Archive | Waivers RSS feed for this section

Five Things We Have Learned about the I-601A Provisional Waiver Program

12 Jan

<p><a href=”http://vimeo.com/39267368″>Don’t Think Twice It’s Alright [Bob Dylan 1962]</a> from <a href=”http://vimeo.com/user8051179″>Dan Pick</a> on <a href=”https://vimeo.com”>Vimeo</a&gt;.</p>

Last week, we had another I-601A provisional waiver approved.  This makes us 6 for 6, so far, with a few more pending.  We have learned quite a bit in the past 18 months or so that we have done provisional waivers.

  1. Don’t underestimate your own hardship.  We think that people endure a lot of hardship and have grown accustomed to it and accepted it as the normal state of affairs rather than recognizing that things could be better.  We think that many people living with an undocumented spouse have come to accept the anxiety  surrounding the risk of separation, financial ruin and uncertainty.  Of course, this is a common human coping mechanism.  As Bob Dylan sang, “I’ve never gotten used to it, I just learned to turn it off.”  Many people that come into our office states that they can not point to any specific hardship that they would suffer if their spouse were forced to remain in their home country; they just know it would be bad.  We have found that the sense merely scratches the surface and that by digging, speaking, and, most importantly, listening, the details of the hardship can be identified.  Extreme hardship may be financial, emotional or health and safety related.  It can be a combination of these factors or it can be the presence of a single form of hardship.  The bottom line here is that too many people wrongly assume that they do not have the hardship to meet the standard and a honest and open conversation with an attorney can reveal hardship that an individual may have learned to turn off.
  2. The availability of the provisional waiver changes the game in removal proceedings. Many cases where the only relief has been a long-shot cancellation of removal are now strong provisional waiver cases.  We have found that the government is willing to terminate and reopen cases where a good claim to a provisional waiver case can be made to ICE.  These practices change from office to office, in fact, from ICE attorney to ICE attorney, but, as a general rule, we have found tremendous flexibility in removal proceedings for people who qualify for provisional waivers.
  3. The family is alive and well.  Back in 2012, when DACA came out, we were heartened to see all the young people who came to our office with their parents to discuss how DACA could change their lives.  The parents were always apprehensive and elated simultaneously to see the possibility that the dreams they had for their children being realized, if only partially.  we decided then that the family is alive and well in America.  With the provisional waiver, we are meeting all sorts of people who are raising families under the trying circumstances of one of the spouses lacking legal status.  The lives that people have been able to build despite this challenge are impressive.  However, the opportunity of obtaining lawful status opens up so many doors for families and removes the anxiety and stress of uncertainty over immigration.
  4. The National Visa Center remains a hold-up.  The NVC has been good at putting a hold on immigrant visa processing where a provisional waiver has been filed.  However, once the Visaprovisional waiver is approved, the NVC reverts to its standard practice of being an impediment, rather than a facilitator of orderly processing of immigrant visas.  For example, one challenge we have seen relates to police clearances from El Salvador.  According to the State Department, those police certificates must be obtained by the applicant in person in El Salvador.  That’s fine, except for the case of provisional waivers, where the applicant is in the U.S.  Since the NVC will not schedule an appointment until it has all the documents, this issue could force an applicant to return to El Salvador and wait several months for an interview, undermining the benefit of certainty that the provisional waiver is supposed to provide.  We are working on this specific issue and will update this blog as circumstances merit.
  5. There is nothing better than solving this situation.  When an individual goes to the Embassy, gets the visa, and returns to the U.S. as a permanent resident, we are lucky to be the first ones called.  We share the joy and relief of our clients and can immediately see the reduction in tension in their lives.  Getting to be a part of and a witness to that transformation is one of the great things about being an immigration lawyer.

Think you or someone you know may qualify for the provisional waiver? Contact us at consults@benachragland.com or 202-644-8600.

EXECUTIVE REFORMS: Public Meetings with Benach Ragland

5 Dec

Schedule

Over the next couple of weeks, Benach Ragland attorneys and staff will be traveling the greater DC area to offer FREE public meetings to discuss the Presidents Executive Reforms to Immigration.  These forums are open to the public and provide an opportunity for people to learn the specifics of the reform programs and get the latest updates.  Our summary of the executive reforms can be found here.

