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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.

In Other News: CLINIC’s Update on Provisional Waivers

4 Oct

Despite the government shutdown, USCIS carries on processing applications and petitions at its glacial pace as usual, including the large number of provisional unlawful presence waiver applications (I-601As) that have been filed since they were first accepted in March 2013, and a corresponding high number of I-130 Immediate Relative Petitions pending approval.

We have written on the unlawful presence waiver topic many times, but have been thirsty for statistics and helpful information on the process. Our thirst has been quenched! Last week the Catholic Legal Immigration Network, Inc. (CLINIC) conducted an intensive training on provisional unlawful presence waivers, including an update and presentation by Robert Blackwood, the Assistant Section Director for Adjudications at the National Benefits Center (NBC), which serves as a pre-processing center for applications adjudicated at USCIS field offices, including I-130 immediate relative petitions and I-601A applications for provisional waivers. CLINIC generously has circulated the update on the NBC’s I-601A process, and we share portions of it with you here.

I-601A Adjudication Process

All I-601As are filed at the Chicago Lockbox, which reviews submissions under rules that address document sufficiency. If an application is rejected for sufficiency reasons, the rejection should be accompanied by an explanation of deficiency. If the application is accepted, the Chicago Lockbox creates a case receipt file and forwards it to the NBC. Division 1 (of eight divisions) at NBC is responsible for I-601A adjudications and currently is staffed with between 45-50 adjudicators and 5 supervisors. Once a forwarded application is received at the NBC, the NBC goes through its own initial processing checklist to determine if the application is complete. If NBC staff determines documents are missing, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT” (“Just in Time”) shelves and is considered ready to be adjudicated.

Division 1 Supervisors assign cases to adjudicators when they are ready to be adjudicated. When an adjudicator receives a file, he or she first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution. For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility for the waiver (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard. The adjudicator makes notes on the processing checklist, for purposes of decisionmaking and supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored. If it is approved, the file will be sent to the Texas Service Center (TSC). The TSC holds on to the case files so they can be matched up after the applicant immigrates. The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa (IV) application until there is a decision on the waiver application. A “decisions” report is sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals are only spot-checked. If a supervisor has questions or concerns about a particular decision, the encourages a dialogue with the adjudicator to find out more about the decision recommendation, but does not instruct the adjudicator on how to rule in a particular case. If there is still disagreement as to whether the application should have been approved or denied, the supervisor may seek further guidance from one of the section chiefs.

Every week a report is generated indicating how many applications were adjudicated. The NBC communicates and shares data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver, and whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence. The statistical evidence is not yet meaningful to draw any conclusions on these issues.
If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications were sent to Lockbox
17,996 applications were accepted by Lockbox
5,953 applications were rejected by Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17. The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC currently has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)
2,292 denials (39%)
103 administrative closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” That is, the adjudicator has reason to believe that the applicant is inadmissible for reasons other than unlawful presence. The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship. Other reasons for denial include: abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.
At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days, the pace at which NBC adjudicators were working until “reason to believe” denials became a controversial issue.

Reason to Believe

USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted USCIS officers to limit their consideration to waiver adjudication, leaving inadmissibility determinations as a function of the Department of State. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence, but at the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators make a quick assessment as to whether the applicant might be inadmissible on a ground other than unlawful presence, based on the name check and biometrics results. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of the type of conviction, when it occurred, or whether it fell within a recognized exception to inadmissibility, like a petty offense. If the fingerprint check resulted in a “hit” that revealed a conviction, then the application was denied under the “reason to believe” standard. Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

The NBC staff soon realized that this broad application of the “reason to believe” standard led to a high denial rate. Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future. During this time, the 1300 pending cases that involve a potential “reason to believe” concern are being held in abeyance, and will not be adjudicated until there is further guidance. Mr. Blackwood noted that if the “reason to believe” standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly based on misapplication of the reason to believe standard, including, for example, cases where the applicant’s name and date of birth appear inconsistent as a result of clerical or insignificant error, but not including cases containing criminal convictions. Mr. Blackwood indicated during his presentation that denials made under the reason to believe standard that seem clearly wrong could be brought to his attention, and he would pull the file to see if the agency made a mistake. To bring those cases to Mr. Blackwood’s attention, applicants were directed to send an e-mail to CLINIC training leaders at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org, and to include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue a Request for Evidence (RFE) before issuing a denial, but NBC adjudicators typically will issue an RFE if they believe additional documentation will help them reach a decision in a case. (For example, if an applicant claims a health-related hardship, but only submits financial evidence, or if the applicant claims multiple hardships but submits evidence supporting only one claimed hardship, or weak evidence of hardship.) If the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE. In other words, if additional documentation would not add any value to the hardship claim, the NBC will forgo issuing an RFE. Mr. Blackwood noted again that all denials are reviewed by a supervisor.

