because they would be persecuted.

95

See USCIS, Policy Memorandum: Accrual of Unlawful Presence for F, J, and M Nonimmigrants, (Aug. 9, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf. Please note that the new policy distinguishes between those whose status expired prior to the effective date of the new policy, August 9, 2018, and those whose status expired after. Please review the memo to determine which policy applies to a particular client. 96 See AILA for updates regarding the lawsuit challenging this new policy, Guilford College v. McAleenan, available at https://www.aila.org/ at AILA Doc. No. 18102471. 97 See Appendix G, 38–39.

100

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

•

People with grants of withholding or deferral of removal under CAT do not accrue unlawful presence during the period for which withholding of removal or deportation is granted but are in unlawful status.

•

People with DED do not have unlawful presence but are in unlawful status.

•

Time in satisfactory departure under 8 CFR § 217.3 is not unlawful presence during the satisfactory departure period but is unlawful status.

•

Time in Family Unity status is not unlawful presence, but it is an open question as to whether or not it is considered lawful status. 98 § 3.6

Failure to Attend Removal Proceedings, INA § 212(a)(6)(B)

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). The five-year period does not begin until after the person leaves the country. This ground can be triggered by any departure after someone has failed to attend a hearing without reasonable cause, even if the departure is on advance parole. This provision took effect on April 1, 1997 and 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. There is no waiver of this ground of inadmissibility.

Chapter 3

In order to establish inadmissibility under this ground, 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). USCIS concedes that, even if the person was served with an NTA, unless it was filed with the immigration court, and the record establishes that the person had notice of the proceedings and obligation to appear, but failed to do so, the person will not be inadmissible. 99 USCIS considers “constructive” notice adequate to establish notice in this context. 100 Note that 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. 101 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) as: battery or extreme cruelty to the person in removal proceedings or to any child or parent of that person, or the person’s

98 See Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008); see also Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006). 99 See Appendix I, 8, 12. See also Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001). 100 See Appendix I, 13. 101 Id.

Chapter 3

101

serious illness or the serious illness or death of an immediate family member, or something equally serious that is beyond the control of the applicant.102 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. See former INA § 242B. The former provision would bar an applicant for five years from relief but could be overcome with a motion to reopen or waiver. USCIS policies indicate that “reasonable cause” is generally regarded as “something that is not within the reasonable control of the alien,” 103 and compare, but do not equate, this standard to the more stringent “exceptional circumstances” standard defined in INA § 240(e). 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. 104 WARNING: Any person in the United States with a prior deportation must obtain expert legal advice and understand the risks and benefits of approaching DHS. If you are not a highly experienced attorney or accredited representative, consider referring out a case where the government might attempt to reinstate a prior removal or deportation order.

Chapter 3

Also, 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. § 3.7 A.

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

Past removal, deportation, or exclusion

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. IIRIRA increased these penalties and applied them retroactively. See INA § 212(a)(9)(A). Under current law, the following persons are inadmissible for ten years following a departure from the United States: • • •

People who were ordered removed under INA § 240, not arising from time of arrival (i.e., in any removal proceedings except those initiated at arrival); People who left the United States after an order of removal was outstanding; and 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 third category, who at the time they were excluded or deported would have been inadmissible only for one or five years. Recognizing 102 Id.; see also Matter of N-B-, 22 I. & N. Dec. 590 (BIA 1999) (reasonable cause is less stringent than exceptional circumstances standard; serious illness that required later surgery sufficient to meet burden); Matter of Ruiz, 20 I. & N. Dec. 91 (BIA 1989) (properly documented illness a valid excuse for failure to appear). 103 See Appendix I, 14. 104 See id.

102

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

this, DHS has stated that these people will have some advantage in terms of applying for a “waiver” of this ground of inadmissibility. See discussion below and in Chapter 6 of this manual. There are a few variations on the general ten-year bar to inadmissibility after a removal, exclusion, or deportation order. A person who is subject to an expedited removal order at the border or a removal order from an immigration judge after proceedings initiated immediately upon the person’s arrival in the United States relating to the person’s “admissibility” is subsequently inadmissible for a period of five years after the date of removal. 105 Anyone with a prior order is inadmissible for twenty years if they have been ordered excluded, deported, or removed more than once. 106 People who were removed and who have an aggravated felony conviction are permanently inadmissible. 107 A waiver-type application is possible in all these situations. This inadmissibility ground is triggered upon any departure from the United States, including advance parole. However, if someone who was inadmissible under § 212(a)(9)(A) has already remained outside the United States for the required period of time, they will not need to seek consent to reapply (the “waiver” of § 212(a)(9)(A), discussed in the next section) because they are no longer inadmissible under this ground. B.

“Waiver”

Chapter 3

The INA provides for an “exception” to this ground of inadmissibility under § 212(a)(9)(A)(iii). Very technically, a “waiver” for this ground of inadmissibility is actually an application for consent to reapply, using Form I-212, but it operates similar to a waiver application and many people refer to the consent to reapply as a “waiver.” The government asserts that an applicant can only seek consent to reapply before they return to the United States, and the BIA agrees. See Matter of Torres-Garcia. 108 For people who will consular process, thereby triggering this ground of inadmissibility upon leaving the country to attend a consular interview, it is possible to file an I-212 consent to reapply before departing. See Chapter 6 for more information. Order of exclusion or deportation before IIRIRA. DHS has stated that unless there are negative factors, it will grant consent to reapply if the person has already stayed outside the United States for five years after the deportation/removal, or one year past an exclusion/removal for inadmissibility, 109 although the current bar that applies to them is ten years, as explained 105

INA § 212(a)(9)(A)(i). INA § 212(a)(9)(A). 107 Id. This does not mean that they can never overcome this ground of inadmissibility, just that they will always need to request consent to reapply. 108 23 I. & N. Dec. 866, 873 (BIA 2006). DHS can grant an I-212 for a prior deportation “nunc pro tunc,” meaning back to the time of entry if someone has already entered the United States without seeking this waiver-type application in advance. However, someone in this situation is also subject to reinstatement of removal and the case will involve risk of deportation. 109 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 106

Chapter 3

103

above. In other words, DHS appears willing to give a break to people who have already stayed outside the country at least as long as they were required to before IIRIRA passed. 110 Note, however, that there is no time limit as to when DHS can grant consent to reapply. DHS can grant consent to reapply, allowing a noncitizen to overcome this ground of inadmissibility, on the day after the individual was removed. Example: Manuel was deported in 2012 under an old Order to Show Cause. His U.S. citizen daughter wants to immigrate him. Manuel remains inadmissible for ten years, until 2022, under current law. To be able to come back sooner than 2022, he will need to seek consent to reapply. However, DHS has said that it will be generous in granting consent to reapply for people like Manuel who have already stayed out five years. 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 next section). § 3.8

Reinstatement of Prior Deportation or Removal Order

Chapter 3

Reinstatement 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). Advocates should carefully analyze each case to see if the person falls under the reinstatement of removal or permanent bar provisions. If a person enters without inspection after being deported or removed, DHS can simply “reinstate” the prior deportation or removal order and remove the person, without giving the person an 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 expresses fear of return to their home country and applies for withholding of removal, or protection under CAT 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 United States, reinstatement still applies if they returned illegally any time after a deportation or exclusion order. Fernandez-Vargas v. Gonzales. 111 Because this is a ruling from the U.S. Supreme Court, it is binding law throughout the country.

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. 110 In deciding the waiver, DHS should consider the same factors it did under the old standard. 111 548 U.S. 30 (2006).

104

Chapter 3

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Most federal circuit courts, however, have ruled 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 their status, such as applying for adjustment of status. 112 WARNING: Effect of filing for adjustment of status prior to reinstatement. Because there is the possibility of reinstating a prior removal order, it is risky for those who are otherwise eligible to adjust to submit an adjustment application. This risk relates only to those with very old removal orders who somehow now have adjustment eligibility (because most within the United States after a prior removal order also have a permanent bar problem). 113 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?

Chapter 3

No! Miguel is subject to reinstatement of removal. In addition, Miguel has a fraud problem as well as the “permanent bar” because he re-entered unlawfully after a deportation post-April 1, 1997. DHS may reinstate his prior deportation order when Miguel appears for his USCIS interview or at any other time. In many districts, ICE arrests people in Miguel’s situation when they appear for their adjustment interview or will schedule a “visa petition” interview for a preference beneficiary (such as the spouse of a lawful permanent resident) for this purpose. Then ICE reinstates the deportation or removal order and removes these people from the United States very quickly. The only exception is if they express a fear of return to their home country. If the fear is found to be reasonable, they may apply for withholding of removal or protection under CAT or NACARA before an immigration judge.

112

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); Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011); Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007); Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004). 113 Unless they continue to have protection from reinstatement through some other form of relief of deferred action, for instance individuals with TPS who may now also have adjustment eligibility based on the decisions in the Ninth and Sixth Circuits, Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013).

Chapter 3

105

Tab Position 1

Chapter 3

Immigrant Legal Resource Center May 2019

106

Chapter 3

Tab Position 1

Inadmissibility & Deportability May 2019

CHAPTER 4 NON-CRIMINAL GROUNDS OF DEPORTABILITY This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9

Removable for Being Inadmissible at Entry or Adjustment............................... 107 Present in Violation of Law................................................................................ 109 Violated Non-Immigrant Status ......................................................................... 109 Violation of Condition of Entry ......................................................................... 110 Marriage Fraud ................................................................................................... 110 Failure to Register and Falsification of Documents ........................................... 113 Public Charge ..................................................................................................... 114 Alien Smuggling ................................................................................................ 115 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility................................................................................................ 116

This chapter will discuss non-criminal grounds of deportability. We have already mentioned some grounds of deportability such as document fraud (§ 2.4) and alien smuggling (§ 2.2) in our discussions of the comparable grounds of inadmissibility. Although many grounds of deportability are closely related to some grounds of inadmissibility we discussed in Chapter 2, the deportability grounds are generally much narrower than their inadmissibility counterparts. A person facing a potential ground of deportability is also in a much stronger position procedurally because the government bears the burden of proving a person deportable by clear and convincing evidence. If the government cannot meet this burden, the person is not deportable. See § 1.5. The grounds of deportability operate against people who have been “admitted” to the United States. Thus, even lawful permanent residents within the United States and those admitted with visas are subject to the grounds of deportability. The criminal grounds of deportability will be discussed in Chapter 5. Removable for Being Inadmissible at Entry or Adjustment

Chapter 4

§ 4.1

A noncitizen who was inadmissible when they entered the United States or adjusted their status to that of a permanent resident can be found deportable at a later time for having been inadmissible at time of entry or adjustment. INA § 237(a)(1)(A). In this way, the Immigration and Nationality Act (INA) incorporates the grounds of inadmissibility into the grounds of deportability. This means that a determination of whether someone is deportable includes an analysis of inadmissibility because the person is deportable if they were inadmissible at time of entry or adjustment. To determine inadmissibility, courts look to the law as it was at the time of entry rather than at the time of the removal hearing. 1 Example: In order to immigrate to the United States two years ago, Deepak fraudulently obtained a visa. If the U.S. Department of Homeland Security (DHS) can show that 1

Francis v. Gonzales, 442 F.3d 131, 139–41 (2d Cir. 2006).

Chapter 4

107

Deepak obtained the visa by fraud, he can be deported because at the time of entry he was inadmissible for visa fraud. Example: Lani’s father petitioned for her to immigrate as the daughter of a lawful permanent resident. When her visa was finally current, Lani attended her interview at the consulate and was admitted to the United States as a permanent resident. However, before Lani’s interview at the consulate she married her sweetheart. No one at the consular interview asked Lani if she was married, and Lani did not know she could not use her dad’s petition for her if she was married. Lani is deportable for having been inadmissible at the time of entry, even if it was not intentional fraud. Example: At the time Sylvie adjusted to become a permanent resident, she had just been convicted of a crime of moral turpitude (that did not fall within the petty offense exception). It did not show up at the time DHS checked her fingerprints, because the incident happened the week following her biometrics appointment. At the time of her interview to adjust, she did not disclose the new conviction. The officer granted her case and she became a permanent resident. She is deportable because she was inadmissible at the time of her adjustment of status. Example: Gerry, a lawful permanent resident, was convicted of a controlled substances offense which made him inadmissible. 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 United States. He later applied for naturalization and the mistake was discovered. His re-entry, even as a lawful permanent resident, was an “admission,” and he was subject to the grounds of inadmissibility. INA § 101(a)(13)(C).

Chapter 4

Thus, even though Gerry had already re-entered the United States, he was considered to have been improperly admitted as someone who was inadmissible at time of entry, based on his criminal offense. According to the U.S. Citizenship and Immigration Services (USCIS), he is no longer considered a lawful permanent resident because his unlawful admission caused his status to change when he returned to the United States, and therefore he is ineligible for citizenship.2 Gerry cannot officially lose his status as a lawful permanent resident, however, until he has been found removable by an immigration judge, and if he appeals that decision, then by the Board of Immigration Appeals (BIA). However, if Gerry’s conviction predated the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) effective date of April 1, 1997, he would not have been considered an “alien seeking admission” when he returned if his trip was “casual, innocent, and brief.” In that case, he would not have faced the grounds of inadmissibility upon entry and would not subsequently be deportable because of that entry. 3

2

INS Interp. Ltr. 318.2, 318.3. Vartelas v. Holder, 566 U.S. 257 (2012), held that pre-IIRIRA convictions are governed by the Fleuti test, stating that LPR will not be considered “aliens seeking admission” when they return if their trip was “casual, innocent, and brief.

3

108

Chapter 4

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Note that returning lawful permanent residents can be considered arriving aliens, and are therefore subject to the grounds of inadmissibility, under certain circumstances that are described in INA § 101(a)(13)(C). For further discussion, see Chapter 1. Some people in situations like the ones above, who are deportable because they were inadmissible for visa fraud or mistake at the time of admission, can obtain a waiver of deportability pursuant to INA § 237(a)(1)(H). These waivers do not require a specific form and can only be requested in immigration court as relief from removal. See Chapter 6 for more specific information no qualifying for these waivers. PRACTICE TIP: If you have a client who is potentially eligible to apply for citizenship, do not assume that USCIS will consider them to be a lawful permanent resident simply because they have a green card. Always investigate whether your client was inadmissible at the time of entry or adjustment before applying for naturalization. § 4.2

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 to all status violations, such as overstaying a visitor’s visa. Example: Kiko entered on a visitor visa in 2006 and never left. She is deportable under this provision. § 4.3

Violated Non-Immigrant Status

A noncitizen who is in the United States on a non-immigrant visa and does not obey the rules of their particular visa is deportable. 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.

Chapter 4

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 half of his classes. Then he gets a job without obtaining student work permission. Kwan is deportable since he violated the terms of his student visa by not maintaining full-time coursework and also by working without permission. Note: F-1 students who violated a term or condition of their status are inadmissible for a five-year period. INA § 212(a)(6)(G). This ground of deportability may be triggered even when a visa holder falls out of status for reasons outside their control. For example, a visa holder that overstays their visa because of a pending removal proceeding may fall within this ground. 4 Even a non-immigrant who timely files an application for extension of status, but falls out of status pending its approval, may still face 4

Matter of Halabi, 15 I. & N. Dec. 105 (BIA 1974) but see Westover v. Reno, 202 F.3d 475, 482 (1st Cir. 2000), charging someone with overstaying when they stay to fight their case might be a violation of due process.

Chapter 4

109

deportation under this statute. 5 Similarly, a non-immigrant visa holder who becomes incarcerated may fall under this ground if the conditions of their status cannot be satisfied in jail. 6 A conviction of a violent crime that carries a possible sentence of over a year, regardless of whether such a sentence is imposed, violates this section even if the other visa conditions can be satisfied in jail. 7 A non-immigrant who fails to comply with regulatory requirements or who engages in unauthorized employment can be found to be in violation of their status and deportable. 8 Additionally, a non-immigrant who fails to provide “full and truthful information requested by the service” falls under this ground even if the misrepresentation was not material to admission. 9 The Ninth Circuit Court of Appeals struck down this portion of 8 CFR § 214.1(f), holding that the regulation exceeded the Attorney General’s authority. 10 Advocates in jurisdictions outside of the Ninth Circuit should still raise an argument under Romero that basing deportation on nonmaterial misrepresentations exceeds the authority Congress granted the Attorney General under INA § 237(a)(1)(C)(i). § 4.4

Violation of Condition of Entry

As described in Chapter 2, certain people are eligible for waivers of the health grounds of inadmissibility, although the government may impose certain conditions on their entry. An individual who fails to 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. In practice, this ground is rarely invoked. § 4.5

Marriage Fraud

Chapter 4

Many people immigrate through a U.S. citizen or lawful permanent resident spouse. DHS suspects that many of these marriages are fraudulent and often investigates any potential fraud case thoroughly. There are two ways that a person can be found removable under the marriage fraud provision. First, people who divorce their U.S. citizen or lawful permanent resident spouse soon after marrying or entering the United States can be found deportable if they cannot prove they entered the marriage in good faith. Second, a noncitizen who is caught participating in a fraudulent marriage is deportable. INA § 237(a)(1)(G). PRACTICE TIP: Admitting marriage fraud can have devastating consequences on your client’s immigration case. If Immigration and Customs Enforcement (ICE) charges that your client has committed marriage fraud, do not necessarily concede. Remember, in deportation proceedings, ICE that has the burden of proof! Even if the person is no longer married, they might need to 5

Matter of Teberen, 15 I. & N. Dec. 689 (BIA 1976). Matter of A, 6 I. & N. Dec. 762 (BIA 1955); Matter of C, 9 I. & N. Dec. 100 (BIA1960) (incarceration of a student visa holder who continues schooling while in jail does not violate the visa status). 7 8 CFR § 214.1(g). 8 8 CFR § 214.1(e); INA § 266(b). 9 8 CFR § 214.1(f). 10 Romero v. INS, 39 F.3d 977 (9th Cir. 1994). 6

110

Chapter 4

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

contest any allegation that fraud was involved, holding the government to its burden of proof, in order to be eligible to seek relief. A.

Annulment or termination of marriage

An individual who terminates or annuls their marriage within two years of being admitted with a visa or other documentation based on marriage to a U.S. citizen or LPR, will be presumed to have entered into a fraudulent marriage. 11 People who immigrate through a spouse within two years of marriage become conditional permanent residents for two years before they can become regular lawful permanent residents. If they cannot fulfill the requirements to complete conditional residency, they can be removed. INA § 237(a)(1)(D). This is the case unless the person can show that the marriage was not entered into for the purpose of evading immigration laws. INA § 237(a)(1)(G)(i). This provision essentially shifts the burden back to the immigrant in cases where the marriage terminated within two years of admission. The government must only show that the immigrant married within two years of admission as a permanent resident, either through an immigrant visa obtained through consular processing or adjustment of status, and that the marriage was terminated within the subsequent two years. The termination is considered sufficient evidence to meet the government’s initial burden. The burden then shifts, and the immigrant must show that the marriage was entered into in good faith. 12 The First Circuit has additionally found that where the court which terminated the marriage makes a finding of marriage fraud, that finding is entitled to “full faith and credit” in removal proceedings, raising the statutory presumption of fraud to a “presumption plus.” 13 Under INA § 237(a)(1)(D), a person is removable if their conditional residency is terminated unless they have been granted a waiver of the Form I-751, joint filing requirement. The waiver can be granted if the spouse is deceased, the marriage was entered into in good faith but was terminated within two years, the marriage was entered into in good faith but the person was battered or subjected to extreme cruelty by the spouse, or the termination of the person’s status and removal from the United States would result in extreme hardship. See the ILRC’s manual Families and Immigration for more information on conditional residency. 14 B.

Failure to fulfill the marital agreement

Chapter 4

An individual is also deportable if they are found to have failed to fulfill their marital agreement which was made for the purpose of gaining admission. INA § 237(a)(1)(G)(ii). In determining whether an immigrant is removable for marriage fraud, the test is whether the couple intended to establish a life together at the time that the couple married, e.g. whether the marriage was “bona fide at inception.” 15 However, marriages need not be ideal and, for example, cohabitation and consummation are not absolute prerequisites. 16 The government cannot dictate the kind of life that the couple chooses to lead, including how much time a couple spends together or the manner

11

INA § 237(a)(1)(G)(i). Id. 13 Rodriguez v. INS, 204 F.3d 25, 26 (1st Cir. 2000). 14 Available at https://www.ilrc.org/family-manual. 15 Lutwak v. U.S., 344 U.S. 604 (1954); Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975). 16 Matter of Peterson, 12 I. & N. Dec. 663 (BIA 1968). 12

Chapter 4

111

in which they spend their time. 17 Noncitizens cannot be required to have more conventional or more successful marriages than U.S. citizens. 18 Marriage fraud may also be committed by just one spouse but not the other, such as if the immigrant spouse genuinely intended to establish a life together but the citizen spouse did not. 19 At least one appellate court has found that entering into a marriage for purposes of a green card does not per se make the marriage fraudulent, although it can support an inference of fraud. 20 The court held that marriages for green cards may be genuine and not sham because the intent to obtain something other than or in addition to love and companionship from that life does not make a marriage a sham. 21 Example: Harry, a native of the United Kingdom, met Sally while studying in College in the United States. They became engaged but did not want to marry until they could save money to have a big wedding and Harry’s parents could travel to be present at the wedding. Sally got tired of being their sole support however, so they secretly married in a civil ceremony so that Harry could get his green card and a job. In this case, Harry and Sally could show that even though they got married in order for Harry to get his green card, they have the intent to build a life together. The fact that they married for Harry to get his green card is just in addition to them intending to build their life together. If the marriage was valid at inception, it is valid even if the couple separates later on. 22 In assessing whether a marriage is valid, the court can look to conduct before and after the marriage. However, conduct after the marriage is only relevant to the extent that it relates to the couple’s subjective state of mind at the time of marriage. 23 Thus, evidence that a couple separated after their wedding can be relevant in assessing whether they intended to establish a life together, but it is not, on its own, proof that a marriage was fraudulent. Indeed, courts have recognized that valid marriages separate, temporary or permanently, for various reasons, such as for military service, education, employment opportunities, domestic difficulties, or others. 24 Even so, the time and extent of separation, coupled with other facts and circumstances, could lead to a fraudulent finding. 25

Chapter 4

It is important to note that the government can also charge a person accused of marriage fraud under INA § 237(a)(1)(A) for having been inadmissible at time of entry or adjustment. Additionally, the government can charge the person as inadmissible for having made a misrepresentation at time of adjustment or entry pursuant to INA § 212(a)(6)(C)(i).

17

Id. Bark, 511 F.2d at 1200. 19 United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002). 20 Id. 21 United States v. Tagalicud, 84 F.3d 1180, at 1185 (9th Cir.1996). 22 Matter of Boromand, 17 I. & N. Dec. 450, 454 (BIA 1980). 23 Bark, 511 F.2d at 1202. 24 Id. 25 Id. 18

112

Chapter 4

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

A waiver is available for those who committed marriage fraud if they now have a U.S. citizen or lawful permanent resident spouse, parent, or child. Please see Chapter 6 for more information on waivers. § 4.6 A.

Failure to Register and Falsification of Documents

Failure to meet notification requirements

Failure to notify DHS of a change of address is a deportable act. INA § 237(a)(3)(A). INA § 265 requires noncitizens to notify the DHS of each change of address within ten days of the change. This requirement can be excused if the person shows that the omission was “reasonably excusable” or not willful. This ground has rarely been used by DHS to try to remove someone. Nevertheless, it is a ground of deportability, and it is possible that DHS could use it in the future. Noncitizens should thus make every effort to obey the rule and notify DHS of address changes timely. A person is also deportable if they are convicted of failure to register as an alien or a foreign agent. INA §§ 237(a)(3)(B)(i), (ii). This ground is also rarely prosecuted or enforced. B.

Conviction for falsification of documents

A person is deportable for conviction of falsification of documents. INA § 237(a)(3)(B)(iii). To trigger this ground, the conviction must involve 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 held that an immigrant could be prosecuted under 18 USC § 1546(a) for possessing an authentic immigration document that was procured through a false statement. 26 This ground of deportability should not be confused with the more common document fraud ground, which 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 below and § 2.4 for more information on this separate ground. This ground should also be distinguished from false claims to U.S. citizenship under INA § 237(a)(3)(D), as discussed in § 2.5.

Chapter 4

WATCH OUT—a document fraud conviction might be 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 it is a first offense and the person showed that they committed the offense to aid their spouse, child, or parent. INA § 101(a)(43)(P). See Chapter 5 for information on aggravated felonies.

26

United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009).

Chapter 4

113

C.

Final order for document fraud under § 274C

A person who by final order in a § 274C civil hearing is found to commit document fraud is inadmissible and deportable. 27 For a person to be inadmissible or deportable under this section, it is not enough that the person committed document fraud—they must have been notified to come to the § 274C civil hearing and be the subject of a final order from that hearing. This provision is discussed in Chapter 2, § 2.4. Limited waivers exist for inadmissibility and deportability for § 274C document fraud. These waivers are discussed in detail in Chapter 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 if they committed the offense only to help or support their spouse or child. 28 § 4.7

Public Charge

Under 1990 amendments to the INA, a person is deportable if they become a public charge anytime within five years of their last entry, unless they can prove that they became a public charge because of something that happened after entry. INA § 237(a)(5). Example: John is a lawful permanent resident whose last entry into the United States was in 2009. In 2011, he was in an accident at work and became disabled. He collects Supplemental Security Income (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. 29 In spite of this, he is not deportable because he can show that the cause of his becoming a public charge (his accident) is something that happened after his last entry.

Chapter 4

In practice, very few people are removed on this ground because there are much more strict requirements for a person to be considered deportable as a public charge than inadmissible as a public charge. A person may not be deported as a public charge for simply having received a public benefit. 30 Rather, BIA case law also requires that 1) the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment; 2) the public entity must demand repayment; and 3) the immigrant must refuse to pay. All three elements must be present for a person to be deportable under this ground. 31 Compare this with the

27

See INA §§ 212(a)(6)(F), 237(a)(3)(C). See INA §§ 212(d)(12), 237(a)(3)(C)(ii). 29 When it comes to this ground of deportability, it is unclear how current courts will consider the use of the word “entry” because the laws have changed since this law was written. The use of the word entry could refer to the date of admission or the date of the last physical entry into the United States. Advocates should conservatively consider the five years since last entry because INA § 237(a)(5) specifically uses the term “entry.” 30 Matter of B–, 3 I. & N. Dec. 323 (BIA 1948). 31 See Matter of Kowalski, 10 I&N Dec. 159 (BIA 1963); Matter of C., 2 I&N Dec. 538 (BIA 1946); Matter of V., 2 I&N Dec. 78 (BIA 1944). 28

114

Chapter 4

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

tougher and more commonly applied ground of inadmissibility for public charge discussed in § 2.6. Previously, individuals who because of mental illness were institutionalized for long-term care at public expense within five years of entry, were deportable. However, this ground of deportability was removed when the IIRIRA revisions to the INA were enacted in 1996. § 4.8

Alien Smuggling

The deportation ground for alien smuggling under INA § 237(a)(1)(E) is a little narrower than the corresponding ground of inadmissibility because it has a time limit. See Chapter 2. 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 by an immigration officer. Advocates should not concede deportability under this ground unless they have confirmed that the client knew that the person who she helped enter the United States did not have the legal right to enter, and the conduct itself meets the definition of alien smuggling, and the incident occurred during the time periods enumerated above. Additionally, the government has the burden of proving that someone is deportable as charged. Example: Ricardo was admitted to the United States in 2003 as a lawful permanent resident and never left the United States after that entry. In 2009, he paid an alien smuggler to help bring his father up from Mexico. Ricardo remained here and did not see his father until he arrived in the United States. Ricardo committed alien smuggling because he helped his father enter illegally. But he is not deportable because he did this more than five years since his last entry into the United States in 2003. Example: Maria, a lawful permanent resident, was returning to the United States from a trip to Mexico. She was driving and had two passengers with her—her uncle and her uncle’s friend whom she had not met until agreeing to give him a ride back to San Diego. At the checkpoint, the officer asked for proof of status for all three of them. Her uncle’s friend presented an old California driver’s license, but unfortunately had no other documents. He had no valid immigration status in the United States.

Chapter 4

Without more facts, Maria should argue that she is not removable for alien smuggling at time of entry. First, she should emphasize that it is the government’s burden to prove that she is deportable under this ground. Second, she should argue that she did not knowingly bring in an undocumented person. See Chapter 2, § 2.2 for the elements of alien smuggling. Long-time permanent residents can apply for INA § 240A(a) cancellation of removal as a defense to a finding of deportability for alien smuggling. This will pardon any smuggling, including nonfamily members and even professional smuggling for pay as long as the person was not convicted of alien smuggling, which is an aggravated felony. 32 If the smuggling took place before April 24, 32

A conviction of alien smuggling as defined in INA § 274(a)(1)(A) or § 274(a)(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 INA(a)(43)(N).

Chapter 4

115

1996, a long-term permanent resident may apply for prior INA § 212(c) to waive the smuggling. Under § 212(c), even a conviction for alien smuggling, which is also an aggravated felony, 33 may be waived, if it was entered before April 24, 1996. § 4.9

Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility

Several important grounds of deportability have similar counterparts in the grounds of inadmissibility. This chapter highlighted some important differences for certain grounds. However, the following rely largely on the same legal standard for determining deportability as inadmissibility: 1. False claim to U.S. citizenship under INA § 237(a)(3)(D), discussed with the ground of inadmissibility at § 2.5. 2. Unlawful voting contrary to federal, state, or local laws under INA § 237(a)(6), discussed with the ground of inadmissibility at § 2.7. 3. National security and terrorist grounds under INA § 237(A)(4), discussed with the ground of inadmissibility at § 2.7. Please refer to Chapter 2 for more discussion on the above grounds. Although these grounds invoke the same language, definitions or standards for deportability as for inadmissibility, it is important to remember that the burden of proof is on the government to show that an immigrant is deportable. Conversely, if an immigrant is asking to be admitted, they must show that they are admissible and that the grounds of inadmissibility do not apply to them. Because the burden is on the government to show deportability, the strategy for fighting charges of deportability is often different than for fighting potential charges of inadmissibility. In many cases, it is important to see what evidence the government is using to meet its burden before the immigrant makes any concessions or admissions. In order to see the government’s evidence, do not concede deportability, but rather hold the government to its burden so that it must present its evidence against the immigrant.

Chapter 4

Example: Miguel is a lawful permanent resident and is placed in removal proceedings. The government alleges that Miguel is deportable because he was inadmissible at admission, claiming that he had a crime involving moral turpitude conviction (which would have caused problems obtaining an immigrant visa or adjusting) that he did not disclose. See § 4.1. However, the government has the burden of showing that Miguel is deportable. Thus, unless there are strategic reasons otherwise, Miguel should not admit anything and should hold the government to its burden so that it presents any evidence it has to show that he is deportable on this ground. If the government cannot present sufficient evidence, Miguel wins his case. Example: Juanes is an undocumented immigrant and is applying for lawful permanent resident status through his wife. Thus, he is asking to be admitted. Juanes has a conviction for a crime involving moral turpitude. Because Juanes is asking to be 33

LPRs convicted of aggravated felonies between November 29, 1990 and April 24, 1996, who served a term of imprisonment of five years or more would not be eligible for INA § 212(c) waiver.

116

Chapter 4

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

admitted, he must show that he is admissible. Here, Juanes will have to disclose that he has a conviction which triggers inadmissibility. Juanes will have to see if the conviction falls into any exceptions and if it does not, he will have to apply for a discretionary waiver. If no exception applies and Juanes is not eligible for a waiver or does not get the waiver approved, Juanes cannot adjust status to permanent resident. CAUTION! Reinstatement of prior order of deportation or removal: This is not a ground of deportability or inadmissibility, but it can cause someone to be removed. 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 or a hearing. INA § 241(a)(5). See discussion in Chapter 3, § 3.6.

Chapter 4

Chapter 4

117

Tab Position 1

Chapter 4

Immigrant Legal Resource Center May 2019

118

Chapter 4

Tab Position 1

Inadmissibility & Deportability May 2019

CHAPTER 5 CRIMES AND THE GROUNDS OF DEPORTABILITY, INADMISSIBILITY AND BARS TO ESTABLISHING GOOD MORAL CHARACTER This chapter 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

Clients with Criminal Records ........................................................................... 120 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings .......................................................... 121 What Is a Criminal Conviction? What Evidence Proves That It Exists? ............................................................................................................. 123 How to Analyze an Offense: The Categorical Approach ................................... 130 Overview of Immigration Consequences of Crimes .......................................... 140 Inadmissibility and Deportability Based on Drug Offenses ............................... 143 Crimes Involving Moral Turpitude .................................................................... 149 The Moral Turpitude Ground of Inadmissibility: Petty Offense and Youth Exceptions, Definition of Sentence Imposed, and Admissions ............... 153 The Moral Turpitude Ground of Deportability .................................................. 155 Firearms Offenses .............................................................................................. 159 Aggravated Felonies ........................................................................................... 161 Other Criminal Grounds of Deportability and Inadmissibility........................... 166 Clearing Up a Criminal Record .......................................................................... 173 The Good Moral Character Requirement ........................................................... 176

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 hopeless. 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, do not concede that the person is removable, and, if you need it, 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. 1

Additionally, the ILRC provides practice advisories and updates on criminal issues in immigration law. See http://www.ilrc.org/crimes.

Chapter 5

119

Chapter 5

1

PART I: INTRODUCTION TO ANALYZING CRIMINAL CONVICTIONS § 5.1

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 theft, fraud, 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 § 5.14.) For instance, a large group of offenses, ranging from murder to alien smuggling to theft have been designated as aggravated felonies. Convictions may fit this category even in cases where the sentence was suspended. In addition, many misdemeanor non-violent offenses can qualify as “aggravated felonies.” Aggravated felonies carry the most severe immigration consequences. See § 5.11. 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. Do not rely on the client’s memory. Often people who go through the criminal court system do not understand or are not told what has happened. Also, many people are embarrassed about criminal problems and may understate what really happened. (Conversely, sometimes clients know the reasons stated for arrest, but do not recall the final plea, which in some cases is a lesser offense, or a careful plea avoid immigration consequences.) You, or whoever handles the criminal part of the case, must obtain the facts yourself and do the analysis. If possible, the best time to do this is before the client has contact with any immigration authority. In Appendix D, you will find information on obtaining criminal records for your client. This is an essential first step in analyzing your client’s criminal issues. Additionally, Appendix E discusses Freedom of Information Act (FOIA) requests to obtain information in your client’s immigration file. Obtaining these records as a first step will be essential to understanding the charges against your client. Doing the Analysis. To analyze an immigration case with criminal issues, we must answer several questions:

Chapter 5

1. Is the person inadmissible or deportable because of a conviction or criminal conduct? 2. If the person is in removal proceedings, what ground of inadmissibility or deportability is the client charged with? 3. What potential relief is available? Even if the person is not charged with removability for a crime, does the crime impact eligibility for relief? 4. Is the conviction an aggravated felony? 5. Can the person eliminate the conviction under state law by using some form of postconviction relief? If so, will the post-conviction relief eliminate the conviction for immigration purposes? It is important to identify the rules that apply under the most current case law. Federal courts and the Board of Immigration Appeals (BIA) issue frequent decisions that can change the

120

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

immigration consequences of an offense, and some of these changes are applied retroactively to past 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 immigration authorities will analyze the criminal offense under that state’s criminal law. RESOURCES: Special books are available on this topic. See “For Further Information” in Appendix A. In addition, it is a good idea to consult with an attorney or legal agency specializing in the intersection between criminal law and immigration law. 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. § 5.2 A.

Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings

Deportability and inadmissibility

In order to help your client avoid removal, you first need to know whether they are charged with inadmissibility or deportability under the Immigration and Nationality Act (INA). As discussed in Chapter 1, assessing which set of grounds applies to your client, or if both apply, depends on your client’s particular situation. The criminal deportability grounds apply only to individuals who have been “lawfully admitted” to the United States, such as lawful permanent residents (LPR) and persons admitted as nonimmigrant visa holders. As we saw in Chapter 1, inadmissibility grounds also may be applied to lawful permanent residents when they travel abroad and return to the United States. Usually LPRs can travel and return to the United States without being subject to inadmissibility grounds, but this changes if the government can prove that they fall within any of the exceptions listed at INA § 101(a)(13)(C). If that happens, the person will be considered an “arriving alien” LPR and will become subject to all inadmissibility grounds. One of the exceptions in § 101(a)(13)(C) is that the LPR is inadmissible under the crimes grounds. For example, an LPR who is inadmissible under the moral turpitude ground would be considered an “arriving alien” when returning from a trip abroad. Deportable LPRs will also be concerned with inadmissibility if they apply for re-adjustment of status as a defense to removal. If a deportable LPR has a family member who can file an immediate relative visa petition for them, the LPR may apply to “re-adjust” status, as long as they meet all of the requirements. Because those applying for adjustment of status are subject to the grounds of inadmissibility, when an LPR is found deportable for a crime, they can assert readjustment of status as a defense to removal if they can overcome any grounds of inadmissibility that may apply. If the adjustment application is granted, the person has “new” LPR status and the deportation ground does not apply. 2 This is a good strategy for those who are deportable and not eligible for cancellation of removal, but are either admissible or eligible for a waiver.

Matter of Rainford, 20 I. &. N. Dec. 598 (BIA 1992).

Chapter 5

121

Chapter 5

2

B.

Burden of proof in removal proceedings based on a criminal conviction or activity

For lawful permanent residents who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the LPR is deportable. INA § 240(c)(3)(A); 8 CFR § 1240.8(a). The Supreme Court has held that the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. 3 A discussion of these standards and how they are applied in practice are in Chapter 1, § 1.5(B). Similarly, the government bears the burden of proof in removal proceedings where a lawful permanent resident is charged with a ground of inadmissibility as an arriving alien. 4 Otherwise, a person who has not yet been admitted must show that they are admissible to the United States. INA § 240(c)(2). As a general rule, persons subject to removal for any reason, including a criminal conviction, bear the burden of proving that they are eligible for relief from removal, both statutorily and as a matter of discretion. INA § 240(c)(4)(A). For example, where a lawful permanent resident is found deportable, but wants to assert re-adjustment of status as a defense of removal, they bear the burden of proving that they are “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212.” INA § 240(c)(2). However, courts of appeals are split as to how this burden applies when the person is potentially inadmissible or barred from eligibility for relief due to a conviction under a “divisible” statute. See discussion at § 5.4. NOTE: On the § 212(h) waiver. In some cases, a noncitizen who is deportable or inadmissible for crimes can apply for a waiver of the ground of inadmissibility or deportability. See Chapter 6. A commonly used waiver of inadmissibility for crimes is the so-called “section 212(h) waiver.” See INA § 212(h), and discussion at § 6.6 in the next chapter. This has the potential to waive common inadmissibility grounds such as moral turpitude, prostitution, and a sentence to an aggregate five years or more for two or more convictions. Unfortunately, a § 212(h) waiver cannot be used to waive any drug convictions, other than one or more convictions relating to a single incident involving simple possession of thirty grams or less marijuana, and some closely related offenses. Example: Flavia was admitted as a tourist in 2005 and overstayed her visa. She was convicted of fraud in 2012 and 2014. These two moral turpitude offenses make her deportable under the moral turpitude ground. She is married to a U.S. citizen and could apply to adjust status on an immediate relative visa petition. To do so, she will be required to show that she is admissible to the United States. Unfortunately, these two offenses make her inadmissible. Fortunately, if she meets all requirements, Flavia will be able to submit an application for a waiver of inadmissibility under INA § 212(h), along with her adjustment application. If the waiver is granted and she adjusts status to permanent residence, she will no longer be inadmissible or deportable.

Chapter 5

3

Woodby v. INS, 385 U.S. 276 (1966). Matter of Rivens, 25 I. &. N. Dec. 623 (BIA 2011). See also Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).

4

122

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Or, let’s say that Flavia was already a permanent resident when she was convicted of the fraud offenses. Now she is deportable and inadmissible and wants to apply to adjust status as a defense to removal. She now needs a § 212(h) waiver to qualify for adjustment. Flavia and her advocate must determine whether she falls within bars that prevent certain permanent residents from applying under INA § 212(h). See § 6.6. If she does not, she can submit the adjustment and § 212(h) applications. If they are granted she will no longer be deportable or inadmissible, and she will begin a new period of permanent residence. § 5.3

What Is a Criminal Conviction? What Evidence Proves That It Exists?

Most, although not all, deportation grounds based on criminal activity require a conviction. This section discusses how the term “conviction” is defined under immigration law and how to argue that your client does not have a conviction for immigration purposes. Some removal grounds are based on mere conduct, even absent a conviction. Engaging in prostitution, making a false claim to citizenship, using false documents, smuggling aliens, being a drug addict or abuser, admitting to certain drug or moral turpitude offenses, being found in civil or criminal court to be in violation of a domestic violence protective order, or, especially, where the government asserts that it has “reason to believe” the person ever has been or helped a drug trafficker, can trigger adverse immigration consequences. Many (but not all) of the criminal grounds of removal we will discuss depend on whether the person has been convicted of a crime. For example, a person is not deportable under the aggravated felony ground unless they have a final conviction. If we can show that there is no conviction, the person is not removable. A.

Overview

In almost all cases, once a defendant in adult criminal court enters a plea of guilty or no contest, a conviction has occurred for immigration purposes. This is true even if under state law there is no longer a conviction for some purposes. That is because the INA, at § 101(a)(48)(A), contains its own definition of when a conviction has occurred, which applies to state dispositions regardless of how state law characterizes them. It is important to note that this definition applies to all convictions, no matter when they occurred. 5 Under INA § 101(a)(48)(A) a conviction occurs (1) where there is “a formal judgment of guilt of the alien entered by a court” or, (2) “if adjudication of guilt has been withheld, where— 1. a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

5

Chapter 5

123

Chapter 5

INA § 101(a)(48)(A) was added to the INA by § 322 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which states that it “shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act. [September 30, 1996].”

2. the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 6 The BIA has held that a guilty plea or finding of guilt, plus any imposition of probation, fine, or jail creates a conviction for immigration purposes. 7 This is the case even if the plea is later withdrawn upon successful completion of requirements such as probation, whereupon the state does not consider them to be a conviction. 8 Because most criminal courts impose requirements or restrictions upon a defendant, the second prong of the definition of conviction, imposition of punishment or restraint, can rarely be avoided. Therefore, you should first look to whether or not there was a plea, or a finding of guilt. If there is no guilty plea, no nolo contendere plea, and no finding or admission of guilt made, there is no conviction. PRACTICE TIP: Immigration counsel should never concede that a program for rehabilitative relief resulted in a conviction without thoroughly researching the law of the state in which the person was convicted. Some programs do not require a finding of guilt or guilty plea while others do. If possible, get records or a transcript to confirm whether or not a plea or finding of guilt was actually made. B.

Dispositions that are not convictions

There are many alternative dispositions that do not meet the definition of conviction under immigration law. These dispositions include: • • • • • • • •

an acquittal (meaning that the person was found not guilty) a deferred prosecution, sometimes referred to as “pre-trial” or “pre-plea” diversion, where the person is not required to plead guilty a disposition where the person pleads guilty but no penalty or restraint—no probation, fine, or other requirement—is imposed (this is rare) juvenile delinquency dispositions judgments vacated for cause infractions (sometimes; see below) dismissal under a pre-plea diversion scheme cases on direct appeal, according to the Board of Immigration Appeals (BIA) (see below)

These situations are discussed below. 1. There is no guilty plea, admission of facts, or finding of guilt; or no penalty, punishment, or restrain Some states have special programs that are alternatives to conviction. They are often for first offenders or other sympathetic defendants, and may be called a diversion, first offender, deferred 6

INA § 101(a)(48)(A). Matter of Cabrera, 24 I. & N. Dec. 459, 460−62 (BIA 2008); Matter of Mohamed, 27 I. & N. Dec. 92 (BIA 2017). 8 Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. 2005); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).

Chapter 5

7

124

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

adjudication, or other term. Recall that under INA § 101(a)(48)(A), for a disposition to be a conviction, two events must occur: 1. A judge or jury must find the person guilty or the person must admit guilt, plead nolo contendere/no contest, or admit sufficient facts to support such a finding; and 2. The judge must order some form of punishment, penalty, or restraint. Some, but not all, alternative programs do not require an admission or finding of guilt, and therefore do not amount to a conviction for immigration purposes. A good test of whether a criminal proceeding resulted in a conviction is that if there was no guilty plea, no nolo contendere plea, no admission of facts sufficient to find guilt, 9 and the court did not make a finding of guilt or of facts sufficient to find guilt. In these programs, often the defendant is permitted to plead not guilty before being diverted to a program or probation. If the person completes the program requirements, the charges are dismissed. This is not a conviction for immigration purposes. If the person does not complete the program and comes back to face the original criminal charges and a plea or finding of guilt, there will be a conviction PRACTICE TIP: Never concede that a special program resulted in a conviction, without thoroughly researching the law of the state in which the person was convicted, and if possible, getting records or a transcript to make sure that a plea or finding of guilt actually was made. In removal proceedings, put the government to its burden of proof. It is possible that a client’s case was the subject of either a formal program, or informal agreement with the prosecutor, where they never had to enter a plea of guilty. A second way to avoid a “conviction” for immigration purposes is to have a finding or admission of guilt, but ensure that there is absolutely no imposition of punishment or restraint. Because that fails to meet the second requirement of INA § 101(a)(48)(A), that is not a conviction for immigration purposes. However, this is very difficult to obtain, because most criminal courts impose requirements or restrictions upon a defendant, such as probation, restitution, or fines. 10 Once the client has a conviction, in most cases it will not be eliminated for immigration purposes unless it is vacated due to some legal error. But there are a few exceptions. See next section. 2. The effect of rehabilitative relief to eliminate a conviction Say that your client pled guilty in a diversion program, but state law provides that if they complete diversion their guilty plea can be withdrawn. Or they had a regular conviction, but they can ask to “expunge” it once they complete probation. Will that eliminate the conviction for immigration purposes? 9

Chapter 5

125

Chapter 5

See Matter of Mohamed, 27 I. & N. Dec. 92 (BIA 2017) (entry into a pretrial intervention agreement under Texas law is a “conviction” for immigration purposes where (1) a respondent admits sufficient facts to warrant a finding of guilt and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, including community service, paying fees and restitution, and complying with a no-contact order). 10 See, e.g., Matter of Calvillo Garcia, 26 I. & N. Dec. 697 (BIA 2015). In one case, however, the Ninth Circuit held that where a fine was suspended with no conditions it was not a penalty under INA § 101(a)(48)(a)(ii). See Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010).

In most cases, the answer is no. Once a conviction has come into being (see Subsection 1, above), in most cases the conviction will continue to exist for immigration purposes unless it is vacated “for cause,” due to some legal defect in the proceedings. If a state law permits the person to move to eliminate the conviction simply because the person did well on probation, or has a sympathetic case, this “rehabilitative” relief may eliminate the conviction for state purposes, but not for immigration purposes. Example: From 1997 through 2017, California Penal Code § 1000 set out a “deferred entry of judgment” procedure, which required a defendant charged with a minor drug offense to plead guilty before being diverted to a counseling program. The statute promised that if the person completed all program requirements, the judge would rule that they had no conviction for any legal purpose, they could legally state that the arrest never took place, and they could never be denied a legal benefit based on the incident. But because of the guilty plea, this promise was false: the disposition was a very damaging drug “conviction” for immigration purposes. In order to help all state residents to take advantage of drug diversion programs, as of January 1, 2018 California changed Penal Code § 1000 to a pre-trial diversion proceeding. Now a defendant will plead not guilty before being diverted. If the person completes requirements, the charges will be dismissed at the end of diversion. This is not a conviction for immigration purposes. If the person fails to complete the requirements, they will face the original criminal charges. California also created a legal means to vacate the old “convictions” under the pre-2018 deferred entry of judgment, based on legal defect. 11 The general rule is that if a conviction is eliminated because the person completed requirements or for humanitarian reasons, as opposed to because of some legal error in the proceeding, immigration authorities will hold that the conviction still exists.12 There are two major exceptions to this rule, when rehabilitative relief does work for immigration purposes. 1. In applications for Deferred Action for Childhood Arrivals, or DACA, a conviction that has been the subject of rehabilitative relief (“expunged”) is not an absolute bar to eligibility. It can be considered for discretionary purposes, however. 13

Chapter 5

11

People who pled guilty from 1997-2017 as part of Deferred Entry of Judgment (DEJ) pursuant to the former Cal. Penal Code § 1000, and who successfully completed DEJ requirements, can withdraw the plea for cause so that it will no longer be a conviction for immigration purposes, under Penal Code § 1203.43 (2016). In § 1203.43(a), the Legislature acknowledged that the DEJ statute misinformed defendants, including all noncitizen defendants, about the consequences of the guilty plea, and for that reason the statute provides that the plea is “legally invalid.” The BIA has held in unpublished opinions that treatment under Pen C § 1203.43 does eliminate a conviction for immigration purposes, but in 2018 the BIA requested amicus briefs on the issue, apparently preparing for a published decision. See amicus brief at https://www.ilrc.org/ilrc-amicus-brief-arguing-validity-cal-penal-code-120343-vacaturs. 12 See, e.g., Matter of Pickering, 23 I. & N. 621 (BIA 2003). 13 See materials at http://www.ilrc.org/daca.

126

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

2. In immigration proceedings arising within the Ninth Circuit only (Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, Oregon, and Washington), a first conviction for certain minor drug offenses that occurred on or before July 14, 2011 will not be a “conviction” for immigration purposes even if the individual plead guilty, as long as some kind of state relief—including rehabilitative relief—erased the conviction and the person meets other requirements. See § 5.13. 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. Residents of the Ninth Circuit who depend upon this rule should consider naturalizing as soon as possible. 3. Juvenile dispositions If the case was handled in juvenile court, the disposition will not be considered a conviction for immigration purposes. 14 Look for “juvenile court” or “juvenile” on the FBI or court record. Example: Andrea is sixteen. She was found guilty in juvenile court of theft. Because her case was handled in juvenile court, Andrea does not have a conviction. Beware that in many states even if a minor commits an offense while under the age of eighteen, they can be transferred to adult court to face prosecution. If convicted in adult court, this generally will be a conviction for immigration purposes. 15 However, you should contact an expert because there may be some arguments that the crime should not be treated as a conviction for immigration law purposes. CAUTION! Although a juvenile disposition is not a conviction for immigration purposes, the immigration judge can still consider juvenile conduct in making discretionary decisions. Gang activity and inability to show rehabilitation after juvenile incidents might influence a judge’s final decision in a case. Additionally, these factors may impact a bond decision. For instance, a judge might determine a person is a gang member based on juvenile dispositions and decide that they pose a danger to others and deny bond. 4. Conviction vacated for legal error In all jurisdictions, a conviction for any offense that has been vacated by a judge due to legal error should not count for any immigration purpose. 16 Some people have their convictions vacated due to ineffective assistance of counsel, in violation of the Sixth Amendment of the Constitution, where their defense counsel failed to advise them of the immigration consequences of their pleas. Example: 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 the court failed to inform him of the nature of the charge and elements

14

Chapter 5

127

Chapter 5

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). 15 See Rangel-Zuazo v. Holder, 678 F.3d 967 (9th Cir. 2012). 16 Matter of Pickering, 23 I. & N. Dec. 621 (2003); Matter of Conde, 27 I. & N. Dec. 251, 252 (BIA 2018).

of the offense. The court reviewing his petition agreed and vacated his conviction for legal cause. NOTE: Expunging a conviction after successful completion of probation terms in most cases does not eliminate the conviction for immigration purposes. An exception to this is Deferred Action for Childhood Arrivals (DACA), and in the Ninth Circuit only, certain minor drug convictions from on or before July 14, 2011. See Subsection 2, above. 5. Infractions Depending on the particular state or local law, an infraction, a minor offense that is not considered a “crime” in the jurisdiction in which it was committed, might not be a conviction for immigration purposes because the constitutional protections afforded defendants accused of crimes are not provided to defendants accused of infractions.17 Example: 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 non-conventional criminal proceeding. Jose had no right to a jury 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, Jose was convicted of an infraction which is not considered a conviction for immigration purposes. NOTE: Because states differ widely in their definitions of quasi-criminal offenses, or infractiontype 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 to ensure that they are sufficiently analogous to support an argument that the minor offense is not a conviction for immigration purposes. For example, in California, authorities appear to be holding that a California infraction is a conviction for immigration purposes. 6. Cases on direct appeal of right If the criminal case is on direct appeal, older case law held that there was no “final” conviction. 18 But some federal courts held that under the 1996 IIRIRA legislation the finality requirement no longer applied in at least some contexts, and a conviction on appeal was a conviction for immigration purposes.

Chapter 5

17

Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004); Matter of Cuellar, 25 I. & N. Dec. 850 (BIA 2012) (clarifying Matter of Eslamizar). See also discussion of factors used to determine if the nonmisdemeanor offense should not be a conviction in ILRC, Practice Advisory: Arguing that a California Infraction is not a Conviction; Test for Non-Misdemeanor Offenses (October 15, 2012) available at http://www.ilrc.org/crimes. 18 See, e.g., Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), 8 CFR § 242.2(b); see also Paredes v. Attorney General of U.S., 528 F.3d 196, 198 (3rd Cir. 2008) (concluding that a conviction is not final for immigration purposes if the noncitizen has not exhausted or waived rights of direct appeal citing Matter of Ozkok).

128

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

In 2018, the BIA clarified that filing a direct appeal on the merits prevents a conviction from becoming final for immigration purposes. According to the BIA, a conviction must have a sufficient degree of finality before immigration consequences can attach. The BIA held that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review of the merits of the conviction has expired or been waived. 19 The BIA set out the following rules: once the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes. “To rebut that presumption, a respondent must come forward with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court. He or she must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.” 20 The BIA asserted that federal courts should defer to this ruling, and distinguished the holdings of some federal courts that had come to a contrary conclusion, on the grounds that the decisions did not address a direct appeal of right on the merits of a conviction. 21 Example: Frederick was charged with passing false checks. He was convicted at trial. His lawyer has appealed his conviction to a higher court. DHS should not consider this a final conviction while the appeal is pending. If the appeal is successful, resulting in the conviction being vacated for legal or constitutional defect, it is clear that a conviction for immigration purposes no longer exists. 22 C.

Evidence to show that a conviction occurred

Section INA § 240(c)(3)(B) of the INA sets out rules for what evidence can be used to prove the existence of a conviction. Advocates who go to court do not want to simply admit that a conviction exists. Rather, we want to hold DHS to their burden of proof and make them produce qualifying evidence of a conviction. It is important to object to any evidence of conviction submitted by DHS that does not conform to the statute and best evidence standards. In case you need to produce a copy of the record of conviction—for example, to prove that the conviction was not as bad as the DHS says or to prove that your client is indeed eligible for some form of relief when the burden is on your client—it is a good idea to try to follow these rules. A few examples are the original or a certified copy of: • • •

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;

19

Matter of J. M. Acosta, 27 I. & N. Dec. 420 (BIA 2018). Id. at 432. 21 Id. At this writing, some courts that had held that a conviction on appeal remains a conviction for immigration purposes have not had an opportunity to respond to the BIA’s ruling in Acosta. Despite this uncertainty, it is worthwhile to file direct appeals in appropriate cases, because (a) courts may well yield to the BIA’s opinion, or the case may not be appealed to federal court, and (b) the conviction may be overturned on appeal. 22 See, e.g., Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). 20

129

Chapter 5

Chapter 5

• • • •

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 suggests that documents not listed in INA § 240(c)(3)(B) may be considered by the court as proof of existence of a conviction based on the circumstances of the case. However, whenever the government presents documents to prove a conviction which is 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. Note that certain electronic documents must be authenticated or reliable to be admissible.23 § 5.4

How to Analyze an Offense: The Categorical Approach

With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants convicted of crimes. Under this approach, an immigration judge or officer may not simply find that the crime “looks like” a removal offense, or that “in this case” it is a removable offense. Instead they must conduct a strictly controlled legal analysis. The Supreme Court has addressed how the analysis must be applied, in Mathis v. United States, 24 Moncrieffe v. Holder 25 and Descamps v. United States. 26 These decisions effectively overrule a lot of past precedent, to the benefit of immigrants. In 2014, the Board of Immigration Appeals (BIA) adopted the Supreme Court’s analysis and withdrew its own conflicting precedent. 27 These decisions made significant changes to how convictions are analyzed. A solid understanding of the categorical approach will help you determine which prior precedent decisions no longer governs. Relying on older BIA or federal court decisions, one may think that the conviction has adverse immigration consequences, when under recent precedent it has no consequences, or at least less

Chapter 5

23

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). 24 136 S. Ct. 2243 (2016). 25 569 U.S. 184 (2013). 26 570 U.S. 254 (2013). 27 Matter of Chairez-Castrejon, 26 I. & N. Dec. 349 (BIA 2014) (withdrawing Matter of Lanferman, 25 I. & N. Dec. 721 (BIA 2012)) and see additional commentary in decisions through Matter of ChairezCastrejon, 27 I. & N. Dec. 21 (BIA 2017).

130

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

serious ones. Likewise, immigration judges who do not correctly apply the categorical approach commit reversible error. 28 As always, how much and whether to rely upon new arguments depends on context. Advocates representing noncitizens in removal proceedings can and should advance these arguments. Advocates considering whether to file an affirmative application, in cases where this would expose a potentially removable person to authorities, should consider the chances that the argument might be rejected while the application is pending. Criminal defenders always should try to take the most conservative option of pleading specifically to a “good” offense, even if the statute really should be considered not divisible. Subsection A of this section presents a fairly brief, step-by-step guide on how to use the categorical approach under current law. For a more in-depth discussion of Moncrieffe v. Holder, Descamps v. United States, Mathis v. United States, and Matter of Chairez-Castrejon, see practice advisories available online. 29 Subsection B sets out the contexts where the categorical approach does not apply when determining the immigration consequences of a crime. A.

Does the conviction trigger a ground of inadmissibility or deportability: The categorical and modified categorical approach

Let’s say that a client comes in who has an Iowa conviction for burglary for which she was sentenced to 16 months. You know that a burglary conviction with a sentence of a year or more is an aggravated felony. How do you know if her conviction is an aggravated felony? Is every offense that a state labels “burglary” an aggravated felony if a year or more is imposed? No, it isn’t, and this is the core of the categorical approach. The title of the offense—burglary, theft, assault—does not control. Instead, we undertake a detailed legal analysis, based on the minimum conduct to violate the criminal statute. This approach can take up to three steps, which we will describe here. 1. Is there a categorical match between the removal ground and the criminal statute? To determine if there is a categorical match we determine: (a) What are the elements of the crime that is listed in the applicable removal ground (the “generic” definition)? (b) what are the elements of the offense in the criminal statute of which the client was convicted (the minimum conduct required to violate that statute)? and (c) Does the removal ground definition match every element of the offense in the criminal statute? As the Supreme Court summarized: To determine whether a prior conviction is for generic burglary (or other listed crime) courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. Mathis v. United States, 136 S. Ct. 2243, 2248 (U.S. 2016).

28

See Matter of Chairez-Castrejon, 26 I. & N. Dec. at 358. In “Practice Advisories” at http://www.nipnlg.org/, scroll to see advisories relating to Matter of ChairezCastrejon, Descamps, Mathis, and Moncrieffe. At http://www.ilrc.org/crimes, scroll to see the full article from which this is excerpted, ILRC, How to Use the Categorical Approach Now (April 10, 2017). 29

131

Chapter 5

Chapter 5

a. Identify the “generic” definition of the crime listed in the removal ground The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of criminal law terms, e.g., “crime involving moral turpitude,” “crime of child abuse,” “controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the crime that appears in the removal ground. To define a crime, we identify its elements. “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248. To illustrate the categorical approach and its use of elements, let’s consider whether an Iowa burglary conviction can be an aggravated felony as burglary. First, we must identify the federal generic definition of “burglary.” Example: The definition of aggravated felony includes conviction of “burglary” if a sentence of a year or more is imposed. INA § 101(a)(43)(G). How is “burglary” defined here? The Supreme Court held that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added). b. Identify the minimum prosecuted conduct that violates the criminal statute Next, using state case law, jury instructions, or other materials, we identify the elements of the criminal statute of which the person was convicted, and the minimum conduct required to commit these elements. (In some courts this is called the “least adjudicated elements” or “least criminalized act” required for guilt.) Note that we are focusing solely on the minimum conduct required for guilt, and “ignoring the particular facts of the case.” Mathis, supra. The Supreme Court cautioned that an immigrant may not simply imagine some possible minimum conduct for an offense, but must demonstrate a “realistic probability” that the conduct actually would be prosecuted under the criminal statute. 30 We can demonstrate a realistic probability of prosecution by producing published or unpublished decisions, or the person’s own case, where that conduct actually was prosecuted, or (at least in some circuits) showing that the specific conduct is set out in the language of the criminal statute.

Chapter 5

Example: Iowa Code § 702.12 prohibits in part a burglary of “building and structures, [or] land, water, or air vehicle.…” (emphasis added). The language of the statute as well as Iowa cases demonstrate that the statute is used to prosecute burglary of vehicles, not just burglary of buildings. Thus, the minimum prosecuted conduct includes burglary of a vehicle.

30

132

See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 193 (2007), cited in Moncrieffe, 133 S. Ct. at 1684.

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

c. Do the elements of the crime of conviction necessarily meet the elements of the generic definition? Here is where we compare the elements of the generic definition and the criminal statute. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to violate the statute that would not also come within the generic definition, then there is no categorical match. Example: A person can be convicted of Iowa burglary for illegally entering a vehicle with intent to commit a crime. Could that person also be convicted of generic burglary? No. Generic burglary includes entry into a building or structure but excludes entry into a vehicle. Because of this discrepancy, there is no categorical match. If there is no categorical match then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. If instead there is a categorical match, the removal ground will apply to every immigrant convicted under the statute. The client loses and our analysis is over. 2. Is the criminal statute divisible? This step may appear complex but stay with it until the example. The Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: 1. The statutory language must set out multiple discrete elements in the alternative (i.e., the statute must use the word “or”). 2. At least one, but not all, of the offenses created by these alternatives is a categorical match to (comes within) the generic definition. 3. In every case, a jury would have to agree unanimously between these alternatives in order to find the defendant guilty. This jury unanimity requirement what makes the statutory alternatives constitute “elements” rather than mere “means.” If any of these criteria are not met, the statutory alternatives are not elements and do not create different offenses. The statute is indivisible (not divisible). Example: Let’s use these three criteria to determine whether the Iowa burglary statute is divisible between burglary of a building and burglary of a vehicle.

Chapter 5

133

Chapter 5

1. Does Iowa Code § 702.12 set out multiple discrete elements in the alternative? Yes. It prohibits entering a building “or” a vehicle. 2. Is at least one but not all of these alternatives a categorical match to the generic definition? Yes. Burglary of a building meets the definition of generic burglary, but burglary of a vehicle does not. 3. Must a jury decide unanimously between “building” and “vehicle” in order to convict the defendant?

No. In Mathis, supra, the Supreme Court considered whether the Iowa burglary statute met this requirement. It found that under Iowa law a jury could convict the defendant even if it split, with some jurors finding that a building was burgled and others finding a vehicle was. Therefore “building” and “vehicle” are not alternative elements, creating multiple offenses, but are mere alternative means or examples of different ways to commit a single offense. Because it does not list elements in the alternative, the Iowa burglary statute is indivisible between a building or vehicle. The jury unanimity requirement is a new concept to many immigration advocates, and the law is not always clear. In Mathis the Supreme Court provided some guidance on how to determine whether a particular criminal statute carries a jury unanimity requirement. First, look to state cases or jury instructions. (However, frequently there is no holding on the issue.) Next, look to the language of the statute. If the statute contains a list of “illustrative examples,” that implies means, not elements, meaning that the statute is not divisible. But if different conduct has different potential sentences, the statute is divisible. The charging document also may provide information. In particular, if the charging document lists the statutory alternatives in a single paragraph, that “is as clear an indication as any” that these are simply means. See Mathis, 136 S.Ct. at 2256-57. If the statute is indivisible because it does not meet all of these criteria (as in this example), the immigrant wins. The minimum conduct test controls, and we already found that the statute is overbroad under that test. When a criminal statute is both overbroad and indivisible, no one who is convicted under it comes within the removal ground. This is true for purposes of deportability, admissibility, and eligibility for relief, and regardless of facts in the record. Example: In Mathis the Supreme Court found that the Iowa burglary statute was not divisible between burglary of a building and a vehicle. Since it was not divisible, the minimum conduct test controlled. The court already had found that the minimum conduct to commit the offense (burglary of a vehicle) was not a categorical match with the generic definition, and that the statute therefore was overbroad. Because the statute was both overbroad and indivisible, the Court found that no conviction under it ever amounts to generic burglary.

Chapter 5

Note that this is true even if a defendant specifically pled guilty to burglary of a building. If the statute is not divisible, the adjudicator cannot rely on individual facts or record; she can consider only the minimum conduct prosecuted under the statute. In immigration proceedings the conviction does not trigger the removal ground regardless of whether the issue is deportability, inadmissibility, or eligibility for relief. No conviction of the Iowa statute is generic “burglary” under any circumstances. See, e.g., the Supreme Court’s holding in Moncrieffe, supra, which is that because the minimum conduct to commit the offense is not an aggravated felony, Mr. Moncrieffe is eligible to apply for LPR cancellation. If the statute is divisible because it meets all of the above criteria, we go on to Step 3. For example, if Iowa did have a rule that a jury must agree unanimously between burglary of a building and a vehicle, the statute would be divisible and we would go to Step 3.

134

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

3. If the statute is divisible, do documents in the record of conviction establish of which crime the defendant was convicted (the “modified categorical approach”)? If and only if a statute is divisible according to the criteria in Step 2, the modified categorical approach applies. Here the immigration judge or officer may review certain documents from the client’s record of conviction, referred to as the reviewable record of conviction, 31 with the sole purpose of identifying which offense (which of the alternative elements set out in the statute) the person was convicted of. The Supreme Court stated that the reviewable record of conviction by plea consists of “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Courts have agreed that that pre-sentence reports, preliminary hearing transcripts, and police reports are not part of the reviewable record—unless the defense explicitly stipulated that they contain the factual basis for the plea. The reviewable record of a conviction by jury includes documents such as the charging document and jury instructions. Counsel should research BIA and Circuit-specific decisions, as there is a lot of litigation regarding which documents, and which content from the documents, are included in the reviewable record of conviction. If the record conclusively identifies of which offense the person was convicted, then the adjudicator will apply the categorical analysis to that offense. If the record is inconclusive, the case outcome might depend upon whether the question is deportability versus eligibility for relief. •

•

DHS always must prove that a conviction causes deportability. If the record of conviction under a divisible statute is inconclusive then the person is not deportable, because DHS cannot meet their burden. The BIA and some federal courts hold that an inconclusive record of conviction does not meet an immigrant’s burden of proving eligibility for relief. Other federal courts have held that it does, including the recent Ninth circuit case Marinelarena v. Barr, overturning Young v. Holder. 32 Until July 2019, the Ninth Circuit operated under the

31

Chapter 5

135

Chapter 5

Although the specifics vary across circuits, generally the reviewable record of conviction by plea consists of “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). The reviewable record of a conviction by jury includes documents such as the charging document and jury instructions. Taylor v. United States, 495 U.S. 575, 602 (1990). See Part II, discussion of Step 5. 32 Compare Sauceda v. Lynch, 819 F.3d 526 (1st Cir.2016) (holding that applying the modified categorical approach, an inconclusive record results in the unrebutted application of the Moncrieffe presumption; and as a matter of law the petitioner was not convicted of a crime of domestic violence and remained eligible for cancellation) and Marinelarena v. Barr, No. 14-72003, 2019 WL 3227458 (9th Cir. July 18, 2019) (holding that a noncitizen's eligibility for cancellation of removal is not barred where the record is ambiguous as to whether a state-law conviction constitutes a predicate disqualifying federal offense, overruling Young v. Holder, 697 F.3d 976 (9th Cir. 2012)) to cases holding that an inconclusive record is not sufficient for an immigrant to sustain their burden in proving eligibility for relief, Gutierrez v. Sessions, 887 F.3d 770, 772 (6th Cir. 2018), cert. denied sub nom. Gutierrez v. Whitaker, 139 S. Ct. 863, 202 L. Ed.

holding in Young v. Holder. 33 The Young rule said that a vague record of conviction is not enough to fulfill the respondent’s burden in establishing eligibility for relief. The Ninth Circuit held that this burden includes a requirement that the respondent produce all “reviewable” conviction records, and that if the reviewable record is inconclusive, the respondent has not met her burden. 34 On July 18, 2019, the Ninth Circuit overruled its prior decision in Young v. Holder. Marinelarena v. Barr holds that a vague record is sufficient for a person applying for relief, to show that they have met their burden of proof. 35 B.

When the categorical approach does not apply

The categorical approach potentially applies any time the phrase “convicted of” is used in a federal statute such as the Immigration and Nationality Act. There are instances, however, where the categorical approach does not apply. These include almost all factual and discretionary inquiries related to criminal activity, plus a few contexts that involve convictions. In these cases, the rules described in Subsection A do not apply. 1. Conduct-based removal grounds The categorical approach generally does not apply to fact-based inquiries, such as whether the person comes within a removal ground based on conduct rather than on a criminal conviction. Examples of conduct-based grounds are being inadmissible for engaging in prostitution or being inadmissible or deportable as an abuser or addict. The Ninth Circuit has held that the categorical approach does apply if a criminal conviction is the only evidence of the conduct. It held that a returning permanent resident was not inadmissible 36 under the prostitution ground where (a) the criminal conviction was the only evidence, and (b) the conviction was for an offense that did not meet the generic definition of prostitution under the categorical approach, because the minimum conduct was a broadly defined “lewd act” for a fee, whereas the generic definition of prostitution is sexual intercourse for a fee. 37 2. Discretionary decisions

Chapter 5

The categorical approach does not apply in a purely discretionary decision, e.g., whether an applicant merits a grant of asylum, a waiver of inadmissibility, or a finding of good moral character as a matter of discretion. This means that the categorical approach may apply in some parts of the case but not others.

2d 577 (2019); Lucio-Rayos v. Sessions, 875 F.3d 573, 501 (10th Cir. 2017), cert. denied sub nom. LucioRayos v. Whitaker, 139 S. Ct. 865, 202 L. Ed. 2d 629 (2019). 33 Young v. Holder, 697 F.3d 976 (9th Cir. 2012); see also Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). 34 Young v. Holder, 697 F.3d 976, 989-990 (9th Cir. 2012). 35 Marinelarena v. Barr, No. 14-72003, 2019 WL 3227458 (9th Cir. July 18, 2019). 36 See discussion of burden of proof at Kepilino v. Gonzales, 454 F.3d 1057, 1059–61 (9th Cir. 2006). While the opinion is somewhat hard to follow on this issue, it would appear that the government would have the burden of proving that the conditional resident was not seeking a new admission after return from a trip abroad. See INA § 101(a)(13)(C). 37 Kepilino v. Gonzales, 454 F.3d. 1057 (9th Cir. 2006).