Throughout December, Benach Ragland is offering reduced fee consultations for those who think that they might be covered by these reforms.  You can get the latest news by following this blog, liking us on Facebook and following us on Twitter.  To schedule time for an individualized consultation, please call us at 202-644-8600 or email msanchez@benachragland.com.

Below is a schedule of our open forums.  We hope to see you at one!

FRIDAY, DECEMBER 5, 6:00PM-7:30PM        

GMU, FX CAMPUS

Office of Diversity, Inclusion and

Multicultural Education (ODIME)

Fairfax Campus

4400 University Drive, Fairfax, VA. 22030

SUB I Suite 2400

 

SATURDAY, DECEMBER 6, 12:30PM-2:00PM

ALEXANDRIA, JESUS ES EL KYRIOS CHURCH

5730 General Washington Drive, 2nd Floor

Alexandria, VA. 22312

 

MONDAY, DEC 8, 6PM-8PM

Holy Trinity Church

McKenna Center, 3513 N. St., NW

Washington, DC

 

TUESDAY DECEMBER 9, 6:30PM-8:00PM

SHIRLINGTON BRANCH LIBRARY-CAMPBELL ROOM

4200 Campbell Ave.

Arlington, VA. 22206

 

THURSDAY DECEMBER 11, 7:00PM-8:30

DC SOUTHWEST LIBRARY

900 Wesley Place, S.W.

Washington, D.C.

202-724-4752

 

MONDAY DECEMBER 15, 7:00PM-8:30PM

DC MOUNT PLEASANT LIBRARY

3160 16TH St. N.W

Washington, D.C.

202-671-3121

 

THURSDAY DECEMBER 18, 7:00PM-8:30PM  

ARLINGTON CENTRAL LIBRARY- AUDITORIUM

1015 N. QUINCY ST.

Arlington, VA. 22201

 

FRIDAY DECEMBER 19, 6:30PM-8:30PM

WILLISTON MULTICULTURAL CENTER

6131 WILLISTON DR.

Falls Church, VA. 22044

 

Sunday, January 11, 12:30PM-1:30PM            

Holy Korean Martyrs Catholic Church

5801 Security Blvd, Baltimore, MD 21207

Blue Room

 

More will be added.  See you soon!

EXECUTIVE REFORMS TO IMMIGRATION: Top Six Changes

1 Dec

immigration_reform

The President’s executive reforms to the U.S. immigration system make a number of very positive changes that have the potential to help millions of people.  Although we have written about various components of the reforms individually, we have summarized six major portions here in one place.

Benach Ragland will be offering several free community meetings throughout December and will be offering reduced fee consultations for people who may benefit from these reforms.  To get the latest information about where we will be, please “like” us on Facebook and follow us on Twitter: @benachragland.  To schedule a reduced fee consultation, please email: consult@benachragland.com or call 202-644-8600.

  • Deferred Action for the Parents of U.S. Citizens and Permanent Residents

The centerpiece of the President’s immigration reforms announced yesterday is the expansion of deferred action to cover certain foreign national parents of United States citizens. Here are the details:

The U.S. Citizenship & Immigration Service will give deferred action and employment authorization to individuals who:

  • As of November 20, 2014, have a son or daughter who is a United States citizen or lawful permanent resident.
  • Entered the U.S. prior to January 1, 2010
  • Are not in lawful status as of November 20, 2014
  • Are not an enforcement priority
  • Do not present other factors that weigh against a favorable exercise of discretion

People who fall within the DHS’ new enforcement priorities will be ineligible for deferred action.  With a new memo issued today, Nobama immigration reformovember 20, 2014, the DHS has revised the enforcement priorities for the agency.  The new enforcement priorities are divided into three levels of priority of decreasing priority.  Presumably, those not within the enforcement priorities memo are not enforcement priorities and should qualify for benefits and not be subject to efforts to seek removal. We have summarized the new enforcement priorities memo here.