RFE response times are set at 30 days so that consular processing is not delayed. A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE.

Comparison with NSC Adjudications of I-601

Mr. Blackwood explained that NBC staff made adjustments to their standards for evaluating “extreme hardship,” in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals. Adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications. Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.
Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship. For this reason, the denial rates will not necessarily be comparable.

Waiver Submission Format

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case, and all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions. The Chicago Lockbox removes all tabs and bindings, so applicants are encouraged to use some kind of pagination system to help identify and segregate supporting documentation. The original submission is sent to the NBC – any highlighting of important documentation or color dividers separating exhibits will be retained.

If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#. Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


In the coming months…

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the “reason to believe” standard. Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

Many thanks to CLINIC for this thorough and helpful information!

Some Provisional News on Provisional Waivers

22 Jul

DHS_cis_WR_at

It has been four months since the U.S. Citizenship & Immigration Service (CIS) began stateside adjudication of I-601A Applications for Provisional Waivers of inadmissibility due to unlawful presence.  In those four months, we have learned a few things about how U.S. CIS is implementing this new program.  Initially, the U.S. CIS has received over 7,000 I-601A provisional waiver applications.   Many have been already been decided and CIS states that it has a six month processing goal.

Many applications have already approved but a significant portion have been denied.  By far, the most common reason for denial is that the CIS found “reason to believe”  that a person might be found inadmissible by the consulate on a ground of inadmissibility other than unlawful presence.  As background, the provisional waiver is meant to waive unlawful presence for the immediate relatives of U.S. citizens.  In regulations, the CIS stated that if an adjudicator has reason to believe that the consulate might find another ground of inadmissibility other than unlawful presence, the adjudicator should deny the application.  This has had the most obvious impact in cases where an FBI rap sheet shows that an applicant for a provisional waiver has been arrested.  Although not every arrest leads to inadmissibility, CIS appears to be taking the position that an arrest is sufficient “reason to believe” that a consulate might find inadmissibility on criminal grounds.  of course, this is highly over-inclusive.  Individuals are, generally, inadmissible due to convictions and not due to charges.  While many arrests do not result in convictions, the CIS approach treats many arrests as the equivalent of convictions.  Thus, even if a person is found to be not guilty of an offense, the fact that she was charged with a crime can be sufficient to create a “reason to believe.”  In addition, another situation in which the “reason to believe” standard frustrates the intentions behind the provisional waiver is where an individual is convicted of an offense that does not, under any circumstances, cause inadmissibility.  Not all convictions result in inadmissibility and certain convictions are very clearly and beyond a doubt not crimes which create inadmissibility.  The CIS is not entertaining arguments that the individual applicant is not inadmissible.  Rather, it is concluding that the bare fact of conviction is enough “reason to believe” that the consulate might find inadmissibility.  Thus, the CIS denies the provisional waiver, leaving the applicant and her U.S. citizen family members to the same Catch-22 they faced before the provisional waiver was introduced to eliminate that dilemma.

The American Immigration Lawyers Association and other advocacy groups have raised this issue in liaison meetings and have asked CIS to revisit this over-inclusive policy.

It appears that, for now, the provisional waiver should only be sought by those with no previous encounters with law enforcement or the immigration authorities.  While CIS has stated that those denied will, generally, not be referred to Immigration & Customs Enforcement (ICE) for removal proceedings, the filing of a provisional waiver is expensive and cumbersome process and one’s resources and hopes should only be spent where there is a realistic chance of success.  At this moment, we can not state that there is a realistic chance of success for those with any previous law enforcement contact, no matter how minor or insignificant.

