SRW Border Lawyers Successfully Guides Client Through Removal Proceedings & I-192 Waiver Process

Background: Client, a naturalized Canadian citizen, initially approached SRW after she was placed in removal proceedings. CBP Officials placed Client in removal proceedings because she had attempted to enter the U.S. without a waiver after CBP Officials had previously advised her that she was inadmissible pursuant to INA § 212(a)(2)(A)(i)(I) and INA § 212(a)(6)(C)(i) and required a waiver. Notably, Client had initially been informed of her inadmissibility when she was only a permanent resident of Canada and mistakenly believed that she no longer required a waiver to enter the U.S. since she was now a Canadian citizen.

With the assistance of SRW, Client admitted to the factual allegations of her Notice to Appear and conceded her removability. SRW also prepared a Motion to Withdraw Application for Admission on Client’s behalf, which ultimately was granted by the Immigration Judge.

Following the conclusion of Client’s removal proceedings, Client retained SRW to assist her with obtaining a nonimmigrant waiver to overcome her inadmissibility to the U.S.

Grounds of Inadmissibility: INA § 212(a)(2)(A)(i)(I) – Two (2) Theft Convictions that occurred over nineteen (19) years ago; and INA § 212(a)(6)(C)(i) – Misrepresentation stemming from her failure to disclose her criminal convictions on a B1/B2 visa application over ten (10) years ago.

SRW Waiver Strategy: Evidence of Rehabilitation (no criminal issues since 1997, no immigration issues since being placed in removal proceedings in 2010, demonstrated remorse, productive member of community); Compelling reasons for entry (many family members living in the U.S. including her only living parent, siblings and extended family members).

Application Type: I-192, Application for Advance Permission to Enter as Nonimmigrant

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2]

Adjudication Time: 240 Days

Consequences Arising from the Presidents Executive Order on Immigration

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community. 

Below are some of the highlights that we believe may directly impact our firm’s clients: 

Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations). The EO indicates that additional countries could be added to the list as determined by DHS and DOS. After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures. During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

• Dual Nationals
  • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
• U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
  • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
  • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
• U.S. LPR’s (inc. Conditional LPR’s)
  • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare. 
  • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
• Canadians
  • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

• U.S. Dept. of State (DOS)
  • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
• U.S. Customs & Border Protection (CBP)
  • CBP is denying entry to individuals from these designated countries despite their facially valid visas. 
  • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
• U.S. Citizenship & Immigration Services (USCIS)
  • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.). 
  • It is unclear whether Humanitarian Parole may still be available to affected individuals.
• U.S. Immigration & Customs Enforcement (ICE)
  • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
  • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal. 

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk. The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us. We look forward to assisting you.

Guiding Mexican National from Removal Proceedings to Immigrant Visa (Removal Proceedings -> I-130 -> Voluntary Departure -> Immigrant Visa Processing -> I-601)

Our client, a Mexican national, was just recently approved by USCIS for a I-601 waiver based on hardship to his USC spouse. Our client is now awaiting the issuance of his immigrant visa through the U.S. Consulate in Ciudad Juarez, Mexico and upon issuance, will be able to return to the U.S. as a permanent resident and be able to support his family and be a productive member of society.

As background, our client had entered the US in the 1990’s without authorization and had been in the U.S. since then. A few years ago, he was encountered by U.S. Border Patrol and subsequently placed into removal proceedings. At that time, he was already in a relationship with his USC spouse and the couple decided to move ahead their plans and go ahead and get married so that our client would have a legal avenue to pursue permanent resident status. After the couple was married, we helped them file a Form I-130 petition with USCIS, together with a request for a bonafide marriage exemption under INA §245(e)(3). (As background, generally, if a foreign national gets married after removal proceedings have been initiated and is seeking immediate relative status based on that marriage, they must demonstrate by clear and convincing evidence – a notably higher standard - that the marriage is a bonafide marriage and one that was not entered in to for the purpose of evading immigration laws.)

After the I-130 was approved, our firm requested that our client be granted Voluntary Departure from the Immigration Court in Buffalo, New York. In support of our request, we established that our client was an individual of good moral character, that he was deserving of the court’s discretion, was statutorily eligible for such relief, etc. (Our client was not eligible to adjust his status from within the U.S. since he last entered the U.S. unlawfully and was required to complete Immigrant Visa Processing.)

Our client timely departed the U.S. prior to his Voluntary Departure date and subsequently attended his immigrant visa interview at the U.S. Consulate in Ciudad Juarez. During his interview, as expected, he was denied an immigrant visa since he was inadmissible under INA §212(a)(9)(B)(i)(II) [10 Yr Unlawful Presence Bar] and required an immigrant waiver under INA §212(a)(9)(B)(v) to waive his inadmissibility. Our client had triggered the Unlawful Presence Bar when he departed the U.S. for his immigrant visa interview (unfortunately, our client was unable to take advantage of the Provisional Hardship Waiver [Form I-601A] implemented by USCIS in March 2013 since he was required to depart the U.S. prior to that date pursuant to his Voluntary Departure Order).