Applicants will be required to provide fingerprints and undergo national security and criminal background checks.  The filing fee will be $465.  CIS has been directed to begin accepting applications no later than 180 days from the date of the announcement (May 19, 2015).  Work permits will be valid for three years and individuals granted deferred action can also seek advance parole to travel internationally.

  • Expanded eligibility for Deferred Action for Childhood Arrivals (DACA)

Another significant development coming out of the Presidential reforms announced yesterday is the expansion of DACA beyond its original parameters established in 2012.  For descriptions of the original DACA requirements, please see here. 

The executive reforms announced yesterday make the following reforms to the DACA program:

  • The date of entry for DACA eligibility has been changed from June 15, 2007 to January 1, 2010.  Individuals who entered the U.S. prior to their 16th birthday and prior to January 1, 2010 can qualify for DACA under the revised guidelines.
  • The age cap has been eliminated.  Originally, DACA was limited to individuals under 31 years of age as of June 15, 2012.  The upper age limit has been eliminated and those who entered the U.S. before January 1, 2010 and were under the age of 16 will qualify regardless of their current age.
  • DACA work authorization will now be valid for three years as opposed to two.

These reforms will be implemented within 90 days. The other DACA requirements regarding education and criminal issues remain unchanged.  The new parole provisions should also assist DACA grantees.

  • The New Enforcement Priorities Memo

s1.reutersmedia.netAs part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement.  Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it.  Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts.  The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon.  Groups of people have been classified into three priorities for enforcement, in declining orders of priority.  Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal.  The three classes of priority are as follows:

Priority 1 (Most serious)

  • individuals suspected of terrorism, espionage or who are otherwise a threat to national security
  • individuals apprehended at the border while trying to enter the country illegally
  • individuals involved in gangs or gang activity
  • individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
  • individuals convicted of an aggravated felony

Priority 2 (Medium serious)

  • individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
  • individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
  • those who have entered the U.S. unlawfully after January 1, 2014
  • significant visa or visa waiver abusers

Priority 3 (Less serious)

  • Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.

Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal.  We will be watching ICE to see how the agents in the field respond to these revised priorities.

  • Clarifications and increased use of Advance Parole

Another positive change to the immigration laws announced last night is the Secretary of Homeland Security’s instruction that DHS counsel should prepare a legal memorandum forthcoming that departures pursuant to advance parole will not trigger the three and ten year bars.  This memo is to ensure that all departures on advance parole are treated consistently across the country for unlawful presence purposes.

Individuals who have been unlawfully present in the U.S. for more than 180 days who then depart the U.S. are subject to a three year bar on returning.  Individuals with a year or more of unlawful presence face a ten year bar after departure.  In Matter of Arrabally and Yerabelly, 25 I.&N. Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that individuals who deAPparted on an advance parole granted due to a pending application for adjustment of status have not made a “departure” for purposes of triggering the three or ten year bars.  while this was a welcome decision, there was confusion and disagreement whether this applied to all departures on advance parole or only to those who departed on advance parole issued to applicants for adjustment of status.  For example, DACA recipients can get advance parole and it was unclear whether their departure would subject them to a bar to return due to unlawful presence they may have accrued prior to DACA’s existence.

The new memo is to clarify that any departure from the U.S. under advance parole no matter why that parole was granted would not be considered a departure for purposes of triggering the three and ten year bars.  This means that people with advance parole, perhaps as a result of DACA, or through the new “DAP” program, for parents of U.S. citizens, will be able travel to visit family abroad without having to lose everything they have achieved in the U.S.

  • Expansion of the Provisional Waiver

Another positive development is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

  • Parole in Place for family members of those seeking to enlist in the military

The package of reforms introduced by the President includes new policies on the U.S. of parole-in-place or deferred action for the family members of those seeking to enlist in the military.Military

Parole in place is a function of the Department’s discretionary authority to parole anyone into the U.S.  Parole in place is a mechanism to allow the Secretary of Homeland Security to parole an individual into the U.S., providing that individual with legal status and the ability to seek adjustment of status.  Recently, the government has used parole in place to allow the undocumented spouses, parents and children of Servicemembers, including Veterans, to adjust status We discussed this process here in August.

