1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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