On Unlawful Presence Bars to Adjustment of Status or an Immigrant Visa                                  By Joseph P. Whale...
Cf. Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994) (addressing separation ofminor child from both parents applying for sus...
A list of factors deemed relevant in determining whether an alien has establishedextreme hardship to a qualifying relative...
 separation from family members,    severing community ties,    cultural readjustment after living in the United States...
Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) held:     An alien who leaves the United States temporarily...
___________________________________________________________________________________________________________________The pre...
years of the date of such aliens departure or removal (or          within 20 years of such date in the case of a second or...
(iii) Exceptions.-      (I) Minors.-No period of time in which an alien is under      18 years of age shall be taken into ...
(iv) Tolling for good cause.-In the case of an alien who-                              (I) has been lawfully admitted or p...
(C) Aliens unlawfully present after previous immigration violations.-      (i) In general.-Any alien who-            (I) h...
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On Unlawful Presence Bars to LPR Status

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On Unlawful Presence Bars to LPR Status

  1. 1. On Unlawful Presence Bars to Adjustment of Status or an Immigrant Visa By Joseph P. Whalen (June 1, 2012) 1 INA § 212(a)(9)(B)(i)(I) or (II) [8 U.S.C. § 1182(a)(9)(B)(i)(I) or (II)] BARS vs. INA § 212(a)(9)(B)(v) [8 U.S.C. § 1182(a)(9)(C)(v)] WAIVERWhere there is a bar, there may be a waiver available. Attaining a waiver is noteasy. One must first show prima facie eligibility and then show more! How Much?The following principles are easily discerned from AAO and BIA case decisions 2over many years of appellate reviews: (1) If extreme hardship to a qualifying relative is established, (2) then the applicant is statutorily eligible for a waiver, and (3) USCIS then assesses whether a favorable exercise of discretion is warranted.See Matter of Mendez-Moralez, 21 I&N Dec. 296,301 (BIA 1996).As is evident from the above, this adjudication requires multiple steps. As will beshown below it is even more complex than indicated above.As a qualifying relative is not required to depart the United States as aconsequence of an applicants inadmissibility, two distinct factual scenarios existshould a waiver application be denied:  either the qualifying relative will join the applicant to reside abroad or  the qualifying relative will remain in the United States.Ascertaining the actual course of action that will be taken is complicated by thefact that an applicant may easily assert a plan for the qualifying relative torelocate abroad or to remain in the United States depending on which scenariopresents the greatest prospective hardship, even though no intention exists tocarry out the alleged plan in reality.1 This article is posted at: http://www.slideshare.net/BigJoe5/on-unlawful-presence-bars-to-lpr-status2 Most of this discussion is drawn from: http://www.slideshare.net/BigJoe5/unlawful-presence-waiver-denial-aao-aug-20-2010 Page 1 of 10
  2. 2. Cf. Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994) (addressing separation ofminor child from both parents applying for suspension of deportation).As the Board of Immigration Appeals stated in Matter of Ige: [W]e consider the critical issue . . . to be whether a child would suffer extreme hardship if he accompanied his parent abroad. If, as in this case, no hardship would ensue, then the fact that the child might face hardship if left in the United States would be the result of parental choice, not the parents deportation.Id. See also Matter of Pilch, 2 1 I&N Dec. 627,632-33 (BIA 1996).Matter of Ige, 20 I&N Dec. 880 (BIA 1994) held: (1) Where an alien alleges in a motion that extreme hardship will be suffered by his United States citizen child were the child to remain in the United States upon his parents deportation, the claim will not be given significant weight absent an affidavit from the parent stating that it is his intention that the child remain in this country, accompanied by evidence demonstrating that reasonable provisions will be made for the childs care and support. (2) Assuming a United States citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parents deportation.Extreme hardship is "not a definable term of fixed and inflexible content ormeaning," but "necessarily depends upon the facts and circumstances peculiar toeach case." Matter of Hwang, 10 I&N Dec. 448, 45 1 (BIA 1964).It is clearly evident that the position of the [AAO] is to grant [extreme hardship]waivers on a case by case basis, rather than to establish blanket waivers for entireclasses of populations. Each case is to be judged on its own merits.See generally Matter of New York State Dept Of Transportation, 22 I&N Dec.215 (AAO 1998). Page 2 of 10