The new policy builds on this use of parole in place.  The Secretary of Homeland Security has instructed the CIS to work with the Department of Defense to “address the availability of parole in place and deferred action to the spouse, parent or child of a U.S. citizen or resident who seeks to enlist in the armed forces.

The “seeks to enlist” criteria is a major expansion of this authority and may provide residence to the close family members of those who want to join the military.

These reforms present many exciting opportunities for immigrants. In connection with other parts of the law, it may be possible to achieve more than a work permit.  We are excited about the possibilities for so many immigrants and look forward to the chance to serve you.

 

EXECUTIVE REFORMS: Expansion of I-601A Provisional Waiver Program

23 Nov

Another positive development included in the President’s administrative reforms to U.S. immigration laws is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

Benach Ragland is offering reduced fee consultations for individuals who may be covered by any of these reforms.  To schedule an appointment, please call 202-644-8600 or email msanchez@benachragland.com.  You can learn the latest news on this blog, on our Facebook page and can follow us on Twitter: @BenachRagland.

Five Things We Have Learned About I-601A Provisional Waivers

18 Nov

Nearly two years since the announcement of the provisional waiver of inadmissibility, known as the I-601A extreme hardship waiver, we have learned quite a bit about the people that need this waiver and the way the government is processing them.  Here are the top five things we have learned:

  1. The process has transformed lives.  We have witnessed families emerge from desperation and hopelessness to seize the opportunity to take charge of their lives.  Freed of the fear that a trip to a consulate abroad would mean a lengthy separation, families are empowered and made optimistic that their dreams can be realized and that the law and the U.S. recognize their value.
  2. CIS has gotten better at this.  When the program started in April 2013, I-130 petitions became very backlogged, with delays of over a year.  Since then, the government has significantly reduced the processing time for I-130 petitions to about five months, as of the time of this blog.
  3. People should never presume that their hardship is not enough.  This point reminds us of the Bob Dylan line “I have never gotten used to it, I just learned to turn it off.”  People who live with many forms of pain have become so used to it that they think it is normal or appropriate.  Detailed conversations with compassionate counsel can elicit many factors relevant for an extreme hardship determination.  Extreme hardship is never the same from one person to another.  There is no substitute for taking the time to learn about people and what makes them tick.  Documenting extreme hardship is the most personal of tasks and requires the time and compassion necessary to understand where people are coming from.
  4. We are reminded why we love our job.  Facebook has given us a front seat view of the process.  We now can watch through photos, videos and status updates the thrill that a client has when they return home after several years of not seeing their family.  We can see the happy reunions and the good luck wishes from friends in the U.S.  We see grandparents meeting their grandchildren for the first time.  We share the client’s nerves as they prepare to enter the Embassy.  And we get to see the moment that they return to the U.S. on their immigrant visas.  It does not end there however.  We get to hear about their lives, buying a house, changing jobs,having a baby, and returning home for the holidays for years to come.
  5. Expanding the provisional waiver would be great.  The provisional waiver only applies to the immediate relatives of U.S. citizens.  Expanding it to be available for the spouses and children of permanent residents, for example, or the adult children of citizens, as has been suggested in some reports, would multiply the benefit that has been given through the provisional waiver.

Visa Granted at U.S. Embassy in Brazil after I-601A Provisional Waiver Approved!

22 May

First, let us state outright: the inclusion of this Motley Crue video was done only at the suggestion of the client.  Benach Ragland is not, and never has been, a fan of Motley Crue.  But, as dedicated counselors, we will tolerate hair metal for the needs of the client.

 

We are happy to report that today we received our first visa at a U.S. Embassy abroad for an individual who required an I-601A provisional waiver.  Our clients received the passport with the immigrant visa in the mail from the U.S. Consulate in Rio de Janeiro.  The clients left the U.S. last month for the visa application after we obtained approval of an I-601A provisional hardship waiver.  This required the leap of faith that they would be able to return.  While inadmissibility due to unlawful presence had been waived, if the consulate were to find any other inadmissibility, our client would not be able to return.  we carefully scoured his record and determined that there was no other ground of inadmissibility.  The clients then took the risk based upon our advice.  Gulp.  After some typical bureaucratic miscues, such as the physician failing to deliver the report and a request for a document that the consulate had returned, the visa was issued today.