136

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Example: The Supreme Court used the categorical approach to determine that Mr. Moncrieffe’s conviction was a deportable drug offense, and that it was not an aggravated felony that would bar eligibility for LPR cancellation of removal. But the court noted that when the judge decides whether to grant cancellation as a matter of discretion, the categorical approach does not apply and the judge can consider facts. The judge can “deny relief if he finds that the noncitizen is actually a member of one ‘of the world’s most dangerous drug cartels’” or “if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons.” Moncrieffe v. Holder, 136 S.Ct. at 1692. This can work in our client’s favor, because in the discretionary phase the person may describe what they did wrong, take responsibility for it, and describe how they have become rehabilitated. 3. Bars to eligibility for relief that are not removal grounds The BIA has held that the categorical approach does not wholly apply to several conviction-based bars to eligibility for relief that are not also removal grounds. This includes conviction of a “particularly serious crime” (bar to asylum and withholding), 38 conviction of a “violent or dangerous offense” (potential bar to asylum, asylee or refugee adjustment waiver under INA § 209(c), or a waiver under INA § 212(h)), 39 and a “significant misdemeanor” (bar to DACA). 40 The BIA held that the circumstance-specific test applies in determining whether a visa petitioner was convicted of a “specified offense against a minor,” which under the Adam Walsh Act can bar a U.S. citizen or permanent resident from petitioning for a relative. 41 4. When it does not apply to conviction-based grounds of inadmissibility and deportability The categorical approach generally governs whether a conviction of a particular type of offense brings a consequence as a ground of inadmissibility or deportability (including as an aggravated felony). This includes when the removal ground functions as a bar to eligibility for relief, or statutory bar to establishing good moral character under INA § 101(f). For example, the categorical approach applies in determining whether a person is not eligible to apply for non-LPR cancellation because they were convicted of a deportable offense or were unable to adjust status based on a conviction of an inadmissible offense. The categorical approach governs whether a conviction involved a federally defined controlled substance, a firearm or destructive device, a crimes involving moral turpitude (although there was

38

Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007). See “violent or dangerous” crime in cases such as Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002) (asylum) and the regulation governing waivers under INA § 212(h), 8 CFR 1212.7(d). See discussion in Torres-Valdivias v. Holder, 766 F.3d 1106 (9th Cir. 2014), declining to apply the categorical approach to determining whether the offense is a violent or dangerous crime. 40 The categorical approach is not discussed in DHS materials on DACA, and does not appear to be applied. See materials on http://www.ilrc.org/daca. 41 Matter of Introcaso, 26 I. & N. Dec. 304 (BIA 2014). 39

137

Chapter 5

Chapter 5

a period when it was held not to) and (with a few exceptions discussed below) an aggravated felony. Other grounds, discussed below, have been the subject of litigation. Crimes involving moral turpitude. In 2008 the Attorney General issued a controversial decision holding that the categorical approach does not fully apply to determining whether an offense is a crime involving moral turpitude. The Attorney General reversed this opinion in 2015. 42 Now the national rule should be that the categorical approach does apply to moral turpitude cases. See § 5.7. Crime of child abuse, neglect, or abandonment. A conviction of a crime of child abuse, neglect or abandonment is a deportation ground. INA § 237(a)(2)I(i). The Board has been clear that the categorical approach applies to this term. Note, however, that in the older case, Matter of Velazquez-Herrera, 43 the BIA held that a simple battery statute, which had no element relating to age, was divisible as child abuse: if the record of conviction conclusively identified a victim under the age of 18, the offense could be a crime of child abuse. That analysis has been overruled by the subsequent Supreme Court decisions discussed above. They make clear that a statute is divisible only if it sets out multiple offenses phrased in the alternative, and at least one of these offenses is made up of elements that match the generic definition at issue. 44 Because an ageneutral statute has no element, or even statutory language, relating to minor age, it is not divisible and never can be a deportable crime of child abuse, regardless of information in the record. However, due to Matter of Velazquez-Herrera, immigration advocates should be prepared to explain the correct application of the categorical approach to avoid potential misapplication. Crime of violence. A crime of violence is an aggravated felony if a sentence of a year or more is imposed and is a deportable “crime of domestic violence” regardless of sentence if there is sufficient evidence that the victim and defendant shared a protected domestic relationship. See INA §§ 101(a)(43)(F), 237(a)(2)(E)(i). The generic definition of a crime of violence is found at 18 USC § 16(a), but not at § 16(b). The Supreme Court held that § 16(b) is too vague to be a generic definition under the categorical approach, and struck it down. 45 This was an enormous change in the law that will overturn BIA 46 and federal decisions that held that certain offenses were crimes of violence under 18 USC 16(b). See practice advisories on the definition of crime of violence 47 and keep abreast of developments in this rapidly changing area. 42

Matter of Silva-Trevino, 26 I. & N. Dec. 550 (AG 2015), vacating 24 I. & N. Dec 687 (AG 2008). 24 I. & N. Dec. 503, 514–15 (BIA 2008). 44 See Categorical Approach discussion supra. 45 See Sessions v. Dimaya, 138 S.Ct. 1204 (2018). 46 This should overturn BIA cases such as Matter of Francisco-Alonzo, 26 I. & N. Dec. 594 (BIA 2015), which relied on the “ordinary case” standard. 47 See Practice Advisory: Sessions v. Dimaya (April 25, 2018) at https://www.nationalimmigrationproject.org/practice.html. For other advisories there on the definition of a crime of violence, scroll down that page to see advisories on Voisine and Castleman. Go to http://www.ilrc.org/crimes to see resources including: an advisory on 18 USC 16(a) and California offenses: Practice Advisory: Some Felonies Should No Longer Be “Crimes of Violence” for Immigration Purposes, under Johnson v. United States (August 2015); on the Supreme Court ruling in Stokeling v.

Chapter 5

43

138

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Circumstance-specific: Crime of fraud or deceit in which loss to victim/s exceeds $10,000. In Nijhawan v. Holder, 557 U.S. 29 (2009) the Supreme Court held that some aggravated felony definitions are made up of two parts: one or more “generic” offenses that are subject to the categorical approach, and one or more “circumstance-specific” factors that are not. Nijhawan concerned the aggravated felony of a crime of fraud or deceit in which the loss to the victim/s exceeds $10,000. INA § 101(a)(43)(M). The Court found that the amount of loss is circumstancespecific and need not be proved under the categorical approach, while fraud and deceit are generic offenses that are subject to the categorical approach.48 For more information on “circumstance specific” inquiries and Nijhawan, see practice advisories available online.49 Circumstance-specific: Transportation for prostitution if committed for commercial gain. In Nijhawan, the Supreme Court stated in dicta that “commercial gain” in the aggravated felony defined at INA § 101(a)(K)(ii) is a circumstance-specific factor. 50 Circumstance-specific: Thirty grams or less of marijuana. The deportation ground based on conviction of an offense relating to a controlled substance has an exception for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.” There is a similar exception to bars to establishing good moral character, and a possible waiver of inadmissibility under INA § 212(h). The BIA held that the exception calls for a circumstance-specific inquiry into the amount of the marijuana. If the issue is deportability, ICE must prove that the offense involved more than 30 grams. If the issue is eligibility for relief, the immigrant must prove the offense involved 30 grams or less. 51 For more on this, including how to contest this rule, see our online Practice Advisory. 52 Circumstance-specific: Crime of domestic violence. A deportable “crime of domestic violence” is a crime of violence, as defined in 18 USC 16(a), committed against a victim with whom the defendant shares or shared a qualifying domestic relationship. INA § 237(a)(2)(E)(i). The categorical approach is used to determine whether the conviction is of a crime of violence, but there is disagreement about proving the domestic relationship. The BIA and some federal courts have held that this is a circumstance specific factor, where the relationship can be proved by evidence from outside the record of conviction. In the past, the Ninth Circuit has held that the

Chapter 5

139

Chapter 5

United States, 139 S. Ct. 544 (2019); and a summary of crimes of violence developments in the BIA and the Ninth Circuit, in Case Update: The Domestic Violence Deportation Ground (2018). 48 See also Kawashima v. Holder, 565 U.S. 478 (2012). 49 See NIPNLG and IDP, “The Impact of Nijhawan v. Holder on the Categorical Approach” (2009) at https://www.nationalimmigrationproject.org/practice.html and see ILRC, Preliminary Advisory on Nijhawan v. Holder (2009), available at http://www.ilrc.org/files/practice_advisory_nijhawan_ilrc.pdf. 50 See also Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007). 51 See Matter of Davy, 26 I. & N. 37 (BIA 2012) and Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408 (2014). 52 See Zota, Matter of Davy and the Categorical Approach (2018) at https://www.nationalimmigrationproject.org/practice.html.

domestic relationship must be provide by conclusive evidence in the reviewable record of conviction. Those practicing in the Ninth Circuit should see our online Practice Advisory. 53 No limit on evidence? Judicial finding of violation of a domestic violence protective order. Noncitizens are deportable if a civil or criminal court judge finds that they violated a portion of a domestic violence (DV) protective order that protects against violence, harassment, or injury. INA 237(a)(2)(E)(ii). This would include any DV “stay-away” order. The BIA held that the categorical approach does not apply at all to the question of what the court determined. Matter of Obshatko, 27 I. & N. Dec. 173, 176-77 (BIA 2017) Remember that the issue is what findings the court made, not what conduct actually took place. In contrast, the Ninth Circuit has held that this deportation ground is divisible, and the categorical approach applies to that determination. Those practicing in the Ninth Circuit should see our online Practice Advisory. 54 PART II: CRIMINAL PROVISIONS IN IMMIGRATION LAW § 5.5

Overview of Immigration Consequences of Crimes

Part II of this chapter provides information on the criminal grounds of inadmissibility and deportability. The following categories of crimes comprise the most common of the adverse immigration consequences that flow from criminal offenses for immigrants: 55 • • •

The grounds of deportability, at INA § 237(a)(2); The grounds of inadmissibility, at INA § 212(a)(2); 56 and The definition of aggravated felony, at INA § 101(a)(43). Aggravated felony convictions bring the most severe immigration consequences.

Chapter 5

Criminal offenses may fall into the grounds of inadmissibility, the grounds of deportability, or both. In addition, a conviction of an aggravated felony is not only a ground of deportability, but a bar to eligibility for many forms of relief from removal. Immigration practitioners should be aware that a criminal offense can trigger more than one inadmissibility and/or deportability ground or bar to relief from removal. Thus, a single offense can cause numerous adverse consequences.

53 Compare Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006) with Matter of H. Estrada, 26 I. & N. Dec 749 (BIA 2016), and see discussion at ILRC, Case Updated: Domestic Violence Deportation Ground (2018) at http://www.ilrc.org/crimes. 54 See Alanis-Alvarado v. Holder, 558 F.3d 833, 837(9th Cir. 2009) and see discussion at ILRC, Case Updated: Domestic Violence Deportation Ground (2018) at http://www.ilrc.org/crimes. 55 Other consequences beyond the three categories listed can adversely affect persons applying for asylum (if convicted of a “particularly serious crime”), temporary protected status (if convicted of two misdemeanors or a felony), or a few other types of immigration status. DACA has unique eligibility requirements under which a person is barred from DACA with a conviction of any felony, significant misdemeanor or more than two misdemeanors of any kind. See https://www.ilrc.org/daca-criminal-barschart. 56 The crimes-based grounds of inadmissibility are also incorporated as bars to establishing “good moral character” under INA § 101(f).

140

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

To determine whether your client is subject to the grounds of inadmissibility or deportability, consult § 5.1 above and Chapter 1. A.

Comparing the criminal grounds of deportability and inadmissibility

The criminal grounds of inadmissibility and deportability are similar, but they are not identical. Thus, whether your client is being charged with a ground of inadmissibility or deportability can have a significant impact on their chances of prevailing in immigration court or obtaining an immigration benefit. Certain offenses will make a noncitizen deportable but not inadmissible, and vice versa. The following is a comparison of the types of convictions or evidence of criminal activity that make a noncitizen deportable or inadmissible. Criminal grounds of inadmissibility: 1. Admission or conviction of a crime involving moral turpitude [INA § 212(a)(2)(A)(i)(I)], with some key exceptions 57 2. Admission or conviction of a controlled substance (drug) offense [INA § 212(a)(2)(A)(i)(II)] 3. Where a DHS or consular official knows or has reason to believe the person is a controlled substance trafficker [INA § 212(a)(2)(C)] 4. Prostitution and commercialized vice [INA § 212(a)(2)(D)] 5. Conviction for multiple criminal convictions where the total aggregate sentence is five years or more [INA § 212(a)(2)(B)] 6. Serious criminal activity where the person has asserted immunity from prosecution [INA § 212(a)(2)(E)] 7. Foreign government officials who have committed particularly severe violations of religious freedom [INA § 212(a)(2)(G)] 8. Significant traffickers in persons, including beneficiaries of trafficking, [INA § 212(a)(2)(H)] 9. Where a DHS or consular official knows or has reason to believe the person engaged in money laundering [INA § 212(a)(2)(I)] Criminal grounds of deportability: 1. Conviction for a crime involving moral turpitude that was committed within five years after the date of admission and that carries a potential sentence of a year or more [INA § 237(a)(2)(A)(i)] 2. Conviction, at any time after admission, of two or more crimes of moral turpitude that did not arise out of “a single scheme of criminal misconduct” [INA § 237(a)(2)(A)(ii)] 3. Conviction of an aggravated felony any time after admission [INA § 237(a)(2)(A)(iii)] 4. Conviction for high speed flight as defined in 18 U.S.C. § 758 [INA § 237(a)(2)(A)(iv)] 5. Conviction of a controlled substance violation any time after admission [INA § 237(a)(2)(B)(i)] Note the exceptions to this ground in INA § 212(a)(2)(A)(ii).

Chapter 5

141

Chapter 5

57

6. A person who, at any time after admission, has been a drug abuser or addict (no conviction required) [INA § 237(a)(2)(B)(ii)] 7. Conviction of certain firearms offenses [INA § 237(a)(2)(C)] 8. Conviction for miscellaneous crimes relating to espionage, treason and sedition [INA § 237(a)(2)(D)] 9. Conviction for a crime of domestic violence, stalking or child abuse, child neglect, or child abandonment [INA § 237(a)(2)(E)(i)] 10. Violators of protection orders (no conviction required) [INA § 237(a)(2)(E)(ii)] Some of the differences between the two lists are especially worth noting. First, some grounds of deportability do not have a corresponding ground of inadmissibility. For example, there is no inadmissibility ground comparable to the domestic violence or firearms deportation grounds (or the aggravated felony ground, discussed next). Thus a particular conviction can make a person deportable, but not inadmissible. This may help a deportable lawful permanent resident who needs to apply for relief as a defense to removal. Example: Marcie is a permanent resident who is deportable under the firearms ground, INA § 237(a)(2)(C), for conviction of possessing an unregistered firearm. To defend against removal, her U.S. citizen husband will file a new immediate relative visa petition, so that Marcie can adjust (or re-adjust) status. For this, she will need to be admissible, or qualify for a waiver of any ground of inadmissibility. Her conviction for possessing a firearm does not make her inadmissible: there is no “firearms” ground of inadmissibility, and the conviction is not a crime involving moral turpitude or other inadmissible offense. An aggravated felony conviction is not a per se ground of inadmissibility. A conviction of an aggravated felony is a deportation ground, but not an inadmissibility ground. However, in many but not all cases, an aggravated felony conviction will still make the person inadmissible because it will come within another ground, for example the crime involving moral turpitude or a controlled substance inadmissibility ground. Nonetheless, some aggravated felonies, even if they are also crimes involving moral turpitude, will qualify for the petty offense exception to crimes involving moral turpitude. See § 5.8. Some persons may be able to apply for a waiver of inadmissibility. See Chapter 6. Thus, someone seeking admission rather than facing deportability might have different options. In some instances, a permanent resident who is deportable for an aggravated felony conviction may be able to re-adjust to permanent resident anew if they have a relative that can petition for them—either because the aggravated felony conviction does not make them inadmissible at all, or if it does make them inadmissible, they can apply for a waiver. See discussion in Chapter 6.

Chapter 5

In addition, an aggravated felony is a statutory bar to some forms of relief, such as asylum and cancellation of removal. 58 If it is a statutory bar, generally a waiver of inadmissibility will not help.

58

142

See INA § 208 and INA § 240.

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Second, there are different rules governing when a moral turpitude conviction makes a noncitizen inadmissible or deportable. For example, a conviction of a single crime of moral turpitude that falls within the petty offense exception would not make someone inadmissible. 59 However, that same offense, if committed within five years of the person’s admission, could make them deportable. Check the person’s entire criminal record against the formulae discussed in § 5.9 below. Third, certain “conduct-based” grounds make a noncitizen inadmissible, but not deportable. These include engaging in prostitution, alien trafficking, and where the government has “reason to believe” (but no conviction) that the person engaged in or aided in drug trafficking or money laundering. Fourth, admitting that they committed certain offenses can make a noncitizen inadmissible, but not deportable. The grounds of inadmissibility include being convicted of or formally admitting the essential elements of a crime involving moral turpitude or a controlled substance offense. For more about the rules governing admissions, see § 5.6 for admissions of drug crimes and § 5.8.E for admissions of crimes involving moral turpitude. However, to be deportable for a crime involving moral turpitude or a controlled substance offense, a conviction is required. An in-depth discussion of each of the criminal grounds of inadmissibility and deportability is beyond the scope of this manual. 60 However, we will look at the most common grounds of inadmissibility and deportability: crimes of moral turpitude, controlled substance offenses, domestic violence/protection order offenses, prostitution, multiple criminal convictions, failure to register as a sex offender, and aggravated felonies. B.

Aggravated felonies

A conviction of an aggravated felony is a ground of deportability, but it is worth discussing separately because it triggers many additional terrible consequences for noncitizens, including lawful permanent residents. With a few important exceptions, a conviction of an aggravated felony ensures deportation, bars eligibility to obtain new lawful status, and blocks any hope of a waiver or defense. In contrast, a person who is “merely” inadmissible or deportable under other grounds still might be able to apply for a discretionary waiver or submit a defensive application that will let them continue in status. In addition, a noncitizen who is convicted of an aggravated felony and then deported (“removed”) is subject to a greatly enhanced sentence in federal prison if they are federally prosecuted for the crime of illegal reentry. See 18 USC § 1326(b)(2). Aggravated felonies are discussed in detail in § 5.11. § 5.6 A.

Inadmissibility and Deportability Based on Drug Offenses

Conviction of an offense relating to controlled substances

Drug convictions are extremely serious. Any offense “relating to” controlled substances (illegal drugs) as they are defined under federal law is both a ground of inadmissibility and deportability. 59

See INA § 212(a)(2)(A)(ii)(II). For a detailed analysis of these grounds, see ILRC’s publication Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws, available at https://www.ilrc.org/publications/defending-immigrants-ninth-circuit. 60

143

Chapter 5

Chapter 5

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 meet this ground. There are distinctions between the grounds of deportability and the grounds of inadmissibility. It is important to first assess whether your client is subject to deportability or inadmissibility. 1. Grounds of deportability a. Conviction of an offense relating to controlled substances As stated above, a conviction for any offense relating to a controlled substance is a ground of deportability. The grounds of deportability have one exception: a noncitizen who was convicted of one or more offenses arising from a single incident that involved simple possession of thirty grams or less of marijuana, or some similar minor offenses, is not deportable. 61 For example, convictions for possession of paraphernalia and for possession of one ounce (twenty-eight and a half grams) of marijuana would both qualify for the thirty grams exception, if they arose from the same incident. Someone with a single conviction for possession of thirty grams or less of marijuana is not deportable, and is not barred from establishing good moral character, but the person would be inadmissible under INA § 212(a)(2)(A)(i)(II) and barred from applying for nonLPR cancellation under INA § 240A(b)(1). 62 The exception has been extended to possession of hashish. 63 It arguably should also extend to under the influence of marijuana or hashish. 64 However, the BIA has held that possession of thirty grams or less of marijuana in a prison, or in a drug-free zone, such as a school, is a deportable offense that cannot be waived by INA § 212(h). 65 CAUTION: Many drug convictions are aggravated felonies! Conviction for a drug trafficking offense—for example, sale, possession for sale, distribution or manufacture of a controlled substance—is an aggravated felony, regardless of sentence imposed. Some other drug offenses that have nothing to do with drug trafficking, but are similar to federal felony drug offenses—for example, a fraudulent drug prescription offense, or growing marijuana for one’s own use—are may be aggravated felonies. The United States Supreme Court has ruled that with few exceptions, 66 a first conviction for simple possession of a controlled substance is not an 61

See Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012). A person found inadmissible for thirty grams or less of marijuana would be eligible to apply for a waiver of inadmissibility under INA § 212(h). Matter of Martinez Espinoza, 24 I. & N. Dec. 118 (BIA 2009). 63 INS General Counsel Legal Opinion 96-3 (April 23, 1996). 64 See Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993) (concluding that under the influence comes within the thirty grams exceptions); Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005) (holding that a conviction for attempting to be under the influence of THC-carboxylic acid qualifies for the thirty grams of marijuana exception). But see Matter of Davey, 26 I. & N. Dec. at 40 n.3 (BIA 2012) (suggesting that under the influence of marijuana would not qualify for the 30 grams exception because it is more serious than mere possession). 65 See Matter of Moncada-Servillon, 24 I. & N. Dec. 62 (BIA 2007); Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007). 66 A first simple possession conviction for flunitrazepam (a date-rape drug) is an aggravated felony conviction. A conviction entered before August 3, 2010 for possession of more than five grams of crack cocaine should not be an aggravated felony, but the government might charge it as such.

Chapter 5

62

144

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

aggravated felony. 67 A second or subsequent simple possession conviction is also not an aggravated felony unless the prior conviction must be proved to support a sentence enhancement. 68 See further discussion of drugs and aggravated felonies in § 5.11. b. Drug abuse and drug addiction A person who currently is, or who at any time after admission has ever been, a drug addict or abuser is deportable. INA § 237(a)(2)(B)(ii). This ground of deportability does not require a conviction, and it is not clear at this time what kind of evidence the government would use to establish that someone falls within this ground. 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 addiction any time after admission. There is no waiver available for this ground of deportability other than cancellation of removal under INA § 240A(a). For more information about cancellation of removal, see the ILRC’s Removal Defense: Defending Immigrants in Immigration Court. 69 A person who currently is a drug addict or drug abuser is also inadmissible under the “health” grounds in INA § 212(a)(1)(A)(iii). A finding that someone falls into this ground must be made by an authorized physician. 70 The definition of drug abuse and addiction are discussed at § 2.1. A permanent resident who is otherwise facing the grounds of deportability would be concerned with this inadmissibility ground if they travelled, and met the criteria found at INA § 101(a)(13), or needed to demonstrate admissibility to qualify for relief from removal. 2. Grounds of inadmissibility a. Admits committing a drug offense As stated above, any conviction relating to a controlled substance will render a person inadmissible. However, a person can be inadmissible for a controlled substance offense without a conviction. 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). 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. 71 If a DHS officer or any other person asks a client if they have ever committed a drug offense, the client should stop and ask to speak with a lawyer. One court held that an admission to a medical doctor in a visa medical examination that the person had used drugs was a formal “admission” for this purpose!72 Warn clients that any admission of a crime might be used against them.

67

Lopez v. Gonzales, 549 U.S. 47 (2006). See Carachuri-Rosendo v. Holder, 560 U.S. 379 (2010). 69 Available at https://www.ilrc.org/defending-immigrants-in-immigration-court. 70 Those immigrating through consular processing must go to “panel physicians” authorized by the U.S. Department of State. Those immigrating through adjustment of status within the U.S. must go to physicians known as and “civil surgeons” who are authorized by USCIS. 71 See Matter of K, 7 I. & N. Dec. 594 (BIA 1957). 72 Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 68

145

Chapter 5

Chapter 5

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 the conviction was vacated, or a disposition that was not equal to a conviction occurred, such as a juvenile finding), 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. 73 b. The problem of “legalized” marijuana State by state, America is starting to legalize marijuana. As of spring 2019, thirty-three states have legalized some form of medical marijuana, and ten states and the District of Columbia have legalized medical and recreational marijuana. 74 It would be reasonable for noncitizens living in these states to think that using marijuana, or working legally in the legitimate marijuana industry, poses no immigration problem as long as they obey state law. Unfortunately, that’s not true. Immigration is governed by federal law, and according to federal law marijuana still is a dangerous “controlled substance.” In April 2019, USCIS amended its Policy Manual to emphasize that conduct relating to marijuana still triggers very severe immigration penalties—even if it is legal under state law. 75 The risk is that: If a noncitizen admits to DHS that, for example, they used marijuana, at home, as permitted by state law, the person can and likely will be found inadmissible, because they admitted that they committed to a federal drug offense. This is true for recreational and medical. If they admit using marijuana more than once, they can be found ineligible for a waiver of inadmissibility under INA § 212(h). A noncitizen who has worked legally in the legitimate marijuana industry—as a field worker, delivery person, office staff, or other job—can be found inadmissible because DHS has reason to believe they are a drug trafficker. Along with being inadmissible, these people are barred from establishing good moral character. For example, they will not qualify for naturalization, if the conduct took place during the period for which good moral character must be shown. For example, several people have been denied naturalization because they included a marijuana company on their list of previous employment on the N-400.

Chapter 5

73

See, e.g., Matter of C.Y.C., 3 I. & N. Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of Seda, 17 I. & N. Dec. 550, 553 (BIA 1980) (overruled in part on other grounds by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (criminal court proceedings that do not amount to a conviction for immigration purposes is not an admission)); Matter of E.V., 5 I. & N. Dec. 194 (BIA 1953) (where expungement eliminates offense for immigration purposes (under the laws at the time), then independent admission to immigration judge is not “admission” for inadmissibility). 74 For state-by-state information on cannabis laws, see websites such as https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881. 75 See USCIS, Policy Alert: Controlled Substance Determinations and Naturalization (April 19, 2019) at https://www.uscis.gov/sites/default/files/policymanual/updates/20190419ControlledSubstanceViolations.pdf. This amends the USCIS Policy Manual at Vol. 12, Chapter 5, Part C.

146

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

We hope that at some point soon Congress will take marijuana off the federal drug schedules. But until that time, noncitizens must be extremely careful. Tell your clients and your community that the best practice for noncitizens is: • • • •

• • •

•

Don’t use marijuana until you’re a U.S. citizen. Don’t work in the marijuana industry. If you need medical marijuana, get a medical and a legal consult. You may be able to find a way. Don’t carry marijuana, a medical marijuana card, a pipe, or wear items like marijuana tshirts. Don’t post about marijuana on social media. Don’t have photos on your phone about marijuana. This is true anywhere, but especially if you are near or crossing a United States border, or going to an immigration interview. The risk is that it could prompt aggressive questioning about marijuana. Never discuss marijuana with any immigration officer, or with a doctor at an immigration appointment, without first getting expert legal advice. If you have a potential issue with marijuana, do not travel outside the United States without expert legal advice. Some states and cities are trying to help people by doing mass “expungement” of past minor marijuana convictions. While this can help for finding employment, do not assume that it removes a conviction for immigration purposes. Get expert advice. If any of this is a problem for you, one option is to consider waiting a while before filing an affirmative application or traveling outside the United States. The law on marijuana might get better.

Go online to download community flyers about marijuana and immigrants in English, Spanish, and Chinese; a sample letter from a state Employment Development Department; and a Practice Advisory that goes into more detail and discusses legal defenses. 76 c. “Reason to believe” that the person is or was a drug trafficker A person is inadmissible (but not deportable) if the DHS has “reason to believe” that they are or ever were a drug trafficker. INA § 212(a)(2)(C). Assume that even minors will be charged under this ground, since a “conviction” is not required. DHS must demonstrate that it has substantial and probative evidence that the noncitizen was engaged in the business of selling or dealing in controlled substances. 77 Drug trafficking means selling (or even giving away illegal drugs when that is connected with dealing), 78 but it does not mean getting drugs for your own use. DHS does not need a conviction to have “reason to believe” the person trafficked; it may rely on evidence 76

Chapter 5

147

Chapter 5

Go to https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana or Google “ILRC marijuana.” 77 Matter of Davis, 20 I. & N. 536, 541 (BIA 1992), using Black’s Law Dictionary definition of “trafficking” meaning “commerce; trade; sale or exchange of merchandise, bills, money and the like.” 78 Distribution for free when connected to drug sales could be held trafficking. See Matter of MartinezGomez, 14 I. & N. Dec. 104 (BIA 1972) (pled to maintaining place where drugs dispersed, current H&S § 11366; although sale was not required, the statute was aimed at preventing trafficking of drugs in such premise).

such as police reports, witness statements, or the person’s own statements. It is important to note that DHS probably will consider evidence from a juvenile delinquency disposition in determining that 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 § 5.3. 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. This ground has been used against people who work legally in the legitimate marijuana industry. They are deemed “drug traffickers”! See discussion at Subsection B, above. 3. What is and what is not a drug conviction for immigration purposes? In some cases, a court disposition with some relation to drugs will not cause immigration penalties. It is best to consult an expert immigration practitioner to see if any exception may apply. Accessory after the fact and other offenses that do not inherently “relate to” controlled substances. Accessory after the fact and misprision of felony are offenses that relate to helping someone 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 had committed related to drugs. 79 This also might be true of state laws that punish “tampering with evidence” or “hindering prosecution.” This type of conviction carries some risk, 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. 80 The BIA has also held that being an accessory after the fact to an offense that is a crime involving moral turpitude will make the accessory conviction a CIMT as well. 81 At least the Ninth Circuit Court of Appeals has disagreed with this, however. 82 The state-controlled substance list does not match the federal lists. For immigration purposes, a controlled substance (illegal drug) is defined by federal drug schedules (lists of controlled substances) at 21 U.S.C. § 802. Many states have a state list of controlled substances that is slightly different from the federal list, and that may contain drugs not on the federal list. 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. Therefore, there is no proof that the offense “related to” controlled substances as defined in the INA, and the person is not deportable. 83 In Mellouli v. Lynch, 84 the Supreme Court 79

See, e.g., Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997). Id; 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. 81 Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). 82 See Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). 83 See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965); Mellouli v. Lynch, 135 S. Ct. 1980 (2015). 84 135 S. Ct. 1980 (2015).

Chapter 5

80

148

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

strengthened this defense in a few ways. It clarified that the state and federal list will be compared as of the time the person was convicted, rather than at the time of the removal proceeding. The Court held that the requirement applies to possession of paraphernalia, whereas the BIA earlier had held that there is no need to identify a federally listed substance for certain offenses like paraphernalia. Finally, the Court did not require Mr. Mellouli to show examples of real prosecutions involving one of the non-federally listed substances. This should overturn a recent BIA case that required immigrants to do this in order to benefit from the defense. 85 See Mellouli practice advisories for further discussion. 86 Clearing up the conviction. 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. A conviction will not be eliminated for immigration purposes by so-called “rehabilitative relief”—where the criminal court legally erases the conviction not because of constitutional or other legal error, but because the person completed probation, fulfilled other conditions, or for humanitarian purposes. One example of rehabilitative relief that is commonly known is called an expungement. 87 There is an important exception to this rule. In immigration proceedings held in states within the Ninth Circuit only, a state’s rehabilitative relief will eliminate the immigration consequences of a first conviction for simple possession of a controlled substance or certain other minor drug offenses, such as possession of drug paraphernalia, if and only if the conviction was entered on or before July 14, 2011. See discussion at § 5.13. § 5.7

Crimes Involving Moral Turpitude

Crimes involving moral turpitude are both a ground of inadmissibility and deportability. As with drug convictions, the ground of inadmissibility is distinct from the ground of deportability. For instance, people who have made a formal admission of a crime involving moral turpitude may be inadmissible, but only a conviction will render someone deportable. See INA §§ 212(a)(2)(A)(i), 237(a)(2)(A)(i), (ii). A.

Definition of a crime involving moral turpitude

There is no set definition of crimes involving moral turpitude, and many legal cases involve battles over which crimes qualify. Courts have held, however, that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” 88

85

Matter of Ferreira, 26 I. & N. Dec. 415, 419 (BIA 2014). See, e.g., NIPNLG, Practice Advisory: Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability Under Drug Deportation and Other Conviction-Based Removal Grounds, June 8, 2015, https://www.nationalimmigrationproject.org/PDFs/practitioners/practice_advisories /crim/2015_08Jun_mellouli.pdf. 87 Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999). 88 Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988). 86

149

Chapter 5

Chapter 5

In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), former Attorney General Mukasey stated that moral turpitude requires a “reprehensible act” with some form of scienter (intent), “whether specific intent, willfulness, or recklessness.” 89 While that decision was vacated for other reasons (see Subsection B), the BIA might continue to employ this standard. Importantly, a crime committed negligently is not a crime of moral turpitude. What is or is not a crime of moral turpitude has been the subject of much litigation over the years. Until further guidance is provided, you should examine the definition provided in Silva-Trevino in addition to case law in your jurisdiction to determine whether and how the courts have ruled on the particular offense in question. 90 In general, the following types of crimes have been held by courts to involve moral turpitude: 1. Intent to commit fraud; 2. Intent to commit theft and to permanently or substantially (for a long time), 91 as opposed to temporarily, 92 deprive the owner of the benefit of the property; 3. Intent to cause or threaten great bodily harm, or in some cases if imminent risk of death or serious injury is caused by a willful act or recklessness; 93 4. Some offenses that have malice as an element; and 5. Some sex offenses in which lewd intent is an element.

Chapter 5

89

24 I. & N. Dec. at 706. This decision has since been vacated by Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (Silva Trevino II). Practitioners should continue to assume recklessness may be sufficient mens rea to commit a crime involving moral turpitude. 90 The Ninth Circuit Court of Appeals, for example, has held that an offense is a crime of moral turpitude if it falls into either one of two categories: (1) it involves fraud by having either an element of the offense as fraud or being inherently fraudulent, or (2) is a crime of an especially morally offensive character, meaning the offense is vile, based, or depraved, violates societal moral standards, and is committed willfully or with evil intent. Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir. 2007)(en banc) (Reinhardt, J., concurring). 91 See Matter of Obeya, 26 I. & N. Dec. 856 (BIA 2016); Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016). Because the addition to moral turpitude of intent to “substantially deprive” is a new rule, some courts hold that Obeya does not apply to convictions from before its publication date, November 16, 2016. 92 See also Wala v. Mukasey, 511 F.3d at 106 (“Under BIA precedent, however, not all larcenies are CIMTs.”); Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973); Matter of D-, 1 I. & N. Dec. 143 (BIA 1941) (finding that a taking could constitute “theft” even if it did not include the turpitudinous element of intent to permanently deprive the owner of his or her property]; Matter of R-, 2 I. & N. Dec. at 828 (BIA 1947)(“It is settled law that the offense of taking property temporarily does not involve moral turpitude.”); see also Matter of Jurado, 24 I. & N. Dec. 29 (2006) (holding that where a theft statute does not specify whether the offense involves an intent to deprive the owner permanently as opposed to temporarily of the property, the reviewing authority may look to the circumstances of the case to determine whether a permanent taking was intended and therefore, whether the offense involves moral turpitude). 93 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., Cal. Pen Code § 192(b).

150

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Thus, murder, rape, voluntary manslaughter, robbery, residential burglary with an unlawful entry, burglary with an unlawful entry and the element of intent to commit a moral turpitude offense, theft with intent to deprive permanently or substantially, arson, some more serious 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 willful recklessness is an element), simple assault or battery, “breaking and entering” or criminal trespass, driving under the influence, “joyriding,” and various weapons possession offenses. Example: Your client has been convicted of “felonious assault.” You look that offense up in your state Penal Code and underlying case law, and see that it requires intent to cause great bodily harm. Now you know that the offense probably involves moral turpitude. What makes this analysis complicated is that different states may define the same offense differently. Also, some offenses that look like they should be moral turpitude offenses have been held not to be. For example: •

Battery against a spouse or girlfriend where the statute can be violated by a mere offensive touching is not a crime of moral turpitude, under the categorical approach. 94 Watch out for statutes that require an “injury”; see if there is a requirement that the person intended to cause a real injury.

•

Simple assault is generally not a crime of moral turpitude, but assault with a deadly weapon or intentionally causing great bodily injury is a crime of moral turpitude. If a person commits an offensive touching (e.g., just pushing or poking someone) that unexpectedly results in an injury, or if a person negligently injures another, this is not necessarily moral turpitude. Reckless causation of injury may involve moral turpitude, where the recklessness is defined as a disregard of a known imminent risk of death or injury. You should look closely at the statute’s elements and the case law interpreting those elements.

•

Simple driving under the influence is not a crime involving moral turpitude—even if there are multiple convictions. The BIA, however, found that a conviction for the single offense of driving a car while under the influence and while knowingly prohibited from driving at all (e.g., on a suspended license) is a crime involving moral turpitude, 95 and the Ninth Circuit en banc deferred to this decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009). 96 If a person was convicted of two separate offenses—driving under

94

Chapter 5

151

Chapter 5

Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006); see also Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006). 95 Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999); see also Marmolejo-Campos v. Gonzales, 558 F.3d 903 (9th Cir. 2009). 96 If the DUI statute includes simply sitting in a vehicle while under the influence, however, that ought not to be a CIMT. See Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) (physical control of the vehicle, without driving, is not a CIMT even if this is done while knowingly on a suspended license); see also Marmolejo-Campos, 558 F.3d at 912–13.

the influence, and driving with a suspended license—this should not equal a crime involving moral turpitude, even if the conduct involved for both offenses arose out of the same incident. •

The BIA held that having sex with a minor is a CIMT if the minor is under the age of 14, or is under the age of 16 and there is a significant age difference. 97

•

A false statement to a police officer under certain statutes (e.g., California Penal Code § 148.9) may not be a crime of moral turpitude, but any offense involving fraud or perjury is a crime of moral turpitude.