The I-601A is Almost Here

1 Mar

jump-for-joy4

We are now days away from the launch of the provisional waiver process, a White House initiative that will permit immediate relatives of U.S. citizens to stay in the country while immigration officials process their waivers for the unlawful presence bars. U.S. Citizenship and Immigration Services (USCIS) will start accepting applications on March 4, and will release Form I-601A and its accompanying instructions either today or on Monday. We’ve talked about the provisional waiver process before (here and here), but thought we should again answer some frequently asked questions.

What’s the point of provisional waivers?

Existing immigration laws place many undocumented immigrants in a Catch-22. Unlike visa overstayers, those who entered without inspection must return home to obtain an immigrant visa. As soon as they depart the country, however, those who were unlawfully present for more than six months become inadmissible for either three or ten years. While such noncitizens can seek a waiver of inadmissibility, they are currently required to apply from abroad—resulting in separation from their families for many months if the waivers are approved, and for up to a decade if they are denied. As the name suggests, provisional waivers will allow such noncitizens to seek waiver before leaving the United States, reducing the period of separation to potentially just a few weeks.

Why are provisional waivers only available to immediate relatives of U.S. citizens?

Despite vociferous requests from immigrant advocates, USCIS limited eligibility for provisional waivers to those who are immediate relatives (i.e. parents, spouses, and children) of U.S. citizens. In the notice posted in the Federal Register, the agency gave two reasons. First, unlike immigrant visas in the family- and employment-based preference categories, no limits exist on the number that can be awarded to immediate relatives of U.S. citizens. And second, opening the process only to U.S. citizens could provide an incentive for eligible LPRs to naturalize.

Should I apply for a provisional waiver or wait for the possible passage of comprehensive immigration reform?

Funny you should ask, since we devoted a previous post to this very topic. In short, whereas comprehensive immigration reform is a possibility, the provisional waiver process is a reality. Qualified applicants could become permanent residents in a matter of months not years, as could be the case with comprehensive immigration reform. Moreover, while the cost of provisional waiver process is not cheap ($585 for Form I-601A, $85 for biometrics, plus costs associated with obtaining an immigrant visa from a foreign consulate), they could still be less than the fines and fees required under a comprehensive bill.

What qualifies as “extreme hardship”?

We also discussed this topic in a previous post. For hardship to qualify as “extreme,” it must be more severe than that experienced any time family members are forcibly separated. Among other factors, adjudicators will consider: (1) whether applicants have family ties in their home country; (2) the emotional and psychological impact of separation; (3) the living standards and societal conditions in the country of origin; (4) the financial and professional impact of separation on the U.S. citizen relative; (5) any health conditions affecting the applicant; and (6) the U.S. citizen’s age and length of residence in the United States.

Who must suffer “extreme hardship” to qualify for a provisional waiver?

Under federal law, waivers may only be granted based on hardship that would be suffered by the spouse and/or parent of the applicant, not the children. Presumably, Congress believed that allowing undocumented immigrants to receive unlawful presence waivers based on the hardship facing their U.S. citizen children would make it too “easy” for them to avoid the three- and ten-year bars. Perhaps this law will be changed if and when Congress does enact comprehensive immigration reform. But for now, the law is the law.

What if I have a criminal conviction?

This is a tricky one. Under federal regulations, provisional waivers are only available to overcome the grounds of inadmissibility related to unlawful presence. Noncitizens who are inadmissible for additional reasons—including a criminal conviction—cannot file Form I-601A. The answer, then, depends on whether USCIS has “reason to believe” your criminal conviction makes you inadmissible on some other ground. “Reason to believe” not a high threshold from a legal standpoint, and is certainly lower than the standard the government would need to satisfy in court. But if there’s any reasonable possibility that your conviction would independently make you inadmissible, USCIS would likely make you apply through the existing waiver process using Form I-601.

What if I’m in removal proceedings?

To qualify for a provisional waiver, noncitizens who are in removal proceedings must first successfully move for the proceedings to be administratively closed. If the I-601A is granted, such noncitizens must then move for termination of proceedings before leaving the country, lest they be considered to have “self-deported” during the pendency of proceedings.

What if I’m subject to a final order of removal?

Officially, noncitizens who are subject to a final order of removal are precluded by federal regulations from applying for a provisional waiver. As previously noted, however, noncitizens who are in removal proceedings may apply for such waivers. Thus, noncitizens with final orders of removal should move to have the order rescinded and the proceedings reopened before filing Form I-601A.