Our client got to see his family for the first time in over a decade.  His parents met their U.S. citizen granddaughter.  Husband, wife and child will return after a month spent reconnecting with family in Brazil solid in the knowledge that U.S. immigration law should never require their separation again.

Congratulations dear friends.

Cancellation Victory (well, sort of)

22 Apr

A couple of months ago, I got to enjoy my fifteen minutes of fame when my client became the poster child for problems caused for immigrants in immigration court by the government shutdown.  I wrote a blog piece, wrote another for the American Immigration Lawyer’s Association and, next thing I know, I am speaking to Robert Siegel of NPR’s All Things Considered and people I have not heard from in decades called me to say they heard me on the radio.  But, eventually, my fame wore off and I still had to fix this young woman’s situation.

what-up-with-that

As way of background, my client, a 21 year old college junior who has been here since she was four years old, applied for cancellation of removal from the Immigration Judge.  Cancellation is available to an individual who has been unlawfully present in the U.S. for at least ten years, possesses good moral character and whose removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child.  Congress has decided that only 4000 cancellation cases should be granted every year.  For many years, the 4000 quota was enough for the entire country.  However, as the Obama administration put many more people into removal proceedings, more people applied.  And guess what?  Given a day in court, more people were able to convince judges that they were good people with longstanding ties to the U.S. and deporting them would cause their families tremendous hardship.  By December 2012, the Office of the Chief Immigration Judge announced that they had run out of cancellation visas for the entire fiscal year, which had started barely two months earlier.  My client had a hearing in December 2012, in which she was informed by the Judge that there were no more cancellation grants available and the case would need to be continued.  The case was reset until October 2013.  The irony at that time was that she had originally been scheduled in October 2012, when cancellation numbers were available, but had to be rescheduled when the court was shut down due to flooding in lower Manhattan as a result of Hurricane Sandy.10155981_741506099222830_2694746367904436600_n

Fast forward to October 2013 and the government shutdown cancels her latest hearing.  The New York, upon reopening, quickly sent out a hearing notice for March 30.  However, on March 28, the court called me to inform me that the case would need to be rescheduled because the judge had been selected for jury duty!  We were rescheduled for April 18 at 2:00 PM, a date that greatly concerned me as it was Good Friday.  Sure enough, the court called the day before and asked us to come in earlier, which we happily did.  At the hearing, the government informed the court that it agreed with our request to grant our client cancellation of removal.  It took all of fifteen minutes.  The Judge was glad to do so, but explained that there are no cancellation numbers and that my client would be placed in the queue based upon the date and time of her case and would be notified when a number became available to her.  The case could not be “granted” until then.  So, my client, while relieved that she will ultimately be granted, remains in a precarious limbo by another absurd anomaly of our immigration laws- that only 4000 of these may be granted in a given year.  Who knows where Congress got that number?

Here's where Congress got the 4000 number!

Here’s where Congress got the 4000 number!

My client is just one of millions of people left in a state of limbo by Congress’ inability to address the crisis of immigration law.  In this case, my client has DACA and I probably could have gotten the removal case dismissed.  The government stipulated to relief, meaning she would get her green card.  It is hard to say that, in this one case, the problem is the administration.  Like all other arbitrary caps and quotas, such as the H-1B cap, the former cap on asylee adjustment, and caps on immigrant visas, Congress needs to act.

If Nigella Lawson was Found to be Inadmissible, that Finding is Suspect and, Even if she is, she has a Terrific Case for a Waiver!

3 Apr

Nigella

From across the pond comes word now that Nigella Lawson, she of the cookbook and lifestyle empire, has been denied admission to the United States, due to reports of her testimony regarding her use of cocaine and marijuana.  Now, Nigella Lawson has never been convicted of illegal drug possession or distribution.  So what gives?  Well, what appears to have happened is that Ms. Lawson was determined to be inadmissible to the United States because she may have “admitt[ed] to having committed  . . . a violation of any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”  This ground of inadmissibility does not require a conviction of a drug offense, just an admission.  But is Ms. Lawson’s apparent admission in a United Kingdom court sufficient for her to be found inadmissible?  It seems highly doubtful.