•

Engaging in prostitution is a crime of moral turpitude for the prostitute; jurisdictions may differ as to whether being a customer is. 98

These examples illustrate that it is not always easy to determine whether an offense is a crime of moral turpitude. Never look at the labels of the offense to guess whether it involves moral turpitude or not. You must look to wording of the statute under which your client was arrested or convicted and the case law in your jurisdiction to determine what is a crime of moral turpitude in your jurisdiction. One final complication—although a beneficial one—is that the categorical approach applies to moral turpitude determinations. See Subsection B. The law is changing very quickly in this area, and often to the immigrant’s benefit. Some offenses that used to be held to be divisible for moral turpitude purposes, are now never CIMTs, regardless of the underlying facts or what information is in the record of conviction. For all of these reasons, 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. It is important to investigate case law, and seek expert assistance if you are unsure of possible arguments. In fact, even recent published decisions that are against you might be ripe for challenge at this time— especially cases that find that a particular statute is “divisible” for moral turpitude, or that did not strictly apply the “minimum conduct” test. Your best rule is, do not assume the offense involves moral turpitude until you have a thorough, up-to-date, and expert analysis. See “For Further Information” in Appendix A. PRACTICE TIP: If in removal proceedings, never concede a charge of removability based on a criminal ground of removal. Even if you know for certain that your client was convicted of an offense, there might be defense arguments or case law might have been overturned. If you deny the charge and hold the government to its burden of proof, you preserve the issue for your client. If filing affirmatively or presenting at the consulate for admission, counsel should discuss the risk and consequences of coming forward with challenging arguments regarding a client’s criminal history. You might have a very good legal position and nonetheless your client faces risks. 97

Matter of Jimenez-Cedillo, 27 I. & N. Dec. 1 (BIA 2017). Matter of W-, 4 I. & N. Dec. 401 (BIA 1951); but see Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (holding that solicitation of a prostitute is a crime of moral turpitude).

Chapter 5

98

152

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Other considerations for moral turpitude. Moral turpitude does not depend on classification as a felony or misdemeanor, or on the severity of punishment allowable or actually imposed. Rather, a crime of moral turpitude has been defined as an act which is per se intrinsically wrong, or “malum in se.” 99 Recidivism also does not create a crime of moral turpitude. Instead, each conviction is considered separately to determine whether moral turpitude is involved. Therefore, multiple convictions of the same offense, each of which does not involve moral turpitude, cannot be considered cumulatively to determine that the offense involves moral turpitude. State court rulings on moral turpitude for impeachment purposes are not controlling for immigration. 100 Sometimes the discussion in a good state case may be helpful, however. State decisions do control to define the elements of the criminal offense. § 5.8 The Moral Turpitude Ground of Inadmissibility: Petty Offense and Youth Exceptions, Definition of Sentence Imposed, and Admissions 101 A.

Inadmissible for one conviction

A person who has admitted to or been convicted of just one crime involving moral turpitude is inadmissible unless the offense falls within one of the exceptions discussed below. INA § 212(a)(2)(A)(i)(I). B.

Petty offense exception to the inadmissibility ground

One important exception to the above rule is 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: 1. This is the first time the person has committed a crime of moral turpitude (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. Example: Bonnie and Clyde are arrested. Bonnie is convicted of fraud, a misdemeanor offense that has a maximum one-year penalty. This is her first offense. She receives a threemonth 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. Clyde is convicted of robbery. 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

99

Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), aff’d, 72 F.3d 571 (9th Cir. 1995). Gonzalez v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 374 U.S. 637 (1954). 101 For additional resources regarding the CIMT grounds of inadmissibility and deportability, see N.7 Crimes Involving Moral Turpitude at https://www.ilrc.org/chart and All Those Rules about Crimes Involving Moral Turpitude, available at https://www.ilrc.org/crimes. 100

153

Chapter 5

Chapter 5

offense exception since robbery has a maximum possible sentence of five years. Clyde is inadmissible. NOTE: The petty offense exception does not cure deportability. It is possible for someone to be admissible thanks to the petty offense exception, but still be subject to deportation. C.

Definition of sentence

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 true even if 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. In this case, the jail time ordered would be the sentence imposed. If a judge imposes a sentence and “suspends execution” (does not make the person serve the entire 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. Example: 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 one hundred days in jail as a condition of probation. Bernardo has a “sentence imposed” of one hundred days. Therefore, he will qualify for the petty offense exception because his sentence is less than six months. (Notice that the three years of probation has no effect.) Example: Josephine was convicted of misdemeanor fraud, 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 physically go to jail at all. However, for immigration purposes Josephine had a “sentence imposed” of one year. Josephine does not qualify for the petty offense exception, because her sentence is greater than six months. D.

Youthful offender exception

The second exception to the CIMT inadmissibility rule is the youthful offender exception. 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 eighteen they 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 a conviction in the first place. E.

Admission of a crime involving moral turpitude

Chapter 5

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. 102 DHS does not often use this ground, but your clients should be warned. If there is any 102

154

See Matter of K, 7 I. & N. Dec. 594 (BIA 1957).

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

reason to think that a DHS officer may question your client about some specific incident (for example, if the person was charged with a moral turpitude offense but the charges were dropped), the client should get a lawyer’s advice and go to the interview with a lawyer. If the person is alone, they should refuse to answer questions. Example: Anna is questioned by a DHS officer in 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. 103 For example, if a person was charged with an offense but the charges were dismissed, or was convicted and the conviction was vacated on constitutional grounds, then the person should not be found inadmissible based on admitting facts about the offense—even if they later make a formal admission of the crime to an immigration judge or officer. § 5.9

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. A.

One CIMT conviction

A noncitizen is deportable for having been convicted of only one crime involving moral turpitude if they committed the offense within five years after the date of admission, and if the offense had a potential sentence of one year. 104 1. Within five years of admission What is an “admission” that starts the five years? A single CIMT conviction triggers deportability if it was committed within five years after admission. Whether an entry into the U.S., or an adjustment of status, constitutes an “admission” depends upon a few factors. Non-permanent residents. A non-permanent resident makes a new admission each time they enter the United States with inspection. Some examples of an admission are entering the U.S. with an immigrant visa, refugee status,105 or a nonimmigrant visa, such as a tourist or student visa, or arguably, a grant of temporary protected status in the Ninth and Sixth Circuits only (which has been

103

Chapter 5

155

Chapter 5

Matter of CYC, 3 I. & N. Dec. 623 (BIA 1949); Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968); see also Matter of Seda, 17 I. & N. Dec. 550, rev’d in part on other grounds by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988). 104 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. 105 Matter of D-K-, 25 I. & N. Dec. 761 (BIA 2012) (a refugee has been “admitted”).

held to be an admission for purposes of ability to adjust status). 106 The BIA has held that the grant of asylum status is not an admission.107 Permanent residents who travel abroad. The definition of “admission” is different for permanent residents who leave the U.S. to travel to another country. Upon returning to the U.S. they do not make a new “admission,” and do not therefore restart the five-year period, unless they come within certain categories, for example if they were gone for six months or more, or are inadmissible for crimes. See INA § 101(a)(13)(C) and Subsection 1.1. A different rule applies to permanent residents who travel and are only inadmissible based on one or more conviction from before April 1, 1997. They do not make a new “admission” as long as their absence was “brief, casual and innocent.”108 See Subsection 1.1. Adjustment of status. The Board of Immigration Appeals used to hold that adjustment of status is a new admission that re-starts the five-year clock,109 but it changed its position in response to several court decisions that disagreed with its approach. In Matter of Alyazji,110 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, 111 remains in the U.S. (including in unlawful status) and later adjusts status to permanent resident, the admission date is the first time they entered on the temporary visa, not the later adjustment of status date. 112 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: • •

•

If a noncitizen never has been admitted to the United States (e.g., entered without inspection), their adjustment of status counts as an admission for this purpose. 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. 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 restart the five-year clock. 113

106

See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Matter of V-X-, 26 I. & N. Dec. 147 (BIA 2013). 108 See Vartelas v. Holder, 566 U.S. 257 (2012) and NIPNLG, Legal Action Center AIC, IDP, Practice Advisory: Vartelas v. Holder: Implications for LPRs who take Brief Trips Abroad and Other Potential Favorable Impacts, (April 5, 2012) at http://www.nipnlg.org/. 109 See Matter of Rosas, 22 I. & N. Dec. 616 (BIA 1999); Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005). 110 25 I. & N. Dec. 397 (BIA 2011). 111 As defined in INA § 101(a)(13), for example with a nonimmigrant visa. 112 Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), overruling in part Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005). 113 See Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011); see also Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007); Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004).

Chapter 5

107

156

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

•

If a noncitizen was admitted to the United States, fell out of status, and then adjusted to permanent residency, the Fourth and Seventh Circuits have decided that the adjustment was not a new admission.114 The BIA now agrees with these decisions.115 There is evidence that the Sixth and Ninth Circuits, 116 as well as other circuit courts, will agree with these holdings. 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: Carol entered with a tourist visa in 1990 and then left the U.S. for several years. She enters the U.S. without inspection in 1998, adjusts status in 2002, and commits a crime involving moral turpitude in 2004. Her admission date is 2002 when she adjusted status, and thus she could be deportable. Example 3: Rasheem entered the United States on a student visa in 2002 and stayed in status until he adjusted to permanent residency in 2006. In 2009, he committed his first and only crime involving moral turpitude offense that carried a potential sentence of one year. The adjustment is not a new admission that re-starts the five-year period. He is not deportable because the 2002 lawful entry is his admission date and the CIMT offense was committed more than five years after his admission. Example 4: 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. The date of admission is 2001 for purposes of the five years, and he is not deportable. In fact, this is the situation considered in Matter of Alyazji. 2. Maximum possible sentence of one year

In addition to the requirement that the CIMT offense have been committed within five years after admission, the statute also provides that the CIMT offense must have a possible sentence of a year or more. Counsel should check to see if the maximum sentence possible under the criminal statute at issue is less than a year so that it does not fall under this ground. Under federal law, as well as the law of several states, a felony offense carries a sentence of more than a year, while a misdemeanor offense can carry a sentence of up to a year. 117 Therefore, many misdemeanor convictions can trigger this ground of deportability. A misdemeanor offense that has a maximum sentence of six months would not trigger this ground even if the CIMT offense was committed within the five-year period. In some states, such as Washington, Nevada, New Mexico, California, and New York, the law has been changed so that a misdemeanor has a maximum possible sentence of 364 rather than 365 days. Advocates in other states are considering changing their state law. At least in the case of 114

Chapter 5

157

Chapter 5

See Aremu v. Dep’t of Homeland Sec., 450 F.3d 578 (4th Cir. 2006); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005). 115 Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011). 116 See Zhang v. Mukasey, 509 F.3d 315 (6th Cir. 2007); Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004); See Lopez Valenzuela v. Lynch, 673 F. App’x 780, 781 (9th Cir. 2017) (unpublished). 117 See 18 U.S.C. § 3559(a) (felony is punished by a sentence of more than a year), Cal. Pen. Code §§ 17– 19 (same).

California’s statute, the BIA has refused to apply this law retroactively to misdemeanor convictions from before the state law passed, but advocates hope to reverse this.118 B.

Two CIMT convictions

A noncitizen is deportable for two or more convictions for crimes involving moral turpitude that occur any time after admission, unless the convictions are “purely political” or arise in a “single scheme of criminal misconduct” (often interpreted to exclude almost anything but two charges from the same incident). INA § 237(a)(2)(A)(ii). Example: Stan was admitted to the U.S. in 2002. He was convicted of assault with intent to commit great bodily injury in 2008 and fraudulently passing a bad check in 2010. Regardless of the potential or actual sentences imposed, he is deportable for having been convicted of two moral turpitude offenses since his admission. Example: Joshua entered the U.S. without inspection in 2000. He was convicted of assault with intent to commit great bodily injury in 2009 while in the U.S. In 2010, he underwent consular processing and was admitted to the U.S. as a permanent resident. In 2011, he tried to commit fraud and was convicted of a misdemeanor that had a maximum sentence of six months. Is he deportable under INA § 237(a)(2)(A)(ii)? No. First, even though he has committed two crimes of moral turpitude, only one was committed after his admission to the U.S. (as a permanent resident in the year 2010). Second, he is not deportable for a conviction of one CIMT that was committed within five years of admission, because the offense carries a potential sentence of less than one year. 1. Single scheme of criminal misconduct The phrase “not arising out of a single scheme of criminal misconduct” has been construed very narrowly by the BIA. The BIA has held that this exception only applies where the crimes were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequences of a single act of criminal misconduct.119 In Matter of Islam, 120 the BIA held that multiple stolen credit card transactions committed in different stores on a single day are not a single scheme of misconduct.

Chapter 5

118

See, e.g., Cal. Pen. Code § 18.5(a), but see Matter of Velasquez-Rios, 27 I. & N. Dec. 470 (BIA 2018) (limiting the applicability of Penal Code § 18.5(a) to convictions that occurred on or after January 1, 2015) and ILRC, Matter of Velasquez-Rios and 364-Day Misdemeanors (2018), at https://www.ilrc.org/crimes. 119 Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) (following Pacheco v. INS, 546 F.2d 448, 451 (1st Cir.). 120 25 I. & N. Dec. 637 (BIA 2011).

158

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Many Circuit Courts haves similarly applied a more narrow interpretation of a “single scheme of criminal misconduct”. 121 Most recently in Szonyi v. Whitaker, 122 the Ninth Circuit applied Chevron 123 deference to align with the BIA’s more narrow interpretation. Advocates in the Second Circuit, however, may rely on Nason v. INS, 124 a pre-Chevron case, which still applies a broader interpretation of “single scheme of criminal misconduct.” In Nason, the Second Circuit permitted a specific, coherent plan of future action to constitute a single scheme of criminal misconduct. While advocates can use this case to argue that offenses arose from a single scheme, federal courts may decide that they must defer to the approach that the BIA takes in Matter of Islam. WARNING: Prior waived moral turpitude convictions. Immigration practitioners should be aware that moral turpitude convictions that previously were waived can come back to life to cause deportability as one of two convictions of a crime involving moral turpitude. A conviction that has been “excused” by an immigration authority under a previous application for the former § 212(c) waiver, § 240A(a) cancellation of removal, or § 212(h) waiver still can be joined to a second, subsequent conviction and form the basis for deportation under this section. 125 A conviction that has been vacated for cause cannot be used in this way. Example: After admission as a permanent resident, Mr. Khourn was convicted of drug trafficking, which is a crime involving moral turpitude. The conviction was waived under the former INA § 212(c) relief. He was subsequently convicted of fraud, a second offense involving moral turpitude. Despite the fact that the first conviction had been previously waived, he is deportable for two convictions of crimes involving moral turpitude received since his admission to the United States. 126 § 5.10 Firearms Offenses 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). Note, however, that because there is no “firearms” ground of inadmissibility, the conviction will not make the person inadmissible unless the offense is also a crime of moral turpitude or otherwise comes within the criminal inadmissibility grounds in INA § 212(a)(2). “Firearm” includes guns or firearms, frames and receivers, and 121

Chapter 5

159

Chapter 5

See e.g., Chavez-Alvarez v. Attorney Gen. United States, 850 F.3d 583, 587 (3rd Cir. 2017); Akindemowo v. U.S. I.N.S., 61 F.3d 282, 285 (4th Cir. 1995); Sawkow v. INS, 314 F.2d 34 (3rd Cir. 1963). See further discussion at Tooby, Crimes of Moral Turpitude, The Law Offices of Norton Tooby, (http://www.nortontooby.com); Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Crimes (West Group 2012). 122 915 F.3d 1228 (9th Cir. 2019) (where petitioner who forced three women to commit nonconsensual sexual acts on him under threat of violence over five to six hour period did not qualify as a single scheme, since petitioner had opportunity to cease his activities and reflect on what he had done after abuse of any one victim). 123 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 124 394 F.2d 223 (2nd Cir.1968). 125 Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993); Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997); Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1991). 126 These are the facts of Matter of Khourn, 21 I. & N. Dec. 1041.

silencers. “Destructive device” includes objects such as bombs, grenades, rockets or similar devices, or parts used to convert or create firearms or destructive devices. Long-term permanent residents who have been convicted of firearms offense may be able to apply for cancellation of removal under INA § 240A(a). However, some firearms offenses are aggravated felonies, which bar eligibility for cancellation of removal (see below). Some convictions that look like firearms offenses really are not. For example, a statute might be labeled as a gun law, but include offenses such as possession of a knife. If the statute is not “divisible” under the Supreme Court’s test (see § 5.4) or if it is divisible but the government cannot prove from the record of conviction that the offense actually involved a firearm, the person is not deportable. Another important defense is that not all guns constitute firearms under federal law because a firearm under the federal definition includes only explosive-powered weapons. A stun gun, BB gun, or blowgun, for example, does not meet that definition. In addition, the federal definition of firearm excludes “antique” firearms. 127 If advocates can demonstrate that a state statute has been used to prosecute cases involving “antique” firearms, and if the criminal statute is not divisible between antique and non-antique guns, no conviction of the offense should be a deportable firearms offense—even if in the person’s case, the firearm was not an antique. Federal courts are very likely to find that a prior BIA case that held that the firearms exception would work only if the person could prove their own case involved an antique is overruled. 128 Example: Mr. A-R- was convicted of being a felon in possession of a “firearm” under a California statute. His attorney produced several unpublished cases that showed that the California statute has been used to prosecute felons who possessed antique firearms. Under the categorical approach, this showed that conduct that had a reasonable probability of prosecution (involving an antique firearm) fell outside the applicable “generic” definition of firearm (which excludes antiques). The statute, which just stated “firearm,” was not divisible. Therefore, the Ninth Circuit held that no conviction under that statute is a deportable firearms offense or firearms aggravated felony. 129 This holding applies to a conviction of any California offense that uses the same statutory definition of firearm. 130 Trafficking (selling) firearms (guns) or “destructive devices” (bombs) is an aggravated felony. INA § 101(a)(43)(C). As is a state conviction of an offense that is analogous to a federal aggravated felony firearms offense. INA § 101(a)(43)(E). For example, assuming that the statute does not come within the antique firearm exception, the common offense “possession of a firearm

Chapter 5

127

The firearms deportation ground defines firearm according to 8 U.S.C. § 921(a)(3). That states that the term firearm “does not include an antique firearm.” An antique firearm is defined at 18 U.S.C. 921(a)(16) as one made in 1898 or before, plus certain replicas. 128 That case is Matter of Mendez-Orellana, 25 I. & N. Dec. 254 (BIA 2010). 129 United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). 130 Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (an offense using the definition of firearm under former Cal. Pen. Code § 12001(b), current Cal. Pen. Code § 16520(a) does not meet the immigration definition of firearm).

160

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

by a felon” is an aggravated felony if the state statute has the same elements as the federal offense. 131 Possession of a firearm by an addict or by an undocumented immigrant (i.e., where the criminal statute lists immigration status as an element of the offense) also is an aggravated felony. Possession of certain dangerous weapons such as an unregistered short-barreled rifle, sawed-off shotgun, machinegun, or silencer is an aggravated felony. A firearms offense that has the use, risk, or threat of violence as an element might be classed as a crime of violence under 18 U.S.C. § 16(a), or as a crime involving moral turpitude. If a sentence of a year or more is imposed on a crime of violence conviction it is an aggravated felony. See INA § 101(a)(43)(F). Unlawfully possessing even a “dangerous” firearm like a sawed-off shotgun is not a crime of violence 132 or a crime involving moral turpitude. 133 § 5.11 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). It is important to note that although there is no aggravated felony ground of inadmissibility, a person who is both convicted of an aggravated felony and removed is permanently inadmissible under INA § 212(a)(9)(A)(i). A person in this situation may apply for a waiver to re-enter on form I-212. However, this waiver is discretionary. See INA § 212(a)(9)(A)(iii). A.

Punishments for conviction of an aggravated felony

Conviction of an aggravated felony brings terribly harsh immigration consequences. For example, someone with an aggravated felony is: • •

Ineligible for release on bond and subject to mandatory detention during removal proceedings under INA § 236(c); Barred from applying for asylum. For withholding applications filed on or after April 1, 1997, an aggravated felony conviction can bar withholding, only if the applicant has been sentenced to an aggregate term of imprisonment of at least five years.134 However, even with an aggravated felony a person might be eligible for withholding, protection under the

131

Matter of Vasquez-Muniz, 22 I. & N. 1415 (BIA 2002). Some courts previously held that possessing federally defined “dangerous” firearm like a sawed-off shotgun was a crime of violence under 18 USC § 16(b), but § 16(b) was held void for vagueness by the Supreme Court. See Dimaya v. United States, 138 S. Ct. 1204 (2018) discussed at Subsection 5.4, above, and see also Johnson v. United States, 135 S.Ct. 2551 (2015) (possessing a dangerous weapon is not a “crime of violence” under a definition similar to 18 USC § 16). 133 Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979); Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 278 (BIA 1990). 134 See INA § 241(b)(3)(B). The language about the five-year sentence was added to the statute by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In Blandino-Medina v. Holder, the Ninth Circuit held that aggravated felonies where the immigrant was sentenced to at least five years is the only per se category of particularly serious crimes for the purposes of withholding, and that the Board cannot create any other facially particularly serious crimes, but only adjudicate on a case by case basis. Blandino-Medina v. Holder, 712 F.3d 1338, 1345 (9th Cir. 2013) (overruling the BIA’s finding that lewd and lascivious acts with a child under 14 was categorically a particularly serious crime). 132

161

Chapter 5

Chapter 5

• • •

• •

Convention Against Torture, and an asylee or refugee might be able to apply for adjustment of status;135 Ineligible for any form of INA § 240A cancellation of removal; Can be deported without a hearing before an immigration judge if the person is not a permanent resident, under INA § 238; Ineligible for an INA § 212(h) waiver for moral turpitude offenses if the person is subject to the permanent resident bars, and the conviction occurred after the person was admitted at the border as a permanent resident;136 Is permanently barred from returning to the U.S. once they are removed from the U.S., unless a waiver is granted; 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 U.S.C. § 1326(b)(2). Example: Marco has been a permanent resident for twenty years and has six U.S. citizen children. He is convicted of an aggravated felony, possession for sale of a small amount of cocaine. He will in all likelihood be deported. The aggravated felony conviction bars him from applying for the basic waiver “cancellation of removal” for long-time permanent residents.

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. * WARNING: Harsh 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 U.S.C. § 1326(b)(2). An aggravated felony can be an offense as minor as selling ten dollars’ worth of marijuana, or a misdemeanor theft offense with a suspended sentence of one year and no actual jail time. Warn your clients that they can encounter this severe penalty just for returning to the United States without permission to join family or resume their job after being removed! B.

What is an aggravated felony?

Chapter 5

What we think of as minor crimes—for example, giving away a small amount of drugs, misdemeanor theft with a suspended one-year 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 at their naturalization interviews, upon renewal of

135 136

162

Matter of K-A-, 23 I. & N. Dec. 661(BIA 2004). See discussion at Matter of J-H-J-, 26 I. & N. Dec. 563 (BIA 2015).

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

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. The definition of aggravated felony, found in INA § 101(a)(43), lists 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 INA § 101(a)(43) carefully and ask an expert for advice if necessary. Note that the person must be convicted of an aggravated felony to be deportable. Post-conviction relief for legal or constitutional error will eliminate a conviction for immigration purposes. As a basic overview, here is a summary of the listed offenses. • • • •

•

• • • • • •

Murder; Rape; Sexual abuse of a minor; 137 Any offense generally considered to be “drug trafficking,” plus certain federal felony drug 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; however, this does not include conviction under a criminal statute that ever has been used to prosecuted antique firearms (see § 5.10 above); Money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000; Fraud (taking by deceit), deceit, and tax evasion, including welfare fraud, if the loss to the victim/s or government exceeds $10,000; A “crime of violence” as defined at 18 USC § 16(a), with a sentence imposed of at least one year, if it was not a “purely political offense;” Theft (taking by stealth), burglary (unlawful entry into a building with intent to commit a crime), 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 which was committed for the purpose of aiding the person’s spouse, child, or parent;

137

Chapter 5

163

Chapter 5

The Supreme Court held that sex with a person age 16 or older is not an aggravated felony as sexual abuse of a minor (“SAM”) under INA 101(a)(43)(A), at least absent a caretaking relationship or other aggravating factor. The Court overturned rulings by the Sixth Circuit and Board of Immigration Appeals and found that California Penal Code § 261.5(c), intercourse with a person under the age of 18 and at least three years younger than the perpetrator, is not SAM. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), reversing Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016) and Matter of EsquivelQuintana, 26 I. & N. Dec. 469 (BIA 2015). This already was the rule in the Ninth Circuit.

• • • •

•

Commercial bribery, forgery, or trafficking in vehicles with altered numbers with a sentence imposed of at least one year; Obstruction of justice (which the BIA held includes accessory after the fact but not necessarily misprision of felony) with a sentence imposed of at least one year;138 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.

Every offense should be examined closely to determine whether it is an aggravated felony or not. 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 or more has been imposed, whereas murder, rape, and sexual abuse of a minor are aggravated felonies regardless of the sentence. Some offenses are aggravated felonies only if they fall within a particular federal definition. For example, whether a controlled substance offense will be considered “illicit trafficking in a controlled substance” under INA § 101(a)(43)(B) depends on whether it falls within either § 102 of the Controlled Substances Act or 18 U.S.C. § 924(c). See discussion below. Even misdemeanor and non-violent offenses can be held to be aggravated felonies. Both state misdemeanor and felony convictions can be aggravated felonies under INA § 101(a)(43), depending on the elements of the offense. Foreign convictions can as well, if the person completed the resulting imprisonment within the last fifteen years. INA § 101(a)(43). 139 It is important not to assume that an offense is an aggravated felony without doing a thorough analysis. The categorical analysis discussed in § 5.4 is a great resource for arguing that many serious offenses that appear to be aggravated felonies are actually not, thereby preserving additional immigration defense options for noncitizen clients. Drunk driving is not an aggravated felony. It is not a “crime of violence” and therefore not an aggravated felony even if a sentence of a year is imposed. Leocal v. Ashcroft, 543 U.S. 1 (2004). Several circuit courts of appeals have held that a crime of violence requires a higher degree of intent than recklessness, although it is possible that DHS will challenge that in the future. 140

Chapter 5

138

The BIA and Ninth Circuit disagree as to the definition of obstruction of justice and whether Cal. Penal Code 32 meets the definition. Compare Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) and Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (BIA 2018). 139 This provision of INA § 101(a)(43) is found after INA § 101(a)(43)(U). 140 See, e.g., Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) (recklessness cannot be a crime of violence); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008) (reckless assault on a police officer); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (reckless vehicular homicide); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129–31 (9th Cir. 2006) (en banc) (recklessly causing injury

164

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

In the future, Congress might act to include certain drunk driving offenses with a year or more imposed in the definition of aggravated felony. Check http://www.ilrc.org/crimes for updates. Effective dates. Under IIRIRA, the definition of what constitutes an aggravated felony under INA § 101(a)(43) applies to all convictions, regardless of the actual date of conviction. However, certain consequences of an aggravated felony may have other effective dates. For example, the Ninth Circuit and the Seventh Circuit have held that the aggravated felony deportation ground is triggered only by convictions that occurred on or after November 18, 1998. 141 C.

Aggravated felony drug offenses

Many drug offenses—whether state, federal, or foreign convictions—can be held to be aggravated felonies. Section 101(a)(43)(B) of the INA contains two tests for what constitutes an aggravated felony drug conviction. Under the first test, any “illicit trafficking” in a controlled substance (as defined in § 102 of the Controlled Substances Act) is an aggravated felony. The United States Supreme Court has held that ordinarily ‘trafficking’ means some sort of commercial dealing. 142 This means, essentially, that any drug sale or possession for sale is an aggravated felony. If the offense was not trafficking, we look at the second test. INA § 101(a)(43)(B) also encompasses any drug trafficking offense punishable as a felony as defined in 18 U.S.C. § 924(c). This includes offenses that do not involve trafficking, such as recidivist possession. If the state offense is exactly analogous to one of these federal drug felonies, the state offense will be an aggravated felony. With the exception of possession of flunitrazepam, a first offense for simple possession of a drug is not an aggravated felony. 143 This is because a conviction for simple possession generally is not punished as a felony under federal law. 144 The U.S. Supreme Court held that a second or subsequent simple possession conviction is also not an aggravated felony, unless facts proved support a higher sentence based on the prior conviction. 145 This is because where certain findings are made, a second possession conviction may qualify as a felony under federal law. Advocates should carefully examine the conviction record whenever they see a second or subsequent simple possession drug conviction to make sure that it cannot be classified as an aggravated felony.

Chapter 5

165

Chapter 5

to another); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006) (reckless assault); Singh v. Gonzales, 432 F. 3d 533 (3rd Cir. 2006) (recklessly endangering another person); Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3rd Cir. 2005) (reckless vehicular manslaughter); Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. 2005) (involuntary manslaughter). It is possible that ICE will argue that recklessness does qualify, however, analogizing to Voisine v. United States, 136 S.Ct. 2272 (2016). For further discussion see NIPNLG/IDP, Practice Alert: Voisine v. United States (2016), available at http://nipnlg.org/practice.html. 141 See Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010); Zivkovic v. Holder, 724 F.3d 894 (7th Cir. 2013). 142 Lopez v. Gonzales, 549 U.S. 47, 53–54 (2006). 143 Id. 144 Currently, possession of flunitrazepam is a federal drug felony and will be an aggravated felony. Before August 3, 2010, possession of more than five grams of crack cocaine was also treated as a felony under federal law. 145 Carachuri-Rosendo v. Holder, 560 U.S. 379 (2010).

Example: Carla is a permanent resident charged with both selling $40 of marijuana and a state felony for possessing cocaine, her first drug charges. If she is convicted of the sale, she will have an aggravated felony conviction. This will make her immigration case almost impossible. If she is convicted of the possession, it will not be an aggravated felony. This gives her a better chance to apply for relief in immigration court. Many state drug offenses that don’t involve trafficking are not analogous to federal offenses and so will not be held to be aggravated felonies under any circumstances. For example, there is no federal offense for being or driving under the influence of an illegal drug, or for being present in a place where drugs are used, or for transporting drugs for one’s personal use. Conviction of these offenses may make the person inadmissible or deportable under the controlled substance grounds, but they should not be aggravated felonies 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. 146 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 assert this defense. Transportation. Transporting (carrying round) 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 felony. Transporting with intent to sell would be an aggravated felony. 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. 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. Vacation of judgment and other appropriate postconviction relief removing the judgment for constitutional or other legal error should eliminate an aggravated felony conviction. § 5.12 Other Criminal Grounds of Deportability and Inadmissibility A.

Domestic violence, stalking, and child neglect, abuse or abandonment

Chapter 5

Under INA § 237(a)(2)(E)(i), a noncitizen is deportable for conviction of a “crime of domestic violence,” stalking, or a “crime of child abuse, child neglect, or child abandonment.” This ground of deportability applies to convictions occurring after September 30, 1996, under any state or federal law. Under INA § 237(a)(7), a limited waiver of deportability is available for domestic violence victims who have themselves been convicted of domestic violence or stalking. There is no parallel ground of domestic violence, stalking, or child abuse in the grounds of inadmissibility.

146

See, e.g., United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); U.S. v Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc).

166

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

However, offenses that also constitute crimes involving moral turpitude could trigger inadmissibility under that ground. Crime of domestic violence conviction. A “crime of domestic violence” is defined as a crime of violence committed against a current or former spouse, co-parent of a child, or person who has cohabitated as a spouse. It also includes a crime of violence committed against anyone who is protected under the state, local, federal, or tribal domestic or family violence laws with jurisdiction over the case. Consult the relevant laws in your state to see what other victims may be included. For example, because California domestic violence laws protect persons with whom one had only a dating relationship, a crime of violence against a current or former date might form a basis for deportation under the domestic violence ground. 147 The BIA and some federal circuit courts of appeals have held that the fact-based “circumstance specific” test applies to proving the qualifying domestic relationship. 148 Conversely, the Ninth Circuit has stated that the domestic relationship must be provide by conclusive evidence in the reviewable record of conviction.149 All authorities agree the categorical approach applies to determining whether the conviction was a crime of violence. For more on the categorical approach, see § 5.4, above. There are three main defenses against this deportation ground. First, regardless of how the offense is titled, is it really a “crime of violence” under the definition at 18 USC § 16(a)? The Supreme Court held that “violence” for this purpose means actual violent, aggressive, physical force, not merely causation of injury. 150 For example, negligent actions are not crimes of violence, and most circuits have held that reckless actions are not—even if they result in injury. 151 In addition, an offense such as a simple assault or battery that can be violated by mere “offensive” touching is not a crime of violence.152 Example: Jack is an LPR. He argues with his wife and punches her. Jack is charged with committing corporal injury on a spouse and assault with intent to commit great bodily injury. Jack pleads guilty to a different offense, misdemeanor spousal battery. Cases show that people have been convicted of this offense for mere offensive touching that was not violent. Is Jack deportable under INA § 237(a)(2)(E)(i)? No. The offense has the domestic relationship as an element, but it is not a deportable crime of domestic violence because it is not a “crime of violence.” A misdemeanor offensive touching does not meet the definition of domestic violence under 18 U.S.C. § 16(a). Under the categorical approach, if the minimum conduct that has a reasonable

147

See, e.g., Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010). Matter of H. Estrada, 26 I. & N. Dec 749 (BIA 2016). 149 See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006). See discussion at ILRC, Case Update: Domestic Violence Deportation Ground (2018) at http://www.ilrc.org/crimes. 150 Leocal v. Ashcroft, 543 U.S. 1 (2004). 151 See discussion in Leocal, id. 152 See, e.g., Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003); Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006). 148

167

Chapter 5

Chapter 5

probability of prosecution (offensive touching) does not meet the generic definition of the removal ground (actual violence), then no conviction of the offense triggers the removal ground. See § 5.4. Unless the statute is “divisible” because it meets all of the requirements described in § 5.4, Jack’s conviction is not a crime of domestic violence. Note that some prior BIA and federal decisions held that simple battery statutes are “divisible” just because they can cover a range of behavior. Since the Supreme Court clarified what the strict requirements for divisibility are, these cases should be considered overruled. 153 Certain offenses other than battery might be held to crimes of violence, if they have as an element overpowering the resistance of the victim. In Stokeling v. United States, 154 the Supreme Court held that a Florida robbery offense that could be committed by a small amount to overcome the victim—e.g., grabbing a phone from the victim’s clenched hand—still could be a crime of violence because the nature of overcoming a victim’s resistance is inherently violent. The Court stated that offenses such as battery committed with an offensive touching did not meet this offense. Check offenses such as robbery, false imprisonment, and sexual battery to see if overcoming the resistance of the victim by force is an element. If the offense can be committed by overcoming resistance by something other than force—for example, by threat of arrest— arguably the offense is not a crime of violence. See online advisory. 155 A second defense is, is there proof that the offense was directed against a person with a protected domestic relationship, such as current or former spouse or co-parent of a child? One should research exactly what parties are protected under the state’s domestic violence laws and determine whether the offense was committed against a victim who does not have one of the designated domestic relationships. In that case, even if the offense is a crime of violence, it will not be a crime of domestic violence. Also, does the official reviewable record of conviction really establish that the victim had the requisite domestic relationship with the defendant under state domestic laws? Courts vary as to the proof needed for the government to show that there was a qualified domestic relationship and this defense may or may not be viable, depending on the jurisdiction. See § 5.4. Advocates should refer someone in this situation to an expert attorney, while warning them not to approach immigration authorities. A third defense is, was the offense committed against property and not a person? Although there are no decisions, based on the plain language of the statute, a crime of domestic violence is a crime committed against “a person.” Thus, while a “crime of violence” under 18 U.S.C. § 16 can be committed against person or property, it should not be held a crime of domestic violence unless it was committed against a person.

Chapter 5

153

For example in Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006), the BIA found that California spousal battery, Penal Code 243(e), is a divisible statute and the IJ may look to the record of conviction to determine if violent force actually was used. Based on the Supreme Court’s decision in Descamps v. United States, 570 U.S., however, that statute should not be found divisible, and upon conviction should be a deportable crime of domestic violence. See § 5.4. 154 139 S.Ct. 544 (2019). 155 See ILRC, Stokeling v. United States and Crime of Violence (2019) at http://www.ilrc.org/crimes.

