Waivers of Inadmissibility The Honorable Wayne R. Iskra (Arlington, VA) Mark Shmueli (Takoma Park, MD) – Moderator Lisa Johnson-Firth (Manassas, VA) Julia Toro (Washington, DC) AILA DC Annual Fall Chapter Waivers of Inadmissibility

Waiver of 3/10 year bar INA § 212 (a) (9) (B) (i) (I). 3 year bar: 180 days unlawful presence INA §212 (a) (B) (i) (II) – 10 year bar: 365 days unlawful presence INA §212(a)(9)(B) (v) Standard: Extreme hardship Qualifying relative: USC or LPR spouse or parent AILA DC Annual Fall Chapter Waivers of Inadmissibility

Fraud Waiver INA § 212(a)(6)(C)(i): Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided is inadmissible. INA § 212 (i) Extreme Hardship to USC or LPR Spouse or Parent (children not included) Does not waive marriage fraud or false claim to USC AILA DC Annual Fall Chapter Waivers of Inadmissibility

Crimes INA §212(h) Waives: INA §212(h) CIMT Crimes of Moral Turpitude INA § 212 (a) (2) (A)(i)(1)Refers to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. The offender’s evil intent or corruption of the mind is important. Prostitution Single offense of Marijuana-less than 30 grams AILA DC Annual Fall Chapter Waivers of Inadmissibility

212(h) cont. The IJ balances the adverse factors, with the social and humane considerations - Matter of Mendez, 21 I & N Dec. 296 (BIA 1996). If violent or dangerous crimes - must show extraordinary circumstances 8 CFR §1212.7(d). Standard: Extreme hardship Qualifying relatives: Spouse, parent, child If more than 15 yrs. since activities – only need to show that admission not contrary to US national welfare, applicant rehabbed, (except prostitution) AILA DC Annual Fall Chapter Waivers of Inadmissibility

Defining Extreme Hardship Depends on facts of each case. Matter of Hwang, 10 I&N Dec 448, 451 (BIA 1964) Factors include (Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999): LPR or USC ties in and out of US Country conditions Financial impact of removal from US Conditions of health and unavailability of medical care AILA DC Annual Fall Chapter Waivers of Inadmissibility

Key Arguments for Extreme Hardship Extreme hardship is from point of view of qualifying relative in US and abroad Argue in consideration of the waiver (e.g., how waiver would hurt qualifying relative) Argue totality of circumstances Argue for mitigating factors – Look to PD memos in last two years – and against aggravating factors AILA DC Annual Fall Chapter Waivers of Inadmissibility

Documenting Extreme Hardship Medical reports, psychological evaluations Detailed declarations of personal impact Country condition reports Letters from employers and tax returns Expert reports School records of children Home budget showing evidence of financial status AILA DC Annual Fall Chapter Waivers of Inadmissibility

Working with Clients on Extreme Hardship Cases Empathize but remain detached Meet “human needs” – drink/bathroom Good interpreter Know client’s country conditions Prepare to spend time on the application and have multiple interviews Explain why you are asking certain questions Be sensitive to trauma and give breaks AILA DC Annual Fall Chapter Waivers of Inadmissibility

WORKING WITH EXPERTS When to use one: How to find one: Always in cases requiring waivers Timing in preparation of case key How to find one: Inquire with colleagues Check with Universities Clients are not required to use who you recommend; they are entitled to use their own AILA DC Annual Fall Chapter Waivers of Inadmissibility

WORKING WITH EXPERTS, cont’d. How to Liaise with experts: Explain the purpose your client needs to meet with them Let them know that their report will be reviewed by CIS or EOIR or ICE Explain the application before immigration and the need for a waiver and “extreme hardship” Explain which family members need to meet with them for their assessment and whose hardship matters Explain any facts you are aware of that client should reveal to them, and let them take it from there Do not tell them what their assessment should contain AILA DC Annual Fall Chapter Waivers of Inadmissibility

WORKING WITH EXPERTS, cont’d. Privacy and Confidentiality concerns: Necessary for expert to maintain confidentiality, and understand attorney client confidentiality Testimony for Deportation Proceedings No preparation from you should be necessary Ask expert to review their own assessment Ask client to contact expert prior to trial to inform them of any change in their situation or their family; if so, then necessary for follow-up assessment AILA DC Annual Fall Chapter Waivers of Inadmissibility

Stateside Provisional Waiver Proposed Program Who Would Be Eligible? Only ground of inadmissibility is unlawful presence Beneficiary of approved I-130 Hardship to an immediate relative Not in proceedings or subject to final order Over age of 17 Physically Present in US at time of filing Status of Program & Advising Clients Proposed rule published and comment period closed Awaiting publication of final rule – USCIS has said it will be published by end of calendar year 2012 AILA DC Annual Fall Chapter Waivers of Inadmissibility

Appealing Denial of a Waiver Jurisdiction: AAO or BIA Submitting a Brief in Support of Appeal Ability to Present Additional Evidence? Practice Pointer – refiling vs. appealing AILA DC Annual Fall Chapter Waivers of Inadmissibility