Here’s what we know.  Nigella Lawson is a highly successful businesswoman.  She has authored a number of cookbooks and lifestyle books.  She has had her own television shows and has appeared in a number of tv shows about cooking and entertaining.   Her private life burst out into the open in July 2013, when she was photographed being grasped around the neck by her husband, Charles Saatchi.  Shortly thereafter, Ms. Lawson was a witness in the fraud trial of two of her assistants, who had been accused of wrongly using Saatchi’s credit cards.  Their defense was that their use of the credit cards was allowed by Lawson in exchange for them not revealing her drug use.  Lawson testified in court and stated that she had used cocaine and marijuana.  Fast forward to last weekend.  At London’s Heathrow airport, Lawson was apparently denied boarding a flight to Los Angeles.  Apparently, Ms. Lawson has been found to be inadmissible due to her admission of a violation of a law relating to a controlled substance.

U.S. law allows the Department of Homeland Security to find a person inadmissible if she has admitted to a violation of a law involving a controlled substance.  It would seem simple enough.  However, the process required to make that finding is tightly controlled by longstanding caselaw.  Specifically, in the 1957 decision in Matter of K-, the Board of Immigration Appeals held that, in order to find someone inadmissible for admission of a controlled substance, these steps must be followed: (1) the individual must be provided with a definition of the offense with all essential elements; and (2) the individual must be provided with an explanation of the offense in laymen’s terms.  Since the statute does not makes someone inadmissible for use of an illegal drug, but the violation of a law related to a controlled substance, DHS must identify the statute violated and the person must be provided with an explanation of the elements of the crime and must admit to all those elements.  This process is usually undertaken at a port-of-entry between a Customs and Border Protection (CBP) officer and an applicant for admission.  A person can not be found to be inadmissible if these requirements are not satisfied.

This is why the explanation for Nigella Lawson’s inadmissibility in unconvincing.  Perhaps there were other reasons why she could not board that plane.  But, if she were indeed deemed to be inadmissible based upon her admissions of cocaine and marijuana use in UK court, it would seem that these procedural requirements were not honored as it does not appear that any sort of interview between DHS and Lawson ever occurred.  In addition, it seems unlikely that Ms. Lawson, in her testimony ever specificallty admitted to violating a specific law.  In other words, Lawson probably did not testify as follows: “Yes, I knowingly and willfully possessed a substance that I knew to be cocaine.”  And it is unlikely that someone then said, “Aha!  So you admit violating the Misuse of Drugs Act of 1971?”  To which, she probably did not reply, “Yes.”  It is not enough for inadmissibility for a person simply to say “I used cocaine.”  They must admit violating a law and that law must be identified.  Where?  When?  Was it really cocaine?  All these questions need to be answered.  And Lawson has an absolute right under U.S. law to say that she is “not guilty.”  Therefore, it seems that, if she was denied boarding that plane on these grounds, she was wrongly found to be inadmissible.

If she is, in fact, inadmissible, Lawson would be an excellent candidate for a waiver of inadmissibility.  The law provides a generous waiver of inadmissibility for people seeking to enter the U.S. temporarily.  Known as a 212(d)(3) waiver, the waiver allows inadmissible people to enter the U.S. despite their inadmissibility.  In considering an application for a waiver, the DHS must weigh the following factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the ground of inadmissibility and (3) the reasons the applicant is seeking admission.  In assessing a potential Lawson application for a waiver, it would seems that she has a very strong case.  First, it can not be seriously argued that Ms. Lawson is any threat to U.S. society if allowed into the U.S.  Second, it is hard to say that this is a very serious ground of inadmissibility.  It is not a conviction, it does not relate to violence, the sale of drugs, or weapons.  It deals with the recreational use of illegal drugs in the past, an act that many millions of Americans have engaged in.  As far as grounds of inadmissibility go, this would seem to be on the lower end of the serious scale.  Finally, certainly Ms. Nigella 2Lawson has very good reasons to enter the U.S.  An accomplished businesswoman overseeing an empire of lifestyle media, her commercial ties to the U.S. are substantial.  U.S. businesses would lose out if they are unable to continue to collaborate with Ms. Lawson.  Applications for 212(d)(3) waivers are made to the State Department and the Department of Homeland Security and both must agree to grant the waiver.  The legislative history and the caselaw show that the the waiver is supposed to be generously given.

