Cancellation of Removal for Non-Lawful Permanent Residents under INA Section 240A(b)(1)

Statutory Eligibility.

To be eligible for cancellation of removal under INA § 240A(b), the applicant must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during the 10-year period immediately preceding the date of application for relief; (3) has not been convicted of an offense under section § 212(a)(2) (criminal and related grounds), 237(a)(2)(criminal offenses), or 237(a)(3) (failure to register or falsification of documents) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States an alien admitted for lawful permanent residence. A stepchild who meets the definition of a “child” under INA § 101(b)(1)(B) [8 U.S.C.A. § 1101(b)(1)(B)] is a qualifying relative for purposes of demonstrating the hardship requirement. See Matter of Portillo-Gutierrez, 25 I. & N. Dec. 148, 2009 WL 4281390 (B.I.A. 2009) See INA § 240A(b)(1); and (5) he merits a favorable exercise of discretion.

There is a 4,000 annual cap on the determination of most cancellation of removal cases. INA § 240A(e), 8 U.S.C. § 1229b(e); 8 C.F.R. §§ 240.21(a) and 1240.21(a).

Cancellation is not available:

  • To anyone whose removal was previously cancelled or whose deportation was suspended under INA § 244(a), or who was granted § 212(c) relief.
  • For 10 years to a person who was ordered removed after failing to appear at a removal hearing, unless there were exceptional circumstances for the failure to appear.
  • For 10 years to someone who failed to depart under a grant of voluntary departure under INA § 240B.
  • To aliens who are inadmissible under INA § 212(a)(3) or deportable under INA § 237(a)(4) (security, terrorism, and related grounds of inadmissibility and deportability).
  • To aliens who entered as crewmen.
  • To some exchange visitors.
  • To aliens who have persecuted others on the basis of race, religion, nationality, membership in a particular social group, or political opinion. INA § 240A(c), 8 U.S.C. § 1229b(c).

1. Continuous physical presence

Pursuant to INA § 240A(d)(1), continuous physical presence ends either when the alien is served with a Notice to Appear (“NTA”) (Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004)), or when Respondent has committed (Matter of Perez, 22 I&N Dec. 689 (BIA 1999)) an offense referred to in INA § 212(a)(2) (Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)) that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)

Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Instead, continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.

An immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).

An applicant must show that he has been continuously physically present in the United States for a period of 10 years immediately preceding the issuance of the notice to appear or the commission of an offense that terminates the accrual of the 10-year period. Where a noncitizen is outside of the United States for any one period of 90 days or has departed the United States for any periods in total exceeding 180 days, he cannot establish the required continuous presence. Where noncitizen has been out of the United States for any period of time, counsel should carefully count each period in order to ensure that they do not result in a finding of insufficient continuous physical presence either independently or cumulatively.

Continued physical presence may continue to accrue even where a noncitizen departs the United States and returns without inspection. However, the departure must not have been as a result of a threat of deportation or removal proceedings. The Board has held that continued physical presence may be interrupted with the detention and departure of a noncitizen from the U.S. made under the “threat of deportation. In another case, however, the Board has held that a two-week absence from the United States did not break the noncitizen’s continuous presence in the United States where she was refused admission by an immigration official, returned to Mexico with no threat of exclusion proceedings, and subsequently reentered the United States without inspection.

  • In re Romalez-Alcaide, 23 I. & N. Dec. 423, 2002 WL 1189034 (B.I.A. 2002) (noncitizen’s two brief departures under threat of deportation terminated continuous presence).
  • In re Avilez-Nava, 23 I. & N. Dec. 799, 2005 WL 1926631 (B.I.A. 2005). See also Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) (several attempts to reenter the United States without inspection and subsequent conviction for illegal entry did not terminate continuous presence); Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005) (noncitizen’s voluntary return by the Border Patrol after two attempts to reenter did not break continuous presence); Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005), opinion modified, (May 25, 2005) (noncitizen who returned to Mexico for two weeks to visit sick relative did not break continuous presence by being turned around at border upon attempted reentry); Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005) (noncitizen who returned to Mexico after brother’s death and later held for short periods of time at border and returned on four separate occasions did not break continuous presence).

2. Good Moral Character and No Disqualifying Criminal Convictions

The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-798 (BIA 2005).

An alien need not be charged and found inadmissible or removable on a ground specified in INA § 240A(d)(1)(B), in order for the alleged criminal conduct to terminate the alien’s continuous physical presence in this country. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006).

An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under INA § 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude. Id.

Similarly, an alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act. Id. An alien whose conviction precedes the effective date of INA § 237(a)(2)(E), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). In Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776, 2009 WL 995578 (B.I.A. 2009), the Board held that the conviction for an offense which would fall within the petty-offense exception under INA § 212(a)(2)(A)(ii)(II) [8 U.S.C.A. § 1182(a)(2)(A)(ii)(II)] still rendered the noncitizen ineligible for 10-year cancellation of removal as it was an offense listed under an enumerated ground of deportability at INA § 237(a)(2) [8 U.S.C.A. § 1227(a)(2)]. The Board failed to consider its prior precedent under In re Deanda-Romo, 23 I. & N. Dec. 597, 2003 WL 21043272 (B.I.A. 2003), and Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549, 2008 WL 2540609 (B.I.A. 2008).

3. Exceptionally and Extremely unusual Hardship

To establish “exceptional and extremely unusual hardship,” the applicant must show that his or her qualifying relative would suffer hardship substantially beyond that which would ordinarily result from an alien’s removal. See Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001) (finding that the qualifying relatives were healthy and would suffer hardship that was not substantially different from that expected from the removal of any alien with close family members in the United States). Yet, the alien need not show that such hardship would be unconscionable. Id. at 61. Only hardship to the alien’s qualifying relative is considered. INA Section 240A(b)(1)(D). However, hardship to the alien may be evaluated insofar as it affects his or her qualifying spouse, parent, or child. Matter of Monreal, 23 I&N Dec. at 63.

Factors to be considered in determining the level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. Matter of Monreal, 23 I&N Dec. at 63. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal are also relevant factors, but will generally be insufficient, in and of themselves, to support a finding of exceptional and extremely unusual hardship. Matter of Andazola-Rivas, 23 I&N Dec. 319, 323-324 (BIA 2002); Matter of Monreal, 23 I&N Dec. at 63;. However, all hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that is exceptional and extremely unusual. Matter of Monreal, 23 I&N Dec. at 64. See generally Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001) (evaluating the hardship standard under the former suspension of deportation statute). For example, the Board has determined that diminished educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.” Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002).

The Board has issued several decisions addressing the issue of
exceptional and extremely unusual hardship. In In re Monreal-Aguinaga,
the Board identified factors to address and consider in determining
whether exceptional and extremely unusual hardship has been established
for purposes of cancellation of removal. These factors are:

• age of noncitizen at the time of entry and when the application for
relief is filed;
• family ties in the U.S. and abroad;
• length of U.S. residence;
• health of applicant and qualifying relatives;
• political and economic conditions in the home country;
• possibility of other means of adjustment;
• community ties; and
• immigration history.

In preparing a client’s case, counsel should carefully review the
Monreal decision along with two other published decisions on this
issue—In re Andazola-Rivas and In re Recinas. In Monreal, the Board
held that the noncitizen’s 20 years of U.S. residence after entering at
age 14, two school-aged U.S. citizen children, and lawful permanent
resident parents did not qualify him for cancellation of removal as he
failed to prove that his children and parents would suffer exceptional
and extremely unusual hardship. The Board did note that the hardship
standard should not be interpreted as an unconscionable standard.

This form of cancellation of removal is extremely fact specific and can
be quite time-intensive for case preparation due to the 10 years of
physical presence and level of hardship that must be shown. It is
important to note that in In re Monreal-Aguinaga, the noncitizen did not
provide evidence showing his parents’ and children’s special needs, if
any, that would arise as a result of his removal.[5] Counsel should
anticipate the amount of time required to prepare the application,
supporting documentation, and oral testimony of the noncitizen and
witnesses.

In Andazola and Recinas, the noncitizen applicants were both single
mothers with children. Despite similarities in the cases, the Board
found that the noncitizen in Recinas met the hardship standard,[6] while
the noncitizen in Andazola did not. In both decisions, the Board cited
to the appropriateness of the hardship standard that it had established
in In re Monreal-Aguinaga. Some of the criteria that the Board
considered in reaching a decision to grant relief in Recinas included
the following:

• the U.S. citizen children only knew life in America and could not
speak Spanish well;
• the U.S. citizen children were completely dependent emotionally and
economically on their mother because their parents were divorced and
they had no contact with their father;
• the applicant’s ability to care for her six children if she was
removed would be substantially hindered because her LPR mother helped
her to care for her children and she had no family in Mexico;
• the applicant had a strong family support system in the U.S., which
provided both financial and emotional support; and
• the applicant’s possibilities of immigrating back to the U.S. were
unrealistic due to the backlog of visa availability for Mexican
citizens.

