Stateside and Other Waivers Panel

Transcription

1 Stateside and Other Waivers Panel Richard Ginsburg Cynthia Irvine Law Office of Richard Ginsburg Hanis Irvine Prothero, PLLC Hillsboro, Oregon Kent, Washington (503) (253)

2 Stateside Waivers - Eligibility Who Qualifies? Immediate Relative of USC (spouse, parent, child) Beneficiary of approved immediate relative I years old or older Subject ONLY to unlawful presence ground of inadmissibility under INA 212(a)(9)(B)(i)(II) Meets requirements for waiver extreme hardship to USC spouse or parent.

3 Stateside Waivers Eligibility, cont d Who Doesn t Qualify? Applicant with other grounds of inadmissibility other than ULP i.e. fraud, criminal, alien smuggling If subject to permanent bar If NVC scheduled applicant s consular interview prior to January 3, 2013 Action of scheduling prior to this date, not actual date for interview at consulate Exceptions: DOS terminated case and IV registration tied to previously scheduled interview AND applicant filed new IR petition, OR Applicant is beneficiary of new IR petition filed by different petitioner Re-EWI or attempt to re-ewi before IV issued

4 Stateside Waivers Eligibility, cont d Removal Proceedings Ineligible if in Removal Proceedings UNLESS Case is Administratively Closed at time of filing I-601A Once I-601A Approved, must request termination of EOIR proceedings prior to departure for consular interview.

5 Stateside Waivers Procedure Procedural Requirements Must be present in the US at time of filing Attend biometrics appointment at USCIS Case pending at DOS/NVC and paid NVC IV fees Must notify NVC of intention to file I-601A and NVC holds case without scheduling interview If fail to notify and NVC schedules consular interview, then must notify consulate before filing I-601A and after pay IV processing fee to NVC. If notified NVC, but consulate schedules anyway, what do you do? For CDJ, contact:

6 Stateside Waivers Procedure cont d Must Include: $585 application fee PLUS $85 biometric fee I-797 Approval Notice for I-130 Copy of receipt of IV visa fee payment If paid online via Consular Electronic Application Center print receipt from CEAC website If paid by mail send to NVCI601A@state.gove with subject line Fee Payment Receipt Request with NVC case # Evidence in support of waiver To USCIS lockbox U.S. Citizenship & Immigration Services ATTN: I-601A 131 S. Dearborn, 3rd Floor Chicago, IL

7 Stateside Waivers Procedure cont d Post Filing Issues USCIS may conduct interviews, but not likely USCIS will issue RFEs but not NOIDs RFE Standard Response Deadline 30 days Per USCIS Policy Memo dated 03/01/2013 (AILA Infonet Doc ) Additional hardship evidence may be interfiled at any time before USCIS makes a final decision in the case. 78 Fed. Reg. at 550.

8 Stateside Waivers - Approval WAIVER APPROVED!! USCIS Notifies NVC of decision Finalize NVC document and I-864 requirements NVC schedules interview NOW WHAT? Applicant departs U.S., which effectuates waiver.

9 Stateside Waivers Approval, cont d Timeline Estimations Between approval of I-601A and receipt of all required NVC documents to consular interview = 2-3 months Between attendance of interview and receipt of visa = 3-5 days

10 Stateside Waivers Approval, cont d Revocation of Approval If Re-EWI or attempt to re-ewi before or after I-601A is approved or before IV issued Consulate determines inadmissible on ground other than ULP If waiver available for new ground of inadmissibility, then must file I-601 from outside US Examples alien smuggling, criminal Remember no waiver for determinations of gang affiliation, drug use within last 3 years, etc. Yes! Be afraid of consulate making final decision!

11 Stateside Waivers - Denials No Appeal Risk of Removal Proceedings appears to be low Increased risk if applicant is ICE Enforcement Priority: Committed Fraud Has Criminal History Threat to public safety or national security Re-file with new filing and biometric fees No limit to number of times can apply

12 Stateside Waivers Denials, cont d Reason to Believe Subject to Other Ground of Inadmissibility Problems with USCIS denials based on: Minor Criminal Issues Single, simple DUI Disorderly Conduct Misdemeanor Theft, subject to Petty Offense Exception Traffic Violations, DWOL Border Stop with Voluntary Return during EWI Providing false name or DOB at EWI stop Multiple EWIs prior to passage of IIRIRA and ULP

13 Stateside Waivers Denials, cont d USCIS January 24, 2014 Field Guidance USCIS Should Review All Evidence in the Record to determine Reason to Believe Criminal Issues If conviction falls within Petty Offense Exception or Youthful Offender Exception, CIS should not find reason to believe inadmissible on other grounds Should continue adjudication and review for decision on discretion No mention of other issues -border stops, EWIs, etc. AILA Doc. No

