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I don't usually post about new regulations on this blog, but the recent expansion of the provisional waiver (I-601A) process is too important not to mention.  The process allows immigrants to get a decision on an application for a waiver of inadmissibility before they travel abroad to their immigrant visa interview.  This shortens the time they are separated from U.S. citizen and/or permanent resident family members and also provides assurance that they will be able to return to those family members. USCIS also eliminated the reason-to-believe basis for denial of a provisional waiver, which benefits some applicants while creating a trap for others.

Expansion of Immigrants Eligible for Provisional Waiver

The provisional waiver process previously was open only to persons immigrating as the spouse, child, or parent of a U.S. citizen.  Effective August 29, 2016, any immigrant visa applicant may apply who would need a waiver of inadmissibility  upon departure from the U.S. after unlawful presence of more than 180 days or unlawful presence of one year or more.  That includes all family-based applicants, employment-based applicants, and diversity visa applicants.

Although the process is open to all immigrant visa applicants, applicants still need a qualifying relative. To obtain an approved I-601A, the applicant must establish that requiring him or her to wait outside the U.S. for 3 or 10 years would cause extreme hardship to a U.S. citizen or permanent resident spouse or parent. (Hardship to children does not count, at least not directly.)  That means that an applicant for an employment-based immigrant visa must still have a citizen or resident spouse or parent to benefit from the process.  The same is true for persons immigrating through a citizen brother or sister or through the diversity visa lottery.

Further, applicants need to be aware that the provisional waiver forgives only departure after unlawful presence of more than 180 days (the 3 year bar) and unlawful presence of one year or more (the 10 year bar).  An I-601A does not forgive any other ground of inadmissibility.  For example, it does not forgive entry without admission after April 1, 1997, after a previous removal order or previous unlawful presence of more than one year.  It also does not forgive inadmissibility for a criminal conviction, misrepresentation to obtain an immigration benefit, or other misconduct.  The provisional waiver, even if approved, will be automatically revoked if the consular officer finds the applicant inadmissible on any other basis than departure after unlawful presence.

Elimination of Reason to Believe Basis for Denial

Previously, USCIS would deny I-601A provisional waiver applications where there was reason to believe that the applicant would be found inadmissible on any other basis.  With the new regulations, USCIS has ended that practice.  The change eliminates a source of frustration and confusion, since USCIS's application of the reason to believe standard has varied over the few years the process has been in effect.  In some cases, USCIS has denied otherwise admissible applicants and approved otherwise inadmissible applicants.

The elimination of the reason to believe basis for denial, however, also creates a dangerous pitfall for applicants who apply without the benefit of expert immigration advice.  Applicants who file their own application or who use the services of a notario or less-experienced attorney may obtain an approved I-601A and then depart for the visa interview only to find that they are inadmissible on a basis other than unlawful presence.  That would result in revocation of the approved I-601A.  At best, an immigrant in that situation then would be able to file an I-601 waiver application and wait several months outside the U.S. for a decision on it.  At worst, the applicant may be found inadmissible on a basis that does not permit a waiver and the applicant would then be stuck outside the U.S. with no legal means of immigrating.

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In Castro-Lopez the Board of Immigration Appeals held that an applicant for special rule cancellation of removal for NACARA must establish 10 years of continuous residence from the date of the most recently incurred ground of inadmissibility or deportability, rather than the first incurred ground. The Board reached this conclusion because it was the rule for suspension of deportation under the pre-1996 law and Congress intended NACARA special rule cancellation to approximate that law. So, Castro-Lopez was found ineligible for the relief because his most recently incurred ground of inadmissibility resulted from a 2012 controlled substance conviction.

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In an unnecessary and disingenuous decision, the Ninth Circuit held in Torres-Valdivias v. Holder that the Board of Immigration Appeals correctly applied the heightened discretionary standard of Matter of Jean to deny adjustment of status to an immigrant convicted of misdemeanor sexual battery, even though the immigrant was not inadmissible for the conviction.