168

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

PRACTICE TIP: Advocates should remember that a crime of domestic violence needs to both meet the definition of a crime of violence and be committed against a protected victim before it can trigger the domestic violence ground of deportability. If 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. Crime of child abuse. Under INA § 237(a)(2)(E)(i), a person can also be deportable for conviction of a crime of child abuse, child neglect, or child abandonment occurring after September 30, 1996. The BIA defines child abuse as any act or omission that results in the maltreatment of a minor or that injures that minor’s physical or mental well-being. 156 This includes direct sexual acts, imposing physical, mental or emotional harm to a child (even if the harm is minor), and exploitation of a minor by inducing them to engage in sexually explicit acts. This ground of deportability applies to anyone who commits a child abuse offense. Because the BIA definition is so broad, many offenses against children could fall within the term “child abuse.” In fact the BIA held that the “definition is comprehensive enough to subsume most, if not all, crimes of “child neglect.” 157 In Matter of Soram, 158 the BIA clarified that the broad definition in Velazquez-Herrera also defined what constitutes child neglect and child abandonment. In Soram, the BIA held that a conviction for child endangerment for placing a child at risk of harm is a deportable offense under this ground even if there was no actual harm to the child. 159 Conviction of an “age-neutral” offense—where the statute does not require proof that the victim was under the age of 18—never can be a deportable crime of child abuse under the categorical approach, but advocates should be prepared to explain this to authorities. In the 2008 decisions Matter of Velazquez-Herrera, 160 the BIA held that the categorical approach applies to the definition of a crime of child abuse, and that a simple battery statute, which had no element relating to age, was divisible for that purpose. The BIA held that if the record of conviction conclusively established that in that particular case the victim was under age 18, they could be a crime of child abuse. However, Supreme Court decisions in 2013 and 2016 has overruled that interpretation. The Court held that a statute is not divisible unless it sets out different element, phrased in the alternative. 161 Because an age-neutral statute has no element (or even statutory language) requiring minor age, it can never can be a deportable crime of child abuse, regardless of the record. However, because the BIA has not commented on or corrected this aspect of Matter 156

Matter of Velazquez-Herrera, 24 I. &. N. Dec. 503 (BIA 2008). Id. at 512. 158 25 I. &. N. Dec. 378 (BIA 2010). 159 The good news is that the BIA stated that a less serious California child endangerment statute, Pen C § 273a(b), is not a deportable crime of child abuse. Matter of Mendoz-Osorio, 26 I. &. N. Dec. 703, 710 (BIA 2016). 160 24 I. &. N. Dec. 503, 514–15 (BIA 2008). The BIA consistently has held that the categorical approach applies to the child abuse ground. See, e.g., Matter of Mendez-Osorio, 26 I. &. N. Dec. 703, 706 (BIA 2016). 161 See discussion of Mathis v. United States, 136 S. Ct. 2243 (2016) in Matter of Chairez, 27 I. &. N. Dec. 21 (BIA 2017) and preceding Chairez decisions, and see § 5.4. 157

169

Chapter 5

Chapter 5

of Velazquez-Herrera, advocates may need to explain this in order to avoid potential misapplication. See § 5.4. Protective order violation. A person is deportable under INA § 237(a)(2)(E)(ii) if a civil or criminal court judge finds that the person violated certain portions of a domestic violence (DV) protection order. A DV protective order is defined as “any injunction issued for the purpose of preventing violent or threatening acts of domestic violence.” This could be a violation of a temporary restraining order, probation condition, or other civil or criminal court order. The person must have violated a part of that order that “involves protection against credible threats of violence, repeated harassment, or bodily injury.” The violation must have occurred on or after September 30, 1996. To prove deportability, ICE must show that a judge made this specific finding of violation of this section of an existing DV protection order. The Ninth Circuit and BIA disagree about how ICE can prove this. The Ninth Circuit stated that the categorical approach applies to the inquiry. It found that a California statute was divisible between a finding of violation of a domestic violence stay-away order, and violation of other types of orders. Therefore it held that the government had to present conclusive proof from the record of conviction to show that the court found violation of that particular section of a DV order. 162 The BIA disagreed. In Matter of Obshatko 163 the BIA held that because INA § 237(a)(2)(E)(ii) involves both criminal convictions and civil court findings, and because the categorical approach applies only to criminal convictions, therefore the categorical approach does not apply at all to this part of the deportation ground—even if in fact a conviction is the basis for deportability. 164 Therefore the government could use any probative and substantial evidence to try to prove the specific violation found by the court. Note that a finding of even minor conduct can cause deportability. Any violation of a stay-away order—even if no violence or threat was involved—will suffice to trigger deportation. The BIA and some courts have found that the key is that the section of the order was intended to protect against threats, harassment and violence, not that the conduct itself involved those factors. 165 However, if the violation of the protective order related to failure to provide support, child custody issues, or attendance of counseling programs, the violation would not be deportable under this ground. Example: A court found that John violated his stay-away order when, in bringing his son back from a visit, he walked the boy up the driveway of the house rather than dropping

Chapter 5

162

See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009), cited approvingly in Matter of Strydom, 25 I. &. N. Dec. 507 (BIA 2011); see also Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009). 163 27 I. &. N. Dec. 173 (BIA 2017). 164 The BIA stated that the immigration judge “should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. In so doing, an Immigration Judge should decide (1) whether a State court ‘determine[d]’ that the alien ‘has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury’ and (2) whether the order was ‘issued for the purpose of preventing violent or threatening acts of domestic violence.’” Matter of Obshatko, 27 I. &. N. Dec. 173, 176-77 (BIA 2017). 165 See also Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2008); Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009); Matter of Stydrom, 25 I. &. N. Dec. 507 (BIA 2011).

170

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

him off at the curb. A court found that Joe violated his stay-away order by attempting to make a single phone call to his wife. John and Joe both were found deportable, because their conduct—although not itself violent—violated an order designed to prevent violence or repeat harassment. 166 Like other grounds of deportability, this ground can only be triggered by an act that takes place after admission. However, note that this ground can be triggered by a civil court finding of violation, and thus does not require a conviction. It is possible that a juvenile court finding of a violation (by the juvenile) would support a finding of deportability. Conviction for stalking. A noncitizen who is convicted of “a crime of stalking” after September 30, 1996 is deportable under INA § 237(a)(2)(E)(i). Unlike the domestic violence and child abuse provisions, this ground of deportation does not seem to require that that it be committed against a protected victim. The BIA has stated that the crime of stalking, as defined by federal and state statutes, requires the following three elements: (1) conduct that was engaged in on more than a single occasion, (2) directed at a specific individual, (3) with the intent to cause that person to be placed in fear of bodily injury or death. The BIA found that there was no consensus, at least in state statutes, as to whether the crime of stalking requires a showing that the victim was actually placed in fear of injury or death or that a reasonable person under the circumstances would be placed in fear of injury or death. The BIA reversed its own earlier opinion and found that stalking as defined in California Penal Code § 646.9 is not a deportable crime of stalking because the California statute is overbroad. While the generic definition of stalking requires intent to cause the person to fear “bodily injury or death,” Penal Code § 646.9 only requires intent to cause the person to fear for their “safety.” 167 Other immigration consequences. Convictions described in INA § 237(a)(2)(E) may trigger more than just the domestic violence ground of deportability. A conviction of rape or sexual abuse of a minor is an aggravated felony, regardless of the sentence or felony/misdemeanor classification. If a one-year sentence was imposed for a crime of domestic violence, that is an aggravated felony as a crime of violence. A conviction of spousal abuse or child abuse may also be a crime of moral turpitude, depending upon the type of offense. B.

Prostitution and commercialized vice

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

166

See Szalai v. Holder, supra (walking child up the driveway); Strydrom, I. & N. supra (phone call). See Matter of Sanchez-Lopez, 27 I. &. N. Dec. 256 (BIA 2018), reversing 26 I. &. N. Dec. 71 (BIA 2012) to hold that California Pen Code 646.9 is not a deportable stalking offense. At least one court has held that the stalking provision is not unconstitutionally vague on its face or as applied. Arriaga v. Mukasey, 521 F.3d 219 (2nd Cir. 2008). 167

171

Chapter 5

Chapter 5

customers. 168 This provision will apply even if the person engaged in prostitution in a country where it is legal. 22 CFR § 40.24(c). A single act, or even a few acts, of prostitution may not amount to engaging in prostitution under this provision. 169 Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain. 170 Engaging in prostitution also does not encompass sexual conduct that falls short of intercourse, such as lewd conduct for a fee. 171 A noncitizen is inadmissible, but not deportable, if they attempt to procure or import prostitutes, or receive the proceeds of prostitution. INA § 212(a)(2)(D)(ii). Solicitation of a prostitute by a customer does not fall within ground of inadmissibility for procuring a prostitute. This ground only applies to persons who engage in the business of obtaining prostitutes for use by others, not to isolated incidents of hiring a prostitute for oneself. 172 A person who is inadmissible under this section is statutorily ineligible to establish good moral character for a period of five (or three) years. INA § 101(f)(3). In addition, prostitution constitutes a crime involving moral turpitude. Jurisdictions may differ as to whether a conviction for being the customer is a crime involving moral turpitude. 173 A waiver of inadmissibility may be available under INA § 212(h). A federal conviction for importing noncitizens for any immoral purpose is a basis for deportability. INA § 237(a)(2)(D)(iv). Conviction of certain federal offenses and state analogues that involve running prostitution or other sex-related businesses are aggravated felonies. INA § 101(a)(43)(K). C.

Total sentence of at least five years for two or more convictions

Noncitizens are inadmissible under INA § 212(a)(2)(B) if they have been convicted of two or more offenses of any kind (except purely political offenses), and the total time of the sentences to confinement “actually imposed” 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 they actually served. Note that this ground of inadmissibility requires at least two convictions.

168

Matter of R.M., 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). 170 Matter of Gonzalez-Zoquiapan, above. See also 22 CFR § 40.24(b) (defining prostitution as “engaging in promiscuous sexual intercourse for hire … that must be based on elements of continuity and regularity, indicating a pattern of behavior of deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.”). 171 See Matter of Gonzalez-Zoquiapan, above. See also Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (holding that prostitution for immigration purposes only encompasses offering sexual intercourse for a fee, as opposed to other sexual conduct). 172 Matter of Gonzalez-Zoquiapan, above. 173 However, the Ninth Circuit in Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012), held that a conviction for soliciting a prostitute as a customer is a crime involving moral turpitude.

Chapter 5

169

172

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Example: John was convicted of fraud and sentenced to five years in prison. Is he inadmissible under INA § 212(a)(2)(B)? NO, because he has only one conviction, even though the sentence was five years. Note that under this ground, except for purely political offenses, it does not matter what kind of offense was involved or whether or not the crimes were part of a “single scheme of criminal misconduct.” NOTE: There is no parallel ground of deportability to INA § 212(a)(2)(B). D.

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 eighteen, or trafficking of any persons who are forced by the traffickers to work as indentured labor or slaves. This ground of inadmissibility was added by the Trafficking Victims Protection Act of 2000. It applies not only to the trafficker but also to the person’s spouse, son, or daughter if they received financial or other benefit from the trafficking and if they are seeking admission within five years of receiving the benefit. Sons and daughters who were under twenty-one at the time of the trafficking are not subject to the bar. § 5.13 Clearing Up a Criminal Record In many 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. They are juvenile findings, a case on direct appeal in some jurisdictions, an alternative to a conviction that does not require a guilty plea or finding of guilt, a conviction vacated for constitutional or other legal error, or in some jurisdictions, an infraction. See § 5.3. This discussion is different: it concerns how to get rid of a criminal conviction once you have one. 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. For more information, advocates can also reference ILRC’s post-conviction relief page at https://www.ilrc.org/immigrant-post-conviction-relief A.

Expungement and other “rehabilitative” post-conviction relief usually has no effect

Different states provide different legal ways that a person can clean up their criminal record and “erase” a prior conviction even if there was no legal error in the conviction. These processes often are based on the person successfully completing probation or meeting other requirements. These are known as forms of “rehabilitative relief.” In 1999, the BIA reversed fifty years of Attorney General precedent and held that “expungements” and other rehabilitative relief do not eliminate a conviction. 174 Currently a person who was charged and at some point pled guilty has a conviction (but see the one exception, discussed next). Immigration authorities will hold it a conviction even if the state Matter of Roldan, 22 I. &. N. Dec. 512 (BIA 1999).

Chapter 5

173

Chapter 5

174

court or state law says that there is no conviction due to an expungement, deferred adjudication program, or diversion program that required a guilty plea. For example, in some states as long as the person completes probation, goes to counseling or fulfills other requirements, the state court will announce that the “charges have been dismissed,” the case is over, and there is absolutely no conviction under state law. The immigration authorities will not accept this: they will not care what the state court or state law says. Matter of Roldan was very serious news for thousands of immigrants who were counting on the fact that their past minor convictions had been erased and they could qualify for immigration status, or to keep the immigration status that they have. Because this decision has had such a great impact on noncitizens, be sure to advise all clients about this. In the past, someone may have told them that their expunged conviction would cause no problem. Example: Misha immigrated to the United States in 1999. In 2001, he is arrested for shoplifting, which carries a potential sentence of a year in jail. Misha agrees to plea nolo contendere to avoid any jail time and is given ninety days probation. After completing his probation, Misha’s charges are dismissed. Unfortunately for Misha, he has become deportable because within five years of admission he has been convicted of a crime of moral turpitude with a potential sentence of a year. Misha stands a good chance of being deported for a relatively minor crime. His situation is not unusual and clearly illustrates the harsh consequences that results when federal law refuses to give effect to state dismissals of convictions for rehabilitative purposes. It is useful to bring the terribly harsh effects of this rule to the attention of policy makers and legislators, so that they can understand the impact of the laws that they have passed. This can be done through stories in the press or through direct visits with legislators. Exception: DACA. USCIS policy for Deferred Action for Childhood Arrivals (DACA) provides that an expungement of a conviction will remove the conviction for purposes of qualifying for DACA. While USCIS may still deny in its discretion, an expunged conviction will not bar eligibility for this specific program. 175 Exception for some drug offenses. This exception applies only in immigration proceedings arising within the Ninth Circuit and only for convictions from on or before July 14, 2011 (see below). 176 There, an expungement or other “rehabilitative relief” will eliminate a first conviction for certain minor drug offenses such as simple possession, possession of drug paraphernalia, and

Chapter 5

175

See USCIS, DACA Frequently Asked Questions, Q60-67, http://www.uscis.gov/humanitarian/considera tion-deferred-action-childhood-arrivals-process/frequently-asked-questions. 176 The Ninth Circuit en banc overruled its decade old rule in Lujan-Armendariz v. INS, but the old Lujan rule will remain helpful to those who were convicted on or before July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). The court held that convictions for “under the influence” even if it is eliminated by rehabilitative relief will remain a conviction for immigration purposes. For more information, see ILRC, Practice Advisory: Lujan and Nunez (July 2011) available at: http://www.ilrc.org/crimes. This benefit only applies in immigration proceedings that arise within the Ninth Circuit. Matter of Salazar, 23 I. &. N. Dec. 223 (BIA 2002).

174

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

giving away a small amount of marijuana (but not for being under the influence). 177 This applies to relief from any state, as well as foreign rehabilitative relief for a first foreign conviction of these offenses. 178 The conviction must be on or before July 14, 2011, but the rehabilitative relief can take place at any time, including now. This benefit should cover multiple convictions pled to at the same hearing, if there are no prior drug convictions. 179 There are two disqualifiers. First, even if rehabilitative relief is obtained under state law, if the individual violated the conditions of their probation, or the terms of the rehabilitative relief, the expungement is not effective. Second, if the person benefitted from a pre-plea diversion program before getting the expungement, that expungement is not effective. It is possible that these disqualifiers do not apply to persons who were under age 21 when they committed the offenses. 180 See further discussion at § 5.11. B.

Any conviction—even of a drug offense—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. A conviction is vacated because it never should have happened in the first place. For example, a person’s constitutional rights are violated, e.g., they received ineffective assistance of counsel,181 or other conditions are not met. In 2010, the United States 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. Failure to provide this relief may provide a basis to vacate the conviction for ineffective assistance of counsel.182 In these cases federal and many state laws allow for the conviction to be vacated, if prejudice is shown. Note that an immigrant who was not advised of the immigration consequences of their plea must have a legal means to go back into court to raise this claim in the jurisdiction where the conviction took place. You should consult with an expert in criminal law to see if the relevant state laws allow an immigrant to raise such a claim. A writ of habeas corpus, writ of error coram nobis, motions to vacate, and other motions can be used to vacate convictions depending on the jurisdiction. Certain states have also passed laws to expand the possible vehicles. For example, California Penal Code § 1473.7.

Chapter 5

175

Chapter 5

177 Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (possession); Cardenas-Uriarte v. INS, 227 F.3d 1132 (BIA 2000) (lesser offense); 18 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). 178 Dillingham v. INS, 267 I. &. N. Dec. 996 (9th Cir. 2001) (foreign offense). 179 See Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1219 (9th Cir. 2016). 180 Regarding the limitations, see, e.g., Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). These limitations may not apply to a person who committed the offense while under the age of 21, because the person would be subject to a different section of the Federal First Offender Act, 18 USC 3607(c), if the case were held in federal court. See further discussion of these points at Practice Advisory: Lujan and Nunez, cited above. 181 The U.S. Supreme Court held that criminal defense attorneys commit ineffective assistance of counsel if they wrongly advise their noncitizen clients of the immigration consequences of crimes. Padilla v. Kentucky, 599 U.S. 356 (2010). 182 See id.

Immigration authorities generally recognize that this procedure eliminates any conviction, including for a drug offense. However, the Fifth Circuit Court of Appeals has held in two separate decisions that a vacated conviction still exists for immigration purposes. 183 Vacating a conviction is an expensive and complicated process. If your client has a drug conviction or any other convictions where there is no immigration solution you should immediately refer them to a pro bono program or a private criminal attorney who is expert at criminal law to see if the conviction can be vacated. Do not delay in referring the case to such an expert! Because there are often strict timelines for obtaining post-conviction relief (generally 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. § 5.14 The Good Moral Character Requirement An applicant must establish “good moral character” in order to receive 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.). 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 the applicant really is a person of good moral character. INA § 101(f) provides that an applicant is statutorily barred from establishing good moral character if they come within many of the inadmissibility grounds relating to crimes (e.g., moral turpitude, drug conviction or “reason to believe” trafficking, alien smuggling, prostitution, polygamy.) In addition, a person is barred who has actually spent 180 days in jail for a conviction (or a combination of convictions) during the period for which good moral character must be shown. Habitual drunkards and persons who have provided false sworn testimony to obtain immigration benefits also are barred. The person is permanently barred from establishing good moral character if they have been convicted on or after November 29, 1990 of an aggravated felony or convicted of murder at any time. In addition to the statutory bars, there are “discretionary bars” to showing good moral character. At the end of INA § 101(f) there is a “catch-all” provision which provides that a person who does not fall into an enumerated statutory ground 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. 184 The 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, in the naturalization context. This includes willful failure to pay child support, commission of adultery where a “viable” marriage was destroyed as a result,

Chapter 5

183

Renteria-Gonzalez v. DHS, 310 F.3d 825 (5th Cir. 2002); Gonzalez-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007). 184 Matter of Guadarrama, 24 I. &. N. Dec. 625 (BIA 2008).

176

Chapter 5

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

and committing unlawful acts for which a person is not convicted, among other things. Although this regulation is specific to naturalization, good moral character is generally defined the same way throughout immigration law. In determining whether the person has a 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. Special requirements for good moral character to qualify for naturalization are discussed more fully in the ILRC’s Naturalization and U.S. Citizenship: The Essential Legal Guide (ILRC 2018).

177

Chapter 5

Chapter 5

Tab Position 1

Chapter 5

Immigrant Legal Resource Center May 2019

178

Chapter 5

Chapter 6

Inadmissibility & Deportability May 2019

CHAPTER 6 WAIVERS OF INADMISSIBILITY AND DEPORTABILITY This chapter 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

Waivers of Grounds of Inadmissibility and Deportability ................................. 179 What Is a Waiver? .............................................................................................. 181 What Is Discretion? ............................................................................................ 181 How to Find the Waivers in the Act ................................................................... 183 Waiver of Inadmissibility for Visa Fraud and Waivers of Deportability for Persons Inadmissible at Admission ........................................ 184 Waiver for Certain Crimes Under INA § 212(h)................................................ 191 Alien Smuggling Waivers and Exemptions ....................................................... 195 Document Fraud Waiver of Inadmissibility and Deportability .......................... 198 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders Under INA § 212(g) ............................................ 201 Waivers for Unlawful Presence, Past Removal, and Other Related Immigration Offenses ......................................................................................... 205 Waiver of Deportability for Victims of Domestic Violence .............................. 216 “Cancellation of Removal” for Lawful Permanent Residents with Seven Years’ of Continuous Residence ............................................................. 217 General Procedures for Applying for Waivers of Inadmissibility...................... 218 How Do You Establish Extreme Hardship? ....................................................... 220

§ 6.1

Waivers of Grounds of Inadmissibility and Deportability

As we have covered so far in this manual, people may be inadmissible if they have certain problems relating to a criminal record, fall into the health grounds for inadmissibility, have certain immigration offenses (such as making a misrepresentation or using a false document, prior removal or deportation, alien smuggling, or unlawful presence), having a likelihood they will become a public charge or security reasons. Or people may become deportable for certain problems which arose after admission. Sometimes, a person who is inadmissible cannot immigrate. However, USCIS, or an Immigration Judge, can waive (forgive) certain grounds of inadmissibility in its discretion. If USCIS agrees to waive the ground of inadmissibility, the person may immigrate. In addition, sometimes a person is deportable for having been inadmissible at the time of admission, or as a defense to deportation, needs to re-immigrate through an application for adjustment of status in removal proceedings. In these cases, a waiver for the inadmissibility ground might defend against deportation. Additionally, a person may be deportable on another basis, but a waiver may be available for the ground of deportation. In this chapter, we will discuss the requirements for certain waivers and the waiver application.

Chapter 6

179

Chapter 6

Immigrant Legal Resource Center May 2019

This part will discuss waivers of inadmissibility or deportability that apply in three situations: 1. When someone tries to immigrate through a visa petition; 2. When someone tries to enter the United States at the border; and 3. When someone faces removal proceedings. There are other possible forms of relief aside from these waivers. In addition, for certain relief, some grounds of inadmissibility or deportability may not apply at all. Sometimes there is an “exemption” or “exception” to the ground of inadmissibility or deportability for certain people. If someone falls within an exemption or exception, it applies automatically and there is no need to submit a waiver application. For this reason, it is very important to recognize the difference between proving your client qualifies for an “exception” and proving eligibility for a “waiver.” Example: Sonia is applying for permanent residence through her husband. She has one petty theft conviction, for which she was sentenced to two days in jail and six months of probation. This may be a crime of moral turpitude. There is an inadmissibility ground for crimes involving moral turpitude under INA § 212(a)(2)(A)(i)(I). However, Sonia is not inadmissible because her offense, even if it is a crime involving moral turpitude, falls within the “petty offense exception” to this ground of inadmissibility found in INA § 212(a)(2)(A)(ii)(II). Sonia does not need a waiver in order to immigrate. Example: Rosario has a conviction for possession of less than an ounce of marijuana. She is inadmissible under INA § 212(a)(2)(A)(i)(II) for having violated a law relating to controlled substances. Rosario will need a waiver under INA § 212(h) before she can immigrate. 1 Example: Frank is an LPR who has a first offense conviction for possession for his own use of 29 grams of marijuana. He falls within the exception to deportability under INA § 212(a)(2)(B)(i) and is not deportable. Example: Marie Francoise qualifies for registry because she has lived in the U.S. since before 1/1/72. She came to the U.S. as a young child. Marie Francoise was unemployed for a while, reliant on her daughter and her boyfriend, with no immediate prospects for employment. The registry statute at INA § 249 indicates that only some grounds of inadmissibility bar a person from becoming a permanent resident through registry and does not list the “public charge” ground. As a result, Marie Francoise may become a permanent resident through registry without worrying about the public charge ground of inadmissibility. 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.

1

Note that simple possession of 30 grams or less of marijuana is the only type of controlled substance offense that can be waived under the inadmissibility grounds, and the only controlled substance offense for which there is an exception under the deportability grounds.

180

Chapter 6

§ 6.2

Chapter 6

Inadmissibility & Deportability May 2019

What Is a Waiver?

To obtain a waiver is to obtain “forgiveness” of the ground of inadmissibility or deportability. The USCIS 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 of inadmissibility, the person must submit an application for a waiver to USCIS or the immigration judge using Form I-601 (for family and employment based immigrants, including K visa holders), Form I-602 (for asylees), Form I-192 (for nonimmigrants) or Form I-212 (specific waiver for prior deportations and for the “permanent bar” after the required years out of the U.S. have passed). 2 Some deportation waivers do not require a form— the application is made in writing to the immigration judge. Only certain grounds of inadmissibility and deportability, under certain circumstances, can be waived. Example: Muata is inadmissible for visa fraud under INA § 212(a)(6)(C)(i). He wants to immigrate through his U.S. citizen wife. INA § 212(i) states that the Attorney General (that means the USCIS, or an immigration judge if the applicant is in removal proceedings) in his or her discretion may waive the visa fraud ground of inadmissibility, if the alien meets certain requirements. Importantly, Muata must have a qualifying relationship to a lawful permanent resident or U.S. citizen. Muata meets the requirements because he is the spouse of a U.S. citizen, therefore he is eligible to apply for the waiver. To be granted, he must show his wife will suffer extreme hardship if his application is denied. If USCIS 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: Ira has a U.S. citizen wife and six citizen children. He is inadmissible both under the controlled substances ground and for “reason to believe” that the person is/has been a drug trafficker, because he has a conviction for sale of drugs. There is no waiver for either of these grounds of inadmissibility. Ira cannot immigrate through his family. § 6.3

What Is Discretion?

USCIS 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 USCIS that it should grant the waiver. The same is true for waivers of inadmissibility or deportability before an immigration judge in removal proceedings Discretion is an important concept in immigration law. Some benefits are mandatory, meaning that USCIS or the IJ 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, USCIS must approve your second preference visa petition. Another example is an “exception” to the ground of inadmissibility or deportability—for example there are several “exceptions” for people that are not subject to the three- and ten-year bars for unlawful presence—minors under 18, 2

There are other forms required for other applications in removal proceedings that are waivers or similar to waivers, such as 212(c) or cancellation of removal. See www.justice.gov/eoir/formspage.htm.

Chapter 6

181

Chapter 6

Immigrant Legal Resource Center May 2019

certain asylum applicants, etc. The only proof needed to qualify for the exception would be a birth certificate for the minor and the filing receipt and other proof of continuing status and not working without authorization for the asylum applicant. The “petty offense” exception for having one crime involving moral turpitude may be proven by the conviction and sentencing abstract or summary and information about the state criminal statute. In contrast, if a benefit is discretionary, USCIS or the IJ has the choice to decide whether or not to grant the benefit. Our task is to present facts that will convince USCIS or the IJ that the applicant deserves the waiver, so that it will be approved. Much more is therefore required in terms of proof and documentation in a waiver application than in an application for a mandatory benefit. 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 free work, 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. It is unclear whether the relationship with the new proposed spouse is bona fide. If they could help only one client, most programs would probably pick the first person. If she is not helped, she and her children face great hardship. In addition, she appears to be a hardworking member of the community. The second person does not face immediate hardship if he is not helped, and he’s not as sympathetic a person. USCIS and IJs consider similar factors when deciding whether to grant a discretionary application. Often the most important factors are: 1. The good character or contribution to society of the applicant; 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.) 3

3

Some waivers also require a balancing of “equities.” Positive equities include things like family ties, longterm residence, ties to the community, rehabilitation, etc. See USCIS Policy Manual, Vol. 9, Part A, Chapter 5 (A) “Discretionary Factors,” (February 12, 2019) at https://www.uscis.gov/policymanual/Print/P olicyManual-Volume9-PartA.html; Matter of Tijam, 22 I&N Dec. 408 (BIA 1998); Matter of MendezMoralez, 21 I&N Dec. 296 (BIA 1996); Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001); see Matter of L-O-G-, 21 I&N Dec. 413

182

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

In submitting waiver applications, we always want to include information on these two points. In addition, depending on the waiver or application, the INA or case law may identify other factors that USCIS or the IJ should consider. § 6.4

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, as well as the regulations to determine if the regulations include additional waiver provisions, or additional regulatory requirements related to the statutory waiver. 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 exemption 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. On the other hand, INA § 212(a)(6)(C) 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. 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 the INA § 212(i) waiver. The applicant must be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident. Notice that a parent of a USC does not qualify for this waiver. Remember that a “son or daughter” can be over 21 or married. Example: 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 an INA § 212(i) waiver, because he is the parent of a U.S. citizen, and that relationship does not qualify for that waiver. If you read through the entire waiver provision, you will also see that the family relationships required for a VAWA applicant who needs a INA § 212(i) are different—the applicant must have a U.S. citizen child or parent who will suffer extreme hardship or the VAWA applicant can even qualify by demonstrating hardship to him or herself. Don’t forget to check the regulations corresponding to the statutory ground of inadmissibility and any statutory waiver, as well as caselaw. For example, in the corresponding regulations to the INA § 212(h) waiver, 8 C.F.R. § 212.7(d) (USCIS regulation) and 8 C.F.R. § 1212.7(d) (BIA 1996); Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996); Matter of Ngai, 19 I&N Dec. 245 (BIA 1984); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978); Matter of Marin, 16 I&N Dec. 581 (BIA 1978). Matter of Marin is still considered a seminal case with regard to discretionary factors to be considered.

Chapter 6

183

Chapter 6

Immigrant Legal Resource Center May 2019

(Immigration Court [EOIR] regulation), impose the additional requirement of “extraordinary circumstances”—either proof of national security or foreign policy interests, or a showing of “exceptional and extremely unusual hardship” if the criminal offense involved was “violent or dangerous.” Case law further clarifies that the “exceptional and extremely unusual hardship” requirement may be satisfied by such hardship to the applicant for the waiver herself. § 6.5 A.

Waiver of Inadmissibility for Visa Fraud and Waivers of Deportability for Persons Inadmissible at Admission

INA § 212(i) waiver of inadmissibility for misrepresentation

Under INA § 212(a)(6)(C), a person who has committed visa fraud 4 is inadmissible. This ground can be waived at the discretion of USCIS. To be eligible to apply, the person must: • •

Be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, 5 and Show that the U.S. citizen or lawful permanent resident relative would suffer extreme hardship if the USCIS denied the waiver. Example: Tse lied to a consular 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 an INA § 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 an INA § 212(i) visa fraud waiver to excuse some forms of document fraud. See discussion of waivers for document fraud, below. B.

INA § 237(a)(1)(H) waiver of deportability for persons inadmissible at admission due to fraud or misrepresentation

People who were wrongfully admitted to the United States due to a misrepresentation—i.e., those who were inadmissible at admission—may be eligible for a waiver of deportability under INA § 237(a)(1)(H) [formerly INA § 241(a)(1)(H)]. Usually, these persons are deportable because they committed visa fraud to gain admission, but innocent misrepresentations may also be

4

See Chapter 2, for a discussion of visa fraud/misrepresentation ground of inadmissibility. Note that as of the passage of IIRAIRA on September 30, 1996, U.S. citizen or LPR children were no longer qualifying relatives for this waiver pursuant to the amended INA.

5

184

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

addressed through this waiver. Previously, this waiver was found at INA § 241(f) and older cases will refer to that section of the INA. Under the present statute, the person must either: • • •

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 or equivalent document 6 and otherwise admissible at the time of admission to the United States. OR Be a VAWA self-petitioner (no qualifying relatives required if VAWA). Example: 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. Example: Edith immigrated through a marriage to a U.S. citizen, Alex. Edith and Alex didn’t stay married long and she re-married to Rosa, a U.S. citizen, thereafter. At time of naturalization, the adjudicating officer determined that Edith’s first marriage to Alex was marriage fraud. Edith was charged with being deportable for having committed marriage fraud. She can apply for a 237(a1)(H) waiver, with her current spouse as a qualifying relative.

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 Angelica. The waiver is intended to cure any fraud at entry but cannot be granted if the person was also inadmissible at the time of admission for another reason not directly related to the fraud at entry, such as a crime. The BIA has held that this waiver may be used when an underlying lie or an innocent mistake results in a finding of removability under INA § 237(a)(1)(A) based on charges of inadmissibility at entry under INA § 212(a)(5)(A) and § 212(a)(7)(A) for no valid labor certification or valid visa. This is because these grounds are in fact related to the fraud at entry, where there was some kind of misrepresentation made at the time the person was admitted, whether intentional, innocent or “inherent.” 7

6

The Ninth Circuit has held in an unpublished memorandum decision that a K-1 fiancée visa is an “equivalent document” for purposes of a 237(a)(1)(H) waiver. Ngoc Le Truong v. Sessions, 727 Fed. Appx. 430 (9th Cir. 2018), though previously it had held in dicta that K-1 visa was not in fact “equivalent.” Caddali v. INS, 975 F.2d 1428 (9th Cir. 1992). However, the Sixth Circuit, citing the Ninth Circuit’s decision in Caddali, said that while a K-1 is not an “equivalent document,’ the fiancé(e)’s subsequent adjustment of status after marriage to the U.S. citizen, does “count” as an admission for 237(a)(1)(H) purposes. Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018). 7 See Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

Chapter 6

185

Chapter 6

Immigrant Legal Resource Center May 2019

In another example of inadmissibility directly related to fraud or misrepresentation at admission, the Board 8 granted a waiver to someone whose initial admission was through a fraudulent marriage. 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. But in Matter of Tima, the BIA held that a respondent inadmissible for both fraud and a “crime of moral turpitude,” could not use the 237(a)(1)(H) waiver because he was “otherwise inadmissible,” even though his criminal conviction was based on the underlying fraud committed at admission. 9 A conditional resident whose status was terminated based on fraud or misrepresentation may also benefit from this waiver. In Vasquez v. Holder, Vasquez, a conditional resident whose joint petition was denied for marriage fraud, was subsequently charged with removability under INA § 237(a)(1)(A) [as an alien inadmissible at the time of admission because she sought to procure admission by fraud], and § 237(a)(1)(D)(i) [as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated]. 10 The DHS argued, and the IJs and BIA held, that § 237(a)(1)(H) would only cure removal under § 237(a)(1)(A), and would not eliminate the charge that Vasquez was removable based on the termination of her conditional permanent resident status. On appeal, the Ninth Circuit looked at the plain language of the waiver statute, in particular that it applies to the “provisions of this paragraph relating to the removal of aliens,” to hold that the waiver may be used to waive § 237(a)(1)(D)(i) when termination of status is based on fraud or misrepresentation (as opposed to termination upon failure to file a joint petition). Since the statute referred to “provisions of this paragraph” in the plural, the Ninth Circuit held that INA § 237(a)(1)(H) could be applied to waive any ground under § 237(a)(1). The Court found that a contrary interpretation would render the § 237(a)(1)(H) waiver inapplicable to marriage fraud cases, because DHS could always charge removability under the additional ground for termination of conditional resident status.

8 Matter of Manchisi, 12 I&N Dec. 132 (BIA 1967) (granting a waiver under former INA § 241(f))—the predecessor to current INA § 237(a)(1)(H)), overruled in Matter of Diniz but reinstated in Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978). Matter of Manchisi relied on the Supreme Court’s interpretation of former § 241(f) of the INA in a case called INS v. Errico, 385 U.S. 214 (1966), 87 S.Ct. 473 (1966). In that case, the Supreme Court stated: “The construction of the statute that we adopt in these cases is further reinforced when the section is regarded in the context of the 1957 Act. The fundamental purpose of this legislation was to unite families. Refugees from Communist lands were also benefited, but the Act principally granted relief to persons who would be temporarily or permanently separated from their nearest relatives if the strict requirements of the Immigration and Nationality Act, including the national quotas, were not relaxed for them. It was wholly consistent with this purpose for Congress to provide that immigrants who gained admission by misrepresentation, perhaps many years ago, should not be deported because their countries’ quotas were oversubscribed when they entered if the effect of deportation would be to separate families composed in part of American citizens or lawful permanent residents.” INS v. Errico, at 224-225. 9 Matter of Tima, 26 I&N Dec. 839 (BIA 2016). 10 Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010).