Following his interview, we filed his immigrant waiver application (Form I-601) with USCIS. In support of the I-601, our firm prepared a detailed legal brief outlining our client’s illegal entry into the US, how he met his USC wife, when they were married and his immigration history; we also discussed the USC wife’s (qualifying relative) background - we explained her childhood, catalyst events in her childhood that led to her declining mental health issues and her depression and how her health had substantially improved as a result of our client’s emotional support and love. We were able to document her medical diagnosis of Chronic Major Depressive Order, Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia and were able to establish how her declining mental health was directly tied to our client’s immigration situation. We also explained her family ties in the U.S. which would prevent her from accompanying our client abroad to Mexico - she had children from a previous marriage, some of which are adults and some are minors. Her minor children are on SSI due to learning disabilities and there are current court orders that were granted to the child’s biological father placing geographical restrictions on the mother.

Thus, on the legal brief we prepared, we detailed and established the hardships that the USC spouse would face if she were to accompany our client to Mexico and then the extreme hardship she would face if she was to remain in the U.S. without him. We explained how she would be unable to receive the essential mental healthcare and physical healthcare that she required in Mexico, that she would lose her sole source of income which is SSI and healthcare benefits that she is able to receive in the US, and her inability to relocate her minor children because of the current custody visitation order with their biological father. We also explained how the USC spouse and her children would not have the legal ability to reside in Mexico and that there were various financial support documentation that they would be likely unable to provide to obtain such permission. We went on to discuss why she could not remain in the U.S. without her husband and how her mental health had already been declining given our clients immigration situation, and how prone she was to further deterioration given her documented history of depression. We also explained that her older daughter’s life was essentially being placed on hold given that her daughter was now responsible for doing a lot of the translations for the family, driving the family around to various doctor’s appointments and school related issues and generally helping out with the family, which was causing the USC spouse further emotional distress.

We are very happy this I-601 was approved, without an RFE, from USCIS within normal processing times and that our client is now going to be reunited with his family in the near future once his immigrant visa is issued by the U.S. Consulate in Ciudad Juarez.

Joint Motion to Admin Close Granted by BIA

Our Client, a national of Mexico, was placed in removal proceedings before the Immigration Court in Buffalo, New York in February 2009, charging him solely with inadmissibility under INA §212(a)(6)(A)(i). Our Client has been residing in the U.S. since 1996, having entered without inspection. He is married to a foreign national from El Salvador, who herself has been in the U.S. since 2000 in Temporary Protected Status (TPS). The couple have been married for over seven (7) years and have two U.S. citizen children together – a girl, age 8 and a boy, age 5. Both children have various health issues and have developed psychological issues as a result of our Client’s immigration situation. Our Client is the primary breadwinner for the family and his employment also provides the family’s room and board.

In August 2010, our Client had his Individual Merits hearing wherein he applied for Non-LPR Cancellation of Removal under INA §240A(b). The Immigration Judge (IJ) reserved his decision and ultimately, retired before issuing a decision in the matter. In October 2012, another Immigration Judge reviewed the transcript and issued a written decision denying our Client’s application for relief, citing that our Client had failed to establish that his two minor U.S. Citizen children would suffer exceptional and extremely unusual hardship should he be removed, but finding that he was otherwise statutorily entitled to relief.

Upon receiving the decision, we not only promptly moved forward with filing an appeal with the Board of Immigration Appeals (BIA), but we also contacted ICE Chief Counsel’s office to advocate that they join us in filing a Joint Motion to Administratively Close Respondent’s removal proceedings with the BIA. We advocated that the family’s circumstances had changed significantly since our Client’s trial, including the fact that our Client’s wife had since furthered her educational background and was now employed full-time at a federally qualified health center. We also noted that it was hardly fair to our Client that the IJ who issued the decision was not the same one who presided over the Client’s proceedings, who was able to observe the Client’s and his family’s demeanor during testimony, etc. Lastly, we argued that in the past year, ICE has prioritized its enforcement objectives to focus its resources on the removal of criminal and aggravated violators of our laws. Neither our Client nor his wife would fit in this category. Additionally, given our Client’s wife’s status as a TPS beneficiary, and the lack of criminal record of either party, it is likely that should any comprehensive immigration reform be passed by Congress, they are likely to be able to benefit.

We were ultimately successful in our efforts and filed a Joint Motion to Administratively Close our Client’s removal proceedings with the BIA – a motion the BIA has now* approved*.

This case highlights the importance of not only pursuing all legal relief available to our client, but keeping up with the current legal trends to ensure that we are instituting fail-safe’s for our Client’s when recommending their case strategy. With this strategy, not only have we preserved our Client’s appeal, but we have also ‘paused’ their removal proceedings – this way, should Congress implement Comprehensive Immigration Reform (CIR), they will hopefully be able to benefit from the same, in the event that the BIA concurs with the IJ’s denial.