The Jean heightened discretionary standard requires a showing of extraordinary circumstances before granting a waiver of inadmissibility to an alien who has committed a violent or dangerous offense. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Jean was a refugee who had been convicted of manslaughter for shaking a baby to death.  When the former INS put her in removal proceedings, she applied for adjustment of status as a refugee.  She did not dispute that she was inadmissible to adjust status, but requested a discretionary 209(c) waiver to forgive her inadmissibility.  The immigration judge denied the waiver in the exercise of discretion.  The Board reversed and granted the waiver and adjusted her to permanent resident status.  The Attorney General at the time, John Ashcroft, disagreed with the Board and overruled it in a published opinion.  He established a new discretionary standard, which headnote 4 of the decision summarizes:

Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Thus, if you have committed a violent or dangerous crime, the agency will not grant you a discretionary waiver to adjust from refugee status to permanent resident status without extraordinary circumstances (and even then may not).  A later decision, Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), applied the same standard to asylees who apply to adjust from asylum status to permanent resident status.  No published Board decision, though, has ever applied the Jean standard to other types of applicants for adjustment of status, such as family-based or employment-based applicants.  Those applicants adjust pursuant to section 245 of the Immigration and Nationality Act, rather than section 209.

In an unpublished decision, however, the Board applied Jean to deny Torres-Valdivias's family-based application to adjust status.  It found that his misdemeanor conviction for sexual battery was a violent and dangerous crime that triggered the heightened discretionary standard, even though it did not make him inadmissible.  Torres-Valdivias was not inadmissible because his crime qualified for the petty offense exception--it was a misdemeanor with a sentence to imprisonment of not more than six months.   The Ninth Circuit affirmed the Board's decision.

The Board's unprecedented borrowing of a standard is dubious enough in an unpublished decision, but applying the Jean standard to an immigrant who was not inadmissible for his crime was even more questionable.  Remember the language of Jean?  It explicitly applied only to a "discretionary waiver" for inadmissibility (and then only for a refugee).  Torres-Valdivias did not require a waiver, so Jean should not apply.

The heightened standard that does apply to family-based immigrants like Torres-Valdivias is nearly identical to Jean, but by its own terms only applies where the immigrant is inadmissible for a crime and thus requires a waiver of inadmissibility under 212(h).  See 8 C.F.R. 212.7(d).  The regulation that contains this standard provides,

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

8 C.F.R. 212.7(d).  Thus, only immigrants who require a 212(h) waiver for criminal inadmissibility are subject to the heightened standard under 212.7(d).  And note that part 212.7(d) was issued under the same Attorney General--John Ashcroft--that decided Matter of Jean, and it was issued after the decision in Jean.  See 67 Fed. Reg. 45402, 45404 (Jul. 9, 2002) (proposed rule).  Indeed, the agency stated in the Federal Register that 212.7(d) was intended to codify Jean.  Id.

The Ninth Circuit blithely ignored all of this and affirmed the Board's unpublished decision.  In doing so, it effectively rendered 212.7(d) moot in the Ninth Circuit.  Under Torres-Valdivias, an immigrant may be denied adjustment of status under the heightened standard even where he is not inadmissible, while 212.7(d) only applies if the immigrant is inadmissible for a crime.  If Attorney General Ashcroft intended the interpretation of Jean adopted by the Ninth Circuit, why did he later promulgate a more narrow regulation at 212.7(d)?  The answer is that he did not intend the Ninth Circuit's interpretation.

At the beginning of this article, I made the inflammatory comment that the panel decision in Torres-Valdivias is not only wrong, but disingenuous, so I'll tell you why.  After the initial decision in the case, published on September 5, 2014, the American Immigration Council and the Immigrant Legal Resource Center filed amicus briefs in support of rehearing, and they were both represented by very able attorneys.  I am certain those attorneys raised the arguments summarized above, and perhaps even better ones.  Yet the amended opinion issued nine months later still asserted that Jean and K-A- compelled the decision, when in fact they don't and the implication of 212.7(d) is that the decision is entirely wrong.  I expect the panel ignored the arguments because of the bad facts in this case (the victim of Torres-Valdivias's sexual battery was his step-sister, who was four years younger than him).

