Tag Archive for: Hardship Waivers

David Isaacson

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing

/1 Comment/in /by

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as manyAAOdecisionsstate, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisionsfrom 2012; 2010; February, March, Apriland June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from Januaryand Marchof 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11)applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

Cyrus Mehta

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

/0 Comments/in /by
By Myriam Jaidi

Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal question of good moral character but also on the way to analyze other cases such as waivers requiring a demonstration of extreme hardship. Like the issue of good moral character, which was the lynch pin in Lawson, extreme hardship waivers require the same care in preparation and in adjudication revealed by Judge Chin’s searching legal analysis in Lawson. Judge Chin’s scrutiny and weighing of all relevant facts and legal issues in the case provides a guide to adjudicators on how to conduct the required “case by case” legal analysis. Judge Chin expertly applies the appropriate legal standards with a keen awareness of relevant policies and priorities, and a judicious exercise of discretion that results in justice triumphing over petty posturing.

Judge Chin’s decision also makes clear that applying a set of government priorities in determining whether a legal standard has been met does not mean that individuals will have an easy time of making their cases. Advocates should review the decision and the laws at issue for a sobering overview of just how high the standard is, and how much work and client preparation need be done to succeed in arguing that someone has demonstrated good moral character in the context of naturalization, or merits a favorable decision on a waiver application in the admissibility context. Adjudicators should, in turn, review the case for guidance, in the absence of guidance from DHS/USCIS, on how to apply the law within the framework of agency priorities.

Make no mistake: the road to showing someone merits a favorable finding of good moral character or a favorable exercise of discretion for a waiver, is a hard one and the bars in these case are nebulous and set quite high. Here we will explore the difficulties of establishing good moral character as a matter of law, but readers should keep in mind that the same principles for building and analyzing a case can readily apply in the waiver context as well.

Although courts have long espoused the notion that “[w]e do not require perfection in our new citizens,” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), those who have committed significant crimes or have other grave negative incidents in their past face an uphill battle that can be won only if they do not fall within one of the bars to establishing good moral character and only if they have made exemplary efforts to redeem themselves.

In Lawson, the court concluded that Vernon Lawson, a Vietnam War veteran honorably discharged from the Marines, established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985 because he paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates.” Lawson at page 2.

In addition, Mr. Lawson continued his efforts at reform after he left the confines of prison:

Upon his release, he obtained gainful employment, and spent eight years as a drug abuse counselor, drawing on his own experience to help countless individuals deal with their addictions. He moved back home with his mother and took care of her as her health failed. He went to church every Sunday and regularly volunteered to help in church activities. He brought food to homeless veterans, played chess in a neighborhood chess club, and tended a neighborhood garden.

Lawson, at page 3. As described by Judge Chin, Mr. Lawson made extensive, ongoing efforts to overcome his past and though, as the court noted, he committed an “unspeakable act”, by the time of the court’s decision he had utterly reformed his life, had paid his debt to society, and therefore established that he met the legal standard for good moral character.

Judge Chin also spent considerable effort in examining Mr. Lawson’s life experiences and how these impacted him, to place Mr. Lawson’s efforts at redemption and the changes he effected in his life in context. Judge Chin closely considered Mr. Lawson’s horrific experiences in Vietnam, where he became a substance abuser as a result of the stress and suffered psychological damage. He did not get the necessary treatment until he was in prison more than 20 years after he returned from serving his country honorably.

In Mr. Lawson’s case, as in many cases, good moral character made the difference between deportation and US citizenship. That these two outcomes are alternatives in one case is astounding and underscores the importance of closely examining and mustering the positive efforts and achievements in an individual’s past and present, even where a significant obstacle to a finding of good moral character may exist. Doing so (and making the determination of whether someone should risk applying for naturalization), however, requires an understanding of the nebulous concept of good moral character as well as a firm grasp of the government’s policy goals.

Although the relevant legislative and regulatory frameworks provide an idea of what precludes a finding of good moral character, no definition exists and the term has been called “incapable of exact definition.” Posusta v. United States, 282 F.2d 533, 535 (2d Cir. 1961). The statutory and regulatory bars may be found in INA 101(f) and 8 CFR 316.10. These laws dictate a finding of a lack of good moral character for a person who has ever been convicted of murder, who has been convicted of an aggravated felony (defined in INA 101(a)(43)) after November 29, 1990, and who has at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom). Further, an applicant must be found to lack good moral character if during the relevant statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.

Finally, a third set of preclusions apply, which includes a catchall. Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

The time frame relevant to a determination of good moral character may reach well beyond the specific statutory periods relevant to particular types of petitions, for instance 5 years (individuals applying as lawful permanent residents under INA 316(a)(1)), 3 years (if LPR living for 3 years in marital union with US citizen spouse under INA 319(a)), 1 year (under regulations governing eligibility under INA 329). According to 8 CFR § 316.10(a)(2), USCIS may

take into consideration, as a basis for its determination, the applicant’s conduct and acts at any time prior to [the relevant statutory] period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.