In light of the Board decisions, the following considerations are a starting point for preparing evidence related to exceptional and extremely unusual hardship:

Physical and mental health of qualifying relatives:
• availability of medical care, including access to physicians, specialists (if needed), and medications;
• ability to access government-funded medical care, particularly if the noncitizen has not paid into the sys-tem (having worked outside of the country designated for removal) and the children are U.S. citizens or citizens of a third country;
Cost of medical care and medications in the home country; and
• if the noncitizen or his qualifying relatives have received mental health counseling in the U.S.:
• the current treatment being provided and the prognosis; and
• the availability and cost of the same or similar mental health care in the country designated for removal.
Marital status of the noncitizen.
• If the noncitizen has any children:
• financial support by the non-custodial parent(s) of the children;
• exercise of visitation rights by the non-custodial parent(s) of the children;
• whether any court order has been entered that restricts the applicant from taking the children abroad to live with him (i.e., joint legal custody, joint physical custody, visitation schedule for non-custodial parent);
• history of the relationship between the noncitizen and the non-custodial parent(s) and whether it would be realistic that the children could travel back and forth between the U.S. and the country designated for removal to visit each parent.
Ownership of property in the U.S.
Family ties in the U.S. and abroad:
• If the noncitizen has children, what is the relationship between the children and other family members in the U.S.?
• How often do the children see their other family members? (i.e., grandparents, aunts, uncles, and cousins)
• Do the other family members help to provide child care or other assistance related to the children?
If the noncitizen has family members abroad:
• Who are the family members?
• When was the last time that the noncitizen saw them or spoke with them?
• Would they be willing to assist the noncitizen and his qualifying family members in the country designated for removal? Why or why not?
• Community ties of the noncitizen and the qualifying family members in the U.S.
Conditions in the country of removal and how they will affect the qualifying relative(s):
Language:
• Does the noncitizen speak the language of the country designated for removal?
• Do any of his qualifying family members speak the language?
Education:
• Does a qualifying relative child have special educational needs that cannot be addressed in the country of removal?
• What level of education is available to children in the area to which the noncitizen would return?
• Is the education for children publicly funded or private?
• If publicly funded:
• In what language(s) are children taught? Are there any programs for students who do not speak the language in which students are taught?
• Are there any religious, nationality, or citizenship restrictions or requirements to access education?
• Would the noncitizen able to afford any books, uniforms, or other expenses required?
• If private education is the only option for the noncitizen’s child, where is the educational facility located?
• What are the costs of a private education?
• Would the noncitizen able to afford the tuition and any books, uniforms, or other expenses required?
• If the noncitizen’s family member is involved in extracurricular activities (i.e., competitive male or female sports, band, orchestra, choir, chess team, etc.), are the same or similar extracurricular activities available in the country designated for removal?
• What is the highest level of education available?
Economic:
• Does the noncitizen own property in the country designated for removal?
• If not, where would the noncitizen and any qualifying family members live?
• Are there any residency requirements (i.e., propiska system in Russia)? If so, would the noncitizen and any qualifying family members be able to obtain the necessary documentation to obtain a place to live?
• What is the noncitizen’s history of employment and what are his job skills?
• Could the noncitizen obtain employment in the country designated for removal?
• Could the noncitizen earn sufficient money to support himself and his family in the country designated for removal?
• Does the noncitizen have the resources and ability to start a business in the country designated for removal?
• What is the qualifying family member’s history of employment and what are his job skills?
• Could the qualifying family member obtain employment in the country designated for removal?
Political:
• How will the “Americanization” of the qualifying relatives affect their ability to integrate into the local community of the country of removal?
• If the qualifying family members are U.S. citizens, are there any risks particular to U.S. citizens?
• Identify the risks to the U.S.-citizen family members, including risk of kidnapping or abduction, extortion, denial of medical and legal services, and homicide of U.S. citizens.
• Review the most recent Department of State travel advisories for U.S. citizens as well as Department of State country reports on human rights practices for the particular country.
• Ascertain what services the Department of State can actually provide to a U.S. citizen who relocates to the foreign country. For example, where a Department of State travel advisory states that U.S. citizens have been kidnapped and killed and the U.S. government has been unable to intercede for their protection, a strong showing of harm to the U.S.-citizen family member can be made.
Arguments can be successfully made that neither the foreign government nor the Department of State will be able to provide basic protections or assure fundamental human rights to U.S. citizens who may relocate to the foreign country with their noncitizen family member.
• If the qualifying family members are of a different ethnic background or were born in a country other than the U.S., will they face any particular risks if they were to attempt to relocate with the noncitizen to the country designated for removal?
• If any of the qualifying family members are female, would they run the risk of physical and mental harm based on their gender (i.e., female genital mutilation, arrests, or other harm due to noncompliance with customary dress or occupation)?
• If the noncitizen left the country originally due to fear of persecution or torture, have conditions changed such that he would no longer fear returning?
• If not, counsel should also consider filing an application for asylum, withholding and relief under the Convention Against Torture for the noncitizen.
• Would the qualifying family members face any risk of harm based on their religious beliefs or practices?

In preparing the hardship portion of his case, counsel should present
testimony—either live testimony during the hearing or detailed
affidavits—of therapists, psychologists, and treating physicians to
confirm the hardship which may be faced by qualifying relative(s) if the
applicant is ordered removed. Noncitizens and their families with
limited resources may be able to obtain a low-cost evaluation or work
out a payment plan with the evaluator.

________________________________________
REAL ID – 240A(b)(1)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

(LOCATION)
______________________________________________________________
UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

[Address]

IN THE REMOVAL CASE OF

CASE NO.

[LAST NAME, First Name]

Respondent.

____________________________

CHARGE(s): Section 212(a)(6)(A)(i) of the Immigration and Nationality Act – entry without inspection.

APPLICATIONS: Cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act; voluntary departure under section 240B(b) of the Immigration and Nationality Act.

FOR THE RESPONDENT:

FOR THE UNITED STATES:

FINDINGS, DECISION, AND ORDERS

I. Introduction and Procedural Summary

The respondent, [Name] (“Respondent”), is a ____ -year-old [single/married/separated/ widowed] [male/female], who is a native [and/or] citizen of ___________. The Department of Homeland Security (“DHS”), commenced these Removal Proceedings against Respondent on ____________, charging [him/her] with being removable pursuant to the above-captioned section of the Immigration and Nationality Act (hereinafter “INA”). Respondent has conceded removability on the grounds that [he/she] entered the United States without inspection through or near _______________ on or around the date of _________________ . Removability is therefore established by clear and convincing evidence pursuant to INA § 240(c)(3).

Respondent seeks relief from removal in the form of cancellation of removal under INA § 240A(b) and, in the alternative, voluntary departure under INA § 240B(b). I [grant/deny] this application. In addition, I [grant/deny] Respondent’s application for voluntary departure.

II. Application for Cancellation of Removal Under INA § 240A(b)

A. Statutory Eligibility.

To be eligible for cancellation of removal under INA § 240A(b), Respondent must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense under section § 212(a)(2), 237(a)(2), or 237(a)(3) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States an alien admitted for lawful permanent residence. See INA § 240A(b)(1).

1. Continuous physical presence

Rule
Pursuant to INA § 240A(d)(1), continuous physical presence ends either when the alien is served with a Notice to Appear (“NTA”) (Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004)), or when Respondent has committed (Matter of Perez, 22 I&N Dec. 689 (BIA 1999)) an offense referred to in INA § 212(a)(2) (Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)) that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)(4).

Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Instead, continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.

An immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjectedto any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).

Evidence Presented

In support of [his/her] application, Respondent submitted the following to corroborate [his/her] continuous physical presence in the United States.

[Personal documents]

[Testimony]

[Affidavits]

[Marriage/birth certificates]

[Employment records]

Credibility and Findings

[SAMPLES]

The Court finds that Respondent has failed to establish continuous physical presence for the 10 years immediately before the service of the charging document. Respondent’s continuous physical presence was cut off by. . . .

The Court is satisfied that Respondent’s evidence establishes his continuous physical presence for the 10 years immediately before the service of the charging document.

2. Good Moral Character and No Disqualifying Criminal Convictions

Rule

The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-798 (BIA 2005).

An alien need not be charged and found inadmissible or removable on a ground specified in INA § 240A(d)(1)(B), in order for the alleged criminal conduct to terminate the alien’s continuous physical presence in this country. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006)

An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under INA § 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude. Id.

Similarly, an alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act. Id. An alien whose conviction precedes the effective date of INA § 237(a)(2)(E), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).

Evidence Presented

Evidence of Respondent’s criminal history was presented through [record of judgment and conviction/rap sheet/other credible and relevant evidence]. It was shown that Respondent [was convicted of ___________ / has no convictions]. In addition, Respondent presented other evidence of his good moral character through [affidavits/testimony].

[CONSIDERATIONS]

1. Respondent’s Convictions

a. INA § 101(f) bar

i. Expungements or vacated sentences

ii. Time served (if more than 180 days)

iii. Petty offense exception. See Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003).

b. INA § 240A(b)(1)(C) bar: convicted of an offense under 212(a)(2); 237(a)(2); or 237(a)(3)

i. Crime involving moral turpitude

ii. Violating law relating to a controlled substance defined by CSA

iii. Aggravated felony

iv. Multiple convictions and aggregate sentences are more than 5 years

v. Illicit trafficker in any controlled substance defined by CSA

vi. Prostitution

vii. High speed flight (18 U.S.C. § 758)

viii. Domestic violence; stalking; treason and sedition, etc.

ix. Espionage; sabotage; treason and sedition, etc.

x. Document fraud

xi. Falsely claiming citizenship

2. Income tax fraud (claimed non-existent exemption)

3. False testimony (oral and under oath)

4. Immigration history

a. Prior Deport/Voluntary Departure/Voluntary Return

b. Use of a smuggler

c. Entered without inspection

d. Abused non-immigrant visas

5. Driving without a valid license or car insurance

6. Use of welfare or government benefits (food stamps/AFDC/WIC/MediCal etc.)

Credibility and Findings

[SAMPLE]

While I would in no way condone or diminish the seriousness of Respondent’s 2002 arrest for driving under the influence of alcohol, I nonetheless observe that this arrest is the only criminal matter in Respondent’s history and that he received a suspended sentence for it. I observe further that Respondent submitted a number of letters from previous employers and neighbors who testified to Respondent’s dependability in the work place, respectful attitude towards others, and his commitment to his wife and children. I will therefore accept Respondent’s representation that this arrest was an isolated incident and find that he possesses good moral character for purposes of this application for relief. Relatedly, there is nothing in the record to suggest that Respondent has been convicted of a crime that would statutorily bar him from this relief.

3. Exceptional and Extremely Unusual Hardship

Rule

As in cases involving suspension of deportation, the elements required to establish “exceptional and extremely unusual hardship” are dependent upon the facts and circumstances peculiar to each case. Matter of Monreal, 23 I&N Dec. 56, 63 (BIA 2001); Matter of Kao, 23 I&N Dec. 45 (BIA 2001). All relevant factors, though not “exceptional or extremely unusual” when considered alone, must be considered in the aggregate in determining whether “exceptional and extremely unusual hardship” exists. Matter of Monreal, supra at 64. However, the hardship exists in cancellation of removal cases must relate to the qualified relative. Therefore, any hardship identified which relates to the Respondent will not be considered unless it also relates to or affects the hardship of the qualified relative. Matter of Monreal, supra at 63.