14 Traditional I-601 Waivers When to file With application for immigrant visa or fiance visa Not eligible for I-601A Not spouse of USC Inadmissible for other then 212(a)(9)(b) ground Denial of I-601A Not in the US In removal proceedings not administratively closed USCIS withdraws approval of I-601A

15 Traditional I-601 Waivers, cont d Where to File Direct Filing of I-601 and associated I-212s at CDJ USCIS office ended 12/5/2012 Now filed at Phoenix Lockbox Via USPS Via Express Mail/Courier USCIS USCIS PO Box ATTN: 601/212 Foreign Filers Phoenix, AZ E. Skyharbor Circle S, Ste 100 Phoenix, AZ 85034

16 Traditional I-601 Waivers, cont d International USCIS Office can only accept filing or adjudicate I-601 and I-212 IF: Applicant in country where office located Must be exceptional and compelling circumstances requiring immediate filing of the application Expedited processing by NSC insufficient to address urgency Examples medical emergencies, threats to personal safety, close to aging out, adoption of a child Whether applicant resides in country or merely present is a factor to consider if exceptional and compelling circumstances exist Applicants in countries without USCIS office must file at Phoenix Lockbox International Office can t review expedite requests for applications filed at Phoenix Lockbox

17 I-601s with Adjustment of Status Procedures File concurrently, post filing, or postinterview filing Which procedure can depend on case strategy New I-601 form requests case number of AOS File at Chicago Lockbox Department of Homeland Security U.S. Citizenship and Immigration Services Attn: FBAS 131 South Dearborn 3rd Floor Chicago, IL Issues with filing location for post-interview I-601 Lockbox or local office? I-72 says Address listed above but lockbox accepts fee payments.

18 I-601s with Adjustment of Status Strategies for Filing When to concede, when to fight Consider your Client How strong is hardship case? How deep do you want CIS to dig? Consider the Issue any legal arguments to contest determination? Unlawful Presence Have 3 or 10 years passed since last lawful entry? Not obvious to detect from AOS application Criminal Limited to ROC but careful with CIMT admissions Fraud Intentional misrepresentation to obtain benefit Misrepresentation was material Benefit received

19 Waiver Case Strategies I-601s are Difficult Cases Set client expectations appropriately What is Extreme Hardship? Client Effort Cost Requires extensive preparation as if before IJ Applicant has burden of proof

20 Waiver Case Strategies, cont d Is Waiver Necessary? Make any argument not necessary even if borderline may help with discretion Is Client Statutorily Eligible? Define Hardship Factors - map out case strategy What grabs you about the case? See Matter of Cervantes-Gonzalez,22 I&N Dec 560 (BIA 1999) Prove each hardship element Prove hardship extreme Prove favorable exercise of discretion Establish rehabilitation, reform Mitigate negative factors early on in presentation

21 Waiver Case Strategies cont d Importance of Client Screening for ALL grounds of inadmissibility Criminal Arrests Ask question various ways Ask about juvenile offenses, outside US Alien Smuggling Ask how undocumented spouse and children came to US Ask if ever sent money to anyone to pay for them to cross border Permanent Bar even if no border stop Fraud in prior visa applications Did client receive help from third party service in home country to prepare application? False USC Claims I-9s, Mortgage Applications, Voter Registration, Firearms Permit, Scholarships Mental Health Conditions DUI, Drugs, and Other Beneficiary of Drug Trafficking If parent or family member ever arrested for drug trafficking

22 Waiver Case Strategies cont d General Tips for Screening FOIA (and wait) FOIA all possible agencies with records What does No record from CBP mean? FBI Fingerprint Report Elicit the Truth Government Knows Everything! Meet clients up front Re-screen before interview, leaves US Sign acknowledgement of risk

23 Waiver Case Strategies cont d Case Presentation Engage the adjudicator get their attention! May be predisposed to deny don t give reason to deny Why is this waiver case different from all others? Do this in first two pages Convince adjudicator to read on with open mind

24 Waiver Case Strategies cont d Case Presentation cont d Do not minimize ground of inadmissibility as discretionary factor Isolated event, out of character for client Not likely to recur Insufficient to outweigh hardship Relate to life crises client hit low point, on way back Do more than list factors from caselaw - do not rely on the obvious. Personalize it Argue that hardship is more than others would suffer and therefore is extreme