Within this framework, USCIS is directed by regulation to evaluate good moral character “on a case-by-case” basis. 8 CFR § 316.10(a)(2) There is sparse policy guidance on the question of good moral character. The Adjudicator’s Field Manual contains a lengthy section on good moral character but the section is designed to provide an overview of the statutory bars, methods of uncovering fraud, and procedures for defending challenges to a denial rather than apprising officers of how to objectively assess a person’s character within the framework of the laws and overarching agency policies. The AFM provides a baseline for analysis, specifically that “good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted.” AFM 73.6(a). The AFM also provides some helpful guidance with regard to what kind of misstatements may be excused or insignificant because they do not demonstrate the requisite intent to deceive for an immigration benefit. (“[M]isrepresentations that results [sic] from poor memory or because the applicant did not understand the question are not false testimony.”) However, in the next paragraph, the AFM goes on to note that individuals use the failure to understand the question as a “very common defense” and refers readers to another section “regarding interviewing techniques and proper documentation to file in order to eliminate this line of defense.” Perhaps more helpful to adjudicators would be direction on how to figure out whether someone is using a “line of defense” or sincerely has not understood. Such direction is once again found in Judge Chin’s decision.

In Mr. Lawson’s case, the government finally based its effort to deport Mr. Lawson on its claim that he committed perjury (at the deposition taken as part of the action in district court regarding his application for naturalization) for the purpose of obtaining an immigration benefit (in violation of 8 CFR § 316.10(b)(2)(vi)). The government argued that Mr. Lawson did not truthfully answer a question about whether he continued to drink alcohol. Closely examining the questions asked and answers given, Judge Chin found that Mr. Lawson had not understood the question at the deposition. Judge Chin recognized that Mr. Lawson had interpreted the words “drinking” and “drinks” [and “alcohol”] to mean “hard liquor” and reasonably interpreted the question as inquiring whether he continued to engage in abusive drinking. The court concluded that Mr. Lawson could therefore not be found to have committed perjury for not mentioning that he occasionally had wine or beer at family gatherings. The court noted that “[i]n light of the case law and all of the compelling circumstances, the Government’s latest position seems nothing but petty.”

After Mr. Lawson’s many years of hard work to redeem his character, it is daunting to think that a misinterpretation of question could have made all the difference in his case. What saved Mr. Lawson was not only that the court found that he had not answered the question “falsely” but also that case law recognizes other possible motives for false statements besides that of seeking to obtain an immigration benefit or naturalization exist and requires these alternatives to be considered. Judge Chin reviewed case law recognizing that fear, embarrassment or a desire for privacy could be alternative reasons, see Kungys v. United States, 485 U.S. 759, 782 (1988) as could misinterpretation of a question. See United States v. Hovsepian, 422 F.3d 883 (9th Cir. 2005).

Hovsepian involved two individuals who had been convicted in the past of serious crimes, but who, like Mr. Lawson, had completely reformed their lives, both earning advanced degrees and becoming community and youth role models, devoting a great deal of their lives to community leadership. The government argued that in the course of their quest for naturalization, each made false statements on the Form N-400 and regarding other issues (one regarding the nature of a youth group to which he belonged; the other regarding other names by which he had been known). Ultimately, the court found no error in the lower court’s conclusion that the individuals had not given intentionally false testimony for the purpose of obtaining an immigration benefit. Interestingly, the court noted that the question on the form at issue — “Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” — was rife with potential for misinterpretation or different reasonable interpretations given the extensive case law regarding the concept of “persecution.”

Individuals and their advocates must parse the question of good moral character very carefully and prepare to answer questions carefully, asking for clarification where they do not understand in order to avoid running afoul of the legal standards by mistake. What might appear to be a lost cause may not be if the individual can demonstrate that he has changed for the better because the laws are not meant to punish “but to admit as citizens those who are law-abiding and useful.” Posusta, 285 F.2d at 535-36. Circuit Judge Chin’s decision serves as an excellent reference for understanding what good moral character is and how it can be demonstrated. It also presents guidance for individuals who seek to reform themselves after having committed an act that stands as an obstacle (though not falling within the statutory bars) to naturalization. These individuals must demonstrate sincere and significant efforts to become upstanding and engaged contributors to their communities and to the nation in order to merit a favorable finding on their behalf. Finally, the decision serves, in the absence of guidance from DHS/USCIS on the adjudication of good moral character and similarly the exercise of discretion in waiver cases, as an exacting guide of the type of searching legal and factual inquiry adjudicators should make in these cases, not simply to uncover suspected fraud, but to analyze a person in light of their experiences, their mistakes, and their efforts to remake themselves into law-abiding and useful members of their local and national communities.