186

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

The Sixth Circuit has held that 237(a)(1)(H) may be used to waive earlier fraud at an earlier admission or attempted admission that occurred prior to the fraud that occurred at the person’s admission as a permanent resident—the waiver is not limited to a single instance of fraud. 11 An individual who obtained lawful permanent residence through adjustment of status in the United States (versus consular processing) is also eligible to apply for the § 237(a)(1)(H) waiver, according to the BIA more recently in Matter of Agour. 12 In Agour, the BIA finally held definitively that the statutory phrase “inadmissible at the time of admission” includes inadmissibility at the time of adjustment of status. The Sixth Circuit, however, circumscribed this holding to a situation where fraud at initial admission (as a fiancé) was the reason or a “direct result” that the immigrant was also inadmissible for adjustment of status. 13 For more information on the concept of admission, see Chapter 1. 1. Qualifying relatives The § 237(a)(1)(H) waiver requires a qualifying relationship to a U.S. citizen or lawful permanent resident child or son or daughter, in addition to a spouse or parent. This is different from INA § 212(i), the waiver provision for inadmissibility based on misrepresentation or fraud, which does not permit consideration of hardship to the applicant’s child. 14 However, the spouse from a marriage that the government finds to be fraudulent cannot be the basis of eligibility for this waiver. In Matter of Matti, 15 the BIA refused to allow the respondent to use his relationship to the “spouse” he married in a sham marriage as a basis for establishing eligibility for a waiver of fraud at admission. As the Board stated: “it is clear from [the] legislative history that a sham marriage is not the type of family tie which Congress intended to preserve in enacting section 241(f)(1).” 16 In another case, the Ninth Circuit reversed the BIA’s decision in Matter of Federiso, 17 in which the BIA had denied eligibility for an INA § 237(a)(1)(H) waiver to the son of a deceased U.S. citizen. The Board reasoned that extending eligibility to the survivors of deceased relatives would not serve the legislative purpose of preserving family unity. As a result, the BIA concluded that since the respondent’s U.S. citizen mother was deceased, he was no longer statutorily eligible for the waiver.

11

Avila-Anguiano v. Holder, 689 F.3d 566 (6th Cir. 2012). 26 I&N Dec. 566 (BIA 2015). 13 Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018). 14 See Chapter 3 for a discussion of § 212(i). 15 Matter of Matti, 19 I&N Dec. 43 (BIA 1984). 16 Matter of Matti, at 46. 17 24 I&N Dec. 661 (BIA 2008) (denying waiver eligibility under a former § 241(f)—the predecessor to § 237(a)(1)(H).) In Federico, the BIA relied on language in INS v. Errico, 385 U.S. 214 (1966) discussing the legislative history of the waiver and its purpose to preserve family unity. 12

Chapter 6

187

Chapter 6

Immigrant Legal Resource Center May 2019

In reversing the BIA’s Federiso decision, the Ninth Circuit reasoned that while the BIA had interpreted the statute to require the parent citizen to be a living citizen, the statute has no such requirement, and concluded that the BIA erred in finding Federiso ineligible for the waiver. 18 2. An applicant may apply for 237(a)(1)(H) and cancellation under 240A(a) concurrently When the IJ grants a waiver of deportability to a person who was inadmissible at the time of admission, it actually “cures” the grounds of inadmissibility dated back to the time when it occurred. INA § 237(a)(1)(H). This may be helpful, for example, to persons who someday need to show seven years lawful residence to qualify for an INA § 240A(a) cancellation of removal. At least, this applied to INA § 212(c) waiver cases. Waivers pursuant to INA § 212(c) were replaced with LPR cancellation by IIRAIRA, found at INA § 240A(a). However, 212(c) waivers still may be utilized by permanent residents with certain convictions prior to the 4/1/97 effective date of this provision of IIRAIRA. 19 Advocates may analogize to the BIA’s prior decision in Matter of Sosa-Hernandez, allowing both 212(c) and 237(a)(1)(H) waivers in the same deportation proceeding, to allowing 240A(a) LPR cancellation and 237(a)(1)(H) in the same removal proceeding. However, the waiver cannot be utilized if the person was inadmissible at the time of entry on some other basis—e.g., if the person was inadmissible due to a conviction and also lied about it at entry. 20 Example: Sally immigrated in 2004 as the adult unmarried child of a U.S. citizen, but was in fact married at the time. Then in 2012, Sally was convicted of simple possession of cocaine. Sally can apply for both 237(a)(1)(H) to cure her inadmissibility at entry due to her misrepresentation, and for cancellation of removal under 240A(a) for her deportability due to the drug related conviction. The 237(a)(1)(H) wavier “cures” her residency retroactively to the date of entry in 2004. Example: John immigrated in 2001, and at the time of entry had a felony theft conviction for which he had served an 8-month sentence. He did not disclose the conviction. When John applied for naturalization in 2013, USCIS discovered the theft conviction and the misrepresentation. John is not eligible for a 237(a)(1)(H) waiver because he was inadmissible on another ground, for a crime of moral turpitude that did not fit within the petty offense exception, at the time of his admission as an LPR. 3. An applicant may apply for other waivers at the same time as 237(a)(1)(H) An applicant may be able to apply for 237(a)(1)(H) in conjunction with other waivers such as 212(h) or 212(c), where the additional grounds of inadmissibility being charged are based on post-admission conduct. In Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010), the Ninth Circuit held that although the 237(a)(1)(H) waiver may be “stacked” with other waivers, this is only true if the additional ground(s) of inadmissibility were triggered subsequent to admission. 18

Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010). Federiso’s mother had died during the pendency of his removal proceedings. 19 See Matter of Sosa-Hernandez, 20 I&N Dec. 758, Int. Dec. 3214 (BIA 1993). 20 Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010).

188

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

Corona-Mendez was charged with two grounds of inadmissibility—the fraud itself (failure to disclose a prior deportation on his application for adjustment of status), and his improper return to the United States after deportation. The Ninth Circuit held that because Corona-Mendez was not “otherwise admissible” at the time of his fraudulent application for adjustment of status, 237(a)(1)(H) relief was not available. The Seventh Circuit, on the other hand, has held that when an immigrant is only charged with a ground of deportability apart from 237(a)(1) from an issue arising after admission, such as controlled substance ground deportability, then a waiver under 237(a)(1)(H) is not available for a prior fraud at admission that was not charged. The immigrant must also be charged with fraud at admission. 21 Note, however, that the BIA in Matter of Sosa-Hernandez did not require a fraud at admission charge of deportability, rather the Immigration Judge found such fraud had occurred. 4. Discretion The statute does not state whether a judge should look at hardship, equities, or any other factors in making the decision to grant a waiver. Like the § 212(h) waiver, however, the BIA has, at least in one case, Matter of Tijam, required a balancing of the person’s equities against his or her bad acts, 22 including consideration of the misrepresentation, if deliberate, as a negative factor.23 The use of this type of balancing test is not necessarily required. There were three different opinions in Matter of Tijam: one majority and two concurring in part and dissenting in part. In one of the concurring and dissenting opinions, Board Member Gustavo D. Villageliu argued that because both § 212(c) and § 212(h) dealt with criminal violations, the balancing test first articulated in Matter of Marin for § 212(c) cases was appropriate for § 212(h) cases, but not for cases arising under INA § 241(a)(1)(H) (current § 237(a)(1)(H)). 24 Moreover, INS v. Yueh-Shaio Yang, the Supreme Court case on which the majority opinion in Matter of Tijam relies, does not require a Matter of Marin/212(c) balancing test in misrepresentation cases. 25 Rather, INS v. Yueh-Shaio Yang interpreted former INA § 241(a)(1)(H) to not impose any limitations on the factors that may be considered in determining who should be granted relief under this waiver.

21

Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. 2011). See Chapter 5, § 5.4 & Chapter 6, § 6.6, Subsection A. 23 Matter of Tijam, 22 I&N Dec. 408, at 412-413 (BIA 1998), citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S.Ct. 350 (1996). 24 Matter of Tijam, at 418. 25 Instead, it states as follows: Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination…. The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes “entry fraud” under that policy, excluding events removed in time and circumstance from respondent’s entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The “entry fraud” exception being, under the current statute, a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases. INS v. Yueh-Shaio Yang, 117 S.Ct. at 353 [emphasis added)]. 22

Chapter 6

189

Chapter 6

Immigrant Legal Resource Center May 2019

Thus, the majority opinion in Matter of Tijam misread the holding in INS v. Yueh-Shaio Yang. In so doing, Matter of Tijam reversed prior Service policy regarding fraud, and specifically declined to follow the holding in Matter of Alonzo, 17 I&N Dec. 292 (Comm’r 1979), which previously had governed waivers of misrepresentation, and had held that “the fraud for which the applicant seeks forgiveness should not be considered as an unfavorable factor.” PRACTICE TIP: Do not automatically consider the majority opinion in Matter of Tijam dispositive. Rather, distinguish the facts of that case from your own, and emphasize that the only reason that the respondent’s fraud was taken into consideration in Matter of Tijam is that she had not only committed fraud at her admission, but had committed other acts of fraud as well. You should also cite to the differing opinions in Matter of Tijam and point out how the majority opinion’s reliance on the Supreme Court’s holding in INS v. Yueh-Shaio Yang is due to fundamental misunderstanding of that case. Finally, emphasize that the purpose of INA § 237(a)(1)(H) is to unite families, as the Supreme Court held in INS v. Errico, and that INS v. Errico has been recently affirmed in Matter of Federiso, cited above. As a precaution, however, you should also clearly demonstrate how your client’s equities outweigh any adverse factors. There is no form or fee to apply for a § 237(a)(1)(H) waiver. The waiver is only available in removal proceedings. To seek a § 237(a)(1)(H) waiver, the respondent should submit evidence that he or she meets the eligibility requirements, as well as evidence that his or her equities outweigh any adverse factors (as discussed above). If the waiver is granted, the government cannot subsequently pursue removal based on other grounds that are a direct result of the fraud or misrepresentation waived. 26 C.

INA § 212(k) waiver of inadmissibility for persons inadmissible at admission

People who were wrongfully admitted to the United States—i.e., those who were inadmissible at admission—may also be eligible for a waiver of removability under INA § 212(k). This waiver covers those who have immigrant visas but are found to be inadmissible under INA § 212(a)(5)(A) [employment immigrant requirements] or INA § 212(a)(7)(A)(i) [lacking in proper documents], and who did not know, and could not reasonably have known, that they were inadmissible before they departed for the U.S., or if entering the U.S. from contiguous foreign territory, before they applied for admission . It differs from the inadmissibility waiver under INA § 212(i) and the deportability waiver under INA § 237(a)(1)(H) because it will not waive a misrepresentation. This waiver can be used at the time of the initial admission, or later on, after the wrongful admission has been discovered, sometimes many years later. 27 At least one court has held that the waiver also is available to persons charged with being deportable because they were inadmissible on entry. 28 This could be called into question by the 26

INA § 237(a)(1)(H) (“[a] waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation”). 27 The waiver is available both for persons charged with inadmissibility and deportability because they were inadmissible on entry. Kyong ho Shin v. Holder, 607 F.3d 1213, 1218 (9th Cir. 2010). 28 Id.

190

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

BIA’s more recent interpretation in the context of 212(h) waivers, holding that the applicant facing deportation charges was not eligible for a stand-alone 212(h) waiver. 29 Nonetheless, applicants will argue that the 212(k) waiver is distinct, and can be used specifically to counter a charge of being deportable for having been inadmissible at time of entry. This ground of removal specifically relates to admissibility at time of entry, and the waiver itself requires the person could not have known before immigrating. Thus, it should be available to refute a deportation charge in order to give full effect to the waiver provision. Example: Carla immigrated through a second preference visa as the unmarried daughter of a permanent resident, even though she was married. She disclosed her marriage to the consular officer, who approved the visas for her, her husband, and her children. Carla does not discover that she and her family were wrongfully admitted as permanent residents until she files an application for naturalization. She and her family members can apply for a waiver under INA § 212(k) if placed in removal proceedings because they did not lie about their marital status and did not know that the consular officer was making a mistake when he approved their immigrant visas. Example: Lola was only 17 when her parents applied for their immigrant visas pro se at the U.S. Consulate abroad. Her presence and those of her four younger siblings at the visa interview was waived, so she did not hear the advisal that she must remain unmarried until after she was admitted to the U.S. as a permanent resident. Lola secretly married her longtime boyfriend the day before her family boarded their flight. During the flight she disclosed to her family that she had married, and that she was pregnant. She disclosed the same to the CBP officer at the airport. Lola was placed in removal proceedings but subsequently granted a 212(k) waiver. PRACTICE TIP: Fraud/misrepresentation waivers. Advocates should first identify arguments that the issue in the case does not meet the legal requirements of a “misrepresentation.” If the advocate can convince the USCIS examiner or consular officer that the person has not committed a misrepresentation, then no waiver is necessary. 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 (this misrepresentation is 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 USCIS insists a waiver is required and indicates it is likely to be granted, it may be wise to go ahead file the waiver but also write down the ground of inadmissibility as “alleged misrepresentation” on the form, so that you’re not admitting to doing anything wrong, just acknowledging that USCIS is accusing the client of a violation. Other times it may be best to appeal a finding of inadmissibility that is wrongly decided. § 6.6

Waiver for Certain Crimes Under INA § 212(h)

Some people who are inadmissible for criminal offenses are eligible for a discretionary waiver. These include people who are inadmissible because of a crime involving moral turpitude,

29

Matter of Rivas, 26 I&N Dec. 130 (BIA 2013).

Chapter 6

191

Chapter 6

Immigrant Legal Resource Center May 2019

prostitution, one conviction of possession of 30 grams or less of marijuana, or total sentences of five years for two or more convictions. There are three ways to be eligible for this waiver. 1. The applicant must be the spouse, parent, son or daughter of a U.S. citizen or permanent resident, and establish that denial of the person’s admission would result in extreme hardship to that relative; or 2. The person must have committed the crime at least fifteen years ago (or at any time, if the person is only inadmissible for prostitution), must be able to show that granting his admission would not hurt national welfare or safety; and must be able to show that he is rehabilitated, or 3. The person is a VAWA self-petitioner. 30 The law has two additional strict requirements or “bars” that only apply to certain lawful permanent residents and/or former lawful permanent residents. 31 In many circuits, these bars only apply to permanent residents who were admitted at the border as a lawful permanent resident. If the person was admitted into the United States from abroad as a permanent resident, then the person applying for an INA § 212(h) waiver must: • •

Have lawfully resided continuously in the United States for seven years preceding the date of initiation of removal proceedings, and Not have been convicted of an aggravated felony after having previously been admitted to the United States as a lawful permanent resident.

Thus, the statute treats certain permanent residents more harshly than it treats undocumented people because in addition to the general waiver requirements for all those applying for an INA § 212(h) waiver, lawful permanent residents and former lawful permanent residents who were admitted into the United States at the border as a lawful permanent resident must comply with the two additional requirements mentioned immediately above. Example: Cheryl became a lawful permanent resident through consular processing in 2004 and entered the U.S. as a lawful permanent resident after her visa was approved. That same year, Meryl entered the United States illegally. Both Cheryl and Meryl married U.S. citizens. In 2008, both were convicted of felony grand theft with a one-year sentence imposed. This conviction is both a crime involving moral turpitude and an aggravated felony. The ICE brings removal proceedings against both of them. Meryl, who is undocumented, can qualify for INA § 212(h) relief when she immigrates through her husband. She can apply for a waiver of the moral turpitude theft crime,

30 A VAWA self-petitioner is a spouse, child or parent who has suffered battery or extreme cruelty at the hands of a permanent resident or U.S. citizen spouse, parent, son, or daughter. See the ILRC’s VAWA Manual for more information on the special rules governing these immigrant victims of domestic abuse. 31 Returning lawful permanent residents can be considered arriving aliens, and therefore subject to the grounds of inadmissibility, under certain circumstances that are described in INA § 101(a)(13)(C). See Chapter 1.

192

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

although it also is an aggravated felony. There is no requirement that she have spent a certain amount of time in the United States. Cheryl, the permanent resident, would not be eligible for an INA § 212(h) waiver. Because she was admitted to the United States as a permanent resident, she must show: a) that she was not convicted of an aggravated felony and b) that she resided lawfully for seven years between the time she became a permanent resident and the time removal proceedings were begun against her. It does not appear that she can show either. What if Cheryl became a permanent resident through adjustment of status in the United States instead of consular processing? Depending on the circuit in which she is in removal proceedings, she might still be eligible to adjust status through her U.S. citizen husband as a defense to removal, despite her aggravated felony conviction. If she previously adjusted status in the U.S. to become an LPR, she would not have been admitted at the border as a lawful permanent resident, and these bars might not apply to her. Currently there is a conflict in the law as to which permanent residents are subject to the LPR bars to eligibility for § 212(h) waivers. In cases arising within the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, federal courts have held that the bars apply only to persons 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.32 A person who has not been admitted at the border as an LPR should be able to apply for a § 212(h) waiver despite conviction of an aggravated felony or lack of seven years residency in the U.S. The BIA will follow this rule, which is often called the Martinez rule, 33 in cases arising within the jurisdiction of these circuit courts. Outside of the above jurisdictions, the BIA will impose its own rule and find that all permanent residents are subject to the LPR bars, regardless of whether they adjusted status or were admitted at a port of entry as LPRs. 34 Counsel in those jurisdictions should consider appealing a 212(h) denial in cases where no border admission has occurred, to the 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. The Eighth Circuit held that it must defer to the BIA’s interpretation under Chevron. 35 It is important to consider and investigate with your client, how each element of a waiver may or may not apply to him or her. For example, the seven years of lawful residence requirement for 32

See Medina-Rosales v. Holder, 778 F.3d 1140 (10th Cir. 2015), Husic v. Holder, 776 F.3d 59, 60–67 (2nd Cir.2015); Stanovsek v. Holder, 768 F.3d 515, 516, 517–19 (6th Cir.2014); Negrete–Ramirez v. Holder, 741 F.3d 1047, 1050–54 (9th Cir.2014); Papazoglou v. Holder, 725 F.3d 790, 792–94 (7th Cir.2013); Leiba v. Holder, 699 F.3d 346, 348–56 (4th Cir.2012); Hanif v. Att'y Gen., 694 F.3d 479, 483– 87 (3rd Cir.2012); Bracamontes v. Holder, 675 F.3d 380, 382, 384–89 (4th Cir.2012); Lanier v. U.S. Att'y Gen., 631 F.3d 1363, 1365–67 (11th Cir.2011); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010); Lanier v. United States AG, 631 F.3d 1361 (11th Cir. 2011). 33 The rule was first set out in Martinez v. Mukasey, supra. 34 Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012), Matter of Koljenovic, 25 I&N Dec. 218 (BIA 2010). 35 Roberts v. Holder, 745 F.3d 928 (8th Cir. March 28, 2014), deferring under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Chapter 6

193

Chapter 6

Immigrant Legal Resource Center May 2019

certain LPR waiver applicants is not limited to only time accrued in permanent resident status. Any “lawful residence” is OK. If the applicant for the waiver entered the U.S. on a temporary visa such as a tourist or student visa, or gained temporary residency through amnesty (legalization), or has been residing in the U.S. with temporary protected status (TPS), or other legal status prior to obtaining permanent residency, time in that status should count as well toward the seven year requirement for LPRs. 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), and Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008). However, a noncitizen has not “lawfully resided” in the United States during the time that he or she was a visa overstay or during time spent awaiting the adjudication of adjustment of status or asylum applications, if the person lacked any other basis for lawfully residing in the United States. Matter of Rotimi, supra. However, the Ninth Circuit decision in Yepez-Razo may be helpful to some applicants for 212(h) waivers that have a “gap” or delay in establishing their seven years of lawful residence, especially if the gap or delay was caused by the government’s mishandling of their application for status. 36 It is important to obtain expert assistance in cases where your client has been in different kinds of immigration status before applying for permanent residence. Example: With more investigation, it is discovered that Cheryl has never left the United States since she had her “V” visa status. She adjusted to permanent residency here in the United States. Does this change Cheryl’s chances, at least in the Third, Fourth, Fifth, Ninth, and Eleventh Circuits? Yes, at least in these Circuits, because Cheryl can say she is not subject to the aggravated felony bar to § 212(h) relief because she was admitted in V visa status and did not make a new admission when she adjusted status to lawful permanent resident. If the person is convicted of a “dangerous or violent” offense, 37 the immigrant must additionally prove extraordinary circumstances, “such as” national security or foreign policy or a clear demonstration that denial would result in exceptional and extremely unusual hardship. 38 According to the regulations, “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.…” 39 This standard has been upheld and can be applied retroactively to past convictions. 40 While the regulation does not specify who must suffer exceptional and extremely unusual hardship in order for the applicant to overcome the “dangerous or violent” offense bar to 212(h)(1)(B) relief, the Ninth Circuit and the BIA (in an unpublished decision) consider hardship to the applicant as well as to relatives to be relevant to this determination. 41 This is separate and

36

Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006). See Matter of Jean, 23 I&N Dec. 373 (AG 2002). 38 8 CFR 1212.7(d). 39 Id. 40 Mejia, 499 F.3d 991 (9th Cir. 2007). 41 Rivera-Peraza v. Holder, 684 F.3d 906 (9th Cir. 2012); see also In re: Rafael Gerardo Rivera-Peraza (BIA 2008)(unpublished, 2008 WL 339662). 37

194

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

distinct from the general 212(h)(1)(B) eligibility requirement of extreme hardship to a qualifying statutory relative. Generally speaking, people apply for a § 212(h) waiver when they are applying for an immigrant visa abroad through consular processing, or when they apply for adjustment of status to permanent resident in the United States. Those who are already lawful permanent residents may only apply for a § 212(h) waiver either as “arriving aliens” at a port of entry as a “stand-alone” waiver, or while applying concurrently for readjustment to permanent residency from within the U.S. If the LPR departed, returned and did not apply for the waiver at the border, they cannot later apply for a “nunc pro tunc” 212(h) waiver based on inadmissibility at the time of their return to the United States, according to the BIA and several circuit courts. In other words, if the LPR did not depart after a conviction and apply for a waiver upon return at the port of entry, as part of an application for admission, they must be presently eligible to “re-adjust” their status to lawful permanent resident in conjunction with the 212(h) waiver. Most such applicants have immediate relative family members, such as a U.S. citizen spouse or adult child who are willing to file a visa petition on their relative’s behalf in order that “readjustment” is possible. An LPR who departs the U.S. and is found to be seeking admission at the border based on a crime, may apply for a “stand-alone” § 212(h) waiver, and are not required to apply for readjustment at the same time. 42 On the other hand, if the LPR has already reentered the U.S. as a returning resident, or was “admitted,” then presently no “stand-alone” nunc pro tunc § 212(h) waiver is allowed, even if the person would have been eligible for the waiver if they had applied for it at the port of entry when entering the U.S. The BIA and several circuit courts have held that this prohibition is retroactive, despite the fact that before the effective date of IIRAIRA, such “stand-alone” 212(h) waivers were in fact allowed.43 There is a strong argument, however, that this prohibition against “stand-alone” 212(h) waivers should not be retroactive for convictions which preceded the enactment of IIRAIRA. 44 § 6.7 A.

Alien Smuggling Waivers and Exemptions

Waiver of inadmissibility

A person, who at any time 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: 1. A discretionary waiver for those who have “smuggled” certain family members is available for returning permanent residents and for people who apply for permanent

42

Matter of Abosi, 24 I&N Dec. 204 (BIA 2007). Note that presently an application for a “stand-alone” 212(h) waiver might not work in the 11th Circuit, which has set out a contradictory interpretation in Poveda v. United States AG, 692 F.3d 1169 (11th Cir. 2012). 43 Seepersad v. Sessions, 892 F.3d 121 (2nd Cir. 2018); Mtoched v. Lynch, 786 F.3d 1210 (9th Cir. 2015); Matter of Rivas, 26 I. & N. Dec. 130, 132 (BIA 2013), petition denied in Rivas v. U.S. Atty. Gen., 765 F.3d 1324 (11th Cir.2014); Cabral v. Holder, 632 F.3d 886, 891 (5th Cir.2011). 44 See Vartelas v. Holder, 566 U.S. 257 (2012).

Chapter 6

195

Chapter 6

Immigrant Legal Resource Center May 2019

residency based on family petitions, with the exception of 4th preference brothers and sisters of U.S. citizens; and 2. An exemption for certain persons who were present in the United States 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. The waiver will waive inadmissibility, but does not “waive” the bar to showing good moral character, which is required for certain immigration benefits or forms of relief. 45 People who must establish good moral character will not be able to do so if they have helped someone enter illegally during the period in which they need to show good moral character. Additionally, those who will immigrate through 4th preference petitions (brothers and sisters of U.S. citizens) or employment related petitions, or who are applying for many other forms of relief are not eligible for a waiver of this ground of inadmissibility. Advocacy to persuade Congress to make this standard more humane is needed. 1. Lawful permanent residents and family immigrants—a discretionary waiver A waiver for alien smuggling is found at INA § 212(d)(11) and is available both to those seeking admission and immigrating as immediate relatives or through a first, second, or third preference visa petition, as well as to permanent residents who are seeking admission or are in removal proceedings. 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 United States [gone for over 180 days, inadmissible under INA § 212(a)(2), etc.] See INA § 101(a)(13) and § 1.1 of this manual. To be eligible to apply for a smuggling waiver, 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. INA § 212(d)(11). Example: 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 USCIS 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 United States; or

45 Good Moral Character is a separate requirement for certain benefits and relief, such as naturalization VAWA self-petitions and cancellation of removal. See INA § 101 (f) for factors that bar a person from showing good moral character. Usually, however, good moral character is only required for a specific period of time, depending on the benefit sought. A person could possibly obtain a waiver of a ground of inadmissibility but could still be found to lack good moral character until enough time has passed.

196

Chapter 6

•

Chapter 6

Inadmissibility & Deportability May 2019

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: 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 USCIS should grant the waiver based for humanitarian reasons, to assure family unity, or on other 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 ensure family unity: Regina would be in grave danger if she returned to Guatemala, where gangs have killed almost her entire family, and her family in the United States cannot support themselves without her here.” As discussed below, lawful permanent residents also can apply for a waiver of deportability for alien smuggling, if they meet the same requirements. See INA § 237(a)(1)(E)(2). Some relatives of “legalized aliens” (people who immigrated through the late 1980s amnesty programs) may qualify for something better than this waiver: an automatic exemption. See next section. 2. “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 “Family Unity” as originally enacted in 1990. For more information on Family Unity, see Unit 16 of the ILRC’s Guide for Immigration Advocates. 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); Have been physically present in the United States 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), and so they do not have to apply for a waiver for inadmissibility. NOTE: No good moral character for alien smugglers! A person who is inadmissible for alien smuggling is ineligible to establish good moral character, if the offense occurred during the good moral character period indicated by the statute for a particular benefit or relief. Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009). Good moral character is a requirement for INA § 240A(b) cancellation of removal (and the former suspension of deportation), some voluntary departure applications, registry and naturalization to U.S. citizenship.

Chapter 6

197

Chapter 6

Immigrant Legal Resource Center May 2019

B.

Deportability waiver/exemption for alien smuggling

A person who (prior to the date of entry, at the time of any entry or within five years of the date of any entry) knowingly has encouraged, induced, assisted, abetted or aided any other alien to enter or to try to enter the United States in violation of the law is deportable. INA § 237(a)(1)(E). Certain lawful permanent residents who are in removal proceedings and found to be deportable for alien smuggling can apply for a waiver of deportability under INA § 237(a)(1)(E)(iii). The same requirements apply as for 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. If the immigration judge grants the waiver, the removal proceedings will end and the person can keep his or her permanent residence or other lawful status. Example: Maria smuggled her brother. She cannot even apply for a waiver of inadmissibility or deportability or for an exemption, because she did not smuggle a parent, spouse, son, or daughter. The same exemption for relatives of legalized aliens applies to waive deportability as in the inadmissibility ground. INA § 237(a)(1)(E)(ii). NOTE: Lawful permanents residents who are charged with being inadmissible or deportable for smuggling may be eligible for cancellation of removal under INA § 240A(a), if they have been lawful permanent residents for at least five years, have resided in the United States continuously for seven years after having been admitted in any status, 46 and have not been convicted of an aggravated felony. 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. See INA § 101(a)(43)(N). § 6.8

Document Fraud Waiver of Inadmissibility and Deportability

One of the few good things IIRIRA did was to create (limited) waivers for inadmissibility and deportability for INA § 274C document fraud. The waivers are set up similarly, but not identically, to the waiver for alien smuggling. It is very important to remember, however, that a person does not need a waiver for INA § 274C document fraud and is not inadmissible or deportable on that basis unless there is a “final order” by an administrative law judge which finds that the person has committed document fraud under INA § 274C, although that person may still be inadmissible for visa fraud for the same actions. See discussion in Chapter 2, § 2.3.

46 “Continuous residence” for cancellation purposes terminates upon the service of a Notice to Appear and/or when the person commits an offense “referred to” in INA § 212(a)(2) [criminal grounds of inadmissibility] that would make him or her inadmissible under INA§ 212(a)(2) or deportable under INA § 237(a)(2) or INA § 237(a)(4). In most cases that means the person has a conviction of an offense which was admitted or found in criminal court to have been committed on a particular date.

198

Chapter 6

A.

Chapter 6

Inadmissibility & Deportability May 2019

Waiver of document fraud inadmissibility

Under INA § 212(d)(12), the waiver of inadmissibility 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 petitions. The applicants must not have previously been fined under INA § 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.” B.

Waiver of document fraud deportability

The waiver of deportability for document fraud is similar to the waiver of inadmissibility. Under INA § 237(a)(3)(C), the waiver of deportability is available to: 1. Lawful permanent residents who temporarily left the country voluntarily, and are otherwise admissible; 2. Who have not been previously fined under INA § 274C; 3. The offense was incurred “solely to assist, aid, or support the alien’s spouse or child (and no other individual).” The one difference from the inadmissibility waiver is that there is no requirement that the deportability waiver be granted “for humanitarian purposes or to assure family unity.” That means one could argue that Congress intended for this waiver to be relatively easy for an LPR to obtain, as it may be granted for any reason. However, it would still be a good idea to document humanitarian and/or family unity considerations even though not required in the case of deportability. The waiver is still discretionary and so documentation of all equities is important. What does “assist, aid, or support” mean in document fraud? As of 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. It might potentially include: • • • •

Using a false document to get a job to support a spouse or child; Obtaining a false document for a spouse or child to use to obtain a visa; Helping one’s spouse or child fill out a false application for immigration benefits; Other possibilities

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 the smuggling occurred had the necessary family relationship with the person being smuggled (e.g., must have been legally married). The document fraud waivers discussed here do not contain this phrase.

Chapter 6

199

Chapter 6

Immigrant Legal Resource Center May 2019

Since Congress did not include this requirement in the document fraud statute, it should not apply, although USCIS does not agree with this interpretation. See Appendix I. 47 Example: 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 charged in an administrative proceeding and held to have committed 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 INA § 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 INA § 274 waivers discussed above might be able to clear up a document fraud problem if they have not yet been charged with document fraud, but have filed a waiver for visa fraud, if the document fraud they committed also constitutes visa fraud. Visa fraud can be waived for inadmissibility [INA § 212(i)] and deportability [INA § 237(a)(1)(H)]. Example: Sonya wishes to adjust her status based on a petition by her U.S. citizen mother. Sonya tells you that she entered the United States 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 an INA § 274C final order (the fraud was not to assist a spouse or child). Neither USCIS nor ICE has ever charged Sonya with document fraud or given her a notice for an INA § 274C hearing. If Sonya applies for adjustment and submits a visa fraud waiver based on hardship to her U.S. citizen mother, USCIS might grant it and not charge her with document fraud under INA § 274C. Then she can immigrate. If USCIS decides to charge her with document fraud, and she receives a final order, however, Sonya will be both ineligible to adjust her status and deportable with no relief from deportation. 48 See Matter of Delia Lazarte-Valverde, 21 I&N Dec. 214 (BIA 1996). In the past, USCIS has said that if someone in Sonya’s position—a person who committed visa and document fraud, but has not yet been summoned to an INA § 274C document fraud hearing—submits an application to immigrate through a family visa petition together with an INA § 212(i) visa fraud waiver, USCIS will consider the visa fraud waiver. If USCIS grants the visa fraud waiver, past policy has been that it will not subsequently try to bring the person to an INA § 274C document fraud hearing. (See March 1993 letter from the INS Central Office to the San 47

Appendix I: March 3, 2009 USCIS Interoffice Memorandum, titled: Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual. 48 Sonya is deportable because she entered the United States with a visitor’s visa. See INA § 101(a)(13).

200

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

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 USCIS will always follow it. Moreover, now that there is a special waiver for document fraud as of April 1997, the USCIS could change its policy. Advocates should stay abreast of developments and talk with other experienced advocates to see how USCIS is handling such waivers at your local field office. § 6.9 A.

Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders Under INA § 212(g)

Communicable disease

People who have a communicable disease that makes them inadmissible can apply for a waiver if they meet the following requirements: 1. The person is the spouse, unmarried son or daughter, or the minor lawfully adopted child of a U.S. citizen, a lawful permanent resident or a noncitizen who has been issued an immigrant visa, or 2. The person has a son or daughter who is a U.S. citizen or lawful permanent resident or who has been issued an immigrant visa, or 3. The person is a VAWA self-petitioner 49 As of January 4, 2010, HIV testing is no longer required as part of the required medical examination for immigrants, and persons with HIV are no longer considered inadmissible under INA § 212(a)(1)(A)(i). In addition, consular offices must consider whether people with communicable diseases might be a pubic charge under INA § 212(a)(4). Even if USCIS grants a waiver for the communicable disease ground of inadmissibility, a person may still be refused a visa or admission as someone likely to become a public charge. A “reasonable calculation of the person’s future ability to pay expected costs of treatment” is made. The person may be granted the visa or admission if he or she has sufficient resources based on personal and family income, strong I-864 affidavits of support, insurance, or other resources. See Chapter 2 in this manual. B.

Vaccinations

There is a ground of inadmissibility for immigrants who fail to present evidence of vaccination against certain “vaccine preventable diseases.” INA § 212(a)(1)(A)(ii). See Chapter 2. In 2009, the CDC adopted specific vaccination criteria for persons seeking a U.S. immigrant visa: 1. the vaccine must be an age-appropriate vaccine as recommended by the Advisory Committee for Immunization Practices (ACIP) of the Centers for Disease Control & Prevention (CDC) for the general U.S. population, and 49

INA § 212(g). K-1 Fiancés and K-3 spouses of US citizens and their derivative children are also eligible for a waiver of this ground, under the non-immigrant visa waiver provisions in INA § 212(d)(3). See 22 CFR § 41.81, N.9, N.9.1 & N.9.2.

Chapter 6

201

Chapter 6

Immigrant Legal Resource Center May 2019

2. at least one of the following: a. the vaccine must protect against a disease that can potentially cause an outbreak, which is defined as the occurrence of more cases of disease than expected in a given area or among a specific group of people and that occurs over a given period of time, or b. the vaccine must protect against a disease that has been eliminated in or is in the process of being eliminated from the United States. Under these criteria, required age-appropriate vaccination include diphtheria, tetanus, pertussis, polio, measles, mumps, rubella, rotavirus, haemophilus influenzae type b, hepatitis A, hepatitis B, meningococcal, varicella, pneumococcal, and influenza. Which vaccines are ultimately required during the immigration medical examination, are dependent on whether there is evidence of the vaccine having been previously received (such as through credible documentation or blood tests), the age of the person and certain health related conditions such as pregnancy. There is a chart which provides ages and vaccines required in the USCIS Policy Manual, Vol. 8, Part B, Chapter 9 “Vaccination Requirement” and on the CDC website. 50 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 United States 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);

50

See Appendix K: “Vaccine Requirements According to Applicant Age” as of June, 2019; see also “New Vaccination Criteria for U.S. Immigration” at https://www.cdc.gov/immigrantrefugeehealth/lawsregs/vaccination-immigration/revised-vaccination-immigration-faq.html; “Vaccination Technical Instructions for Panel Physicians,” at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/vaccinat ion-panel-technical-instructions.html and “Technical Instructions for Civil Surgeons” at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html.