  3. 3. A list of factors deemed relevant in determining whether an alien has establishedextreme hardship to a qualifying relative was stated by the BIA in Matter ofCervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999).The above referenced factors include:  the presence of a lawful permanent resident or United States citizen spouse or parent in this country;  the qualifying relatives family ties outside the United States;  the conditions in the country or countries to which the qualifying relative would relocate and  the extent of the qualifying relatives ties in such countries;  the financial impact of departure from this country; and  significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.The Board added that not all of the foregoing factors need be analyzed in anygiven case and emphasized that the list of factors was not exclusive. Id. at 566.The Board has also held that the common or typical results of deportation,removal and inadmissibility do not constitute extreme hardship, and has listedcertain individual hardship factors considered common rather than extreme.As to the “common or typical results” referenced above and listed below seegenerally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21I&N Dec. at 631-32; Matter of Ige, 20 I&N Dec. at 883; Matter of Ngai, 19 I&NDec. 245, 246-47 (Commr 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA1974); Matter of Shaughnessy, 12 I&N Dec. 810,813 (BIA 1968).The above referenced “common or typical results” or “non-factors” include:  economic disadvantage,  loss of current employment,  inability to maintain ones present standard of living,  inability to pursue a chosen profession, Page 3 of 10
  4. 4.  separation from family members,  severing community ties,  cultural readjustment after living in the United States for many years,  cultural adjustment of qualifying relatives who have never lived outside the United States,  inferior economic and educational opportunities in the foreign country, or  inferior medical facilities in the foreign country (which does not otherwise constitute an extreme hardship).However, though hardships may not be extreme when considered abstractly orindividually, the Board has made it clear that "[r]elevant factors, though notextreme in themselves, must be considered in the aggregate in determining whetherextreme hardship exists." Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996)(quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator "must consider theentire range of factors concerning hardship in their totality and determine whetherthe combination of hardships takes the case beyond those hardships ordinarilyassociated with deportation." Id.Regardless of the type of family relationship involved, the hardship resulting fromfamily separation is determined based on the actual impact of separation on anapplicant, and all hardships must be considered in determining whether thecombination of hardships takes the case beyond the consequences ordinarilyassociated with removal or inadmissibility. Matter of O-J-O-, 21 I&N Dec. at 383.Nevertheless, though USCIS in general and AAO in particular require anapplicant to show that a qualifying relative would experience extreme hardshipboth in the event of relocation and in the event of separation, in analyzing thelatter scenario, the agency gives considerable, if not predominant, weight to thehardship of separation itself, particularly in cases involving the separation ofspouses from one another and/or minor children from a parent. Salcido-Salcido,138 F.3d at 1293.Relying heavily on Matter of Ige, 20 I&N Dec. at 886 ("[I]t is generally preferablefor children to be brought up by their parents."). USCIS through AAO considersthat the most important single hardship factor may be separation, particularlywhere spouses and minor children are concerned. Salcido-Salcido, 138 F.3d at1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401,403 (9th Cir. 1983));Cerrillo-Perez, 809 F.2d at 1422. Page 4 of 10
  5. 5. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) held: An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.__________________________________________________________________If you are deemed not subject 3 to the bar then there is no need for a waiver! Great!However, it took some finagling and a few tries to reach that conclusion. Theearlier decision was clarified, but not modified and certainly not vacated.Matter of Lemus, 25 I&N Dec. 734 (BIA 2012) held: Adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), absent a waiver. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) held: (1) An alien who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B)(i)(II) (2000), even if the alien’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings. (2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act 4.3 The same is true for those J-1 non-immigrants who are “not subject” to the bar at INA § 212(e) and therefore donot have to file an I-612.4 “The Immigration Judge indicated that the respondent’s inadmissibility would be addressed at the subsequenthearing and invited the respondent to seek a waiver pursuant to section 212(a)(9)(B)(v) of the Act based on anyextreme hardship that his father would face upon his removal.” At p. 374 Page 5 of 10
