1. 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
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2. 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
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3. Inadmissibility
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4. 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?
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5. Inadmissibility and VAWA
What applies?
Where are special VAWA provisions related to inadmissibility?
Discretion and Hardship
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6. 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”
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7. 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”
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8. 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 ON his adjustment application it says his first entry is What applies?
Health—212(g)(1)(C)
Criminal—212(h)(1)(C)
April 2008 Ayes Memo “Adjustment of VAWA self-petitioners present without inspection”
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9. 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”
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10. 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?
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11. Other VAWA Concerns Controlled Substances Dealing with Derivatives
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12. 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
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13. 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
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14. 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”?
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15. 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
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16. 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.
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17. 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.
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18. 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
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19. 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.
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20. 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.
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21. 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, Hotline to notify you when case is transferred
USCIS HQ can be contacted if necessary
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22. 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
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23. 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
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24. 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
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25. 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?
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