202

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

3. The applicant has taken the initial vaccine but is unable to complete the entire series within a reasonable time; or 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.51 USCIS policies direct adjudicators to assess the “subjective good faith” of the applicant, by generally considering all “credible circumstances and accompanying evidence.” They indicate that, although generally applicants must be opposed to any and all vaccinations, proof of past vaccinations should not result in automatic denial of a waiver, if plausible reasons for an intervening change in beliefs can be advanced. 52 This is a “non-blanket waiver;” applicants must file an I-601 form and pay the required fee. INA § 212(g)(2)(C). 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 United States or at the earliest time that is medically appropriate. INA § 212(a)(1)(C)(i-iii) All USCIS and Consular 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. Even if applying for a waiver of the vaccination requirement, all applicants must still undergo a medical examination with a civil surgeon, if adjusting status in the U.S., or a physician assigned through the U.S. Consulate abroad where the person is applying for an immigrant visa. Though personal physicians may administer vaccines, the applicant must go to an approved or designated physician in order to obtain certification of the vaccinations. Also, the approved physician must administer the rest of the medical exam for immigration. USCIS or the Consulate will use the certification to determine whether the applicant receives a waiver. If your client qualifies for a

51

75 Interpreter Releases 700 (May 18, 1998). USCIS Procedures for Adjudication of Form I-601 for Overseas Adjudication Officers, p. 19-20, available at www.uscis.gov/Laws/Immigration Handbooks, Manuals and Policy Guidance. 52

Chapter 6

203

Chapter 6

Immigrant Legal Resource Center May 2019

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. 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). 53 DHS regulations and policies require consultation with the HHS Secretary, which essentially means consultation with the Division of Global Migration and Quarantine (DGMQ) at CDC. Once the I-601 waiver is submitted to USCIS, which in turn submits it to CDC/DGMQ for review, CDC will first determine whether an individual actually has a “Class A” condition resulting in inadmissibility. If the CDC determination is in agreement with USCIS or the Consulate that the applicant is in fact inadmissible, CDC will instruct USCIS regarding the terms and conditions required for a waiver, commonly requiring that the applicant identify a suitable health care provider in the United States for treatment after the applicants admission. The health care provider and the applicant may be required to submit an additional form—CDC 4.422-1. 54 Further, the USCIS recommends that applicants for these waivers submit a complete medical history and accompanying report including, inter alia, a recommendation regarding treatment reasonably available in the United States expected to significantly reduce the likelihood of future harmful behavior. 55 There is no general waiver for drug abuse or addiction in INA § 212(g). 56 However, possible waivers are available for U visa recipients (see INA § 245(m)) and Special Immigrant Juveniles (see INA § 245(h)), and for all others, a subsequent finding (after reexamination at the applicant’s expense) that he or she is in remission will remove this ground of inadmissibility. Presently for drug abuse or addiction, USCIS and DOS generally consider “remission” to require a year to have passed since last use. Some people have also been required to undergo random drug testing and attend drug abuse classes after a denial of an immigrant visa due to use within the past year. 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. INA § 237(a)(1)(C)(ii). In addition, once the waiver was granted and the person admitted to the U.S., usually the new permanent resident must report to the identified 53

See also 8 C.F.R. 212.7(b) & (c); USCIS Policy Manual Vol.9, Part C, Chapter 4 and 9 FAM 302.2-7(D). 8 C.F.R .212.7(b); USCIS Policy Manual Vol. 9, Part C, Ch. 4; 9 FAM 302.2-7. 55 8 C.F.R. 212.7(b)(2). 56 CDC last updated the Technical Instructions in 2017. Previously CDC provided clarification that the diagnosis of physical and mental disorders with associated harmful behavior and substance-related disorders is made based on existing medical standards, as determined by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). The current edition of the DSM as of June 2019 is DSM-5, which was published in 2013. The most recent CDC Technical Instructions for panel physicians and civil surgeons can be found at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-panel-technical-instructions.html for “panel physicians” who do the medical exams for consular interviews, and at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/mental-civil-technical-instructions.html for “civil surgeons” who do the medical exams for adjustment applicants in the U.S. 54

204

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

physician or health care provider in the U.S. within 30 days of admission to begin the agreed upon treatment and/or additional evaluation. 57 § 6.10 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. See Chapter 3. Remember that persons who have family unity protection, are seeking asylum, are self-petitioning battered spouses, are U visa recipients, are T visa recipients or are Special Immigrant Juveniles, are subject to special rules relating to the unlawful presence as well as most other grounds of inadmissibility. A.

Waiver of three- and ten-year ground of inadmissibility for unlawful presence

Persons who have spent a certain period of “unlawful presence” 58 in the United States may be barred from admission for three or ten years. INA § 212(a)(9)(B). These unlawful presence bars only apply if the person leaves the United States, which includes anyone immigrating through consular processing. These bars do not apply if the person is eligible to adjust status in the United States, unless the person has previously departed and reentered after accruing “unlawful presence,” (for example, re-entering with a non-immigrant visa or reentering without inspection). 59 An applicant who has triggered the 3- or 10-year bars may be granted a waiver if they can show a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the applicant was denied permanent residence. INA § 212(a)(9)(B)(v). Note that a U.S. citizen or lawful permanent resident child cannot serve as a qualifying relative for the unlawful presence waiver, only a U.S. citizen or lawful permanent resident spouse or parent. Also, hardship to the waiver applicant himself or herself is not considered. Example: Quan entered the United States as a visitor in January 2012 with permission to stay until July 1, 2009, but never left. He was discovered, placed in removal proceedings, and finally removed on October 25, 2013. Later his U.S. citizen son turned 21 years old and petitioned 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 July 1, 2012 (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 a waiver because a U.S. citizens or lawful permanent resident son or daughter cannot be a qualifying relative for the unlawful presence waiver. He will have to wait for ten years after the date of his removal to return. If, however, 57

8 C.F.R. 212.7(b)(2). Unlawful presence is counted from April 1, 1997. Periods of unlawful status before April 1, 1997 do not trigger the unlawful presence bars. 59 Departures with advance parole generally do not trigger the three- or ten-year unlawful presence bars. See Chapter 3, supra, and Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 58

Chapter 6

205

Chapter 6

Immigrant Legal Resource Center May 2019

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 USCIS denies the waiver. The petitioning relative, the person who filed the I-130, and the qualifying relative for the waiver can be different family members. If USCIS denies the waiver, Quan cannot immigrate until he has spent ten years out of the United States, which would be October 25, 2023. Other waivers. Several other classes of individuals may be eligible for waivers of the threeand/or ten-year bars, including: •

• •

•

Non-immigrants, who may apply for advance permission to enter pursuant to the discretionary waiver available under INA § 212(d)(3), but a separate waiver will still be required to adjust status or consular process to permanent resident; Asylees and refugees, pursuant to INA § 209(c); Applicants for Temporary Protected Status (TPS), to assure family unity, or for humanitarian or public interest purposes under INA § 244; 8 CFR 244.3 (however a separate waiver may still be required to further adjust status); Certain legalization applicants pursuant to INA § 245A or 210. 60

Applicants for adjustment of status can submit the I-601 waiver with their application for permanent residence or upon request form USCIS. Applicants for immigrant visas who are consular processing must submit requests for waivers of the 3- and 10-year bars to USCIS while abroad using Form I-601. The waiver is submitted after the consulate has made the determination that the applicant is inadmissible and subject to the bar. A simplified example of a declaration in support of a Form I-601 requesting the waiver of the three- and ten-year bars is discussed below and reproduced in Appendix J. But remember that 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. For a real-life example of a well-prepared waiver application, see Appendix L. B.

The “provisional waiver”

The “provisional waiver” or “stateside waiver” was instituted by DHS through regulation in 2013. 61 The new process allows family visa applicants residing in the U.S. and intending to apply for immigrant visas through consular processing, to apply for a waiver of the 3 or 10 year bar from inside the U.S., prior to departure for their immigrant visa interviews. The purpose of this procedural change was to ameliorate the difficulties caused by lengthy family separation while waiting for waiver adjudication abroad. However, this new procedure does not change the requirements for an unlawful presence waiver, nor make such a waiver easier to obtain. To qualify for a provisional waiver, an applicant: 1. Must be an immigrant visa applicant (the initial provisional waiver program only allowed immediate relatives to apply, but the program was subsequently expanded to include all immigrant visa applicants and diversity visa registrants); 60 61

206

See Appendix G, pp. 46-48. 8 CFR 212.7(e).

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

2. Have an approved visa petition or has been selected by the Dept. of State for participation in the Diversity Visa program 3. Must have a pending immigrant visa case with the Dept. of State and the visa processing fees must be paid, or was selected for the Diversity Visa Program; 4. The Dept. of State must not have issued a notice before January 3, 2013, scheduling a visa appointment for the applicant (it is the notice date, not the appointment date, that counts); 5. Must have a qualifying relative either a U.S. citizen or permanent resident spouse or parent- who will suffer extreme hardship if the applicant is not able to immigrate (the qualifying relative does NOT have to be the same person as the visa petitioner); 6. Must not be inadmissible or need a waiver for any other reason than the three/ten unlawful presence bars; 7. Must not be subject to a final order of removal, expedited removal, exclusion or deportation, or subject to reinstatement; 8. Must be at least 17 years old (note that minors under 18 do not accrue unlawful presence, and so no one under 18 would need this waiver); and 9. If in removal proceedings, these proceedings must be administratively closed or terminated prior to filing for the waiver (and prior to departing the U.S. the proceedings must be terminated, not just administratively closed, or the applicant might self-deport and no longer be eligible for the provisional waiver, due to being inadmissible for another ground). The “statutory relative” does not have to be the petitioner but must be a U.S. citizen or permanent resident parent or spouse. There must be significant documentation that this relative will suffer extreme hardship if the applicant is not approved for a waiver. The applicant cannot qualify for the provisional waiver based on a relationship to a U.S. citizen or permanent resident child, son or daughter. If the Consulate finds that the applicant is inadmissible for another ground, such as visa fraud, or “smuggling” their own child into the U.S. for example, the provisional waiver will be revoked, and the applicant will need to reapply for a “regular” I-601 waiver for unlawful presence along with any other grounds of inadmissibility. This also means the applicant will need to wait outside the U.S. after the consular interview until the waiver is adjudicated by USCIS in the U.S. and, if approved, the applicant will then need to reapply for an immigrant visa at the Consulate. Remember, a U.S. citizen child is NOT a qualifying relative for this waiver under either process. Example: Maribel entered the United States without inspection in 1990 and has lived illegally in the United States ever since. Maribel’s daughter, Jenna, is now 21 years old and has filed an I-130 for her mother, which was approved. Maribel has no other U.S. citizen relatives. Maribel does NOT qualify to apply for a “provisional waiver” for unlawful presence. In fact, Maribel also does not qualify to apply at the consulate for a “regular” unlawful presence waiver, because she does not have a U.S. citizen or LPR spouse or parent, as required for either waiver. Example: Would it help if Maribel married her LPR fiancé? Yes, Maribel would qualify to apply for a “provisional waiver” on the basis of the extreme hardship that would be

Chapter 6

207

Chapter 6

Immigrant Legal Resource Center May 2019

suffered by her LPR spouse. She would receive a provisional decision on her waiver before travelling abroad to her consular interview. UNDERSTANDING THE DIFFERENCES BETWEEN REGULAR AND PROVISIONAL WAIVERS Regular I-601 Waiver

Provisional I-601A Waiver

Where can it be used?

AOS with USCIS, Consular Consular Processing only Processing, Immigration Court

When can it be used?

After Consular Interview once Prior to Departure from US to Bar Is Identified attend Consular Interview but IV fees must be paid first.

Who is eligible to apply?

Beneficiary of Any Visa Petition or Diversity Visa applicant

Beneficiary of Any Visa Petition or Diversity Visa Registrant

Who Can be Qualifying Relative?

USC or LPR spouse or parent

USC or LPR spouse or parent

What does it waive?

Any eligible ground of Unlawful presence only inadmissibility except those (3/10-year bar) requiring form I-212 “consent to reapply for admission” after a deportation or due to 212(a)(9)(C) waiver requirements.

What has to be shown?

Extreme Hardship to USC or LPR spouse or parent

Extreme hardship to USC or LPR spouse or parent

PRACTICE TIP: Because visa applicants are often subject to more than one ground of inadmissibility, each potential “provisional waiver” applicant must be carefully screened. The provisional waiver does not waive the “permanent bars” for unlawful reentry or attempt to reenter after accruing a year of unlawful presence in the aggregate, or after a prior removal or deportation. If this basis for inadmissibility, or any other, should come to light at the consular interview, the applicant will be stuck abroad and ineligible to reenter, despite having an approved “provisional waiver.” The provisional waiver will be revoked, and the applicant’s only option is to file a regular waiver application from abroad. However, in the case of a ‘permanent bar’ the applicant is ineligible to file for a waiver of the “permanent” bar until she spends ten years outside of the US. Example: Monica first entered the U.S. in 2005 without inspection. She left in 2010 because her mother was gravely ill. Monica returned to the U.S., again without inspection, one month later. She is ineligible for the provisional waiver because she is subject to the “permanent bar,” and in fact is ineligible for any waiver until she has been outside the U.S. for ten years.

208

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

Example: John entered the U.S. with a fake green card. He now wants to apply for a provisional waiver because he is married to a U.S. citizen, who has filed a visa petition on his behalf. John, however, is ineligible for a provisional waiver, because he is inadmissible on another basis, for “visa fraud.” He is, however, eligible to apply for both the three/ten-year unlawful presence bar waiver and a visa fraud waiver abroad, after his consular interview. Whether he should in fact go to a consular interview and then apply will depend on the strength of his particular waiver case. Procedures to apply: 1. After paying the visa fees, the applicant must notify the National Visa Center (NVC) that she is applying for the provisional waiver by sending an e-mail to [email protected]. 2. The form for the provisional waiver is I-601A; check the www.uscis.gov website for the current filing fee. 3. The waiver applicant must show extreme hardship to that U.S. citizen or LPR spouse or parent should the applicant not be granted a waiver and unable to live as a lawful permanent resident in the U.S. See § 6.13 infra and the ILRC’s Hardship in Immigration Law manual. Potential problems: “Reason to Believe Inadmissible.” USCIS will deny the provisional waiver if it has “reason to believe” that the applicant is inadmissible on some other ground. The provisional waiver only waives the unlawful presence bars and is not available to applicants who have triggered any other ground of inadmissibility. Implementation of this provision has been problematic during the initial implementation of the provisional waiver, particularly in cases where a criminal record existed but no ground of inadmissibility was triggered. For example, an arrest without a conviction or a juvenile conviction could be enough for USCIS to determine it has reason to believe the applicant may be inadmissible for a crime involving moral turpitude. USCIS released guidance in 2014 62 to ensure that otherwise approvable waivers were not denied on this basis. In particular, officials must do a full analysis of criminal issues to determine whether they even constitute a crime involving moral turpitude before denying a provisional waiver. In addition, an analysis must be done to ascertain whether a criminal conviction fits within the ‘youthful offender’ or ‘petty offense’ exception such that it would not impact inadmissibility, and thus eligibility for the provisional waiver. While the reason to believe standard can still present challenges to applicants with criminal and fraud or misrepresentation issues in their cases, the 2014 guidance ensures that a full assessment will be done before denying a provisional waiver. Example: Marina was petitioned by her U.S. citizen wife who is also her qualifying relative for a provisional waiver of the 10-year bar for unlawful presence. Marina was convicted of shoplifting in 2003, which is a misdemeanor and a crime involving moral turpitude and was sentenced to community service. Because it is her only criminal offense and carries a maximum sentence of 6 months in jail, the conviction falls within 62

USCIS, Guidance Pertaining to Applicants for Unlawful Presence Waivers, January 24, 2014, available at www.uscis.gov/sites/default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_Guidanc e_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_Waivers-final.pdf.

Chapter 6

209

Chapter 6

Immigrant Legal Resource Center May 2019

the petty offense exception. Marina is eligible to apply for a provisional waiver because even though she has a criminal conviction it does not trigger an additional ground of inadmissibility. No reinstatement of provisional waiver if a consular officer determines additional inadmissibility. If a consular officer determines that an applicant is inadmissible on another ground, the provisional waiver approved by USCIS will be automatically revoked. The new regulation does not make any provision for reinstating a provisional waiver if the consular officer’s determination is overturned. The provisional waiver applicant will have no opportunity to file a motion to reopen, reconsider or appeal the decision. Example: Ronaldo is granted a provisional waiver. At his medical exam at Ciudad Juarez, the doctors determine he is a risk to himself or others based on the health-related grounds, due to a DUI in his record from six months before. The consular officer finds him inadmissible, and he loses his provisional waiver approval for unlawful presence. Ronaldo will need to apply for the unlawful presence waiver again through the regular waiver process, as well as document that he should no longer be subject to the healthrelated grounds of inadmissibility. He will have to remain in Mexico during the pendency of his case. Example: After she was granted a provisional waiver, Lucia attended her consular interview in Guatemala City. Her provisional waiver was revoked immigrant visa application was denied because it was determined she was also inadmissible under the “smuggling” ground because her 16-year-old daughter entered the U.S. illegally after Lucia had already arrived here herself. Example: Pablo is the primary breadwinner for his family. He and his U.S. citizen wife have five children and Pablo makes barely enough to support the family. His U.S. citizen children have in the past qualified for and received food stamps and TANF when Pablo suffered unemployment. Though Pablo submitted a joint sponsor affidavit of support that clearly shows sufficient income, the Consular Officer decides that alone is not sufficient evidence that Pablo is not likely to become a public charge, and revokes the provisional waiver, denying Pablo on the basis of public charge inadmissibility. Pablo will need to submit additional evidence (that he should have brought with him to the interview and presented prior to any denial) that he is not in fact likely to become a public charge and try to get the Consulate to rescind the decision revoking his provisional unlawful presence waiver. Otherwise he will need to wait abroad while the waiver is adjudicated in the U.S. If a USCIS field office still exists in the jurisdiction of the Consulate, it may be possible for Pablo to request that field office to adjudicate his I-601 on an expedited basis if he qualifies, such as due to a serious medical condition of one of his children. Administrative closure required if the applicant is in removal proceedings. The court must first administratively close the case before a provisional waiver can be granted. Then, before the applicant leaves the U.S. for her visa interview, the case should be re-calendared, and proceedings terminated or dismissed. Failure to do so could create problems for the applicant while travelling and prevent the applicant’s re-entry with the provisional waiver. An “administrative closure” order is not the same as a “termination” order, since with “administrative closure” the person remains in removal proceedings. However, at this writing, the Attorney General has instructed the 210

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

Immigration Courts to deny requests for administrative closure, except in certain very limited circumstances which do not include pending or potential applications for provisional waivers. 63 Example: Sally’s U.S. citizen mother petitioned for her and the I-130 is approved. Sally was in removal proceedings back in 2016, but her case was “administratively closed” and she was granted “prosecutorial discretion.” Sally can apply for a provisional waiver now since her case is already “administratively closed,” and her priority date is current on the “dates for filing” chart in the Dept. of State’s Visa Bulletin. But after her waiver is approved, she must ask the Immigration Court and the Office of Chief Counsel to put her case back on the Court calendar and “terminate” proceedings, before she departs the U.S. for her consular interview. PRACTICE TIP: While it is clear that DHS envisioned EOIR agreeing to terminate proceedings in these cases, there is no rule requiring that EOIR do so, and as of this writing, the Office of Chief Counsel for ICE, (OCC) is no long agreeing to terminate in many cases. Alternatively, after the provisional waiver is granted, an applicant who applied while her case was administratively closed could ask for the removal case to be recalendared, and then accept voluntary departure, though the regulations only discuss termination or dismissal. The case is dismissed without a final order of removal should an applicant accept voluntary departure and comply, but termination is preferable. Those with temporary protected status (TPS) or deferred action do not qualify if they have a prior order of removal. Those applicants with TPS who live in the Ninth or Sixth Circuits should not consular process, but rather should apply for adjustment of status where possible, as TPS is considered an “admission” by those Circuit Courts. 64 The Eleventh Circuit reached the opposite conclusion, despite the fact that the statutory language for TPS appears to clearly contemplate that a grant of TPS equals an “admission.” Advocates in other Circuits may want to try this pathway as well and apply for adjustment of status, particularly for clients presently in removal proceedings. Otherwise, outside the Sixth and Ninth Circuits, or for those with “deferred action,” compelling cases might consider the possibility of reopening their old removal, deportation or exclusion proceedings and requesting administrative closure in order to qualify for a “provisional waiver,” and later, termination. However, this would likely need to be negotiated in advance with the Office of Chief Counsel (OCC) and even then, may not be presently possible due to the directive from the Attorney General against administrative closure in most cases.65 In Matter of Castro-Tum, the Attorney General specifically noted that administrative closure for

63 Some advocates are considering making the argument that placement on a Court’s “status docket” should be considered the same as an administrative closure for purposes of the provisional waiver. Not all Immigration Courts are utilizing a “status docket,” however, nor do we know yet if this argument will be successful. See also the American Immigration Council and ACLU’s Practice Advisory, “Administrative Closure Post-Castro-Tum” (June 14, 2018), at https://americanimmigrationcouncil.org/sites/default/files/pr actice_advisory/administrative_closure_post-castro-tum.pdf. 64 Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), Flores v. USCIS, 718 F.3d 548 (6th Cir.2013). 65 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

Chapter 6

211

Chapter 6

Immigrant Legal Resource Center May 2019

purposes of applying for a provisional waiver is not authorized by a Dept. of Justice regulation or court settlement. 66 Those with criminal issues are a high priority for referral to ice and immigration court if denied. USCIS has a new referral policy on issuing NTAs as of June 2018. 67 The current policy contemplates referrals to ICE in all denied cases for any immigration benefit. 68 The “NTA memo” also lists situations including public safety concerns, criminal convictions and fraud which are a high priority for removal. Ineligibility due to pre-January 3, 2013 Department of State notice scheduling an immigrant visa interview. In such cases, regardless of whether the interview has subsequently been rescheduled or cancelled, the applicant is not eligible for a provisional waiver in conjunction with that particular visa petition. However, there is still a possibility of filing a provisional waiver application, if a new visa petition is filed. The regulations provide that a person who is ineligible because of a previously scheduled interview may qualify if “(1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or (2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.” Based on this guidance, some applicants are requesting termination of prior visa petitions to pursue a new filing by the same petitioner. If a new petitioner files an I-130, terminating the prior visa is not necessary. This strategy, of course, requires paying all fees again. The other option is to continue with the consular process, filing a traditional I-601 waiver after attending the consular interview. Example: Federica has an approved I-130 filed by her U.S. citizen husband. She paid the visa fees, submitted her documentation, and received a notice dated January 1, 2013, scheduling a visa interview for her on January 20th, 2013. Federica did not go to her scheduled interview and remained in the U.S. She can ask DOS to terminate her immigrant visa registration and then her husband must refile a new I-130 for her, with new filing fees, in order to qualify her for the provisional waiver. ADJUDICATION OF THE PROVISIONAL WAIVER Denial. The denial of a provisional waiver by USCIS may be because the applicant is not prima facie eligible or failed to show sufficient hardship to a qualifying relative. If otherwise eligible and additional evidence can be presented, an applicant can reapply for a provisional waiver. Because the hardship standards of both the provisional and regular waivers of unlawful presence are identical, if there was not sufficient evidence of hardship to approve the provisional waiver, it would not be in the applicant’s interest to pursue a regular waiver from abroad, reapplication from within the U.S. would be optimal. However, due to the current NTA memo, it may be that if 66

Id. The current USCIS NTA referral policy, “United States Citizenship and Immigration Services, Policy Memo, Updated guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018),” can be found at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 68 “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” Id. 67

212

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

the provisional waiver is denied, the applicant will be placed in removal proceedings and then have more difficulty filing another provisional waiver due to the waiver regulation requirement that removal proceedings be administratively closed by the Immigration Court, before the I-601A waiver is submitted and accepted. Approval. Approval of a provisional waiver does not confer any status or benefit on the applicant. The applicant is not, as a result, authorized for employment or for travel aboard. Furthermore, it does not protect the applicant from accruing unlawful presence or from being placed in removal proceedings. An approved provisional waiver solely avoids the necessity of waiting abroad for an I-601 regular waiver to be approved after the consular interview, where the only ground of inadmissibility is the three and/or ten-year unlawful presence cars. Only final approval of the immigrant visa application at the consulate and the applicant’s subsequent entry as a lawful permanent resident confers permanent status and related benefits. Revocation of previously approved waiver. An approved provisional waiver can be revoked at the consulate if the underlying visa petition is denied (for example, a marriage is found to not be bona fide) or otherwise invalid or revoked. Furthermore, criminal issues in the interim period between approval of the waiver and the consular appointment can trigger additional grounds of inadmissibility that will lead to the revocation of the provisional waiver. Similarly, subsequent unauthorized entries into the U.S. will also cause the provisional waiver to be revoked. Applicants should be advised that provisional approval merely allows them to proceed with normal consular processing and subsequent acts can impact the waiver, as well as prior acts not considered by USCIS in the process of approving the I-601A. 69 C.

Waiver of the “permanent bar” for persons who re-enter unlawfully after removal or one-year unlawful presence

People inadmissible under INA § 212(a)(9)(C)(i) can apply for an I-212 waiver, but not until ten years after their last departure from the United States. INA § 212(a)(9)(C)(ii). This “waiver” is technically termed “consent to reapply for admission.” Example: Joan entered the United States in January 2006 and has lived without lawful status in the United States with her U.S. citizen husband since then. She left in December 2009 and returned without inspection two weeks later. What grounds of inadmissibility apply to her? Joan is subject to the ten-year bar because she was in the United States without lawful status for more than a year and then she left. 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 to apply for a waiver of this latter ground of inadmissibility until she remains outside of the U.S. for ten years. 70 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 69

See 9 FAM 302.11-3(D)(1) for guidance followed by Consular Officers with respect to unlawful presence provisional waivers. 70 9 FAM 302.11-4.

Chapter 6

213

Chapter 6

Immigrant Legal Resource Center May 2019

after her periods of unlawful presence add up to more than a year. Note also that, 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 United States before departing and returning illegally may be subject to the permanent bar. 71 D.

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. INA § 212(a)(9)(A)(iii). This is done by filing a Form I-212 and supporting documentation with the USCIS field office with jurisdiction over the location of the Immigration Court which ordered the removal or deportation. 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 United States, and reinstatement of removal. Example: Jake entered the United States in January 2005 with a tourist visa. He was deported in 2011. He remained in the country to which he was ordered deported and removed, where he met and married his U.S. citizen wife in 2018. Jake can apply for a waiver of his prior removal, since less than 10 years have passed since his removal and deportation, to permit him to consular process and, if approved, enter the U.S. as a lawful permanent resident. People who are in the United States—as opposed to outside the United States immigrating though a U.S. consulate—may not be able to apply for a waiver of a prior deportation or removal because USCIS can reinstate the prior removal order and deny most forms of relief. Some USCIS 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 United States. IMPORTANT WARNING: 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 United States illegally. Once the person has illegally reentered, the USCIS 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 withholding of removal (presently termed “restriction on removal” in the statute) or relief under the Convention Against Torture (CAT). 72 See INA § 241(a)(5). The U.S. 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. Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 165 L.Ed. 2d 323 (U.S. 2006). After this Supreme Court decision, the 9th and the 10th Circuit Courts have held that 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 71 The U.S. Consulates to date do NOT exempt minors from the permanent bar. It is possible that the Consulates may decide differently in the future, but be very careful in advising clients with this problem, including minors. 72 See Chapter 5, ILRC’s Essentials of Asylum Law for information on withholding or restriction on removal and CAT relief.

214

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

applying for adjustment of status. Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011), Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007). Three other courts had ruled in the same way previous to the Supreme Court decision in Fernandez-Vargas in cases with similar facts. FaizMohammad 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). This exception does not apply to very many people. Thus, in practice, a person who has re-entered the United States illegally 73 after being deported or removed is not likely to get a chance to apply for a waiver of the prior deportation or removal in an application for adjustment of status. The USCIS 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 USCIS. Example: Gregorio is a Mexican national who first entered the United States in 1992. In 1994 he was placed in deportation proceedings and deported. He returned to the United States 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 INA § 245(i). He also subsequently filed an I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal. See § 6.12 for more information about Form I-212. In cases like this, once the USCIS realizes that Gregorio was deported and re-entered without permission, it will likely refer him to ICE for reinstatement of his deportation order and will remove him without allowing him to pursue adjustment of status. WARNING: If you have a client who has applied for adjustment, but is subject to reinstatement of removal, and the client is sent a request for an interview at USCIS that is not a standard adjustment interview notice, your client may very well be detained and removed if he or she goes to the interview. Clients can also be detained by ICE and removed at the time of the adjustment interview. In such cases, it may be best for the client not to appear at the interview and/or withdraw the application for adjustment. In any case, clients should be advised about the possibility of reinstatement. Individuals deported before April 1, 1997 were told at the time of their deportations that they were inadmissible for five years while those who were excluded were told that they were inadmissible for one year, which is what the statute required at that time. However, IIRIRA’s subsequent provisions regarding prior removals (including those who left pursuant to exclusion or deportation orders) are retroactive and these individuals are subject to the higher penalties of having to stay out of the country for at least five years for those with exclusion orders and ten years for those with deportation orders. The USCIS has stated that unless there are negative factors, it will grant an I-212 waiver if the person has already stayed out the one year after having been excluded from the United States or five years after having been deported. In other words, the USCIS appears to be willing to give a break to people who already have remained out of the U.S. 73

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.

Chapter 6

215

Chapter 6

Immigrant Legal Resource Center May 2019

at least as long as they were required to before IIRIRA passed. However, the USCIS is not likely to take this position for those who re-entered the U.S. illegally, since those individuals would also be subject to reinstatement of removal. Note also that there is no time restriction as to when the USCIS can grant a waiver. If the applicant could persuade the USCIS to do so, it could grant a waiver for any person inadmissible under this ground on the day after the person was removed. 74 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, USCIS will consider such factors as the person’s character, the hardship to family members, the 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 371 (Reg. Comm’r. 1973) and Matter of Lee, 17 I&N Dec. 275 (Comm. 1978). CAUTION: Several penalties apply to people who fail to attend their removal hearing, depart after the expiration of voluntary departure, or fail to comply other laws relating to removal and deportation. See Chapter 3. § 6.11 Waiver of Deportability for Victims of Domestic Violence Added by VAWA 2000, INA § 237(a)(7) provides for a waiver of the domestic violence ground of deportability found in INA § 237(a)(2)(E)—with the exception of crimes of child abuse—for a person “who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship.” This provision requires a determination that: 1. The person was “acting in self-defense” 2. The person was found to have violated a protection order intended to protect himself or herself; or 3. The person committed, was arrested, convicted or pled guilty to a crime that a. Did not result in serious bodily injury AND b. There was a connection between the crime and the person having been battered or subjected to extreme cruelty. This waiver tracks the VAWA provisions for proving that a person is indeed a “battered spouse” eligible for deferred action and ultimately residency under VAWA. In that regard, the statute specifically states that “any credible evidence” will be considered in deciding the waiver application. Example: Delia, an LPR, was convicted of a domestic violence related assault after years of being battered by her husband. He hit her and she threw a plate at him, causing a lump on his head. She should be able to qualify for the waiver with some credible evidence of 74

Note that the inadmissibility ground under INA § 212(a)(9)(A) is distinct from the inadmissibility ground for failure to attend removal proceedings under INA § 212(a)(6)(B). This ground of inadmissibility has no waiver provision. Thus, someone who fails to appear, without reasonable cause, and receives an in absentia order of removal will not be eligible for a waiver for 5 years. See INA § 212(a)(6)(B).

216

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

the ongoing abuse she had been suffering. Such evidence could include her own detailed and credible declaration and would be made even stronger by an evaluation and opinion by a mental health professional who is knowledgeable about domestic violence. § 6.12 “Cancellation of Removal” for Lawful Permanent Residents with Seven Years’ of Continuous Residence As of April 1, 1997, cancellation of removal under INA § 240A(a) replaced former INA § 212(c) as a special form of relief for long-time permanent residents who are found to be either inadmissible or deportable. The applicant must: • • •

Be a permanent resident for at least five years; Have maintained continuous residence in the United States for seven years after lawful admission in any status; and Not be convicted of an aggravated felony.

If a person is charged with being inadmissible or deportable in removal proceedings, section INA § 240A(a) can forgive (cancel removal based on) any ground of inadmissibility or deportability other than conviction of an aggravated felony. Document fraud, drug addiction, conviction of possession of a firearm, etc. all can be waived at the judge’s discretion. SPECIAL NOTE: Alien smuggling and INA § 240A(a) cancellation of removal. Alien smuggling, whether for gain or otherwise, can be waived under INA § 240A(a) cancellation if the person does not have a criminal conviction. However, if a person has actually been convicted of alien smuggling, then unless it’s a first offense and the person was assisting only his or her spouse, child, or parent, the smuggling conviction is likely an aggravated felony [see INA § 101(a)(43)(N)]. People with aggravated felonies are not eligible for cancellation of removal. There is a strict cut-off date for the required seven-year period of continuous residence, but not the required five years of permanent residency. The seven-year “continuous residency” period starts after “lawful admission” in any status, not just as a lawful permanent resident. The sevenyear continuous residency time stops either when the Notice to Appear for a removal hearing is served, or when the person commits an offense listed in INA § 212(a)(2) that renders him or her inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2) or (a)(4). INA § 240A(d)(1). For further information on cancellation of removal for lawful permanent residents, see the ILRC’s publication Remedies and Strategies for Permanent Resident Clients. 75 REMEMBER, all non-citizens could be eligible for other forms of relief. Although many grounds of inadmissibility do not have waivers, some inadmissible immigrants present within the United States could still apply for non-LPR cancellation of removal in front of the immigration judge. This form of relief requires that the person has 10 years continuous physical presence in the United States; has 10 years good moral character; is not otherwise barred by certain criminal convictions; and can show exceptional and extremely unusual hardship to a qualifying family member. This form of relief, along with LPR cancellation, is discussed in detail in ILRC’s publications Removal Defense: Defending Immigrants in Immigration Court and also Hardship in 75

See ILRC’s website www.ilrc.org/publications to order this manual.

Chapter 6

217

Chapter 6

Immigrant Legal Resource Center May 2019

Immigration Law. If your client is facing removal, and not just applying for residency, it is important to screen for and consider all possible forms of relief—not just the waivers discussed in this chapter. § 6.13 General Procedures for Applying for Waivers of Inadmissibility When someone is applying for an immigrant visa, the consular or USCIS official will decide whether the person is inadmissible at an interview. If the official finds that the applicant is inadmissible, and a waiver is available, the applicant will be instructed on the procedure for filing the waiver application. People immigrating through a U.S. consulate abroad generally must wait until after the visa interview to file the I-601 waiver application with USCIS in the United States, unless the only waiver being requested is a provisional waiver for departures after unlawful presence. It is also possible that a waiver of a prior deportation may be accepted for adjudication in advance of the visa interview, depending on the current policy and practice of the particular local USCIS field office with jurisdiction over the waiver. For those who are adjusting status in the United States, the waiver may be filed concurrently with the Form I-485 adjustment of status application. However, if there is any doubt that the person really is inadmissible, he or she should consider waiting for the officer to bring up the subject, instead of volunteering the waiver. Some adjustment applicants may want to wait until the adjustment interview to file the waiver. However, if clearly inadmissible, the waiver should be filed up front. Also note that the failure to file a waiver when the adjustment applicant is clearly inadmissible could trigger additional review and even the potential for removal proceedings at the time of naturalization if no waiver was requested or filed at the time of adjustment. Immigrant visa waivers for inadmissibility, except for the waiver of a prior deportation, are filed on Form I-601. The person submits the I-601, the fee (check the USCIS website for the current fee required), and the supporting documents to USCIS as directed by the website filing instructions. All waivable grounds of inadmissibility should be included with the same waiver, except for the waiver of a prior deportation, exclusion or removal, and the waiver for the 212(a)(9)(C) “permanent bar” after the applicant has been outside the U.S. for ten years, as these “waivers” are filed on form I-212 instead. The applicant herself or her relative or attorney must submit the waiver package to USCIS for a decision. Unfortunately, it will often take the USCIS office several months to approve the waiver. Generally, during that time the person will be stuck outside the United States. 76 Clients must be warned that if they return to the U.S. illegally while the waiver is being adjudicated they may become subject to the “permanent bar” of INA § 212(a)(9)(C). 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 ILRC’s manual Parole in Immigration Law. When the Form I-601 is approved, USCIS 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 76

The exception to this is the provisional waiver for a departure after accumulating 180 days/1 year of unlawful presence, which presently may be filed within the U.S. prior to the immigrant visa interview.

