OVERCOMING ADJUSTMENT BARRIERS FOR VAWA AND U VISAS: Inadmissibility, reinstatement, and failure to voluntarily depart. Moderator: Maria Baldini-Poterman, Maria Baldini-Potermin & Associates, PC Speakers: Cecelia Friedman Levin, ASISTA Gina Amato, Public Counsel Catherine Seitz, Legal Services for Children OVERCOMING ADJUSTMENT BARRIERS FOR VAWA AND U-VISAS: Inadmissibility, reinstatement, and failure to voluntarily depart. Moderator: Maria Baldini-Poterman Cecelia Friedman Levine, ASISTA, DC Gina Amato, Public Counsel, LA Catherine Seitz, Legal Services for Children, San Francisco, CA #ImmigrationLaw #FBA

Goals Identify how inadmissibility grounds impact VAWA self-petitions and U visa relief Strategize on reinstatement issues for VAWA and U visa Assess the impact of failure to depart under a voluntary departure order for VAWAs and U visas #ImmigrationLaw #FBA

Inadmissibility #ImmigrationLaw #FBA

Inadmissibility INA §212 Framework: Ten general categories Apply to both consular processing and adjustment in the U.S. Framework: Does it apply? Do the facts support it? Is there an exception that applies? Is there a waiver available? #ImmigrationLaw #FBA

Inadmissibility and VAWA What applies? Where are special VAWA provisions related to inadmissibility? Discretion and Hardship #ImmigrationLaw #FBA

Special VAWA Provisions for Inadmissibility Health related waiver for communicable diseases Criminal grounds VAWA Public charge Not applicable to VAWAs, Us or Ts Present without admission or parole VAWA-specific waiver for fraud (beware of false claim to USC) Unlawful Presence Permanent Bar Health—212(g)(1)(C) Criminal—212(h)(1)(C) April 2008 Ayes Memo “Adjustment of VAWA self-petitioners present without inspection” #ImmigrationLaw #FBA

But don’t stop there! INA has other important provisions CIMT: Petty Offense, Juvenile exceptions Waiver for Smuggling INA 212(h) waivers Intersection with VAWA waiver Health—212(g)(1)(C) Criminal—212(h)(1)(C) April 2008 Ayes Memo “Adjustment of VAWA self-petitioners present without inspection” #ImmigrationLaw #FBA

Hypo 1: Identifying grounds Miguel filed for adjustment and during the interview said he had never been arrested, even though he was convicted 10 years ago for aggravated assault and sentenced to a year imprisonment. He also admitted that he had entered the US in 1994, left in 1997. ON his adjustment application it says his first entry is 2010. What applies? Health—212(g)(1)(C) Criminal—212(h)(1)(C) April 2008 Ayes Memo “Adjustment of VAWA self-petitioners present without inspection” #ImmigrationLaw #FBA

False Claims to U.S. Citizenship Limited waiver Children of USC parents (or former USC parents); lived in U.S. before 16, reasonably believed USC Why 1996 matters What if false claim has nexus to abuse? Health—212(g)(1)(C) Criminal—212(h)(1)(C) April 2008 Ayes Memo “Adjustment of VAWA self-petitioners present without inspection” #ImmigrationLaw #FBA

Unlawful Presence and Permanent Bar Yolanda entered the U.S. EWI in 1997 and left in 2000 because of her abusive partner. She re-entered EWI in 2001 in an attempt to reconcile with him, but the abuse continued. What applies? What if the abusers were different? #ImmigrationLaw #FBA

Other VAWA Concerns Controlled Substances Dealing with Derivatives #ImmigrationLaw #FBA

Inadmissibility and U visas INA 212(d)(14)—national and public interest Everything potentially waiveable except Nazi and Genocide perpetrator INA 212(a)(3)(E) Discretionary #ImmigrationLaw #FBA

Emerging Issues Discretion Going outside Record of Conviction Lack of Reviewability at AAO Going outside Record of Conviction How to respond? Looking at Juvenile Offenses #ImmigrationLaw #FBA

Framing a (d)(14) Argument USCIS Reliance on Hranka factors INA (d)(3)(A) Risk of harm to society Seriousness of applicant’s prior immigration law, or criminal law, violations Nature of applicant’s reasons for wishing to enter the U.S. What makes an argument under “national or public interest standard”? #ImmigrationLaw #FBA

Inadmissibility along the Continuum Inadmissibility ground that Should’ve been disclosed at the outset but wasn’t Occurs after filing Occurs after waitlist approval Occurs after U grant #ImmigrationLaw #FBA

Inadmissibility for I-929 and Adjustment No waivers of inadmissibility for I-929 and Adjustment Under 245(m) Dealing with criminal issues as “discretion” What does AAO say? Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. #ImmigrationLaw #FBA

Dealing with Inadmissibility Review in Court Matter of L-D-G- (7th Circuit) Matter of Khan (BIA 2016) Sunday vs. Attorney General (3rd Cir. 2016) Philip Man v. Loretta Lynch (9th Cir) Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. #ImmigrationLaw #FBA

Reinstatement of removal Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. Reinstatement of removal #ImmigrationLaw #FBA

Reinstatement – 241(a)(5) 1) Reentered the United States illegally 2) after having been removed or having departed voluntarily, under an order of removal Prior order of removal is reinstated Not eligible and may not apply for any relief under this Act (true?) Shall be removed under the prior order at any time after the reentry Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. #ImmigrationLaw #FBA

Reinstatement and VAWA Waiver if connection between the abuse and the self-petitioner’s Removal Departure from U.S. Reentry or reentries into the U.S. OR Attempted reentries into the U.S. Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. #ImmigrationLaw #FBA

Reinstatement and VAWA What to do if they don’t qualify for a waiver? What’s the process? I-601 and I-212 with I-485 in envelope to VSC Once filed, email Hotline to notify you when case is transferred USCIS HQ can be contacted if necessary #ImmigrationLaw #FBA

Reinstatement and U visa AAO confirms (d)(14) waiver for 212(a)(9)(C) cures it Make sure you ask for (9)(A) waiver too No explicit I-212 requirement, so covers your bases #ImmigrationLaw #FBA

Failure to Voluntary depart Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. Failure to Voluntary depart #ImmigrationLaw #FBA

Failure to Voluntary Depart Matter of L-S-M Adopted decision based on AAO case says failure to comply bars U adjustment for 10 years unless failure to depart not “voluntary” Only affects Adjustment, not issuance of U Explicit VAWA exception, but not for U #ImmigrationLaw #FBA

Questions? #ImmigrationLaw #FBA Criminal issue as "discution" Criminal issue at tricky for never vetted before, seeing for the first time, that there is prior crimes. AAO decision in adjustment context. Questions? #ImmigrationLaw #FBA

Title Text #ImmigrationLaw #FBA

Title Text #ImmigrationLaw #FBA

Title Text #ImmigrationLaw #FBA