25 Waiver Case Strategies cont d Case Presentation - cont d Develop facts in credible way Lose Credibility = Lose Case Detailed Client Interviews Review All Relevant Documents Build Theory of Hardship Prepare Cover Letter or Memo to Present the Case Document, Document, Document Use Numbered Exhibit List with References from Text

26 Waiver Case Strategies cont d Case Presentation - cont d Make it easy for adjudicator to get to Yes Confront all reasons for denial Get them on your side Make it hard for adjudicator to get to No Keep pressing and building momentum towards approval Make no undocumented assertions Create record for appeal Cite authority

27 Waiver Case Strategies cont d Use of Psychological Evaluations Neutral expert to see things you and client won t Refer client only after have learned the facts Confer with expert what you want to establish with report Facts and psychological conclusions not legal conclusions If use INA terminology or advocates, not credible Explain questions you want answered Discuss with expert after interview Get draft of report and review with expert

28 Waiver Case Strategies cont d Tips for establishing hardship Document spouse circumstances prior to life with beneficiary Present hardship if remain in US or go abroad Develop hardship to children as hardship to qualifying relative Look for hardship in less obvious places Step Child Relationships and Custody Issues Parent of qualifying relative Applicant s circumstances as they relate to qualifying relative

29 Waiver Case Strategies cont d Tips for Establishing Hardship cont d Do not use unpersuasive evidence Conclusory, minimally probative docs make case look desperate Sworn statements without address and phone number, copy of driver s license Use character letters from non-obvious sources Mother-in-law = secret weapon Friends, other family expected to say only good things Consider attaching to an affidavit

30 Extreme Hardship No set definition room to be creative Story of the applicant and family Subjective to applicant Dig deep and tell a story Use professionals to discover the story Why is it more than normal hardship? How do issues of qualifying relatives worsen suffering? Why are expected hardship factors worse for applicant? Why is qualifying relative more vulnerable/susceptible to hardship

31 Extreme Hardship cont d Declaration Tips Meet frequently attorney and staff Have them imagine life without applicant or in applicant s homeland without family/friends Don t be afraid to prompt client but then move to open ended questions why? how? Be specific with economic hardship use real numbers.

32 Extreme Hardship cont d Focus on totality of circumstances Makes common factors subjective Insufficient individual factors can meet standard cumulatively What is the context? Hardship factors may be extreme in one context and not another Consider Extreme Hardship to be discretionary Is applicant rehabilitated? Why deserves a second chance? How will contribute to society in future?

33 Extreme Hardship cont d Common Errors Failure to provide statement to explain evidence Failure to provide evidence to support statement Failure to link hardship to qualifying relative Failure to argue both hardship scenarios Why qualifying relative can t move to abroad and why can t remain in US without applicant

34 Extreme Hardship cont d Case Law - Extreme Hardship narrowly interpreted by BIA Hardship Factors Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999) LPR or USC ties Qualifying Relative s ties to country of relocations Conditions in Country of relocation Financial Impact of departure Significant conditions of health, particularly when suitable medical care unavailable in country of relocation Normal Readjustment Issues Extreme Hardship Matter of Ngai 19 I&N Dec 245 (BIA 1984) Shooshtary v. INS, 39 F.3 rd 1049 (9 th Cir. 1994) Palmer v. INS, 4 F.3 rd 482 (7 th Cir. 1993)

35 Extreme Hardship Resources Hardship Standards by Bruce A. Hake, Bender s Immigration Bulletin, January Where Have All the Waiver s Gone: An Examination of Extremely and Exceptionally Unusual Discretionary Standards, Lory Rosenberg, Bender s Immigration Bulletin, February Another Chance: Forensic Psychological Assessment of Recidivism and Dangerous Immigration Adjudication by Lory Rosenberg and F. Barton Evans III, Bender s Immigration Bulletin, May, USCIS Manual on Adjudication of Immigrant Waiver, AILA Infonet Doc (posted June 17, 2009). Cites Cervantes-Gonzalez factors.

36 I-601A AILA Resources "Practice Alert: Provisional Waiver Denials Based on Reason to Believe Standard, AILA InfoNet Doc. No (posted Jul. 15, 2013). Practice Pointer: Things to Consider Before Filing a Provisional Unlawful Presence Waiver, AILA InfoNet Doc. No (posted August 6, 2013). Five Practice Considerations for I 601A Filings, AILA InfoNet Doc. No (posted September 30, 2013). AILA Memorandum to USCIS on Provisional Waivers and Reason to Believe, AILA InfoNet Doc. No (posted August 7, 2013). AILA memorandum urging USCIS to adopt a flexible approach to analyzing whether it has reason to believe an I 601A applicant may be inadmissible for reasons other than unlawful presence, which will allow many eligible families to benefit from the program.