218

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

second appointment, though the applicant may need to affirmatively request the appointment online or via email depending on the particular consulate. As previously described in this chapter, those who are or will be inadmissible solely for a departure after 180 days (3 year bar) or one year (10 year bar) of unlawful presence, and are otherwise eligible for the provisional waiver described above in § 6.10(B), supra may apply for this waiver in the U.S. prior to the consular visa interview. People who will become inadmissible upon departure solely because of executing a past deportation or removal order, may also be allowed to apply for a waiver of that ground of inadmissibility before leaving the United States. This waiver or “consent to reapply for admission” application is submitted on Form I-212, not Form I-601. However, if the visa applicant will need another waiver in addition to the consent to reapply after deportation or removal waiver or the provisional waiver, she will need to submit these waivers from abroad after her visa interview. As USCIS has routinely changed its view on the timing of I212 waivers, you should check to determine if applicants can apply for a waiver before leaving the United States in your jurisdiction. Bear in mind that anyone who was previously deported and then illegally re-entered the United States after April 1, 1997 is subject to the permanent bar and may face very serious problems including ineligibility to presently immigrate If USCIS denies an application for a waiver, you may appeal the case to the Administrative Appeals Unit (AAU). It also may be possible to request that a revoked provisional waiver due to another ground of inadmissibility such as “likely to become a public charge,” be readjudicated as a “regular” I-601 waiver on an expedited basis with an “exception” to the normal filing location. This request would be made to the USCIS field office abroad associated with the Consulate that denied the immigrant visa, once the additional ground of inadmissibility is overcome, or if it is included in the new I-601 waiver. There are particular requirements for this exception to normal filing and expediting the request. 77 Note that DHS has recently announced the intended closure of its international USCIS field offices, so this possibility may not be available in the future. The I-601 and the I-212 are 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 USCIS should grant the waiver in its discretion (e.g., legal argument, 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 USCIS grant the waiver. An example of a successful I-601 request for a waiver of unlawful presence is reproduced in Appendix L. 78

77

See “Exceptions for Permitting the Filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, and any associated Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, at International USCIS Offices” (May 31, 2012), found at https://www.hsdl.org/?abstract&did=713940. 78 Some documents in the original waiver application are not included for privacy and space considerations. However, a list of all the documents that were submitted is included to show what a good waiver application should contain.

Chapter 6

219

Chapter 6

Immigrant Legal Resource Center May 2019

§ 6.14 How Do You Establish 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.” USCIS 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 himself or herself. Note, however, that unlike the law in extreme hardship for suspension of deportation, the unlawful presence waiver and the visa fraud waiver will only examine hardship to the inadmissible person’s spouse or parent, not to themselves, nor is hardship to children considered. INA § 212(a)(9)(B)(v), except in the case of VAWA applicants. 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. 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. Example: Jaime is immigrating his wife Lupe who has spent two years in the United States undocumented (after April 1, 1997). 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 ten-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, the BIA and the courts have examined what constitutes extreme hardship. In finding hardship, they have looked at how the separation of family members affects the qualifying relative. Because federal courts no longer have jurisdiction over discretionary decisions, practitioners should look to recent BIA decisions, in addition to previous court decisions, to see how extreme hardship has been defined. The BIA, for example, has sometimes given 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, both the courts and the BIA 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 United States without the applicant. Family separation and “financial inconvenience” are not enough. The courts and the BIA do not look at just one factor but at all the factors taken together, referred to as the “totality of the circumstances.”. This is very important, because individual factors may not, by themselves, amount to extreme hardship, but when taken together with all the other facts and circumstances of a person’s situation may add up 220

Chapter 6

Chapter 6

Inadmissibility & Deportability May 2019

to extreme hardship. See Matter of Recinas, 79 which is discussed at length in ILRC’s Hardship in Immigration Law and in Unit 11 of ILRC’s Guide for Immigration Advocates. It is important to submit evidence of extreme hardship in “both directions”—i.e., the hardship that will occur if the qualifying family member remains in the United States without the applicant and also the hardship that will occur if the qualifying family member leaves the United States and accompanies the applicant to his or her own country. In deciding whether to grant the waiver the USCIS 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 USCIS 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. Appendix J is a very simplified declaration in support of a waiver of the unlawful presence bar in INA § 212(a)(9)(B), which we have included to illustrate some key points about waiver applications in the following examples: Example: 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. 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). It is also important to consider whether certain types of evidence of financial hardship could later cause problems with regard to “public charge” inadmissibility. Example: 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 law relating to waivers limits who qualifies as a relative. For example, the unlawful presence and visa fraud waivers require hardship to a U.S. citizen or lawful permanent resident parent or spouse. Hardship to one’s children is not included. This does not mean that you cannot mention non-qualifying relatives. If the hardship to non-qualifying relatives affects qualifying relatives, then the examiner must consider it. Example: 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 79

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) is a cancellation of removal case, where the hardship standard is “exceptional and extremely unusual,” but it is very useful for arguing in favor of waiver applications, where the lesser “extreme hardship” standard applies.

Chapter 6

221

Chapter 6

Immigrant Legal Resource Center May 2019

mother unhappy will make him feel. He includes a description of 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 impossible to have a boilerplate form. Advocates, however, can begin by asking a standard series of questions designed to elicit the information needed to start 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. For an example of a very well-prepared (and successful) waiver application, including a much more detailed declaration than the above example, see Appendix L.

222

Chapter 6

Tab Position 1

Inadmissibility & Deportability May 2019

INADMISSIBILITY & DEPORTABILITY 5TH EDITION INDEX OF APPENDICES

Appendix C Appendix D Appendix E Appendix F Appendix G

Appendix H Appendix I

Appendix J Appendix K Appendix L

For Further Information Quick Reference Charts on Grounds of Inadmissibility and Deportability: Prior Statutory Sections and chart for which sections have waivers and which impact good moral character. Form I-864P, 2019 HHS Poverty Guidelines for Affidavit of Support Obtaining Criminal Record Checks Requesting Files through FOIA Unlawful Presence FAQs May 6, 2009 CIS Interoffice Memorandum, titled: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act USCIS Public Charge Fact Sheet USCIS Adjudicators Field Manual Chapter 40.6, Section 212(a)(6) of the Act – Illegal Entrants and Immigration Violators; USCIS Policy Manual Volume 8, Part J (Fraud and Willful Misrepresentation) and Part K (False Claim to U.S. Citizenship) Declaration in Support of Waiver of Unlawful Presence Bar to Admissibility USCIS Vaccination Requirements Sample Successful Waiver Application

Appendices

Appendix A Appendix B

223

Appendices 224

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

APPENDIX A FOR FURTHER INFORMATION FOR FURTHER GENERAL INFORMATION, see: National Lawyers Guild, Immigration Law and Defense (West Group) Chapters 5, 6

Appendices

American Immigration Law Association (AILA), Kurzban’s Immigration Law Sourcebook (www.aila.org, click on “Publications”) FOR UPDATES, see: The Immigrant Legal Resource Center’s website: www.ilrc.org. Please check individual sections in the “Areas of Expertise” tab for specific issue areas. The Legal Action Center of the American Immigration Council’s website: www.legalactioncenter.org posts up to date advisories on changes in the law and policy, as well as litigation updates. 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). Additionally, the ILRC maintains updates on criminal issues arising in immigration law at www.ilrc.org/crimes. 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) Immigration Advocates Network (IAN), Immigration and Crimes Resource Library (www.immigrationadvocates.org; note, membership required) FOR INFORMATION ABOUT HEALTH GROUNDS, see: Center for Disease Control (www.cdc.gov) “The Technical Instructions for Medical Examiners of Aliens” (www.cdc.gov). Daniel Levy, “Exclusion Grounds under the Immigration Act of 1990 (Part I),” Immigration Briefings, August 1991 (Federal Publications, Inc.). Immigration Briefings is available at law libraries or private immigration offices. The ILRC maintains updates on public charge at www.ilrc.org/public-charge. The National Immigration Law Center (NILC) also houses resources on health and immigration at www.nilc.org.

Appendix A

225

APPENDIX B

Appendices

GROUNDS OF DEPORTATION UNDER IIRIRA, IMMACT, AND PRE-1990 LAW

226

GROUND

IIRIRA

IMMACT 1990

Immigration violations

§ 237(a)(1)(A)

§ 241(a)(1)(A)

Inadmissible/Excludable at entry

§ 237(a)(1)(A)

§ 241(a)(1)(A)

§ 241(a)(1)

Entered without inspection

----

§ 212(a)(1)(B)

§ 241(a)(2)

Present in violation of the law

§ 237(a)(1)(B)

----

----

Violated status

§ 237(a)(1)(C)

§ 241(a)(1)(C)

§ 241(a)(9)(A)

Termination of conditional residency

§ 237(a)(1)(D)

§ 241(a)(1)(D)

§ 241(a)(9)(B)

Alien smuggling (for gain)

§ 237(a)(1)(E)

§ 241(a)(1)(E)

§ 241(a)(13)

RAW does not maintain required agricultural employment

----

§ 241(a)(1)(F)

§ 241(a)(20)

Marriage fraud

§ 237(a)(1)(G)

§ 241(a)(1)(G)

§ 241(a)(9)(B)

Criminal Offenses

§ 237(a)(2)

§ 241(a)(2)

Crimes involving moral turpitude

§ 237(a)(2)(A)

§ 241(a)(2)(A)(i)(ii) § 241(a)(4)

Aggravated felony

§ 237(a)(2)(A)(iii) § 241(a)(2)(A)(iii)

§ 241(a)(4)

High speed flight

§ 237(a)(2)(A)(iv) ----

----

Drug conviction

§ 237(a)(2)(B)(i)

§ 241(a)(2)(B)(i)

§ 241(a)(11)

Drug abuser or addict

§ 237(a)(2)(B)(ii)

§ 241(a)(2)(B)(ii)

§ 241(a)(11)

Firearm convictions

§ 237(a)(2)(C)

§ 241(a)(2)(C)

§ 241(a)(14)

Miscellaneous crimes (espionage, Selective Service, sabotage)

§ 237(a)(2)(D)

§ 241(a)(2)(D)

§ 241(a)(17)

Domestic violence, stalking, child abuse

§ 237(a)(2)(E)(i)

-----

-----

Violations of protection orders

§ 237(a)(2)(E)(ii)

-----

-----

Failure to register as an alien, conviction for falsification of documents

§ 237(a)(3)

§ 241(a)(3)

§§ 241(a)(5), (15), (16)

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 B

PRE-1990

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

GROUNDS OF INADMISSIBILITY, GOOD MORAL CHARACTER BARS, AND WAIVERS This chart lists where to find the various grounds of inadmissibility in the INA. The “GMC” column indicates whether the ground is also a bar to good moral character under INA §101(f). The waiver column indicates whether the ground has a specific waiver, but don’t forget that some forms of relief are still possible for clients facing grounds that do not have specific waivers. SECTION

GMC WAIVER

Health Grounds

§ 212(a)(1)

Communicable disease

§ 212(a)(1)(A)(i)

Yes (g)(1)

Vaccination

§ 212(a)(1)(A)(ii)

Yes (g)(2)

Physical or mental disorder that may pose a threat

§ 212(a)(1)(A)(iii)

Yes (g)(3)

Drug abuse or addiction

§ 212(a)(1)(A)(iv)

No

Criminal Related Grounds

§ 212(a)(2)

Crime involving moral turpitude

§ 212(a)(2)(A)(i)(I)

--youth, petty offense exceptions

§ 212(a)(2)(A)(ii)

Drug conviction

X

Yes (h)

§ 212(a)(2)(A)(i)(II)

X

Yes (h)*

2 convictions/5-year sentence

§ 212(a)(2)(B)

X

Yes (h)

“Reason to believe” drug trafficker

§ 212(a)(2)(C)

X

No

Prostitution and commercialized vice

§ 212(a)(2)(D)

X

Yes (h)

Asserted immunity from prosecution

§ 212(a)(2)(E)

Yes (h)

Security, terrorism, related grounds, and participants § 212(a)(3) in Nazi persecution or genocide

No

Public charge

§ 212(a)(4)

213(posting bond)

Labor certification, medical students

§ 212(a)(5)

Immigration violations

§ 212(a)(6), (9)

Present without permission or parole

§ 212(a)(6)(A)**

Failure to attend removal proceedings, 5 year bar

§ 212(a)(6)(B)

Visa fraud or misrepresentation

§ 212(a)(6)(C)

Stowaways

§ 212(a)(6)(D)

Alien smugglers

§ 212(a)(6)(E)

Civil penalty for document fraud

§ 212(a)(6)(F)

Student Visa Abuser, 5 year bar

§ 212(a)(6)(G)

Ordered previously removed, 5/10/20 year bars

§ 212(a)(9)(A)

Yes, (9)(A)(iii)

Unlawful presence, 3/10 year bar

§ 212(a)(9)(B)

Yes, (9)(B)(v)

Unlawful presence after previous immigration violation, permanent- but waivable after 10 years

§ 212(a)(9)(C)

Yes, (after 10 years), (9)(C)(ii)

Appendix B

Appendices

GROUND

*** X

Yes (i) Yes (d)(11) Yes (d)(12)

227

Documentation requirements

§ 212(a)(7)

Yes (k)

undocumented, no valid visa Ineligible for citizenship

§ 212(a)(8)

Miscellaneous

§ 212(a)(10)

Polygamists Accompanying excludable alien

Appendices

International Child Abduction Unlawful Voters Former Citizens who Renounce Citizenship to Avoid Taxation * ** *** ****

228

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 inadmissibility does not apply to good moral character directly, but beware—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.

Appendix B

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

APPENDIX C FORM I-864P, 2019 HHS POVERTY GUIDELINES FOR AFFIDAVIT OF SUPPORT This information is used to determine the minimum income requirement needed to sponsor most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.

Appendices

The information below represents the minimum income requirements when completing Form I864, Affidavit of Support. These guidelines remain in effect from March 1, 2019, until new guidelines go into effect in 2020. Means-Tested Public Benefits Federal Means-Tested Public Benefits: To date, federal agencies administering benefit programs have determined that federal means-tested public benefits include food stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (SCHIP). State Means-Tested Public Benefits: Each state will determine which, if any, of its public benefits are means-tested. If a state determines that it has programs which meet this definition, it is encouraged to provide notice to the public on which programs are included. Check with the state public assistance office to determine which, if any, state assistance programs have been determined to be state means-tested public benefits. Programs Not Included: The following federal and state programs are not included as meanstested benefits: • • • • • • • • •

Emergency Medicaid; Short-term, non-cash emergency relief; Services provided under the National School Lunch and Child Nutrition Acts; Immunizations and testing and treatment for communicable diseases; Student assistance under the Higher Education Act and the Public Health Service Act; Certain forms of foster-care or adoption assistance under the Social Security Act; Head Start programs; Means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act programs.

Appendix C

229

For the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands:

Appendices

Sponsor's Household Size

100% of HHS Poverty Guidelines*

125% of HHS Poverty Guidelines*

For sponsors on active duty in the U.S. armed forces who are petitioning for their spouse or child

For all other sponsors

2

$16,910

$21,137

3

$21,330

$26,662

4

$25,750

$32,187

5

$30,170

$37,712

6

$34,590

$43,237

7

$39,010

$48,762

8

$43,430

$54,287

Add $4,420 for each additional person

Add $5,525 for each additional person

100% of HHS Poverty Guidelines*

125% of HHS Poverty Guidelines*

For sponsors on active duty in the U.S. armed forces who are petitioning for their spouse or child

For all other sponsors

2

$21,130

$26,412

3

$26,660

$33,325

4

$32,190

$40,237

5

$37,720

$47,150

6

$43,250

$54,062

7

$48,780

$60,975

8

$54,310

$67,887

Add $5,530 for each additional person

Add $6,912 for each additional person

For Alaska: Sponsor's Household Size

230

Appendix C

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

For Hawaii: Sponsor's Household Size

125% of HHS Poverty Guidelines*

For sponsors on active duty in the U.S. armed forces who are petitioning for their spouse or child

For all other sponsors

2

$19,460

$24,325

3

$24,540

$30,675

4

$29,620

$37,025

5

$34,700

$43,375

6

$39,780

$49,725

7

$44,860

$56,075

8

$49,940

$62,425

Add $5,080 for each additional person

Add $6,350 for each additional person

Appendices

100% of HHS Poverty Guidelines*

Last Reviewed/Updated: 03/07/2019, https://www.uscis.gov/i-864p

Appendix C

231

APPENDIX D

Appendices

For a fee, the FBI can provide individuals with an Identity History Summary—often referred to as a criminal history record or a “rap sheet”—listing certain information taken from fingerprint submissions kept by the FBI and related to arrests and, in some instances, federal employment, naturalization, or military service. If the fingerprint submissions are related to an arrest, the Identity History Summary includes the name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known. All arrest information included in an Identity History Summary is obtained from fingerprint submissions, disposition reports, and other information submitted by authorized criminal justice agencies. The U.S. Department of Justice Order 556-73, also known as Departmental Order, establishes rules and regulations for you to obtain a copy of your Identity History Summary for review or proof that one does not exist. Only you may request a copy of your own Identity History Summary (or proof that one does not exist). You would typically make this request for personal review, to challenge information on record, to meet a requirement for adopting a child, or to meet a requirement to live, work, or travel in a foreign country. Available Now: Electronic Departmental Order (eDO) The FBI has implemented a new option to electronically submit requests and receive responses for Identity History Summary Checks and Identity History Summary Challenges. The new eDO option will allow for faster processing of requests. Visit https://www.edo.cjis.gov How to Submit a Request The FBI offers three options for requesting your Identity History Summary or proof that one does not exist. Option 1: Electronically Submit Your Request Directly to the FBI Step 1: Go to https://www.edo.cjis.gov. Step 2: Follow the steps under the “Obtaining Your Identity History Summary” section. If you submitted a request electronically directly to the FBI, you will receive a response electronically and an option to receive a response by First-Class Mail via the U.S. Postal Service.

232

Appendix D

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Option 2: Submit Your Request Directly to the FBI via the Mail Step 1: Complete the Applicant Information Form. • • •

Appendices

•

If the request is for a couple, family, etc., each person must complete and sign a form. Include a complete mailing address. Please provide your telephone number and e-mail address, if available. Your results will be provided on standard white paper and returned to you by First-Class Mail via the U.S. Postal Service. Self-addressed envelopes will not be accepted. This includes pre-paid Priority Mail, FedEx account numbers, United Parcel Service, etc., foreign postage coupons, and requests to forward correspondence to the Department of State for the apostille process.

Step 2: Obtain a Set of Your Fingerprints •

• • •

• •

•

• •

Your fingerprints should be placed on a standard fingerprint form (FD-258) commonly used for applicant or law enforcement purposes. The FBI will accept FD-258 fingerprint cards on standard white paper stock. You must provide a current fingerprint card. Previously processed cards or copies will not be accepted. Your name and date of birth must be provided on the fingerprint card. You must include rolled impressions of all 10 fingerprints and impressions of all 10 fingerprints taken at the same time (these are sometimes referred to as plain or flat impressions). If possible, have your fingerprints taken by a fingerprinting technician. This service may be available at a law enforcement agency. Fingerprints taken with ink or via live scan are acceptable. If your fingerprints are taken via a live scan device, a hard copy must be generated so the fingerprint card can be mailed to the FBI. To ensure the most legible prints possible, refer to the Recording Legible Fingerprints page. If fingerprints are not legible, the fingerprint card will be rejected. This could cause delays in processing and could also result in additional fees. The name on your response letter will match the name indicated on the fingerprint card when your application, payment, and fingerprint card are submitted via the mail. If the last four digits of your social security number are needed on your response letter, then please ensure the full nine-digits or last four digits of your Social Security number are on the fingerprint card when submitting your request.

Step 3: Submit Payment • •

Option 1: Pay by credit card using the Credit Card Payment Form. Don’t forget to include the expiration date of the credit card that you are using. Option 2: Obtain a money order or certified check for $18 U.S. dollars made payable to the Treasury of the United States. Please be sure you sign where required.

Appendix D

233

•

Appendices

• • •

• •

Important note: Cash, personal checks, or business checks WILL NOT be accepted and sending any of these will delay processing of your request. Payment must be for the exact amount. If the request is for a couple, family, etc., include $18 for each person. The FBI will provide one sealed response for each request received. You may make as many copies as needed upon receipt of your response. Note: If you need additional sealed responses mailed to the same address or separate address, you must submit an additional request with another payment of $18 for each sealed response requested. Also, if you need additional copies of your response that do not need to be in a sealed envelope, you may make as many copies as needed upon receipt of your response. If you are unable to pay the $18 fee, your request for a waiver of the fee must include a claim and proof of indigence, such as a notarized affidavit of indigence. The FBI will not accept additional payment to expedite your request.

Step 4: Review •

Review the Identity History Summary Request Checklist to ensure that you have included everything needed to process your request.

Step 5: Mail the Required Items Listed Above Mail the required items listed above—signed applicant information form, fingerprint card, and payment of $18 U.S. dollars per person—to the following address: FBI CJIS Division – Summary Request 1000 Custer Hollow Road Clarksburg, WV 26306 What Happens Next If we find no Identity History Summary on file, you will receive a response by First-Class Mail via the U.S. Postal Service indicating that you have no prior arrest data on file at the FBI. If you do have an Identity History Summary on file, you will receive your Identity History Summary or “rap sheet” by First-Class Mail via the U.S. Postal Service.

234

Appendix D

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix D

235

STATE CRIMINAL RECORD CHECK (CALIFORNIA) 1

Appendices

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). 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. It is best to try to get as many records as possible, as different records might yield different information. Many request FBI records, state records, and information from the courts in areas where the person has been arrested. The California Department of Justice provides an automated service for criminal history background checks. 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: For IN STATE Residents:  Fill Out Request for Live Scan Service Form: Your client can obtain the form at fingerprint service locations, or at the following website https://oag.ca.gov/fingerprints/record-review Guidelines for Completing the Form (BCIA RR8016) For California Residents: All California Applicants must submit Live Scan fingerprints. Instructions for the live scan form may be found here: https://oag.ca.gov/sites/all/files/agweb/pdfs/fingerprints/instructions.pdf Use the Live Scan Form (Form BCIA 8016RR, pdf), (BCIA 8016RR Spanish, pdf). •

Check “Record Review” as the “Type of Application”.

•

Enter “Record Review” on the “Reason for Application” line.

•

Fill out all your personal information.

•

Take the completed form to any Live Scan site for fingerprinting services.

Fingerprinting services are available at most local police departments, sheriff's offices or any public applicant Live Scan site. To find the sites nearest to you, their fingerprint rolling fees, and acceptable methods of payment, see Public Live Scan Sites. Out of State Residents: Applicants Living Outside California/United States must submit manual fingerprint cards (Form FD258). Print out the Application to Obtain copy of State Summary Criminal History Record (Form BCIA 8705, pdf) and follow the instructions on the form. A Spanish version of this form is also available (Form BCIA 8705S, pdf). Please contact your local law enforcement agency for fingerprinting services. PLEASE NOTE: Your fingerprint card must contain your full name, date

1

236

For further information see: http://oag.ca.gov/fingerprints

Appendix D

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

of birth, sex and return mailing address. If you are having difficulty in obtaining a blank fingerprint card, please contact the Record Review Unit at (916) 227-3849. Manual submissions must be accompanied by either personal check drawn on a U.S. bank, money order or certified check. The check or money order must be made payable to the “California Department of Justice.” Mail your application, fingerprint card and processing fee to:

Appendices

California Department of Justice Record Review Unit P.O. Box 903417 Sacramento, CA 94203-4170 Once you have received your Record Review response, if you want to challenge the contents of your criminal record, you must complete the "Claim of Alleged Inaccuracy or Incompleteness" (form BCIA 8706), which will be included with your Record Review response if there is criminal information on your record. Mail the completed form, along with a copy of your criminal history record, to the address indicated on the form. Your challenge must specifically state the basis for the claim of inaccuracy or incompleteness and include any available proof or corroboration to substantiate your claim.

Appendix D

237

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

238

Appendix D

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix D

239

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

240

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

241

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

242

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

243

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

244

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

245

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

246

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

247

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

248

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

249

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

250

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

251

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

252

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

253

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

254

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

255

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

256

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

257

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

258

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

259

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

260

Appendix E

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix E

261

Unlawful Presence Frequently Asked Questions (FAQs) Q: What is Unlawful Presence?

Appendices

A: Unlawful presence has to do with time spent in the United States without lawful immigration status. It implicates certain grounds of inadmissibility—specifically, INA §§ 212(a)(9)(B) and 212(a)(9)(C)—and someone can be subject to a three-year bar, a ten-year bar, or a “permanent bar” to admission for being unlawfully present in the United States. These bars are not triggered unless and until the person departs the United States. There are a lot of different rules in terms of which periods of time spent in the United States without lawful status count as “unlawful presence.” Q: When does Unlawful Presence begin to count for purposes of the Three- and Ten-Year Bars? A: Unlawful presence does not begin to accrue for the three- and ten-year bars (or the permanent bar) until April 1, 1997, when the law came into effect. Thereafter, time in the United States without valid status (see exceptions) will accrue unlawful presence, but the bar will not apply unless the person has a departure that triggers the bar. Q: When is the Three-Year Bar triggered? A: A noncitizen who is unlawfully present in the U.S. for more than 180 days but less than one year, during one continuous visit, who then voluntarily departs the U.S. before immigration proceedings commence, is inadmissible for three years from the date of departure. 1 (This creates a small exception: if placed in removal proceedings, and they leave before one year, the bar is not triggered.) Q: When is the Ten-Year Bar triggered? A: A noncitizen who is unlawfully present in the U.S. for one year or more during one continuous visit, and who leaves the U.S., whether voluntarily or not, is inadmissible for ten years from the date of departure. 2 Q: Are there any exceptions to Unlawful Presence under the Three- and Ten-Year Bars? A: Yes. Leaving the U.S. under a grant of advance parole will not count as a “departure” and will not trigger the Three- or Ten-Year Bars. The statute also sets out other situations in which a 1 2

262

INA § 212(a)(9)(B)(i)(I). INA § 212(a)(9)(B)(i)(II).

Appendix F

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

person does not accrue unlawful presence. For instance, periods of time in the U.S. as a minor and/or while an asylum application is pending will not trigger the three- or ten-year bars. Family Unity beneficiaries, victims of severe forms of human trafficking, and certain battered spouses and children are exempt from the three- and ten-year bars. Additionally, any period of time in which the person is in valid DACA status does not count towards unlawful presence. Q: Are there any available waivers for the Three- and Ten-Year Bars?

Appendices

A: Yes. A noncitizen may apply for a waiver if they can demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the applicant were not allowed to remain in or return to the United States. Q: How is the Permanent Bar different from the Three- and Ten-Year Bars? A: The permanent bar looks at unlawful presence in the aggregate, rather than on a single continuous visit as with the three- and ten-year bars. The permanent bar is triggered when a noncitizen has either (1) been unlawfully present for an aggregate period of more than one year and who illegally reenters or attempts to illegally reenter, or (2) who has been ordered removed and who illegally reenters or attempts to illegally reenter. 3 Q: Do the exceptions under the Three- and Ten-Year Bars also apply to the Permanent Bar? A: No. The exception excluding time spent in the United States by a minor from the calculation of a period of unlawful presence does not apply to a noncitizen subject to the permanent bar. This is because these exceptions are listed in the statute under INA § 212(a)(9)(B). As such, the exceptions for Family Unity, victims of severe forms of human trafficking, and the exception for noncitizens with pending asylum applications also will not apply under the Permanent Bar. 4 Q: Are there any available waivers for the Permanent Bar? A: Sort of. A noncitizen may apply for a discretionary waiver-type application of this ground ten years after their last departure from the United States. Once the ten years have passed, the noncitizen must ask for consent from DHS to reapply for admission before attempting to reenter, or before re-applying for admission, using Form I-212. There are some limited waivers that are also available to certain categories of noncitizens who are inadmissible under the permanent bar. 5

INA § 212(a)(9)(C). Rodriguez v. Mikasey, 298 F. App’x 306, 307 (5th Cir. 2008), Ramirez v. Clinton, 2013 WL 227732, E.D.N.C., In Re: Jose Reyes Ramirez-Zermeno, A075 898 411, 2009 WL 773234 (BIA), March 10, 2009. 5 INA § 212(a)(9)(C)(iii). 3 4

Appendix F

263

Appendices

Three- and Ten-Year Bars (INA §212(a)(9)(B)) and the Permanent Bar (INA §212(a)(9)(C)) of Inadmissibility Amount of Unlawful Presence:

How long is someone inadmissible?

Is there a waiver or waiver-type application available?

Are there exceptions?

More than 180 days (continuous) [§212(a)(9)(B)(i)(I)]

Barred for 3 years.

Yes. Must show extreme hardship to USC or LPR spouse/parent.

• • •

• •

One year or more (continuous) [§212(a)(9)(B)(i)(II)]

Barred for 10 years.

Yes. Must show extreme • hardship to USC or LPR spouse/parent.

More than a year (in aggregate) + illegal reentry or attempted illegal reentry

Permanently.

Yes, but • Unlawful presence before April 1, 1997 cannot request • VAWA self-petitioners with connection it until at least between abuse and removal, departure, 10 years or re-entrie(s) outside of the U.S. A removal order before April 1, 1997 and subsequent illegal reentry after April 1, 1997 Yes, but cannot request will trigger the permanent bar. (If both order it until at least and illegal re-entry before April 1, 1997- can argue that it should not apply.) 10 years outside of the 212(a)(9)(B) exceptions above do not apply U.S. for Permanent Bar, i.e. minors can accumulate unlawful presence for purposes of the permanent bar.

[§212(a)(9)(C)(i)(I)] (None required) Removal order + illegal reentry or attempted illegal reentry [§212(a)(9)(C)(i)(II)]

264

•

Unlawful presence before April 1, 1997 Unlawful presence as a minor Unlawful presence while a bona fide asylum application is pending Beneficiaries of Family Unity are exempt Certain battered spouses and children Certain victims of severe forms of human trafficking Period of time with approved DACA

Permanently.

Appendix F

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

265

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

266

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

267

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

268

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

269

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

270

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

271

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

272

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

273

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

274

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

275

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

276

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

277

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

278

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

279

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

280

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

281

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

282

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

283

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

284

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

285

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

286

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

287

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

288

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

289

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

290

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

291

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

292

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

293

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

294

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

295

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

296

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

297

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

298

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

299

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

300

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

301

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

302

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

303

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

304

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

305

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

306

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

307

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

308

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

309

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

310

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

311

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

312

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

313

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

314

Appendix G

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix G

315

APPENDIX H PUBLIC CHARGE FACT SHEET

Appendices

On Oct. 10, 2018, Notice of Proposed Rulemaking (NPRM) related to the public charge ground of inadmissibility under INA section 212(a)(4) was published in the Federal Register for a 60-day comment period. To learn more about the public charge inadmissibility ground, please see our new Public Charge Inadmissibility page. Introduction Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits. Background Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an individual is inadmissible, admission to the United States or adjustment of status will not be granted. Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge. Definition of Public Charge In determining inadmissibility, USCIS defines “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge. Benefits Subject to Public Charge Consideration USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often

316

Appendix H

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

called “general assistance” programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

Appendices

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration. Benefits Not Subject to Public Charge Consideration Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include: •

• •

• • • • • • • • • • •

Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care Children's Health Insurance Program (CHIP) Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs Housing benefits Child care services Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP) Emergency disaster relief Foster care and adoption assistance Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education Job training programs In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) Non-cash benefits under TANF such as subsidized child care or transit subsidies Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, and other forms of earned benefits Unemployment compensation

Appendix H

317

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration. Note: In general, lawful permanent residents who currently possess a "green card" cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible.

Appendices

Released: April 29, 2011 Last Reviewed/Updated: 10/16/2018, https://www.uscis.gov/news/fact-sheets/public-chargefact-sheet

318

Appendix H

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

319

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

320

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

321

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

322

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

323

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

324

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

325

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

326

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

327

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

328

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

329

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

330

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

331

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

332

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

333

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

334

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

335

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

336

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

337

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

338

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

339

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

340

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

341

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

342

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

343

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

344

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

345

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

346

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

347

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

348

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

349

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

350

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

351

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

Available at https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/00-0-17444.html#0-0-0-1767

352

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

353

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

354

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Available at https://www.uscis.gov/policy-manual/volume-8-part-j

Appendix I

355

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

356

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

357

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

358

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

359

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

360

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Available at https://www.uscis.gov/policy-manual/volume-8-part-j

Appendix I

361

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

362

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

363

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

364

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

365

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

366

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

367

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

368

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

369

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

370

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

371

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

372

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Available at https://www.uscis.gov/policy-manual/volume-8-part-j

Appendix I

373

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

374

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

375

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

376

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Available at https://www.uscis.gov/policy-manual/volume-8-part-k

Appendix I

377

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

378

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

379

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

380

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

381

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

382

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

383

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

384

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

385

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

386

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

387

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

Available at https://www.uscis.gov/policy-manual/volume-8-part-k

388

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

389

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

390

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

391

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

Available at https://www.uscis.gov/policy-manual/volume-8-part-k

392

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix I

393

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

394

Appendix I

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Available at https://www.uscis.gov/policy-manual/volume-8-part-k

Appendix I

395

APPENDIX J

DECLARATION IN SUPPORT OF WAIVER OF UNLAWFUL PRESENCE BAR TO IMMIGRATING

Appendices

Intro who he is and what he wants

Establishes Relationship

Summary of hardship

Emotional hardship

Hardship if petitioner needs to leave U.S.

Apology and final plea for grant

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. 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

396

Appendix J

Tab Position 1

Immigrant Legal Resource Center May 2019

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix K

397

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

398

Appendix K

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix K

399

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

[retrieved from https://www.uscis.gov/news/questions-and-answers/vaccination-requirements, 7/16/2019]

400

Appendix K

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix K

401

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

provided by INA § 212(a)(9)(B)(v). To qualify for such a waiver, the applicant must demonstrate that he is the beneficiary of an approved immigrant visa petition,

402

Appendix L

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix L

403

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

404

Appendix L

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix L

405

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

406

Appendix L

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix L

407

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

408

Appendix L

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix L

409

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

410

Appendix L

Tab Position 1

Inadmissibility & Deportability May 2019

Appendices

Appendix L

411

Appendices

Tab Position 1

Immigrant Legal Resource Center May 2019

412

Appendix L

Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

Contract Service

This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit https://www.ilrc.org/technical-assistance or call 415255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: https://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting https://www.ilrc.org/subscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

Families & Immigration: A Practical Guide This guide provides a comprehensive overview of family immigration law, with clearly worded explanations about each topic, including sample applications, declarations, waivers, and charts. It 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. It also offers practical advice on how to engage your client to bring forth necessary information to allow you to more effectively assist them through the petition process. A Guide for Immigration Advocates The Guide is unique among immigration law manuals because it is a comprehensive, detailed overview of immigration law that is both practical and easy to use. Instead of merely containing articles on immigration law topics, it is a how-to manual, containing clearly worded explanations of each subject and includes sample applications, charts, and practical advice on working with your clients to elicit the information you need in order to assist them efficiently and accurately. Families & Immigration: A Practical Guide This guide provides a comprehensive overview of family immigration law, with clearly worded explanations about each topic, including sample applications, declarations, waivers, and charts. It 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. It also offers practical advice on how to engage your client to bring forth necessary information to allow you to more effectively assist them through the petition process. Naturalization and U.S. Citizenship: The Essential Legal Guide Consisting of 15 chapters and extensive appendices, the entire process of representing a naturalization applicant from the initial client meeting through the oath of allegiance is thoroughly addressed. Overall the reader will learn detailed eligibility requirements for naturalization and helpful suggestions on both procedural issues and ways to effectively work with naturalization clients. We discuss what to do if a naturalization application is denied and how to determine if a client may already be a U.S. citizen through either acquisition or derivation of citizenship. You will find a thorough discussion of the recent changes in the law concerning citizenship for children. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/ilrc-email-lists/subscribe-orunsubscribe