The proper hardship standard is a heightened, more restrictive, and significantly more burdensome standard than that of the “extreme hardship” standard in suspension of deportation cases. See Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, supra at 62. The hardship presented must be something “substantially beyond” the hardships ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, supra at 60. By design, the hardship standard is a high threshold. See Matter of Andazola, supra at 324. Nonetheless, the hardship standard is not so restrictive that only a handful of applicants will ever qualify for relief. See Matter of Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002). It stands to reason, then, that relevant factors, though neither exceptional nor extremely unusual in isolation, may be considered in the aggregate insofar as their impact upon the qualifying relative(s). See id. at 472.

Evidence Presented

In support of Respondent’s argument that [his/her] [U.S. citizen/lawful permanent resident] [spouse/parent(s)/child(ren)] would suffer exceptional and extremely unusual hardship if [he/she] is removed, Respondent has presented [testimony/affidavits/other credible and relevant evidence] as follows:___________________________________________________.

[CONSIDERATIONS]

1. Qualified Relative(s) (“QR”)

a. Immigration statue/where residing

b. Age and marital status

c. Financial status and closeness to QR(s)

d. Work/business

e. Ages of QR(s)

f. Health/illnesses of QR

i. Medical reports – diagnosis and prognosis

ii. Treatment received/anticipating

iii. Mediation

iv. Cost of medical treatment

v. Medical treatment available in home country?

2. Family in home country

a. Relationship and financial status

b. Ability and willingness to assist in readjustment

c. Employment/education

d. Age and marital status

3. Employment

a. In United States

i. Retired?

ii. Line of work – skills acquired; skills transferable?

iii. Earnings and benefits (insurance/bonus/retirement)

b. In home country

i. Length of employment

ii. Line of work

iii. Job opportunities

iv. Political conditions

4. How many years of residence in the United States?

5. Effect on QR if Respondent deported

a. If QR remains in the U.S.–

i. Affidavit required if the QR who remains is a child. Matter of Ige, 20 I. & N. Dec. 880, 885 (BIA 1994).

ii. Emotional

iii. Opportunities to visit with Respondent

iv. Financial burdens if QR dependent on Respondent

ii Degree of dependence (e.g., other supporting family members, public assistance, ability/possibility to become self-sufficient)

ii Loss of insurance covering QR.

b. If QR leaves the country with Respondent–

i. Home country conditions for the QR (e.g., political, economical, medical, educational)

ii. Family in home country (financial and emotional support during the period of readjustment)

iii. Assets and business (possible loss)

iv. Possibility of QR losing LPR status

v. Community Services/Ties

ii What community services

ii How much of these services will suffer without QR’s services?

ii Documentary evidenc

Credibility and Findings

(Analysis of balancing the favorable and adverse factors for a finding of exceptional and extremely unusual hardship.)

[SAMPLE]

I have weighed all the evidence of record both individually and cumulatively on the issue of “exceptional and extremely unusual” hardship and I do not find that the hardship to any one of Respondent’s qualifying relatives would rise above the natural consequence of removal to sufficiently satisfy the high standard of hardship required. See Matter of Monreal, 23 I. & N. Dec. 56; cf. Dulane v. INS, 46 F 3d 988, 995 (10th Cir. 1995)

B. Discretionary Consideratio

Once statutory eligibility is established, cancellation may be granted by the Court as an exercise of discretion. See INA § 240A(b)(1).

[SAMPLE]

Because Respondent has not established “exceptional and extremely unusual hardship” to his/her Qualified Relative, it is unnecessary for this court to give any discretionary consideration in this application

III. Voluntary Departure

To establish eligibility, Respondent must prove that [he/she] (1) has been physically present in the United States for at least one year immediately preceding service of the NTA; (2) is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) is not removable under INA § 237(a)(2)(A)(iii) (aggravated felony) or INA § 237(a)(4) (security and related grounds); and (4) has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. See INA § 240B(b)(1).

[SAMPLES]

Respondent has requested voluntary departure as alternate relief. Because Respondent is denied cancellation of removal due to a lack of good moral character, this will also bar Respondent from voluntary departure. I will therefore deny Respondent’s application for voluntary departure.

Respondent has requested voluntary departure as alternate relief and has established eligibility for that relief. The Department of Homeland Security does not oppose the grant of this relief. I will therefore grant Respondent sixty days voluntary departure, the maximum amount of time permitted at the conclusion of removal proceedings. Footnote

See INA § 240B(b)(2). Respondents departure date is hereby set to be no later than ______________________.

IV. Orders

IT IS HEREBY ORDERED that Respondent’s application for cancellation of removal under INA § 240A(b) be [DENIED/GRANTED].

IT IS FURTHER ORDERED that Respondent’s request for voluntary departure under INA § 240B(b) be [DENIED/GRANTED and Respondent is permitted to voluntarily depart in lieu of removal, without expense to the government, on or before sixty (60) days from the date of this order, or any extension thereof as may be granted by the Department of Homeland Security and any under whatever conditions the Department of Homeland Security may direct as part of such extension].

IT IS FURTHER ORDERED that Respondent shall post a voluntary departure bond to the Department of Homeland Security in the amount of $500 within 5 business days.

IT IS FURTHER ORDERED If any of the above ordered conditions are not met, the above order granting voluntary departure shall be withdrawn without further notice or proceedings, and the following order shall become effective the following day: The Respondent shall be removed to _________________ on the charge specified by the NTA.

_____________________________

, Judge

__________________, 2014

Appeal Date: _______________

File No.: A_____________________

In the Matter of

____________________________

Respondent

IN REMOVAL PROCEEDINGS

CHARGE(S): Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality Act

APPLICATION(S): Cancellation of removal for non-permanent resident; voluntary departure

ON BEHALF OF RESPONDENT:

ON BEHALF OF DHS:

_______________________,

_______________________,

Attorney at Law

Assistant Chief Counsel

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a ___ year old, single/married, male/female, native and citizen of ______________________. The United States Department of Homeland Security (DHS) brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act (the Act). Proceedings were commenced with the filing of the Notice to Appear (NTA) with the Immigration Court. See Exhibit 1.

The respondent admits as alleged in the Notice to Appear that (for example): S/He entered the United States on or about _____________ at or near _________. S/He further concedes that s/he is inadmissible as charged under section 212(a)(6)(A) of the Act as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.

On the basis of the respondent’s admissions (and the supporting I-213/other records admitted into evidence) I find that the respondent’s removability has been established –

(1) [for section 212 charges:] in that the respondent has not shown that he is clearly and beyond doubt entitled to be admitted and is not inadmissible, or in that the respondent has not shown by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. Section 240(c)(2) of the Act.

(2) [for section 237 charges:] by the INS by clear and convincing evidence. Section 240(c)(3) of the Act.

The respondent withdrew any request for asylum or withholding of removal of any form under the Act. She designated _______ as the country of deportation should that become necessary. The respondent applied for relief from removal in the form of cancellation of removal for certain non-permanent residents under section 240A(b)(1) of the Act, and in the alternative voluntary departure under section 240B(b) of the Act. She bears the burdens of proof and persuasion on her requests for relief.

The respondent’s Form EOIR-42B application for cancellation is contained in the record as Exhibit 2. Prior to admission of the application the respondent was given an opportunity to make any necessary corrections and then swore or affirmed before this Court that the contents of the application as corrected were all true and correct to the best of her knowledge.

STATUTORY ELIGIBILITY

To be eligible for cancellation of removal under section 240A(b)(1) an applicant must prove that she (the applicant):

1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding service of the charging document and up to the time of application;

2) has been a person of good moral character for the 10 years prior to a final administrative order (Matter of Ortega, 23 I&N Dec. 793 (BIA 2005);

3) has not been convicted of an offense under certain specified sections of the Act (sections 212(a)(2), 237(a)(2), or 237(a)(3) of the Act); and

4) establishes that removal would result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is a United States citizen or lawful permanent resident.

In this case the respondent has ___ (number) qualifying relatives. LIST QUALIFYING RELATIVES.

To establish exceptional and extremely unusual hardship an applicant must demonstrate that a qualifying relative would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be “unconscionable.” The hardship must be beyond that which was required in suspension of deportation cases. Hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative. Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

SUSTAINING BURDEN AND CREDIBILITY

The provisions of the “REAL ID Act of 2005″ apply to the respondent’s application as it was filed on or after May 11, 2005. Section 240(c)(4)(B) and (C) of the Act state as follows:

(B) SUSTAINING BURDEN- The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant’s application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant’s burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.

(C) CREDIBILITY DETERMINATION- Considering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

ANALYSIS AND FINDINGS

A. Continuous Physical Presence: To meet the time requirement for cancellation the respondent must show entry into the United States at least by 10 years prior the service of the Notice to Appear, and that she maintained continuous physical presence since that time.

1. When did the respondent begin continuous physical presence?

i. This is a factual question: The REAL ID expects the applicant to present evidence that is reasonably obtainable.

ii. Review the documents, affidavits, and witness testimony. Enter credibility findings and determine what weight to give to the evidence.

2. Even if alien established entry by 10 years prior to service of NTA, is there proof of continuous physical presence since that time?

a. What terminates continuous physical presence?

i. See section 240A(d)(1). Service of the Notice to Appear or commission of a criminal offense referred to in section 212(a)(2) of the Act, whichever is earliest. See Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2001).

ii. Matter of Robles, 24 I&N Dec. 22 (BIA 2006) (continuous residence stops on the date offense committed, not date of conviction; continuous residence stops on date offense is committed even if committed prior to Illegal Immigration Reform and Immigrant Responsibility Act of 1996 – April 1, 1997), Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.

iii. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006) (an alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act in order for the alleged criminal conduct to terminate the alien’s continuous residence in this country).

b. What breaks continuous physical presence?

i. See section 240A(d)(2). Absence from the United States for any single period in excess of 90 days or for any aggregate periods exceeding 180 days will break the respondent’s continuous physical presence.

(1) A departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of cancellation of removal. Matter of Romalez, 23 I&N Dec. 423 (BIA 2002); Vasquez-Lopez v. Ashcroft, 315 F.3d 1201 (9th Cir. 2003) (per curium), as amended upon denial of rehearing en banc, 343 F.3d 961 (9th Cir. 2003).

(2) Where the alien was turned around at the border without entering into a formal agreement with the government whereby the terms and conditions of his departure were clearly specified, and he was not statutorily barred from immediately reapplying for admission to the United States, his being turned away at the border did not have the same effect as an administrative voluntary departure and did not itself interrupt the accrual of an alien’s continuous physical presence. Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005).

(3) The record must contain substantial evidence that would support the conclusion that the respondent knowingly and voluntarily accepted administrative voluntary departure. For the voluntary departure to be under “threat” of deportation, the terms and conditions of the departure must be clearly specified. The respondent must be informed of and accept the terms. He should leave with the knowledge that he does so in lieu of being placed in proceedings and therefore has no legitimate expectation that he may reenter and resume continuous presence. Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006).

(4) Where an alien departed the United States for a period less than that specified in section 240A(d)(2) of the Immigration and Nationality Act, and unsuccessfully attempted reentry at a land border port of entry before actually reentering, physical presence continued to accrue for purposes of cancellation of removal under section 240A(b)(1)(A) unless, during that attempted reentry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Here, the respondent’s 2-week absence from the United States did not break her continuous physical presence where she was refused admission by an immigration official at a port of entry, returned to Mexico without any threat of the institution of exclusion proceedings, and subsequently reentered without inspection. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).

(5) Before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms. Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005).

(6) Whereas service of the OSC or NTA, or commission of a qualifying offense stops time forever under 240A(d)(1), a break in time under 240A(d)(2) is just a break; you can begin counting anew after the break. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000). Thus, a voluntary departure that took place more than 10 years prior to the date “immediately preceding” the application for cancellation would not bar the respondent from establishing a new period of time.

c. An applicant who was in the United States at the time of enlistment and has served for a minimum period of 24 months in an active duty status in the armed forces does not need to fulfill the continuous physical presence requirement. Section 240A(d)(3) of the Act.

B. Good Moral Character:

1. Is the respondent a person of good moral character for the 10 years prior to a final administrative order entered by the Immigration Judge or BIA? Matter of Ortega, 23 I&N Dec. 793 (BIA 2005).

a. Good Moral Character is defined in Section 101(f) of the Act.

b. Common bars involve criminal convictions, engaging in alien smuggling, and false testimony under oath.

i. An alien, who was convicted of two misdemeanor crimes involving moral turpitude, is not precluded by the provisions of section 240A(d)(1)(B) of the Act from establishing the requisite 7 years of continuous residence for cancellation of removal under section 240A(a)(2), where his first crime, which qualifies as a petty offense, did not render him inadmissible, and he had accrued the requisite 7 years of continuous residence before the second offense was committed. Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003).

ii. An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3). However, an alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

C. Statutory Bars under 240A(b)(1)(C):

1. Has the respondent been convicted of an offense barring him from cancellation under section 240A(b)(1)(C) of the Act?

2. Section 240A(b)(1)(C) of the Act requires that an applicant for cancellation “has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3).”

3. There is no time limit.

4. In Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004), the Ninth Circuit affirmed a BIA decision interpreting this language to read “convicted of an offense described under.” Thus, alien convicted of crime of domestic violence described in 237(a)(2)(E)(i) of Act was ineligible for cancellation under section 240A(b)(1)(C) even though he could not be charged with removability under section 237. Petty offense has no application under section 237(a)(2)(E)(i) and is therefore not a defense.

5. An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the Act is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by section 240A(b)(1)(C) (2000). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).

D. Exceptional and Extremely Unusual Hardship

No one questions the respondent’s motivation or desire to remain in the United States. However, the context for cancellation of removal cases includes the fact that many individuals are waiting in line for their legal opportunity to come to the United States through a family or employment-based visa. Many, particularly in countries like ______, where the respondent is from, have been waiting for years for their visa number to become available. They had and still have the same hopes and dreams of living in the United States as does the respondent. The respondent here however, and many others with cancellation requests, in effect did not wait in the line, but simply bypassed the line, and arguably have been living for years off the opportunities that rightfully belong to those waiting in line.

So, out of fairness and justice to all those persons waiting in line, but also out of sympathy for the truly exceptional case, Congress has fashioned the relief of cancellation which requires that those who came illegally or stayed illegally many years ago now return except in the rare case where return would cause an exceptional and extremely unusual hardship to a qualifying family member. Cancellation is not lawfully appropriate upon a showing of normal hardship, that is, hardship to family which would be expected upon return by most respondents after living many years in the United States. Cancellation is not even appropriate upon a showing of extreme hardship to a family member upon the respondent’s removal. It is only lawfully appropriate where the facts demonstrate an “exceptional and extremely unusual hardship” to a qualifying family member.

The Court has compared the facts of this case with the facts of Matter of Recinas, Matter of Andazola, and Matter of Monreal supra. The closest analogy to the case here is the case of _________.

Matter of Recinas, supra, involved a 39 year old single mother with 6 children to care for, 4 of whom were United States citizens aged 12, 11, 8, 5. All of her remaining immediate family members were in the United States legally including her lawful permanent resident parents and 5 United States citizen siblings. She had no family remaining in Mexico. The Board of Immigration Appeals granted the case finding it to be on the “outer limits” of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.

Matter of Monreal, supra, involved a 34 year old Mexican national who had been in the United States for 20 years. He had come to the United States at the young age of 14. He had 3 United States citizen children ages 12, 8, and an infant. His wife’s application for cancellation had been denied, and she had returned to Mexico with the infant. The respondent was gainfully employed, supporting his children here, and his wife and child in Mexico. His parents were lawful permanent residents of the United States. There was no question that the children had a close relationship with these grandparents and with other family members in the United States. The BIA found no exceptional or extremely unusual hardship to any of the respondent’s 5 qualifying relatives.

Matter of Andazola, supra involved a 30-year-old female, native and citizen of Mexico. She was not married, but she was living with the father of her children. She had entered in 1985, and so considering the date that the Board rendered its decision, she had entered approximately at age 14 and had been in the United States for 16 years. She had two United States children, ages 11 and 6. She was employed and she was receiving the benefits of a 401K plan as well as medical insurance, through her employment. She had purchased a home. She had two automobiles and $7,000 in cash. She claimed that she had no close relatives in Mexico. Her mother was in the United States as well as siblings, but they were not of a lawful status. The respondent had a sixth grade education, so she was concerned that she would not be able to obtain adequate employment were she to return to Mexico. The respondent had asthma, although her children’s health was fine. The Board of Immigration Appeals in the case noted that there would be reduced economic and educational opportunities for the children in Mexico, but the Board found that the respondent had failed to establish exceptional and extremely unusual hardship to either of her two children.

This Court has weighed all the evidence of record both individually and cumulatively on the issue of exceptional and extremely unusual hardship. [The key questions to be asked are: What hardship would ordinarily be expected to result from the alien’s deportation? And: Is the hardship here substantially different from or beyond that ordinarily expected? In defining the terms the BIA did say that they expected the “exception to the norm to be very uncommon,” see Monreal, supra, at 59 or “limited to ‘truly exceptional’ situations,” Id. at 62.]

Upon examination, the Court concludes that there are:

1. Insufficient facts to meaningfully distinguish this case from the result in [Matter of Monreal], [Matter of Andazola]. OR,

2. There are a number of distinguishing factors that warrant a favorable finding to the respondents.

a. Examples of a few potential distinguishing factors to watch for:

i. Parents from different countries

ii. The number of siblings – primarily as an economic factor

iii. Sibling separation – (if a natural outcome, not if manufactured separation)

iv. Respondent substantially older – fewer job possibilities

v. Teenager who spent formative years in the United States. See Matter of OJO, 21 I&N Dec. 381 (BIA 1996) where the BIA gave great weight to the alien’s having spent his formative years here in the US.

vi. If respondents have grandchildren

vii. The unavailability of 212(a)(9)(C)(v) waiver to reenter

CONSIDERATIONS:

1. Credibility of respondent and any witnesses:

2. Financial means: The respondent expressed concern that if deported his economic circumstances may result in exceptional and extremely unusual hardship to his qualifying relatives.

a. The respondent is ____ years old and in good health. Like in Monreal, there is “nothing to show that he would be unable to work and support his United States citizen children in Mexico.” This exact finding was made in Monreal even though the applicant had been here 20 years since the young age of 14, and even though only one of the two parents earned a wage through employment.

b. Came at early age: Like Monreal, the respondent has been in the United States for many years since a very early age. But this fact was found insufficient in Monreal to establish the requisite hardship to the children.

c. Came as adult: The respondent came as an adult. Thus, this is not a case where the respondent does not bear responsibility for the choice to enter the United States illegally, or stay in the United States illegally, or where she has spent her critical formative years in the United States. Contrast Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996). The respondent collected equities in this country knowing full well she may be required to leave at any time.

d. Also, economic detriment due to adverse conditions in the home country, loss of employment or employment benefits in the United States, even the loss of a business or the pursuit of a chosen profession in the United States, and projected difficulty in finding employment in the home country are normal occurrences of deportation and do not justify a grant of cancellation in the absence factors substantially different from or beyond that normally expected to result from the alien’s deportation. Compare Perez v. INS, 96 F.3d 390 (9th Cir. 1996); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986); Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981); Santana-Figueroa v. INS, 644 F.2d 1354 (9th Cir. 1981); Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). All suspension of deportation cases cited for comparison purposes only.

e. Moreover, as a matter of proof / evidence, the respondent:

i. Has not inquired as to possibility of employment in home country.

ii. Has employment skills which would transfer.

iii. Has not shown the ownership of a business or home that would have to be sold, much less sold at a loss.

iv. These are investments that she made (after service of NTA) or (with full knowledge that she had no status in this country).

v. Consider whether, if respondent sold his assets, he would be going returning with sufficient funds to aid in readjustment.

f. Burden from other financial obligations: Support payments / “particular or unusual psychological hardship” – Tukhowinich)

i. Financial obligations to other family members may impact ability to support qualifying family members. Cf. Ramirez-Gonzalez v. INS, 695 F.2d 1208 (9th Cir. 1983), and Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995)

3. Presence of children in home country: Here, like in Monreal and in Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), a suspension of deportation case, the respondent has a child or children in the home country and therefore already has immediate family member obligations in the home country that must be attended to.

4. Children in the United States: (If children are staying in United States):

i. The respondent testified that her children would not be going with her if she were required to leave the United States. Thus I do not consider societal or physical detriment to the child in the parent’s native country, such as fewer economic advantages or educational opportunities. I do however consider the hardship from emotional separation to both the parents and the children.

ii. If a young child were to be separated from his or her parents due to the parents’ deportation, hardship to the family members due to separation must be considered. Perez v. INS, 96 F.3d 390 (9th Cir. 1996). In Matter of Ige, 20 I&N Dec. 880 (BIA 1994), it was stated that “Where an alien alleges extreme hardship will be suffered by his United States Citizen child were the child to remain in the United States upon his parent’s deportation, the claim will not be given significant weight absent an affidavit from the parent stating that it is his intention that the child remain in this country, accompanied by evidence demonstrating that reasonable provisions will be made for the child’s care and support.” The court in Perez v. INS, supra, found this to be a valid evidentiary requirement. Here the respondent has not submitted the required Ige affidavit.

iii. [Following part of Ige was overruled by Perez v. INS: “Assuming a United States Citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parent’s deportation.” Attributing separation hardship to parental choice as was done in Ige was found in Perez v. INS to be a per se rule and therefore inappropriate.]

5. Children in the United States: (If children are going to parent’s homeland):

a. Economic and Educational Opportunities: The fact that economic and educational opportunities for the child might be better in the United States than in the parent’s homeland does not itself establish the requisite hardship. See Matter of Kim, 15 I&N Dec. 88 (BIA 1974); see also Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986) (all suspension of deportation cases cited for comparison purposes only).

i. In Monreal the oldest child, 12, had classes in both English and Spanish and could speak, read, and write in both languages. The BIA did not even mention facts relating to the 8 year old. In this case while English is the child’s (childrens’) primary language, the record does reflect that child speaks and understands Spanish and there is no reason to conclude that she could not progress sufficiently in her Spanish skills to maintain her level of school by the time she accompanied her parents once their appeal rights have been exhausted. Again, this situation is common in cancellation cases, not exceptional or extremely unusual.

ii. Precedent suggests that the readjustment of children to a new country may be easier when the children are still very young as in this case. Even so, while the children may face difficulties adjusting to life in the parent’s homeland, the problems in this case do not materially differ from those encountered by other children who relocate as a consequence of their parents’ deportation. Marquez-Medina v. INS, 765 F.2d 673 (7th Cir. 1985); Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (suspension of deportation cases cited for comparison purposes only).

iii. Special Education classes. It is not uncommon that a respondent points to special education classes for one or more of the qualifying relative children as a factor to be considered in assessing hardship. There are understandably many different variables in these cases including: the age of the child currently, the age and grade when the child entered special education, the reason for the classes, and the number of classes the child attends. There are many different reasons offered as to why a particular child is referred to special education classes. Some of the reasons appear to include environmental factors including the level of English language abilities the child possessed when the child entered public school. Sometimes the placement in special education classes is related to a child suffering from attention deficit disorder. Sometimes a child is referred to special education due to a learning disability such as a disability in auditory processing. Sometimes the reason for placing a child in special education is more severe such as mild mental retardation, or psychological or behavioral problems. The Board of Immigration Appeals would know better the percentage of cancellation cases in which special education is advanced as a hardship factor, and also the extent of the variables involved, as they receive all the appeals from all the Immigration Courts throughout the nation. I find that the facts concerning special education in this case should be weighed as follows:

b. Medical facilities: The fact that medical facilities in the alien’s homeland may not be as good as they are in this country does not itself establish exceptional and extremely unusual hardship to the child. See Matter of Correa, 19 I&N Dec. 130 (BIA 1984) (a suspension of deportation case cited for comparison purposes only).

i. Consider factors reflecting children in good health vs. health problems

6. Separation from family:

a. Family ties: Note and describe family ties / immigration status / degree of closeness / special emotional and financial concerns / emotional impact on respondent of taking children to native country or leaving them in the United States.

b. Monreal: The separation of the children from the grandparents and friends was not found to be sufficient.

c. Separation from friends and family members in the United States is a common result of deportation. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).

d. Respondent would be reunited with other family members in her native country. These family members may be able to provide financial base of support as they (own their own homes; have jobs; etc). If not more, these family members may be able to provide an emotional base of support during the respondent’s time of readjustment. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).

7. Parents as qualifying relatives: In Monreal the parents of the respondent had been LPRs for 3 years; they had no special health concerns; and the BIA noted that the respondent had siblings in Dallas who “presumably” could help parents if necessary.

8. Other factors:

a. Other Adjustment possibilities

i. The respondent did / did not investigate the possibility of her employer filing a visa petition on her behalf.

ii. The respondent is the beneficiary of an approved visa petition. Although not currently available, the respondent then does have the potential for returning to the United States as an immigrant in the not too distant future. (If waiver to 10 year bar is available)

b. Breakup of community ties causing emotional strain on parents or children:

i. The respondent’s ties to her church and community, and her volunteer activities are evidence of involvement and contribution to the community and there will be emotional hardship upon having to separate from these ties. Such ties, however, can be established in the respondent’s native country and the emotional hardship upon separation does not amount to an exceptional and extremely unusual hardship.

c. Factors mitigating weight of claim of immersion into United States society

i. The respondent claims she is fully integrated, immersed, or acculturated to this society but has not demonstrated a willingness or ability to follow certain of this society’s basic requirements such as (for example):

(1) obeying criminal code

(2) paying taxes owed

(3) filing non-fraudulent tax forms

(4) driving with a valid license and car insurance

(5) no welfare fraud

(6) obtaining the required licenses for doing business,

ii. These factors do undercut the respondent’s claim of acculturation and membership in this societ

Summary: The respondents here, like in Monreal, seem to be “really good people.” But that is not the standard for cancellation. The bottom line is that the types of hardships presented by the respondent, although without question significant to him, are the types of hardships expected by most aliens who now face the prospect of return after living in the United States for many years. Like in Monreal, the respondent “has not provided evidence to establish that his qualifying relatives would suffer hardship that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” Accordingly, on consideration of all the factors of record both individually and cumulatively, the application for cancellation of removal must be denied.

ORDER

IT IS HEREBY ORDERED that the respondent’s application for cancellation of removal be granted / denied.

IT IS FURTHER ORDERED that the respondent’s request for voluntary departure in lieu of removal be denied. (OR)

IT IS FURTHER ORDERED that the respondent be granted voluntary departure, in lieu of removal, and without expense to the United States Government on or before _____________ (maximum 60 calendar days from the date of this order).

IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in the amount of $_______________ with the Department of Homeland Security on or before ______________ (five business days from the date of this order).

IT IS FURTHER ORDERED that, if required by the DHS, the respondent shall present to the DHS all necessary travel documents for voluntary departure within 60 days

IT IS FURTHER ORDERED that, if the respondent fails to comply with any of the above orders, the voluntary departure order shall without further notice or proceedings vacate the next day, and the respondent shall be removed from the United States to __________ on the charge(s) contained in the Notice to Appear.

WARNING TO THE RESPONDENT: Failure to depart as required means you could be removed, you may have to pay a civil penalty of $1000 to $5000, and you would become ineligible for voluntary departure, cancellation of removal, and any change or adjustment of status for 10 years to come

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is due in the hands of the Board of Immigration Appeals on or before 30 calendar days from the date of service of this decision.

_____________________________

Immigration Judge

__________________________________

Voluntary Departure At Conclusion of Proceedings

At the conclusion of removal proceedings, the Court may grant voluntary departure in lieu of removal. INA 240B(b). The alien bears the burden to establish both that he is eligible for relief and that he merits a favorable exercise of discretion. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972); see also Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). To establish eligibility, the alien must prove that he (1) has been physically present in the United States for at least one year immediately preceding service of the Notice to Appear; (2) is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) is not removable under INA 237(a)(2)(A)(iii) (aggravated felony) or INA 237(a)(4) (security and related grounds); and (4) has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. Matter of Arguelles, supra; INA 240B(b)(1). The alien must be in possession of a valid travel document. 8 C.F.R. 1240.26(c)(2). He must also post a voluntary departure bond in an amount necessary to ensure that he will depart; the amount must be at least $500 and must be posted within five days of the voluntary departure order. INA 240B(b)(3); 8 U.S.C. 1240.26(c)(3).

An alien who was previously granted voluntary departure after having been found inadmissible for entering the United States without inspection is ineligible for voluntary departure. INA 240B(c).

Certain aliens described in INA 101(f) cannot be found to be persons of good moral character. Even if the alien is not barred by INA 101(f), the Immigration Judge retains discretion to evaluate the alien’s moral character by weighing the negative against the favorable factors.

To determine whether a favorable exercise of discretion is warranted as to a request for voluntary departure, the Court must weigh the relevant adverse and positive factors, including the alien’s prior immigration history; criminal history, if any; length of his residence in the United States; and extent of his family, business, and societal ties in the United States. Matter of Gamboa, 14 I&N Dec. at 248; see also Matter of Arguelles, supra. at 817; Matter of Thomas, 21 I&N Dec. 20, 22 (BIA 1995).

If the alien is statutorily eligible and has established that he warrants a favorable exercise of discretion, the Court may grant voluntary departure for a period of up to sixty days. INA § 240B(b)(2).

NOTE: Benchbook Alert

On December 18, 2008, the Department published the final rule amending the voluntary departure regulations. See 73 Fed. Reg. 76,927. This rule became effective January 20, 2009, and applies to any decision granting voluntary departure on or after the effective date. A Notice has been drafted that you may print and hand out to the parties. The Noticecontains the necessary advisals in a .pdf format that you may complete, deliver to the respondent and the DHS, and include in the record. (Voluntary Departure Advisals.pdf)

For more information, see the following alert: Alert – New Voluntary Departure Regulation.

RETURN TO GENERIC ORAL DECISION FORMAT
___________________

STATEMENT OF LAW ON ELIGIBILITY FOR RELIEF

Adjustment of Status – 245

            
1. Standard Language for Section 245(a)

            
2. Standard Language for Section 245(i) LIFE Act

            
3. Standard Language for Cuban Adjustment

            
4. Standard Language for NACARA Adjustment

Asylum/Withholding under 241(b)/Torture Convention:

            
1. REAL ID Template

            
2. Pre-REAL ID Template

            
3. Standard Language

Cancellation for Lawful Permanent Residents – 240A(a)

            
1. Template 1

            
2. Template 2

            
Cancellation for Non-Lawful Permanent Residents – 240A(b)

            
1. Template 1 for Section 240A(b)(1)

            
2. Template 2 for Section 240A(b)(1)

            
3. Template for Section 240A(b)(2)

            
4. Standard Language for Section 240A(b)(1)

            
            
5. Standard Language for Section 240A(b)(2)

            
6. NACARA (El Salvador)

            
7. NACARA (Guatemala)

            
8. NACARA Extreme Hardship Cases

Pre-Conclusion Voluntary Departure – 240B

1. Template

2. Standard Language

Post Conclusion Voluntary Departure – 240B

1. Standard Language

Rescission of Adjustment of Status and Removal Proceedings

1. Standard Language

Registry – 249

1. Standard Language

Suspension of Deportation – Former 244(a)

1. Standard Language

209

1. Standard Language

211(b) Readmission Without Required Documents

1. Standard Language

216

1. Standard Language

Waivers

            212(c)

                        
1. Template

                        
2. Standard Language

            212(d)(11)

                        
1. Standard Language

            212(h)

                        
1. Standard Language

            212(i)

                        
1. Standard Language

            212(k)

                        
1. Standard Language

            237(a)(1)(E)(iii) Alien Smuggling

                        
1. Standard Language

            237(a)(1)(H)

                        
1. Standard Language

            237(a)(7) Domestic Violence

                       
1. Standard Language

SUMMARY OF EVIDENTIARY RECORD ON RELIEF

(including express credibility findings)

The evidentiary record on the issue of relief in lieu of removal consists of documentary exhibit(s) [Insert Exhibit Numbers], the testimony of [Insert Names of Witnesses], the following proffers of evidence [Insert Proffers of Evidence], the following stipulations [Insert Stipulations], and other evidence including [List Additional Evidence].

Documentary exhibits [Insert Numbers] have been admitted into evidence without objection.

Documentary exhibits [Insert Numbers] have been excluded from the evidentiary record for the following reasons [Insert Reasons/Rulings Why These Exhibits Were Not Admitted into the Record].

I find the witness(es) credible for the reasons that follow… [Insert Reasons to Support Your Credibility Finding].

I find the witness(es) not credible for the reasons that follow… [Insert Reasons to Support Your Credibility Finding].

All admitted evidence identified above has been considered in its entirety regardless of whether specifically mentioned in the text of this decision.

FINDINGS OF FACT ON ELIGIBILITY FOR RELIEF

Based upon the evidentiary record consisting of [List Evidence Admitted on Each Factual Issue Relating to the Relief Sought], I find that the respondent has successfully proven that [List Facts That You Find to be True]. I find that the evidentiary record is insufficient to establish that [List Facts that You Find to be Not Established or Supported by the Record].

[Give Reasoning/Legal Analysis to Support the Factual Findings Made Above.]

ANALYSIS AND CONCLUSIONS OF LAW ON ELIGIBILITY FOR RELIEF

(including balancing test on discretion)

Based upon the evidentiary record and the factual findings cited above, I conclude as a matter of law that the respondent has met his/her burden of establishing that he/she is eligible for the relief of [Insert Relief(s) Sought] in lieu of removal. Accordingly, the respondent’s application for [Insert Relief(s) Sought] in lieu of removal is granted.

OR

Based the evidentiary record and the factual findings cited above, I conclude as a matter of law that the respondent has failed to meet his/her burden of establishing that he/she is eligible for [Insert Relief(s) Sought] in lieu of removal. Accordingly, the respondent’s application for [Insert Relief(s) Sought] is accordingly denied.

[Give Reasoning/Legal Analysis to Support the Conclusion of Law Made Above for Each Relief Sought.]

RULINGS ON MOTIONS AND OTHER REQUESTS

[Insert here ruling on any motion or request that has not previously been ruled upon with an explanation of the reasons/legal analysis to support the grant or denial of each motion or request (e.g., motions to continue, motions to suppress, motions to terminate, motion to withdrawal as counsel of record, etc.).]

ORDER(S)

Based upon the above, the following order(s) will enter:

ORDER: IT IS ORDERED that the respondent’s application for [Enter Form of Relief] be and hereby is [granted/denied].

OR

ORDER: IT IS ORDERED that the respondent be removed to [Enter Name of Country] or in the alternative to [Enter Name of Country].

[IF POST-CONCLUSION VOLUNTARY DEPARTURE IS GRANTED]:

Upon the basis of Respondent’s admissions, I have determined that Respondent is subject to removal on the charge(s) in the Notice to Appear. Respondent has made application solely for voluntary departure in lieu of removal.

ORDER: It is HEREBY ORDERED that Respondent be GRANTED voluntary departure at the conclusion of proceedings under section 240B(b) of the Act, in lieu of removal, without expense to the Government, on or before ____________________, or any extensions as may be granted by the Field Office Director, Department of Homeland Security, and under any other conditions the Field Office Director may direct.

It is FURTHER ORDERED that Respondent post a voluntary departure bond in the amount of ____________________ with the Department of Homeland Security within 5 business days, or by ____________________.

It is FURTHER ORDERED:

[ ] that Respondent shall provide to the Department of Homeland Security his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing within 60 days of this order, or within any time extensions that may be granted by the Department of Homeland Security; and/or

[ ] Other ____________________.

It is FURTHER ORDERED that if any of the above ordered conditions are not met as required, or if Respondent fails to depart as required, the above grant of post-conclusion voluntary departure shall be withdrawn without further notice or proceedings and the following order, entered pursuant to 8 C.F.R. § 1240.26(d), shall become immediately effective: Respondent shall be removed to ____________________ on the charge(s) in the Notice to Appear, and in the alternative to ____________________.

Respondent is HEREBY ADVISED that if he or she fails to voluntarily depart the United States within the time specified, or within any extensions that may be granted by the Department of Homeland Security, Respondent will be subject to the following penalties:

1. Respondent will be subject to a civil monetary penalty of not less than $1,000 and not more than $5,000. INA § 240B(d). The Court has set the presumptive civil monetary penalty amount of $3,000 (or ____________________ instead of the presumptive amount). 8 C.F.R. § 1240.26(j).

2. Respondent will be ineligible, for a period of 10 years, to receive cancellation of removal, adjustment of status, registry, voluntary departure, or a change in nonimmigrant status. INA § 240B(d).

Respondent is FURTHER ADVISED that if he or she appeals this decision Respondent must provide to the Board of Immigration Appeals, within 30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond. The Board will not reinstate the voluntary departure period in its final order if Respondent does not submit timely proof to the Board that the voluntary departure bond has been posted. 8 C.F.R. § 1240.26(c)(3)(ii).

Respondent is FURTHER ADVISED that if he or she does not appeal this decision and instead files a motion to reopen or reconsider during the voluntary departure period, the period allowed for voluntary departure will not be stayed, tolled, or extended, the grant of voluntary departure will be terminated automatically, the alternate order of removal will take effect immediately, and the above penalties for failure to depart voluntarily under section 240B(d) of the Act, 8 U.S.C. § 1229c(d), will not apply. 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1).

_____________________________

[Name of Judge]

Immigration Judge
Cancellation of Removal for Non-Lawful Permanent Residents under INA Section 240A(b)(1)

Posted in Cancellation of Removal, Cancellation Of Removal and The Stop-Time Rule, Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), Cancellation of Removal for Non-Lawful Permanent Residents, Uncategorized, Voluntary Departure At Conclusion of Proceedings | Leave a comment

Supreme Court Grants Solicitor General’s Petition for Certiorari in Case Finding Exception to Consular Nonreviewability Doctrine

Updates (briefs etc.) on Din v. Kerry on SCOTUSBlog. Reuters reports on the cert grant here.

The U.S. Supreme Court on October 2, 2014, agreed to review the decision of the U.S. Court of Appeals for the Ninth Circuit in Din v. Kerry, 718 F.3d 856 (9th Cir. 2013), which (1) reversed a federal district court order, 2010 WL 2560492, dismissing a petition for a writ of mandamus filed against the U.S. Secretary of State and several federal officials challenging the refusal of an immigrant visa application predicated upon a determination by a consular officer that the visa applicant was inadmissible and (2) held that the government’s mere citation to INA § 212(a)(3)(B) [8 USCA § 1182(a)(3)(B)] (broad provision excluding aliens on a variety of terrorism-related grounds) was not a facially legitimate reason to deny the visa and that the alien’s U.S. citizen wife had standing to seek a declaratory judgment that the visa denial notice, under INA § 212(b)(3) [8 USCA § 1182(b)(3)], was unconstitutional as applied to her husband’s case. Kerry v. Din, No. 13-1402, 2014 WL 2195948 (U.S. Oct. 2, 2014).

The U.S. Solicitor General, in his petition for writ of certiorari, 2014 WL 2201051, asked the court to address:

1. whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
2. whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

The plaintiff, Ms. Din, filed a visa petition on behalf of her husband, Kanishka Berashk, a citizen of Afghanistan, whom she married in 2006. After U.S. Citizenship and Immigration Services (USCIS) approved the petition, Mr. Berashk appeared for his interview at the U.S. Embassy in Islamabad, Pakistan. According to the federal court complaint, Berashk answered all questions truthfully, including inquiries about his work for the Afghan Ministry of Social Welfare during the period of Taliban control. Nine months later, in June 2009, following several phone calls to the Embassy by Din and her husband, Berashk received a Form I-94 letter informing him that his visa had been denied under INA § 212(a) [8 USCA § 1182(a)], and also stating that there was no possibility of a waiver of this ineligibility. In response to Berashk’s email, seeking clarification of this reason, the Embassy replied that he had been denied under INA § 212(a)(3)(B), and added that “it is not possible to provide a detailed explanation of the reasons for the denial,” with a citation to INA § 212(b)(3), which makes inapplicable the requirement that aliens be apprised of reasons for visa denials involving criminal or terrorist activity. Ms. Din proceeded to obtain pro bono counsel and made several inquires to various levels of the State Department, including the Office of Visa Services, but was unable to obtain a more detailed explanation for the visa refusal. She then initiated her federal court action, seeking mandamus and declaratory relief. The district court ruled that Din did not have standing to challenge the constitutionality of INA § 212(b), and also held that the doctrine of consular nonreviewability precluded her other claims for relief, including a directive for lawful adjudication of her husband’s visa application.

The Ninth Circuit appreciated the reality that an alien has no constitutional right of entry to the U.S., and that federal courts are generally without power to review the actions of consular officials, citing to Kleindienst v. Mandel, 408 U.S. 753 (1972), and Rivas v. Napolitano, 677 F.3d 849 (9th Cir. 2012). However, the court keyed in on the limited exception to the doctrine of consular nonreviewability when the denial of a visa implicates the constitutional rights of a U.S. citizen, citing again to Mandel and to Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008), which held that in this situation courts exercise a “highly constrained review solely to determine whether the consular officer acted on the basis of a facially legitimate and bona fide reason.” The court noted that in Bustamante the Ninth Circuit recognized that a U.S. citizen has a protected liberty interest in marriage that entitles the citizen to judicial review of the denial of a spouse’s visa. Thus, the court engaged in the “extremely narrow” inquiry of whether the reason provided by the consular officials for the denial of Mr. Berashk’s visa was “facially legitimate and bona fide,” a standard for which the court opined that “there is little guidance.”

The court considered that the government offered no reason at all for denying the visa, given that it merely pointed to a statute which embraces several subsections, and that the denial did not recite any factual allegations to identify which subsection was deemed applicable. It distinguished this from the situation in Bustamante, in which the court held that a visa denial was facially legitimate because the applicant was informed that the consul had reason to believe he was an illegal drug trafficker and thus inadmissible. The court emphasized that 8 USCA § 1182(a)(3)(B) exceeds 1,000 words, and contains 10 subsections identifying different categories of aliens who may be inadmissible for terrorism reasons, ranging from direct participation in violent activities to indirect support of those who participate in terrorist activities. It contrasted a citation to § 1182(a)(3)(B) with the much narrower ground of inadmissibility at issue in Bustamante–8 USCA § 1182(a)(2)(C)(i). The court suggested that, at a minimum, the government must cite to a ground narrow enough to allow the judiciary to determinate that it has been properly construed. In addition, the court found it significant that some subsections in § 1182(a)(3)(B) confer upon an alien the right to present evidence to rebut the cited reasons for inadmissibility. The court remarked that, limited as its review may be, it cannot be said that Din’s constitutional right to review is a right only to rubber-stamp the government’s vague and conclusory assertion of inadmissibility. The Ninth Circuit majority noted that the State Department regulation at 22 CFR § 42.80(b) requires consular officers to “inform the applicant of the provision of law and implementing regulation on which refusal is based” and of any statutory or regulatory provision for administrative relief, with no exception specified based on denials under 8 USCA §§ 1182(a)(2) or (3). I n response to the dissent’s suggestion that § 1182(b)(3) means that the “government was not required to provide more specific information regarding the denial of Berashk’s visa,” the majority retorted that this lack of an alien’s statutory right to information is not helpful in resolving the question faced by the court, namely whether Berashk’s visa was denied for a facially legitimate and bona fide reason. The two-judge majority exclaimed: “To make such a determination, a court needs some information.” In addition, the court observed that, if necessary, the government could, as it does in other contexts, disclose the reason for Berashk’s visa denial in camera. The two-judge majority suggested that these existing procedures were adequate to address the national security concerns it shared with the dissent.

Finding that the government did not offer a facially legitimate reason for the visa denial, the court found it unnecessary to address whether the citation to § 1182(a)(3)(B) was bona fide. It also determined that Ms. Din had the requisite standing to challenge her husband’s visa denial.

Circuit Judge Richard R. Clifton dissented. He accused the majority of not accepting the consular nonreviewability doctrine or acting within its constraint. He faulted his colleagues for imposing upon the government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism.

In its petition for certiorari, the government asserted that the Ninth Circuit “erred in ruling that Din has a liberty interest in her marriage, protected under the Due Process Clause, that is implicated by denial of a visa to her alien spouse abroad,” arguing that that ruling directly conflicts with the decisions of “numerous other courts of appeals, and could have broad consequences across various areas of immigration law,” citing to Bangura v Hanson, 434 F.3d 487 (6th Cir. 2006) [FN6] (a denial of an immediate relative visa does not infringe on the right to marry); Burrafato v. Dep’t of State, 523 F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910 (1976) (dismissing for lack of subject matter jurisdiction a complaint which sought declaratory and injunctive relief based on claims that denial of a visa to an alien husband violated constitutional rights of his citizen wife and that failure of Department of State to specify reasons for denial of visa deprived husband of procedural due process); Garcia v. Boldin, 691 F.2d 1172 (5th Cir. 1982); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970), cert. denied, 402 U.S. 983 (1971) (refusal to waive two-year foreign residence requirement would not deprive alien and her U.S. citizen husband of any constitutional rights); and Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958), cert. denied, 357 U.S. 928 (1958) (wife lacked due process right to prevent husband’s deportation). The government further contended that the Ninth Circuit erred in concluding that Din, as the U.S. citizen spouse of an alien whose visa is denied, has a right to judicial review of the consular officer’s decision and to procedural due process in connection with the denial of a visa to the alien and that the court compounded that error by concluding that the government can defend the decision as “facially legitimate” only by providing the specific statutory subsection on which the denial was based and the factual basis for believing that the alien falls within the scope of that subsection. The government asserted that the Constitution confers no such rights, and neither Congress nor the Supreme Court has ever authorized such review. Further, the government said, when a visa denial is (as in this case) based on security-related grounds, the review required by the Ninth Circuit conflicts with decisions of the Supreme Court and overrides a federal statute intended to protect the confidentiality of intelligence and other sensitive information on which a consular officer may rely in denying a visa to protect the national security.

In her reply brief, Din argued that the Ninth Circuit correctly recognized that the denial of a visa to the spouse of a U.S. citizen implicates that citizen’s liberty interests in her marriage and entitles her to the same minimal procedural due process the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753 (1972) accorded a college professor arranging a conference–a right no appellate court has ever denied a U.S. citizen. Din argued that Bangura and Burrafato are not “directly contrary” to the Ninth Circuit’s holding as the government argued, but rather argued that there is no conflict because in those cases, unlike the case at hand, the citizens already knew why their spouses were being excluded or deported, and thus those courts adjudicated and rejected far broader claims. In Bangura, the government told Mr. Bangura that his wife had previously abused the immigration system by fraudulently marrying another man in an effort to obtain a visa. Bangura, 434 F.3d at 492, and in Burrafato, the government filed an affidavit in the district court stating the reason it denied Mr. Burrafato his visa and the specific subsection of the INA under which he was excludable.

Moreover, Din asserted, none of the other cases the government cited is on point as they involved the deportation of alien residents, but Congress has already provided for deportation hearings and other procedural protections that go beyond the minimal due process right to a facially legitimate and bona fide reason that Mandel and other cases provide in the case of a visa denial. The issue in these other cases typically has been whether a citizen’s liberty interest in her marriage trumps the government’s right to exclude or deport an alien spouse; it has not been whether the liberty interest is sufficient merely to require the government to provide a legitimate and bona fide explanation for the government’s conceded right to deny a spouse a visa when the circumstances Congress has specified for such denial exist.
Consular Nonreviewability Doctrine

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Visa Bulletin For November 2014

Visa Bulletin For November 2014

Number 74
Volume IX
Washington, D.C

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during November. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by October 8th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 08JUN07 08JUN07  08JUN07 08JUL94 01NOV04
F2A 01MAR13 01MAR13 01MAR13 22SEP12 01MAR13
F2B 01JAN08 01JAN08 01JAN08 08SEP94  01JAN04
F3 08DEC03 08DEC03 08DEC03 01NOV93 08JUN93
F4 08FEB02 08FEB02 08FEB02 15FEB97 01MAY91

*NOTE:  For November, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP12.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP12 and earlier than 01MAR13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08DEC09 15FEB05 C C
3rd 01JUN12 01JAN10 22NOV03 01JUN12 01JUN12
Other Workers 01JUN12 22JUL05 22NOV03 01JUN12 01JUN12
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF NOVEMBER
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 14,200 Except:
Egypt:     6,800
Ethiopia:  7,800
ASIA 2,950

EUROPE 9,900
NORTH AMERICA (BAHAMAS) 3
OCEANIA 500
SOUTH AMERICA,
and the CARIBBEAN
650

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 17,000 Except:
Egypt:      7,500
Ethiopia:   9,000
ASIA 3,200
EUROPE 11,600
NORTH AMERICA (BAHAMAS) 3
OCEANIA 650
SOUTH AMERICA,
and the CARIBBEAN
725

D.  INDIA EMPLOYMENT SECOND PREFERENCE

Increased demand in the INDIA Employment-based Second preference category has required the retrogression of this cut-off date to hold number use within the fiscal year 2015 annual limit.

E.  VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:

F1:   Two to three weeks
F2A: Three to five weeks
F2B: Six to eight weeks
F3:   One to three weeks
F4:   Two or four weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second

Worldwide: Current
China:        Three to five weeks
India:         No forward movement

Employment Third:

Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation. 

China:       Rapid forward movement. Such movement is likely to result in increased demand which may require "corrective" action possibly as early as February.

India:        Little if any movement
Mexico:      Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year. 

Employment Fourth: Current

Employment Fifth: Current

The above projections for the Family and Employment categories indicate what is likely to happen during each of the next three months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. 

F.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   October 9, 2014

Visa Bulletin For November 2014

Posted in November 2014 Visa Bulletin, Visa Bulletin | Leave a comment

Visa Bulletin For October 2014

Visa Bulletin For October 2014

Number 73
Volume IX
Washington, D.C

View as Printer Friendly PDF

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during October. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by September 8th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 22MAY07 22MAY07  22MAY07 22JUN94 01SEP04
F2A 01FEB13 01FEB13 01FEB13 22JUL12 01FEB13
F2B 01NOV07 01NOV07 01NOV07 01AUG94  15DEC03
F3 01DEC03 01DEC03 01DEC03 22OCT93 01JUN93
F4 22JAN02 22JAN02 22JAN02 01FEB97 08APR91

*NOTE:  For October, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22JUL12.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUL12 and earlier than 01FEB13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15NOV09 01MAY09 C C
3rd 01OCT11 01APR09 15NOV03 01OCT11 01OCT11
Other Workers 01OCT11 22JUL05 15NOV03 01OCT11 01OCT11
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF OCTOBER
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For October, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 8,000 Except:
Egypt:     6,000
Ethiopia:  7,000
ASIA 2,500

EUROPE 8,500
NORTH AMERICA (BAHAMAS) 3
OCEANIA 400
SOUTH AMERICA,
and the CARIBBEAN
550

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN NOVEMBER

For November, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 14,200 Except:
Egypt:      6,800
Ethiopia:   7,800
ASIA 2,950
EUROPE 9,900
NORTH AMERICA (BAHAMAS) 3
OCEANIA 500
SOUTH AMERICA,
and the CARIBBEAN
650

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: Increased demand will require the retrogression of this cut-off date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514

Visa Bulletin For October 2014

Posted in Visa Bulletin | Tagged | Leave a comment

E-3 Specialty Occupation Professionals from Australia

Who qualifies for the E3 visa?

The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation. The spouse and children need not be Australian citizens. However the U.S. does not recognize De Facto relationships for the purposes of immigration, and to qualify as a spouse you will need a marriage certificate.

I am a permanent resident of Australia but don’t have citizenship. Can I apply for an E-3 visa?

No. E-3 visas are only available for Australian nationals. If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.

I do not hold a bachelor’s degree or higher. Can I apply for the E-3 visa based on my work experience?

U.S. Code of Federal Regulations, 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years experience in the field you are applying to work in. During their visa interviews, applicants for U.S. work visas should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.

(D) Equivalence to completion of a college degree. For purposes of paragraph (h)(4)(iii)(C)(4) of this section, equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and/or work experience;
214.2(h)(4)(iii)(D)(1)

(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
214.2(h)(4)(iii)(D)(2)

(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
214.2(h)(4)(iii)(D)(3)

(4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
214.2(h)(4)(iii)(D)(4)

(5) A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation. 214.2(h)(4)(iii)(D)(5)(i)-(v)

Do I need a license for a specialty occupation?

An E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

I am a skilled tradesperson with qualifications and experience in plumbing/electrical work/carpentry for example. Do these kind of trades qualify as specialty occupations for the E-3 visa?

Not generally, because a requirement of the E-3 visa is that the job in the United States requires a minimum of a bachelor’s degree in a specialty occupation. As very few trade positions require a degree, they are not appropriate for the E-3 visa.

I have a degree and have found a job in a related profession in the U.S. Do I qualify for the E-3 visa?

The job will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher qualification. For example, someone with a degree in Business Studies planning to work as a Personal Assistant would not be eligible for the E-3 unless the job actually required a bachelor-level qualification.

Specialty occupation skills/Professions/Occupations

Types of Jobs and Professions that qualify for Specialty occupation skills

“Theoretical” and “Practical” application of specialty occupation skills. For a profession to meet h1b or e3 visa requirements, it has to demand the “application of specialized knowledge” — the kind of knowledge that you get from a Bachelor’s degree or extensive work experience.

U.S. immigration law states that a specialty occupation must require a bachelor’s degree as the minimum for entry into the occupation, and that the applicant has a bachelor’s degree that is related to the occupation. However, the regulations allow for the applicant to have the equivalent of a U.S. bachelor’s degree.

The definition of “specialty occupation” is one that requires:

– A theoretical and practical application of a body of specialized knowledge; and

– The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

In determining whether an occupation qualifies as a “specialty occupation,” follow the definition contained in the Immigration and Nationality Act (INA) 214 (i)(1) for H-1B nonimmigrants and applicable standards and criteria determined by the Department of Homeland Security (DHS) and United States Citizenship and Immigration Service (USCIS). Please see the USCIS page for more information.

Although there is no definitive list of occupations eligible for the E3 visa, a useful general guide for applicants to check if their occupation might be considered a graduate specialty profession and thus might be eligible for an E3 visa, is the Occupational Information Network website O*NET Online.

A 4-year bachelor’s degree from an accredited or recognized foreign university or college will generally be considered equivalent to a U.S. bachelor’s degree. If you have less than a 4 year degree you can combine the years of your degree/diploma with years of study completed on a post-baccalaureate diploma, master’s degree or other studies. The regulations also allow you to combine progressive work experience in the field with university study, or in some cases use work experience only, to meet the equivalency requirement. The regulations specifically state that for H-1B purposes three (3) years of progressive work experience in the field will be considered the equivalent of one year of U.S. university study.

In many cases, unless your education was completed in the U.S., a Credentials Evaluation showing an equivalency to a U.S. bachelor’s degree is required for an H-1B visa. If you are seeking a credential evaluation for H-1B visa purposes the USCIS only requires that the report include an equivalency statement of the diplomas/degrees along with brief information on the institution where the studies were completed.

Below is a list of all the Jobs / Occupations that qualify to get issued an H1B visa (they are Not listed in any specific preference or order)

Occupations In Architecture, Engineering, And Surveying
Architectural Occupations,
Aeronautical Engineering Occupations,
Electrical/ Electronics Engineering Occupations,
Civil Engineering Occupations,
Ceramic Engineering Occupations,
Mechanical Engineering Occupations,
Chemical Engineering Occupations,
Mining And Petroleum Engineering Occupations,
Metallurgy And Metallurgical Engineering Occupations,
Industrial Engineering Occupations,
Agricultural Engineering Occupations,
Marine Engineering Occupations,
Nuclear Engineering Occupations,
Drafters,
Surveying/ Cartographic Occupations,
Other Occupations In Architecture, Engineering, And Surveying.

Occupations In Mathematics And Physical Sciences
Occupations In Mathematics,
Occupations In Astronomy,
Occupations In Chemistry,
Occupations In Physics,
Occupations In Geology,
Occupations In Meteorology,
Other Occupations In Mathematics And Physical Science.

Computer Science & IT, and Telecom Occupations
Occupations In Systems Analysis And Programming,
Occupations In Data Communications And Networks,
Occupations In Computer System User Support,
Occupations In Computer System Technical Support,
Other Computer-Related Occupations

Occupations In Life Sciences
Occupations In Agricultural Sciences,
Occupations In Biological Sciences,
Occupations In Psychology,
Other Occupations In Life Sciences

Occupations In Medicine And Health
Physicians And Surgeons,
Osteopaths,
Dentists,
Veterinarians,
Pharmacists,
Registered Nurses,
Therapists,
Dieticians,
Occupations In Medical And Dental Technology,
Other Occupations In Medicine And Health

Occupations In Education & Research
Occupations In College And University Education,
Occupations In Secondary School Education,
Occupations In Preschool, Primary School, And Kindergarten Education,
Occupations In Education Of Persons With Disabilities,
Home Economists And Farm Advisers,
Occupations In Vocational Education,
Other Occupations In Education

Occupations in Writing and Languages
Writers,
Editors: Publication, Broadcast, And Script,
Other Occupations In Writing

Occupations in Finance and Administrative Specializations
Accountants, Auditors, And Related Occupations,
Budget And Management Systems Analysis Occupations,
Purchasing Management Occupations,
Sales And Distribution Management Occupations,
Advertising Management Occupations,
Public Relations Management Occupations,
Personnel Administration Occupations,
Inspectors And Investigators, Managerial And Public Service,
Other Administrative Occupations

Occupations in Business Management & Administration
Agriculture, Forestry And Fishing Industry Managers And Officials,
Mining Industry Managers And Officials,
Construction Industry Managers And Officials,
Manufacturing Industry Managers And Officials,
Transportation, Communication, And Utilities Industry Managers And Officials,
Wholesale And Retail Trade Managers And Officials,
Finance, Insurance, And Real Estate Managers And Officials
Service Industry Managers And Officials,
Public Administration Managers And Officials,
Miscellaneous Managers And Officials

OTHER Specialty Occupations as listed below
Occupations In Economics,
Occupations In Political Science,
Occupations In History,
Occupations In Sociology,
Occupations In Anthropology,
Other Occupations In Social Sciences,
Librarians,
Archivists,
Museum Curators And Related Occupations,
Other Occupations In Museum, Library, And Archival Sciences,
Lawyers,
Judges,
Other Occupations In Law And Jurisprudence,
Clergy,
Other Occupations In Religion And Theology,
Commercial Artists: Designers And Illustrators, Graphic Arts,
Environmental, Product, And Related Designers,
Other Occupations In Art,
Occupations In Music,
Other Occupations In Entertainment And RecreationEligibility Criteria

To qualify for an E-3 visa, you must demonstrate that you:

  • Are a national of Australia
  • Have a legitimate offer of employment in the United States
  • Possess the necessary academic or other qualifying credentials
  • Will fill a position that qualifies as a specialty occupation

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Applying for an E-3 Visa from Within the United States

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification.

Supporting Documents

Your Form I-129 must include the following documents:

  • A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application. Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
  • Academic or other credentials demonstrating qualifications for the position
  • Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
  • If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

Applying for a Visa With a U.S. Embassy or Consulate

If your petition Form I-129 is approved, USCIS will forward a Form I-797, Notice of Action/Approval to the employer, who in turn will forward it to you. A Form I-797 approval notice is not a U.S. visa, as the visa must be obtained at a U.S. embassy or consulate abroad. After Form I-129 is approved by USCIS, the next step is to apply for a U.S. visa at a U.S. embassy or consulate, generally in your country of residence abroad.

  • Initial Period of Stay, 2 years
  • Extension of Stay 2 years: Up to 2 years per extension; no maximum number of extensions, with some exceptions.
  • Change of Employment: Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less.

Note: Form I-129 is used to apply for an extension of stay or change of employment.

Family of E-3 Visa Holders

Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse would file a Form I-765, Application for Employment Authorization.

E-3 Specialty Occupation Professionals from Australia

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