1. Deep Screening for Immigration Relief
Immigration Law Unit
The Legal Aid Society

2. Overview Entry/Status Criminal History Citizenship Family-Based
245(i); I-601A
VAWA, SIJS, T&U Visas
Asylum
NACARA, HRIFA
Cancellation of Removal
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3. Entry/Status Inspected by Customs and Border Protection Waved through
Fonseca Haro, A (BIA 2014)
Quilantan, 25 I&N Dec. 285 (BIA 2010)
Arguellin, 17 I&N Dec. 308 (BIA 1980)
Paroled in
Military parole-in-place
Advance parole, travel and return
Arabally Yerrabelly, 25 I&N Dec 771 (BIA 2012)
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4. Entry/Status (cont.) I-94 download FOIA
USCIS/ICE/CBP
EOIR
OBIM
Voluntary return vs expedited removal
Fugitive disentitlement doctrine
Risks
Notice to Appear
Reinstatement; prosecution for illegal re-entry
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5. Criminal History NYS rap sheet FBI record
NYPD Good Conduct certificate
If previously notified by ICE of removal, DCJS may have added “deported alien” banner to NYS rap sheet
If then fingerprinted again in NYS, DCJS will notify ICE
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6. Criminal History (cont.)
If any prior criminal history, consult with crim-imm specialist
Even minor charges can have serious consequences
No statute of limitations for immigration consequences
Post-conviction relief
Change in law, e.g. Harbin v Sessions
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7. Acquisition of citizenship
Birth abroad
Parent (or maybe grandparent) was USC
Born in or out of wedlock?
How long, and at what ages, did USC (grand)parent(s) live in US before going abroad?
USC residence could have been before natz
Consular Report of Birth Abroad
US Passport
N-600
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8. Derivation of citizenship
Rule as of :
Under 18yo
Have LPR status
Live with biological or adoptive parent
Parent is or becomes USC
If out of wedlock, father must have legitimated before child 18yo
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9. INA §322 citizenship for children
Requirements for non-LPR child:
at least one parent is/became USC
USC parent (or grandparent) lived total of 5 years in US (2 years after age 14);
child is under 18 and unmarried;
resides outside US in legal and physical custody of USC parent; and
child is temporarily in the US and remains in lawful status until naturalization is complete
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10. Family-Based Immigration
Step 1: Petitioner establishes qualifying relationship
Form I-130
Step 2: Beneficiary submits application to adjust status or consular process
Form I-485 or DS-260
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11. Relatives: Immediate versus Preference
Immediate relatives
Spouses of USC
children of USC (unmarried and under 21)
parents of USC (21 or older)
Preference relatives
1st = sons & daughters of USC (21 or older, unmarried)
2A = spouses and children (under 21, unmarried) of LPR
2B= sons & daughters of LPR (21 or older, unmarried)
3rd = sons & daughters of USC (any age, married)
4th = siblings of USC
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12. Issues to watch for Manner of entry
In spousal case, child born during marriage, but with one non-spousal parent
Did beneficiary have prior marriage-based petition?
Screen for marriage fraud finding (INA § 204(c))
Did beneficiary enter:
with a fiancé visa?
as a conditional resident?
with a J-1 visa?
Petitioner convicted of crime against a minor?
Adam Walsh Child Protection and Safety Act
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13. Applying for Permanent Residence
Is the visa petition still valid
petitioner-beneficiary relationship still exists
petitioner still has the required immigration status, and
petition has not been terminated by USCIS or rejected by Department of State
Is immigrant visa now available
Is beneficiary/applicant admissible
if not, is a waiver available
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14. INA § 245(i)
Waives various grounds of inadmissibility and ineligibility
Entry without inspection
Violation of visa
Unauthorized employment
Employment-based adjustment, not in status
Alien crewmember
S visa
Adjust status here, without leaving U.S.
Super fee $1,000
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15. INA § 245(i) (cont.) Family petition or employment petition
I-130, I-360, labor certification, I-140
“Approvable when filed”
Filed on or before April 30, 2001
Yates Memo , filing grace period
Filed Jan 15, 1998 to April 30, 2001, show presence on Dec 21, 2000
Grandfathering
Yates Memo ,
grandfathering & derivatives
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16. INA § 245(i) (cont.)
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17. I-601A Provisional Waiver
If consular processing, because ineligible to adjust
Trigger 3- or 10-year bar upon departing
Seek waiver before departing
Extreme hardship to qualifying relative
USC or LPR spouse or parent
High standard to prove hardship
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18. I-601A Provisional Waiver (cont.)
Approved I-130, current priority date
Pay National Visa Center (NVC) fees
Notify NVC of intent to file I-601A
File I-601A with proof of payment of IV fee
File consular processing documents with NVC with I-601A pending
Upon approval of I-601A, notify NVC
Travel abroad for interview
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19. Widow(er)s of U.S. citizens
Was late spouse USC?
Did spouse die within the past 2 years?
Legally separated from USC spouse at the time of his or her death?
Remarried?