In the end, Ms. Lawson should be able to get on with her life and her travel to the U.S.  For now, no doubt she is reeling from this latest indignity.  If you are reading, Nigella, there is hope.  We can help!

Good News on I-601A Provisional Hardship Waiver Applications!

18 Mar

VisaToday, the US Citizenship & Immigration Service announced a fix to one of the more serious problems with the provisional waiver process for unlawful presence.  As you may know, the CIS instituted the I-601A provisional waiver process last year to allow immigrants who are immediate relatives of U.S. citizens but are also ineligible to seek residence in the U.S. due to unlawful entry to seek a provisional waiver of inadmissibility in anticipation of seeking a visa at the U.S. embassy abroad.  The provisional waiver, sought on form I-601A, only waives inadmissibility due to unlawful presence (i.e., entering without inspection and remaining more than 6 months in the U.S.).  The waiver does not waive any other ground of inadmissibility such as inadmissibility due to criminal convictions or fraud.  To address this issue, the CIS decided early on that where another ground of inadmissibility may be present, such as due to criminal convictions, the CIS would deny such applications because there was a reason to believe that inadmissibility might apply.  This approach left a lot of people out of eligibility for the provisional waiver, many of whom are not, in fact, inadmissible despite having criminal convictions.  This is because not all convictions create inadmissibility.  The largest class of crimes that cause inadmissibility are those that are considered to involve “moral turpitude.”  Crimes involving moral turpitude are those offenses that are inherently base, vile, or depraved.  They usually involve theft, dishonesty, or violence.  However, many crimes, such as trespass, disorderly conduct, or a simple driving under the influence, clearly do not involve moral turpitude.  In addition, there is an exception to inadmissibility for “petty offenses.”  A petty offense is one in which the maximum possible sentence does not exceed one year and the individual is sentenced to less than 180 days in prison.  A crime involving moral turpitude that falls within the petty offense exception does not cause inadmissibility.  However, under the reason to believe standard, CIS was denying waiver applications simply because an offense could create inadmissibility, which was patently unfair to those who were not, in fact, inadmissible.

In an email today, U.S. CIS stated that on January 24, 2014, it issued Field Guidance to its offices instructing officers not to find a reason to believe someone might be inadmissible where the applicant is clearly not inadmissible.  The Field Guidance provides:

USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
The CIS has also agreed to reopen, on its own motion, cases that were denied on “reason to believe” to determine whether an applicant denied was, in fact, inadmissible.  If not, the CIS would proceed to consideration of the merits of the I-601A provisional waiver application.
This is a tremendous improvement from the previous position that CIS took.  It is a credit not only to CIS but to the many individuals and groups who pushed CIS on this issue.

New Common Sense Rules on Material Support for Terrorism Bars

17 Feb

Syria

We have written on this page before about the absurd over-inclusiveness of the ground of inadmissibility for “material support” for terrorism.  This net barred Nelson Mandela from entering the U.S. without a waiver until 2008 and still bars 3000 refugees from the Iranian regime whose lives are at risk in Camp Liberty in Iraq from being resettled in the U.S. as promised by the U.S. government.  Moreover, hundreds, if not thousands, of others have had their applications for asylum, adjustment of status, or refugee admission placed on hold for allegations that they provided material support for terrorism by engaging in minor activities, such as distributing political leaflets, cooking food or distributing water, which the government has deemed to constitute material support of terrorism.  We are happy to report some good news on this front.  On February 5, 2014, the Departments of State and Homeland Security, issued new rules allowing the government to exempt those whose support is deemed to be “insignificant” or unintentional This decision should free the applications of hundreds of individuals in the U.S. who are awaiting the adjudication of green cards after having already won asylum in the U.S.  In addition, it should open the door to refugees from the war in Syria languishing in unsafe and unsanitary refugee camps.

