These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
waivers
The Fourth Circuit has determined that when the Department of Homeland Security presents evidence that a petitioner was properly admitted to the United States on the visa waiver program, the court will presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant’s waiver to challenge any subsequent removal order.
The full text of Nardea v. Sessions can be found here:
The Seventh Circuit has rejected the Board of Immigration Appeals' decision in Matter of Khan and reaffirmed that Immigration Judges have the authority to review the denial of a waiver of inadmissibility submitted in conjunction with a U visa application.
The decision in Baez-Sanchez v. Sessions can be found here:
U.S. Citizenship and Immigration Services has published new guidance on what factors will meet the extreme hardship requirement for certain waivers of inadmissibility. This guidance, which goes into effect on December 5, 2016, includes a list of "particularly significant factors" that "often weigh heavily in support of finding extreme hardship." These factors include:
-Qualifying relative granted Iraqi or Afghan Special Immigrant Status, T visa status, asylum, or refugee status
-Qualifying relative or related family member dependent on qualifying relative is disabled
-Qualifying relative is a member of the U.S. military
-The Department of State has issued travel warnings recommending against travel to the applicant's country of origin
-Substantial displacement of care of applicant's children
The full text of the policy manual updates can be read here:
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB-Chapter5.html#S-E
The Board of Immigration Appeals (BIA) has determined that an Immigration Judge does not have jurisdiction to grant a waiver of inadmissibility to a U visa petitioner. In so doing, the BIA breaks with the Seventh Circuit on this issue.
The full text of Matter of Khan can be found here:
https://www.justice.gov/sites/default/files/pages/attachments/2016/09/08/3870_0.pdf
In a published decision, the Third Circuit has determined that an Immigration Judge has no authority to grant a waiver of inadmissibility in conjunction with a U visa. In so doing, the court creates a circuit split, with the Seventh Circuit having previously found that an Immigration Judge does have this authority.
The full text of Sunday v. Attorney General can be found here:
In Matter of Agour, the BIA confirmed that an adjustment of status qualifies as an admission, and thus, any fraud committed during the adjustment process can be waived under section 237(a)(1)(H) of the INA, even if the applicant previously entered the United States in an other status without committing any fraud to procure that entry. The BIA explored the historical evolution of the immigration laws, which have shifted the focus away from whether a person has effectuated an "entry" into the United States to whether a person has been admitted, and concluded that this evolution, as well the statutory language of section 237 of the INA (which covers inadmissibility at the time of entry or adjustment), mandated that fraud in an adjustment be treated the same as fraud in an entry - in other words, that both be waiveable under section 237(a)(1)(H) of the INA.
The full text of Matter of Agour can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/18/3837_0.pdf
Another crimmigration victory -- the 10th Circuit has joined many other circuits to find that an individual convicted of an aggravated felony is only barred from seeking a 212(h) waiver if he entered the United States as an LPR.
For more information about this issue, check out my post on the Second Circuit's decision on this issue: http://www.sabrinadamast.com/journal/2015/1/8/second-circuit-weighs-in-on-212h-waivers-for-aggravated-felons
The full text of Medina-Rosales v. Holder can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9541.pdf
The Second Circuit, in Husic v. Holder, is the latest court to find that an individual who is admitted to the United States in a status other than lawful permanent residence and later adjusts status to lawful permanent residence is not barred from seeking a 212(h) waiver (which waives the immigration consequences of certain criminal convictions) because of a conviction for an aggravated felony. Husic was admitted to the United States on a tourist visa, and later adjusted his status to lawful permanent residence. He was convicted of an aggravated felony and placed in removal proceedings, where he argued that he could seek a 212(h) waiver for his conviction. The Second Circuit, in finding that an individual who enters the United States and later adjusts status is not an individual who has "previously been admitted to the United States as an alien lawfully admitted for permanent residence," joins seven other circuit courts in reaching this interpretation of the aggravated felony bar to 212(h) waivers. The 8th Circuit is currently the only circuit court to dissent from this majority view.
You can read the full decision here: http://www.ca2.uscourts.gov/decisions/isysquery/7f8fdc38-cdd6-46e2-8835-896bbfa2dc71/1/doc/14-607_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7f8fdc38-cdd6-46e2-8835-896bbfa2dc71/1/hilite/