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20. VAWA Self Petition Abusive USC or LPR spouse, parent, or child
Battery or extreme cruelty
Good moral character
If spousal:
Good faith marriage
Co-residence
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21. Asylum
Credible fear of persecution in home country due to race, religion, national origin, membership in a particular social group, or political opinion
Apply within one year of coming to U.S.
Change in circumstances
Ending of TPS?
Fear still credible, after so many years?
Extraordinary circumstances
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22. U Visa Victim of certain crimes Suffered Physical and mental abuse
Helped law enforcement (police, District Attorney, Family Court judge, ACS, etc) investigate or prosecute the perpetrator
Valid for 4 years
Work authorization
Apply for green card after 3 years
Derivative family members
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23. T Visa Physically present in US on account of trafficking
Suffered severe form of trafficking
Cooperation with law enforcement
Unless under 18yo or
Waiver due to physical/psychological trauma
Extreme hardship if removed
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24. Special Immigrant Juvenile Status
Under 21yo
Abused, neglected, or abandoned by one or both parents
Subject of state court proceeding (guardianship, foster care, or adoption)
Judge says not in child’s best interest to be returned to home country
Must be unmarried
Must not have certain criminal convictions
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25. NACARA Section 203 Nicaraguans / Cubans Salvadorans Guatemalans
Entered prior to 12/1/95, and applied for asylum prior to 4/1/00
Salvadorans
Entered prior to 9/19/90, registered for ABC/TPS by 10/31/1991 and not detained at entry after 12/19/1990 or
applied for asylum prior to April 1, 1990
Guatemalans
Entered prior to 10/1/1990, registered for ABC prior to 12/31/1991 and not detained at entry after 12/19/1991 or
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26. NACARA Section 203 (cont.) Eastern Europeans
Entered prior to 1/1/91, and applied for asylum prior to 12/31/91
Soviet Union (or its former republics), Russia, Latvia, Lithuania, Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, Romania, Yugoslavia (or its former states)
May be able to renew NACARA adjustment in proceedings
If denied earlier by USCIS/INS
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27. NACARA Section 203 (cont.) NACARA family members:
Spouse, children who were under 21
Relationship existed at time of principal’s NACARA approval
Have 7 years of continuous presence in US
Even if children have since aged out or married
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28. HRIFA - Haitians Adjustment if: Adjustment filed by 3/31/00
Physically present as of 12/31/95, and either
Applied for asylum before12/31/95 or
Paroled into US before 12/31/95 or
“Child” (unmarried, under 21yo) both when arrived in US and on 12/31/95, and either
arrived without parents and remained without parents, or
Became orphaned after arrival, or
Were abandoned before 4/1/98 and remained abandoned
Adjustment filed by 3/31/00
Renew in proceedings, if denied by USCIS/INS
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29. Cancellation of Removal for Non- Lawful Permanent Residents
In U.S. continuously for 10 years
All DACA and most TPS registrants have 10 years
Good moral character
Certain crimes make you ineligible
Demonstrate exceptional and extremely unusual hardship to USC or LPR spouse, parent, or child
**Available only in removal proceedings
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30. VAWA Cancellation of Removal
Relief for:
Abused spouse or former spouse of USC/LPR
Son or daughter of USC/LPR
Non-abusive parent of abused child of USC/LPR
Higher standard than self-petition
Extreme hardship
3 years continuous residence
**Available only in removal proceedings
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31. NACARA Cancellation of Removal
NACARA special rule cancellation (suspension of deportation)
Guatemala, El Salvador, and former Soviet Bloc countries
7 years presence immediately prior to application
Good moral character
Extreme hardship
**Available only in removal proceedings
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32. Administrative Closure
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)
reason administrative closure is sought;
basis for any opposition to administrative closure;
likelihood respondent will succeed on applications outside of proceedings
anticipated duration of closure;
either party’s responsibility for delay
ultimate outcome of removal proceedings upon recalendaring before IJ or reinstatement of appeal by BIA
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33. Administrative Closure (cont.)
Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)
Primary consideration is whether party opposing admin closure has provided persuasive reason for case to proceed and be resolved on merits
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34. Administrative Closure (cont.)
Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018)
IJ/BIA have authority for admin closure? Avetisyan/W-Y-U articulate appropriate standard?
If IJ/BIA lack authority, should AG delegate to them?
Can continuance, dismissal w/o prejudice, or termination w/o prejudice be used instead?
If IJ/BIA lack, and power is unwarranted/ unavailable, what about currently admin closed cases?
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35. Administrative Closure (cont.)
TPS admin closed cases – common relief:
Adjustment through immediate relative
Admitted
Paroled, including TPS-based advance parole
Adjustment before USCIS, as arriving alien
TPS-as-admission (see Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013); Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017))
Provisional waiver and consular processing
U visas
Non-LPR cancellation of removal
Asylum/Withholding/Convention Against Torture
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36. Questions?
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37. Immigration Law Unit Legal Aid Society 199 Water Street, 3rd Floor
New York, NY 10038
(212)
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