  6. 6. ___________________________________________________________________________________________________________________The preceding presented the apparent current state of reasoning that one shouldexpect will be applied during the adjudication of an extreme hardship waiverrequest. The following is merely a presentation of the statute that both creates theunlawful presence (ULP) bars, and the waivers to them. However, use cautionbecause the statute creates some bars for which there are NO WAIVERS. Be sureyou understand which bar applies to you, if any, before applying for a waiver tomake sure that: (1) you are subject to a bar, and if so, (2) your bar can be waived.Please be sure to read footnote 4 below, even if you skip the reprint of the statute.__________________________________________________________________INA § 212 [8 U.S.C. § 1182] GENERAL CLASSES OF ALIENSINELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION;WAIVERS OF INADMISSIBILLITY(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwiseprovided in this Act, aliens who are inadmissible under the following paragraphsare ineligible to receive visas and ineligible to be admitted to the United States: (9) ALIENS PREVIOUSLY REMOVED.- (A) Certain aliens previously removed.- (i) Arriving aliens.-Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the aliens arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (ii) Other aliens.-Any alien not described in clause (i) who- (I) has been ordered removed under section 240 or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 Page 6 of 10
  7. 7. years of the date of such aliens departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (iii) Exception.-Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the aliens reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the [Secretary of Homeland Security] has consented to the aliens reapplying for admission.(B) ALIENS UNLAWFULLY PRESENT.- (i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who- (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such aliens departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such aliens departure or removal from the United States, is inadmissible. (ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the [Secretary of Homeland Security] or is present in the United States without being admitted or paroled. Page 7 of 10
  8. 8. (iii) Exceptions.- (I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I). (II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States. (III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (I). (IV) Battered women and children.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of the aliens nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that paragraph. (V) VICTIMS OF A SEVERE FORM OF TRAFFICKING IN PERSONS- Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)) was at least one central reason for the aliens unlawful presence in the United States. Page 8 of 10
  9. 9. (iv) Tolling for good cause.-In the case of an alien who- (I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the [Secretary of Homeland Security], and (III) has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days. (v) Waiver 5.-The [Secretary of Homeland Security and/or] Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary of Homeland Security and/or] Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the [Secretary of Homeland Security and/or] Attorney General regarding a waiver under this clause.5 This waiver may be granted in connection with an adjustment of status application filed witheither USCIS or an IJ. AAO may review the USCIS I-601 (and any associated I-212) decision inan I-290B Appeal or Motion or I-290C certification from any USCIS Field Office, ServiceCenter, or District Director outside of the Removal Context or merely before any NTA is issued.It is unclear whether an IJ might be stuck with a decision made by USCIS (especially if AAOupheld the denial) absent “new evidence” but that the BIA could have another crack at thewaiver question in a legal analysis. It is unclear if the BIA could overrule the AAO directlyor if it would have to be certified or “referred” to the Attorney General for a ruling. Whenthe BIA and AAO both answered to the same Cabinet level Official, that Official (A.G.) couldassign the BIA to be the final arbiter. Now that the statutory landscape has changed, it is unclearif the A.G.’s delegate can settle the matter for him under such circumstances. Per 6 USC § 522,the AG and DHS Secretary would need to settle this before it got any judicial review, but theproviso in INA § 103(a)(1) names the Attorney General as the Executive Branch’s final arbiter ina dispute on a matter of law under the INA. Page 9 of 10
  10. 10. (C) Aliens unlawfully present after previous immigration violations.- (i) In general.-Any alien who- (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1) , section 240 , or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible. (ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the aliens last departure from the United States if, prior to the aliens reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the aliens reapplying for admission. (iii) WAIVER- The Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between-- (I) the aliens battering or subjection to extreme cruelty; and (II) the aliens removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States. Page 10 of 10

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