U.S. law makes an individual inadmissible to the U.S. if they have provided “material support” to a terrorist organization.  The terms material support has been interpreted very broadly.  An illustration of the absurd lengths the bar extended to comes from a U.S. Citizenship & Immigration Service public forum.  A representative of CIS explained the “doing laundry” nature of the bar.  Let’s imagine that one person in a home has ties to a terrorist organization and another person in the household does the laundry for the household.  That person has provided material support for terrorism because she (let’s be real, here) has removed the terrorist’s burden of doing his laundry freeing him to do more terrorist things.  People have been found inadmissible for providing food, water, shelter to terrorists.  Although there is a duress exemption to the bar, the standard is high and the facts are rarely uncovered in an adjudication.

The new rules allow DHS to waive inadmissibility if DHS concludes that the individual applicant “has not provided more than an insignificant amount of material support to a terrorist organization.”  To exempt an individual, DHS must find the following that the applicant:

(a) Is seeking a benefit or protection under the INA and has been determined to be otherwise eligible for the benefit or protection;

(b) has undergone and passed all relevant background and security checks;

(c) has fully disclosed, in all relevant applications and/or interviews with U.S. government representatives and agents, the nature and circumstances of any material support provided and any other activity or association, as well as all contact, with a terrorist organization and its members;

(d) has not provided more than an insignificant amount of material support to a terrorist organization

(e) (1) has not provided the material support with any intent of furthering the terrorist or violent activities of the individual or organization; (2) has not provided material support that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity; and (3) has not provided material support to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity;

(f) has not provided material support to terrorist activities that he or she knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests;

(g) has not provided material support that the alien knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items;

(h) has not provided material support in the form of military-type training;

(i) has not engaged in any other terrorist activity;

(j) poses no danger to the safety and security of the United States; and

(k) warrants an exemption from the relevant inadmissibility provision in the totality of the circumstances.

As the standards in the regulation make it clear, DHS must still conduct an extensive background check, determine that the individual does not pose a threat to the safety and security of the U.S. and also determine that the assistance provided to a terrorist organization be de minimis.  The new DHS rule recognizes that many immigrants come from war zones where failure to provide a drink of water or where failure to show solidarity with certain armed groups can be risking one’s life.

DHS also published a rule that is identical to the one above, but instead of insignificant support, the rule exempts those who provided support but did so unknowingly.  DHS exempts those who meet the criteria above and an applicant who:

(d) Has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;

(e) Has not provided material support (1) that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity or (2) to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity on behalf of a designated terrorist organization, as described in section 212(a)(3)(B)(vi)(I) or (II) of the INA, 8 U.S.C. 1182(a)(3)(B)(vi)(I) or (II);

This should assist the many people who have provided support to organizations that they believed to be charitable or humanitarian organizations only to find out later that their funds were used for terrorist acts.  Individuals will not be exempted if they should have reasonably known that their funds and  efforts would be supporting terrorism.

Predictably, many have used these common sense rules to accuse the administration of aiding terrorists.  This is pure demagoguery.  The administration has pushed the “war on terror” to new limits with the aggressive use of drones and targeted killings.  Like DACA, the new rules allow the government to separate the priorities from those who present no threat to the security of the U.S.  Yet, the anti-immigrant crowd asserts that the administration is being easy on terrorists and letting them into the U.S.  The fact is that many of these people are here.  They are working and living among us with no instances of terrorist acts.  For several years the DHS has had these cases on hold and people have lived here in administrative limbo.  A U.S. District Court in Virginia just last week rejected the government’s argument that it could keep a case in limbo for over fourteen years based upon an individual’s support for the Mujahedin-e-Khalk, an Iranian resistance group. 

The new rules should put an end to administrative limbo for thousands of individuals who, for fear of their lives, did little more than provide food or water or distribute political leaflets for groups that are today deemed to be “terrorists.”  This is a very welcome development.