What if I’ve already filed Form I-601A?

If you have already filed Form I-601A, we have some bad news for you. You’ve been duped. USCIS will not accept provisional waivers before March 4, period.

Should I Seek a Provisional Waiver or Just Wait for Immigration Reform?

13 Feb

bird-in-handThe optimism and hope that have been generated by all of the hype around immigration reform has been intense.  Every day, a new prominent political figure comes out in favor of immigration reform.  Look, Sean HannityCondoleeza Rice!  Was that closet really big enough for Fox News Chairman Roger Ailes? Eric Cantor and John Boehner now support the DREAM Act after voting against it in 2010!  It is enough not only to induce whiplash, but it is creating a frenzy of anticipation that often manifests itself in odd ways in the privacy of a consultation with an immigration lawyer. Specifically, many people are now asking, should I just wait for immigration reform?

For the past couple of years, the last resort of the hopeless case was the possibility of immigration reform.  The whiff of a chance of a possibility of potential reform was the only bit of hope that we could muster for some folks who came into our offices.  After we explained that the law did not provide them with any practical options, we were able to console the client with the hope that someday the political system will come to their rescue. As the day becomes more and more visible, the number of people considering doing nothing and hoping for the best appears to have increased.

Frankly, that has always been a pretty decent option for many people.  People who entered the U.S. illegally and had few significant family ties generally had little opportunity to fix their immigration situation.  Sure, we could do some long shot application with little chance of success that would cost a lot of money.  But we often advised people not to spend their money on quixotic ventures and to sit back and see whether the law will develop in a way that could benefit them.  Wait and see was really the best advice.

Now, we seem to be on the verge of the “see” portion of wait and see.  Immigration reform seems imminent and the incentive to wait and see has increased.  But, even though the promise of immigration reform seems within our grasp, real changes that will help untold numbers of people have taken effect now. It is unwise to avoid these measures in the hope that immigration reform will save the day.

The biggest example of this is the I-601A provisional waiver.  The government has changed the process of seeking waivers of inadmissibility for those spouses of U.S. citizens who are only inadmissible due to unlawful presence.  By allowing the couple to seek a waiver of inadmissibility in the U.S. before making an uncertain trip to the U.S. embassy in their home country, the administration has removed a formidable obstacle to legalization of thousands of immigrants married to Americans who are unwilling to take the risk of being separated from their families for up to a decade. This procedural change has the potential to allow thousands of people to legalize their status.

Yet, just as these very important and welcome changes take effect, people are pulling back.  Why should I try to seek a waiver when Obama is going to legalize everyone anyway?  The answer is the old cliche about the bird in hand.  The provisional waiver is the bird in hand and, as much as we believe it is going to happen, and as much as we want it to happen, immigration reform is not a done deal and can collapse.  It has happened before.  There are forces assembled to fight immigration reform tooth and nail.  They will find a ready audience in much of the Republican caucus in the House, always fertile ground for anti-immigrant sentiment.  Even if Congress passes immigration reform, there is no guarantee it will include a path to citizenship.  The Senate plan offers applicants a temporary status that will last until a border commission says that the border is secure, an automated entry and exit system is imposed, and the entire backlog is cleared.  Senator Dick Durbin, one of the most pro-immigrant Senators, said that that temporary status could last as long as ten years!  At the end of those ten years, applicants can seek residence!  To paraphrase the Beatles, the path to citizenship is the long and winding road.  If it even happens!

The provisional waiver is law.  It is really happening and people can use it to fix their status and obtain residence.  No temporary status.  No watching committees and reading the tea leaves of pundits and politicians.  It is in the Code of Federal Regulations and there is a form.  Nothing in immigration is real until there is a form and the provisional waiver has a form- the I-601A.

The provisional waiver is not perfect.  It needs to be available more widely.  But it has the advantage of being law.  A bird in hand.  Over years in immigration law, we have learned that one must take the opportunities presented to you.  The government fails to bring conviction records to a hearing, move to terminate removal proceedings.  The government fails to oppose a motion to reopen, file a notification of non-opposition.  Seek an extension of work authorization even though the residence interview is in two weeks.  Immigration law is so stacked against the immigrant that we must take those opportunities presented to us when they are presented.  They may not come again.