I would say the opinion is results-oriented, except that this bad law was unnecessary.  There already was and still is a discretionary standard of long pedigree that applies to adjustment applications by all immigrants, admissible and inadmissible: the Board's published decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970).  Arai held, "Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities."  In other words, the favorable discretionary factors must outweigh the negative factors.  This standard is more flexible and carries less of a presumption toward denial, but it is more than adequate to support the denial of adjustment where appropriate.  In other words, the Board could have denied Torres-Valdivias adjustment under either standard, so the use of the wrong one may have caused no harm here.

Although the panel's decision may not have prejudiced Torres-Valdivias, the problem is that it turned the Board's minor error into a rule of law that will be applied to other cases throughout the Ninth Circuit.  And it is hard to see why it did so.  The prudent course would have been to remand the case to the Board for a reconciliation of JeanArai, and 212.7(d).  That is the Board's job, not the Ninth Circuit's.

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The Board held that a permanent resident who adjusted to that status from asylee status pursuant to section 209(b) of the INA cannot readjust on that basis as relief from removal. It noted the explicit prohibition on readjustment for residents who adjusted from refugee status and reasoned there was no reason to treat residents who adjusted from asylee status differently, despite the silence of the statute regarding asylees. On the contrary, I would have thought Congress' omission of an explicit prohibition on readjustment for asylees would carry some significance--particularly since the procedures for refugees and asylees were created by the same legislation.

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Today USCIS provided more information about eligibility for deferred action for undocumented persons who arrived in the U.S. as children. The news includes the following important developments for persons with criminal records:

  • Expunged convictions and juvenile delinquency adjudications will not count toward automatic disqualification.
  • Minor traffic offenses, including driving without a license, will not count toward automatic disqualification for having 3 or more non-significant misdemeanors (even if, as in California, driving without a license is a misdemeanor).
  • Several types of crimes were eliminated from the significant misdemeanor category, so that they do not form an automatic ground of disqualification. Notably, it eliminated crimes involving violence, threats, or assault; theft, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; or unlawful possession of drugs. However, USCIS will continue to consider these offenses in deciding whether to grant deferred action in the exercise of discretion.
  • Any offense that resulted to a sentence to time in custody of more than 90 days now counts as a significant misdemeanor. Time in custody does not include suspended portions of sentences or time while the person is held on an immigration detainer.
  • Immigration-related state crimes (non-federal crimes) will not count toward automatic disqualification as either a felony or misdemeanor. In other words, the types of criminal immigration offenses created by the State of Arizona (and found unconstitutional by the Supreme Court) are not a basis for disqualification.

Learn more at www.uscis.gov/childhoodarrivals.

The Board of Immigration Appeals held that INA § 101(a)(13)(C)(v) only exempts returning permanent residents with an inadmissible conviction from being considered to be seeking admission after travel abroad. It does not prevent the conviction from making the noncitizen inadmissible to re-adjust status to permanent residence if the noncitizen is later put in removal proceedings on another basis and needs to qualify for relief from removal.

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The Ninth Circuit upheld the denial of relief from removal for lack of good moral character The immigration judge and BIA found the applicant lacked good moral character because he had 7 or 8 DUI convictions spanning 23 years, including one that resulted in an 8 month prison sentence immediately before he was put in removal proceedings. He also continued to drive without a license even after he was put in proceedings.

The applicant was seeking registry, a form of relief for persons who have continuously resided in the U.S. since before 1972 and who have good moral character and no disqualifying acts. The court found that the immigration judge properly considered past conduct to determine the applicant's current character, even though registry does not require good moral character for a specified period of time.

Given the egregious facts of this case, the outcome was not surprising. The opinion is significant only because the Ninth Circuit found jurisdiction to review the good moral character finding at all. The Act prohibits judicial review of discretionary decisions specified to be in the authority of the Attorney General. The ultimate decision to grant registry is specified to be in the AG's discretion, but the underlying decision regarding whether good moral character exists is not. Thus, the court found it could review that determination.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf