CA7 denies collateral attack of removal order in criminal proceedings for failure to exhaust administrative remedies

Posted on May 30, 2014 by Mike Baker

United States v. Alegria-Saldana, 2014 U.S. App. LEXIS 7263: The Seventh Circuit affirmed the district court’s denial of Alegria-Saldana’s motion to dismiss his indictment for illegal reentry after removal. Alegria-Saldana alleged that his due process rights were violated in his underlying removal order as the Immigration Judge (IJ), in ruling that his conviction for possession of cocaine was an aggravated felony and thus rendered Alegria-Saldana ineligible for cancellation of removal, based his decision on Board of Immigration Appeals (BIA) precedent which was overturned by the Supreme Court three years later.

[1]-The alien challenged the district court’s finding that he had not met any of the 8 U.S.C.S. § 1326(d) requirements to challenge the underlying removal order; [2]-As to the first requirement, despite being informed of his right to appeal, he did not file an appeal or ask his lawyer to do so, and thus he failed to exhaust his available remedies; [3]-As to the second requirement, the alien did not meet his burden of proving that he was unable to petition for judicial relief; [4]-Finally, failure to consider an alien for discretionary relief did not violate due process and thus was not fundamentally unfair; [5]-Though he was unable to seek cancellation of removal, the United States Supreme Court’s Lopez decision did reduce the potential punishment for his illegal reentry from 20 years to 10 years.

Saldana entered the U.S. at age 7, became a lawful permanent resident at 20, but was charged with removability at 34, in 2003, for committing an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(ii), and a controlled-substance offense. He argued that mere possession of cocaine was not a drug-trafficking crime, and thus not an aggravated felony under 8 U.S.C. 1101(a)(43)(B) that would render him ineligible for discretionary relief. The IJ denied his application for cancellation of removal. Saldana did not appeal and was removed to Mexico. The agency precedent on which the IJ relied was overturned three years later by the Supreme Court. By then Saldana had reentered illegally and was again convicted of possessing cocaine. After his 2011 release Saldana was charged with illegal presence in the U.S. after removal, 8 U.S.C. 1326(a), (b)(1), but sought dismissal based on deficiencies in the underlying removal order. The district court denied the motion, finding that he had failed to exhaust administrative remedies; that his lawyer never promised to appeal; that Saldana did not take advantage of remedies available at the time (habeas corpus) and did not justify these failures other than asserting lack of legal knowledge; and that he could not show that removal was fundamentally unfair because he had no due-process right to apply for discretionary relief. The Seventh Circuit affirmed. Despite being informed of his rightsl, he did not file an appeal or ask his lawyer to do so, nor did he exhaust available remedies by a motion to reopen.

Under 8 U.S.C.S. § 1326(d), a defendant may collaterally attack the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies, (2) unavailability of judicial review during the removal process, and (3) fundamental unfairness of the removal order. 8 U.S.C.S. § 1326(d)(1)-(3).

The United States Court of Appeals for the Seventh Circuit has not decided whether all three requirements under 8 U.S.C.S. § 1326(d)(1)-(3) must be met before a collateral attack can proceed, though the Seventh Circuit has implied that is the case.

An alien may not collaterally attack removal order when he and his lawyer were informed of his right to pursue such an administrative appeal and his lawyer reserved right to appeal.

In the context of a due process claim, in immigration law, as in tax law and criminal law, too, where knowledge of the law is presumed, the Constitution permits the government to leave people to their own research.

Failure to consider an alien for discretionary relief does not violate due process and thus is not fundamentally unfair.

United States v. Alegria-Saldana

__________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NICOLAS ALEGRIA-SALDANA, Defendant-Appellant.

No. 13-1607

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Rovner Click for Enhanced Coverage Linking Searches, Circuit Judge. Nicolas Alegria-Saldana, a citizen of Mexico, challenges the district court’s denial of his motion to dismiss his indictment for illegal reentry after removal. See 8 U.S.C. § 1326(a), (b)(1). He entered a conditional guilty plea but maintains that the charges should be dismissed based on alleged due-process violations in the underlying removal order. Because Alegria-Saldana has not met the statutory requirements to collaterally attack his removal order, 8 U.S.C. § 1326(d), we affirm the district court’s judgment.

Alegria-Saldana entered the United States at the age of 7, became a lawful permanent resident at 20, but was charged with removability at 34—in 2003—by immigration authorities for committing an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(ii), and a controlled-substance offense, see id. § 1227(a)(2)(B)(i). During removal proceedings, he conceded that his two convictions for possessing cocaine involved a controlled substance. But his lawyer argued that mere possession was not a drug-trafficking crime, and thus not an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance”). The distinction mattered because an aggravated felony determination would render him statutorily ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3). Based on precedent from the Board of Immigration Appeals, the immigration judge ruled that Alegria-Saldana’s conviction for cocaine possession was an aggravated felony, and denied his application for cancellation of removal. See 720 ILCS 570/402(c) (defining cocaine possession as felony under state law); In re Yanez-Garcia, 23 I & N Dec. 390, 398 (BIA 2002) (characterizing state felony convictions for drug possession as aggravated felonies). Alegria-Saldana did not appeal that decision, and he was removed to Mexico two months later.

The agency precedent on which the immigration judge relied was overturned three years later when the Supreme Court ruled that mere possession was not an aggravated felony under immigration law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th Cir. 2006) (Illinois felony conviction for possessing cocaine did not bar lawful permanent resident from seeking discretionary relief). By then Alegria-Saldana had reentered the United States illegally, and he was again convicted in Illinois of possessing cocaine. State authorities turned him over to immigration officials after his release in 2011.

Alegria-Saldana was charged with illegal presence in the United States after removal, see 8 U.S.C. § 1326(a), (b)(1), but he sought to dismiss the indictment based on alleged deficiencies in the underlying removal order, see id. § 1326(d). HN1Go to the description of this Headnote.Under § 1326(d), a defendant may collaterally attack the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies, (2) unavailability of judicial review during the removal process, and (3) fundamental unfairness of the removal order. See id. § 1326(d)(1)-(3).

Alegria-Saldana maintained that he satisfied these three requirements. He pointed first to his lawyer’s alleged deficiencies, and explained in an affidavit that he believed his lawyer would file an appeal. He noted that his lawyer reserved his right to appeal and pointed out that the immigration judge discussed his lawyer’s role in the appeal process, stating that “[y]our lawyer has 30 days to decide if an appeal will be perfected or not, and you could decide that any time between the next 30 days.” Second, Alegria-Saldana argued that he lacked “any understanding or particular knowledge of the law” and did not have the ability to file an appeal on his own. Finally, he challenged the fairness of the removal order in light of the Supreme Court’s later decision in Lopez, 549 U.S. at 60.

The district court denied Alegria-Saldana’s motion to dismiss the indictment, finding that he had not met any of the § 1326(d) requirements to challenge the underlying removal order. First, Alegria-Saldana failed to exhaust his administrative remedies because he neither appealed the decision nor asked his attorney to do so. To the extent that he suggested that his immigration lawyer provided ineffective assistance, the court noted that his lawyer never promised to file an appeal. Second, Alegria-Saldana did not take advantage of the form of judicial review available at the time of his removal proceedings—habeas corpus relief—and he did not justify why he failed to file a petition other than asserting his general lack of legal knowledge. And third, he could not show that the removal order was fundamentally unfair because he had no due-process right to apply for discretionary relief.

On appeal Alegria-Saldana challenges the district court’s decision with respect to all three requirements of § 1326(d). HN2Go to the description of this Headnote.We have not decided whether all three must be met before a collateral attack can proceed, though we have implied that is the case. See United States v. Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2013) (declining to decide issue).

As to the first requirement, Alegria-Saldana argues that the district court erred in ruling that he failed to exhaust his administrative remedies, given his belief that his immigration lawyer would file an appeal. He maintains that he was “entitled to interpret that reservation [of the right to appeal] by counsel as meaning that his attorney would either follow through on the perfection of the appeal or advise [Alegria-Saldana] of his decision not to follow through.”

But the district court’s finding regarding exhaustion is correct. Despite being informed of his right to appeal, he did not file an appeal or ask his lawyer to do so, and thus he failed to exhaust his available remedies. See United States v. Roque-Espinoza, 338 F.3d 724, 728-29 (7th Cir. 2003) (HN3Go to the description of this Headnote.alien may not collaterally attack removal order when “he and his lawyer were informed of his right to pursue such an [administrative] appeal” and his lawyer reserved right to appeal); United States v. Villavicencio-Burruel, 608 F.3d 556, 559-60 (9th Cir. 2010) (same). Nor did Alegria-Saldana exhaust his available remedies in the form of a motion to reopen, see 8 U.S.C. § 1229a(c)(7); United States v. Arita-Campos, 607 F.3d 487, 491-92 (7th Cir. 2010), which would have allowed the Board to consider whether his lawyer was ineffective for not communicating with him after the removal hearing, see In re Lozada, 19 I & N Dec. 637, 639 (BIA 1988) (setting out requirements to bring ineffective-assistance claim in immigration proceedings); see also United States v. Cerna, 603 F.3d 32, 42 (2d Cir. 2010) (excusing lack of exhaustion when lawyer promised to file an appeal during removal hearing and failed to do so).

Second Alegria-Saldana argues generally that the district court erred in concluding that judicial review was available in the form of a petition for habeas corpus. He concedes that judicial review existed “in theory” but asserts that it was unavailable “as a practical matter” because, between the entry of his removal order and his actual removal, he had only two months to research the law or find a new lawyer.

The district court correctly determined that Alegria-Saldana did not meet his burden of proving that he was unable to petition for judicial relief. See Arita-Campos, 607 F.3d at 493; United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). The court here concluded that he failed to meet this burden because he offered no explanation other than that he lacked “any understanding or particular knowledge of the law.” As the court noted, aliens are presumed capable of researching generally available remedies, see Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (HN4Go to the description of this Headnote.”In immigration law, as in tax law—and criminal law, too, where knowledge of the law is presumed—the Constitution permits the government to leave people to their own research.”) (internal citation omitted), and Alegria-Saldana offers no other reason to think that two months was not enough time to file a petition for habeas corpus, see Arita-Campos, 607 F.3d at 492 (39 days between arrest and removal was sufficient time for alien to file motion to reopen).

Finally Alegria-Saldana argues that the district court should have ruled that his removal order was fundamentally unfair because the incorrect aggravated-felony determination deprived him of the opportunity to apply for discretionary relief. But, as the court noted, HN5Go to the description of this Headnote.failure to consider an alien for discretionary relief does not violate due process and thus is not fundamentally unfair. See Arita-Campos, 607 F.3d at 493; United States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008); Santiago-Ochoa, 447 F.3d at 1020 (collecting cases from other circuits). A minority of circuits do recognize a procedural due-process right to seek discretionary relief, but even these courts consider whether the immigration judge erred “under the governing case law at the time of [removal],” United States v. Gomez, 732 F.3d 971, 987 (9th Cir. 2013), and require aliens to [*9] show prejudice in the form of a “reasonable probability” that they would have received relief, see United States v. Daley, 702 F.3d 96, 101 (2d Cir. 2012). Alegria-Saldana’s removal order relied on agency precedent, see In re Yanez-Garcia, 23 I & N Dec. at 398, and he has not attempted to show any likelihood that the Board of Immigration Appeals—after considering his two convictions for drunk driving, two convictions for cocaine possession, and a conviction for domestic battery—would have exercised its discretion in his favor. See In re Sotelo-Sotelo, 23 I&N Dec. 201, 205-06 (BIA 2001) (discretionary relief not warranted for lawful permanent resident with U.S.-citizen child who had smuggled aliens into United States). Though Alegria-Saldana was unable to seek cancellation of removal, the Supreme Court’s decision in Lopez did reduce the potential punishment for his illegal reentry: because his convictions are no longer aggravated felonies, the statutory maximum was 10 years instead of 20. See 8 U.S.C. § 1326(b)(1)-(2).

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USCIS Issues New Policy on Form I-693, Report of Medical Examination and Vaccination Record

Posted on May 30, 2014 by Mike Baker

Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS will also provide additional ways to submit Form I-693. As outlined in policy alert PA-2014-005, this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

USCIS will hold an engagement on June 12, 2014 to address questions about the new policy and provide guidance on filing Form I-693. Updated Form I-693

USCIS Civil Surgeons Locator

Civil Surgeon

Most applicants for adjustment of status are required to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the United States Citizenship and Immigration Services. ed to have a medical examination. The medical examination must be conducted by a civil surgeon who has been designated by the United States Citizenship and Immigration Services.

Posted in I-693, Medical Exam, USCIS Civil Surgeons Locator | Tagged I-693 | Leave a comment

Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals: Filing Process and Evidence

Posted on May 12, 2014 by Mike Baker

Do you qualify? Click here to see the Brochure; and here to see the Flowchart posted by USCIS on its website.

USCIS provides a number of humanitarian programs and protection to assist individuals in need of shelter or aid from disasters, oppression, emergency medical issues and other urgent circumstances. Deferred Action Process for Young People Who Are Low Enforcement Priorities is for certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria. They will be considered for relief from removal from the country or entered into removal proceedings. Over the past three years, the Obama Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

You may request consideration of deferred action for childhood arrivals if you:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Individuals may begin to request consideration of deferred action for childhood arrivals on August 15, 2012. Please do not file before August 15. If you file early, your request will be rejected.

Frequently Asked Questions

About Deferred Action for Childhood Arrivals
Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals
Filing Process
Evidence
Cases in Other Immigration Processes
Avoiding Scams and Preventing Fraud

About Deferred Action for Childhood Arrivals

What is deferred action?
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.

What is deferred action for childhood arrivals?
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

If my case is deferred, am I in lawful status for the period of deferral?
No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.

There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Does deferred action provide me with a path to permanent residence status or citizenship?
No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?
No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.

Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
This process is only for individuals who meet the specific guidelines announced by the Secretary. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Does this Administration remain committed to comprehensive immigration reform?
Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?
Yes.The Secretary’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals

What guidelines must I meet to be considered for deferred action for childhood arrivals?
Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

How old must I be in order to be considered for deferred action under this process?

If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Do brief departures from the United States interrupt the continuous residence requirement?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

The absence was short and reasonably calculated to accomplish the purpose for the absence;
The absence was not because of an order of exclusion, deportation, or removal;
The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
The purpose of the absence and/or your actions while outside the United States were not contrary to law.

May I travel outside of the United States before USCIS has determined whether to defer action in my case?
No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

Note: If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

Travel Guidelines

Travel Dates	Type of Travel	Does it Affect Continuous Residence
Before August 15, 2012	brief casual innocent	No
Before August 15, 2012	For an extended time Because of an order of exclusion, deportation, or removal To participate in criminal activity	Yes
After August 15, 2012 and before you have requested deferred action	Any	Yes.Yes. You cannot travel while your request is under review. You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case.
After August 15, 2012 and after you have requested deferred action	Any

If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States?
Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances.

What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses constitute a significant misdemeanor?
For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
Is one for which the individual was sentenced to time in custody of 90 days or less.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.

It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
No. Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.

Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.

What qualifies as a national security or public safety threat?
If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.

If I am not in removal proceedings but believe I meet the guidelines for an exercise of deferred action under this process, should I seek to place myself into removal proceedings through encounters with CBP or ICE?
No. If you are not in removal proceedings but believe that you meet the guidelines you should submit your request for consideration of deferred action for childhood arrivals to USCIS under the process outlined below.

Filing Process

How do I request consideration of deferred action for childhood arrivals?
Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms and will be submitting them to the Office of Management and Budget (OMB) for review. Pending OMB clearance, the forms and instructions will be available on the USCIS website on August 15, 2012. Do not submit any request to USCIS before these forms are available. All requests received before August 15, 2012, will be rejected.

Note: All individuals meeting the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), will affirmatively request consideration of deferred action for childhood arrivals from USCIS through this process. Individuals who are currently detained and believe they meet the guidelines should not request deferred action from USCIS but should identify themselves to their detention officer.

Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances.

What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.

Can I obtain a fee waiver or fee exemption for this process?
There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:

You are under 18 years of age, homeless, in foster care or otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level.
You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.

Beginning August 15, 2012 additional information on how to make your request for a fee exemption will be available on www.uscis.gov/childhoodarrivals. Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:

Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.
Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.
Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.
Address factual questions through requests for evidence (RFEs).

Will there be supervisory review of decisions by USCIS under this process?
Yes. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.

Can I appeal USCIS’s determination?
No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors:

USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

Can I extend the period of deferred action in my case?
Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis.

If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.

Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
Yes. USCIS personnel responsible for considering requests for consideration of deferred action for childhood arrivals will receive special training.

Evidence

What documentation may be sufficient to demonstrate that I came to the United States before the age of 16?
Documentation sufficient for you to demonstrate that you came to the United States before the age of 16 may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I have resided in the United States for a least five years preceding June 15, 2012?
Documentation sufficient for you to demonstrate that you have resided in the United States for at five years immediately preceding June 15, 2012, may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I was physically present in the United States as of June 15, 2012?
Documentation sufficient for you to demonstrate that you were physically present on June 15, 2012, the date the memorandum was issued, may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?
Documentation sufficient for you to demonstrate that you are currently in school, have graduated from high school, or have obtained a GED certificate may include, but is not limited to: diplomas, GED certificates, report cards, and school transcripts. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
Documentation sufficient for you to demonstrate that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States may include, but is not limited to: report of separation forms, military personnel records, and military health records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?
Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals.
However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:

A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
You were physically present in the United States on June 15, 2012;
You came to the United States before reaching your 16th birthday;
You were under the age of 31 on June 15, 2012; and
Your criminal history, if applicable.

If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline.

Will USCIS consider circumstantial evidence that I have met certain guidelines?
Circumstantial evidence may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that:

You were physically present in the United States on June 15, 2012;
You came to the United States before reaching your 16th birthday;
You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines to demonstrate that you:

Were under the age of 31 on June 15, 2012; and
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this guideline.

Cases in Other Immigration Processes

Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
Yes. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals.

Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE?
No. If you are currently in immigration detention, you may not request consideration of deferred action for childhood arrivals from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case. The ICE Office of the Public Advocate can be reached through the Office’s hotline at 1-888-351-4024 (staffed 9 a.mm – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov

If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of your case before removal?
If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings?
This policy is intended to allow CBP and ICE to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, if an individual meets the guidelines of this process, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been placed into removal proceedings, contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals even if you have accepted an offer of administrative closure or termination under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE’s case-by-case review, ICE already has offered you deferred action for a period of two years, subject to renewal.

If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you declined an offer of administrative closure under the case-by-case review process.

If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you were not offered administrative closure following review of you case as part of the case-by-case review process.

How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
If you meet the guidelines and have been served a detainer, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Avoiding Scams and Preventing Fraud

Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams.

Make sure you seek information about requests for consideration of deferred action for childhood arrivals from official government sources such as USCIS or the Department of Homeland Security. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative.

What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.

Last updated: 08/03/2012

Posted in Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Illinois DREAM Act, Prosecutorial discretion, significant misdemeanors | Leave a comment

Inadmissibility and Waivers

Posted on April 23, 2014 by Mike Baker

Comprehensive chart listing of the grounds of inadmissibility and corresponding immigration waivers available for applicants applying to be admitted to the United States. Inadmissibility and Waivers

The “NIV Waivers” describes whether non-immigrant waivers, usually the 212(d)(3)(A) non-immigrant waiver, is available for those who wish to enter the U.S. temporarily as a non-immigrant (e.g. as a B-1/B-2 visitor, a F-1 student, a H-1B or TN professional worker, a E-2 Treaty Investor, etc).

The “IV Waivers” describes whether an immigrant waiver is available for those who wish to permanently reside in the U.S. Immigrant Waivers are typically applied for through the I-601 / I-601a “Extreme Hardship” or I-212 Waiver Process.

ALIENS PREVIOUSLY REMOVED AND UNLAWFULLY PRESENT

Class of Inadmissibility	NIV Waivers	IV Waivers
Aliens Previously Removed (INA 212(a)(9)(A)); (9 FAM 40.91)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212, (Permission to Reapply for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it.	No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section. (Form I-212, Permission to Reapply). However, such permission to reapply does not remove the grounds which led to the alien’s denial of admission to or removal from the United States. The reason for such denial of admission or removal may lead to another ground of inadmissibility.
Aliens Unlawfully Present (INA 212(a)(9)(B)); (9 FAM 40.92 Notes)	INA 212(d)(3)(A) Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States. Additionally, an approved Form I-212 (Permission to Reapply) for Admission into the United States after Deportation or Removal) removes this ground, but not the circumstances which led to it.	DHS has sole discretion to grant a 212(a)(9)(B)(v) waiver in the case of an immigrant who is the spouse, son, or daughter of a U.S. citizen or LPR, if refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse or parent of such alien.
Aliens Unlawfully Present After Previous Immigration Violations (INA 212(a)(9)(C)); (9 FAM 40.93 Notes)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver, but DHS may grant permission to reapply for admission to the United States to an alien otherwise inadmissible under this section provided at least ten years have passed following the alien’s last departure from the United States. (Form I-212, Application for Permission to Reapply)

ILLEGAL ENTRANTS, IMMIGRATION VIOLATORS, AND MISREPRESENTATION

Class of Inadmissibility	NIV Waivers	IV Waivers
Aliens Present Without Admission or Parole (INA 212(a)(6)(A)); (9 FAM 40.61)	This ground does not apply at time of visa application.	This ground does not apply to visa applicants.
Failure to Attend a Removal Proceeding (INA 212(a)(6)(B)); (9 FAM 40.62)	INA 212(d)(3)(A) waiver is available. Inadmissibility applies for 5 years following departure or removal subsequent to removal hearing.	No waivers available. Inadmissibility apples for 5 years following departure or removal subsequent to removal hearing.
Fraud and Misrepresentation (INA 212(a)(6)(C)(i)); (9 FAM 40.63)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	INA 212(i) waivers are available if she or he is the spouse, son, or daughter of a U.S. citizen or of an LPR, but only if the petitioner would suffer extreme hardship if the waiver were not granted; or, if a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien, or the alien’s U.S. Citizen or LPR relative.
False Claim of Citizenship (INA 212(a)(6)(C)(ii)); (9 FAM 40.63)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver available.
Stowaways (INA 212(a)(6)(D)); (9 FAM 40.64) Applies only to aliens seeking admission at a port of entry. You are not to refuse visas under this provision.	This ground does not apply at time of visa application.	This ground does not apply at time of visa application.
Smugglers (Knowingly Assisted) (INA 212(a)(6)(E)); (9 FAM 40.65)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(d)(11) waiver available. DHS may grant a waiver to an applicant for family-based immigration if the alien applicant had aided an individual who at the time of such action was the alien’s spouse, parent, son, or daughter entering or attempting to enter the United States in violation of the law. The brother or sister of a U.S. citizen is not eligible for this waiver. 2. DHS may grant an INA 212 (c) waiver to a LPR who is returning to the United States after a temporary absence abroad; had illegally assisted only his or her spouse, son, or daughter, or parent, and no others; and is otherwise eligible for admission. In this way, DHS avoids penalizing too heavily aliens already admitted to the United States who were not ineligible prior to the 1990 amendments to the law, who would now be inadmissible because of the 1990 amendments, and who had assisted only a close family member’s entry into the United States.
Subject of Civil Penalty or Final Order Under Section 274C (Document Counterfeiting) (INA 212(a)(6)(F)); (9 FAM 40.66 Notes)	INA 212(d)(3)(A)waiver available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	INA 212(d)(12) waiver is available. DHS may grant a waiver to: 1. Certain permanent resident aliens who have been abroad temporarily and are not under order of deportation; or 2. To aliens seeking admission or adjustment of status as immediate relatives or family-based beneficiaries (but for aliens seeking adjustment it must have been committed solely to assist, aid, or support the alien’s spouse or child).
Student Visa Abusers (INA 212(a)(6)(G)); (9 FAM 40.67)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.

CRIMINAL AND RELATED GROUNDS

Class of Inadmissibility	NIV Waivers	IV Waivers
Crimes Involving Moral Turpitude (INA 212(a)(2)(A)(i)(I); 9 FAM 40.21(a))	For those who do not fall under the exceptions to inadmissibility listed in 9 FAM 40.21, INA 212(d)(3)(A) waivers are available. Factors in considering whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available in cases where the alien’s admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities for which the applicant is inadmissible occurred more than 15 years before the date of visa application; or 2. For the spouse, parent, son, or daughter of a U.S. citizen or legal permanent resident (LPR) if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. The alien is a VAWA self-petitioner. No waiver is available if the applicant has been convicted of (or has admitted committing acts that constitute) murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Controlled Substance Violators (INA 212(a)(2)(A)(i)(II)); (9 FAM 40.21(b))	INA 212(d)(3)(A) waiver is available. Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States; and the alien has been rehabilitated and the inadmissible act occurred more than 15 years before the visa application; or 2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. The alien is a VAWA self-petitioner. INA 212(h) is only available if the violation relates to a single offense of simple possession of 30 grams or less of marijuana.
Multiple Criminal Convictions (INA 212(a)(2)(B)); (9 FAM 40.22 Notes)	INA 212(d)(3)(A) waiver is available. Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if: activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security; and the applicant has been rehabilitated; or 2. For the spouse, parent, son, or daughter to the U.S. citizen or LPR if, in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. If the alien is a VAWA self-petitioner. No waiver is available if the applicant has committed murder, criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Controlled Substance Traffickers and the Spouse, Son, or Daughter of Substance Traffickers Who Obtained Financial or other Benefit and Knew or have Known that the Financial Benefit was the Product of Illicit Activity within the Past Five Years (INA 212(a)(2)(C)); (9 FAM 40.23 Notes)	INA 212(d)(3)(A) waiver is available. Factors to consider in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Prostitution and Commercialized Vice Within the Past 10 Years of the Date of Application for a Visa, Admission, or Adjustment of Status (INA 212(a)(2)(D); and INA 212(a)(2)(A)(i)(I)) (9 FAM 40.24)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available in cases of prostitution (D)(i)or procuring (D)(ii) if the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated. In cases of other commercialized vice (D)(iii), 212(h) is available if the two conditions above are met, and all relevant criminal acts took place more than 15 years before the date of application; or 2. Available to IV applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, not granting the waiver would result in extreme hardship to the petitioning U.S. citizen or LPR and the alien has been rehabilitated; or 3. The alien is a VAWA self-petitioner.
Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution (INA 212(a)(2)(E)) (9 FAM 40.25)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	1. INA 212(h) waiver is available if the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application, the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or 2. For applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or 3. The alien is a VAWA self-petitioner. Neither waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.
Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom (INA 212(a)(2)(G)); (9 FAM 40.26)	INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.	No waiver is available.
Significant Traffickers in Persons and Beneficiaries, Certain Family Members of Trafficker Who Obtained Financial or Other Benefit and Knew or Have Known that the Financial Benefit was the Product of Illicit Activity in Past 5 Years (INA 212(a)(2)(H)); (9 FAM 40.27 Notes)	INA 212(d)(3)(A) waiver is available. Advisory Opinion from VO/L/A is mandatory.	No waiver is available.

DOCUMENTATION REQUIREMENTS

Class of Inadmissibility	NIV Waivers	IV Waivers
No Entry Documents – Immigrants (INA 212(a)(7)(A)); (9 FAM 40.71)	Not applicable.	No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Nonimmigrants Not in Possession of Passport Valid for Six Months of Nonimmigrant Visa or Border Crossing Card (INA 212(a)(7)(B)); (9 FAM 40.72 Notes)	INA 212(d)(4) waiver is available: 1. On the basis of unforeseen emergency in individual cases; or 2. On the basis of reciprocity to nationals of a foreign contiguous territory or of adjacent islands (and residents of those territories or islands having a common nationality with such nationals).	Not applicable.

HEALTH RELATED GROUNDS

Class of Inadmissibility	NIV Waivers	IV Waivers
Communicable Disease of Public Health Significance (INA 212(a)(1)(A)(i); (9 FAM 40.11)	INA 212(d)(3)(A) waiver is available.	INA 212(g) waiver is available for: 1. The spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of: a U.S. citizen, an alien who has been issued an immigrant visa, or an alien who has been lawfully admitted for permanent residence; or 2. The parent of a son or daughter who is: a U.S. citizen, a lawfully admitted permanent resident alien, or an alien who has been issued an immigrant visa; or 3. A Violence Against Women Act (VAWA) self-petitioner.
Failure to Submit Proof of Vaccination INA 212(a)(1)(A)(ii) (INA 212(a)(1)(A)(iii); (9 FAM 40.11)	Not Applicable.	1. If alien receives vaccines that are initially missing, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-1; INA 212(g)(2)(A)) 2. If the panel physician determines required vaccinations would be medically inappropriate, a waiver may be approved by the consular officer under a blanket delegation of authority by USCIS. (9 FAM 40.11 N12.5-2; INA 212(g)(2)(B)) 3. If there is a religious or moral objection to vaccination, a waiver may be approved by Department of Homeland Security (DHS). (9 FAM 40.11 N12.5-3 and INA 212(g)(2)(C))
Physical or Mental Disorder and Behavior Associated with the Disorder Which May Pose, or Has Posed a Threat, to Property or Safety, of the Applicant or Others and Which is Likely to Recur (INA 212(a)(1)(A)(iii); 9 FAM 40.11)	212(d)(3)(A) waiver is available, subject to conditions proposed by the Department of Health and Human Services (HHS), such as a requirement that a family member or medical escort accompany the applicant. (9 FAM 40.11 N13)	INA 212(g)(3) waivers are granted at the discretion of DHS in consultation with HHS. Waivers may be subject to conditions proposed by the Department of Health and Human Services, such as the giving of bond or requirement that a family member or medical escort accompany the applicant.
Drug Abuser or Addict, one who has engaged in “non-medical use of a controlled substance.” (INA 212(a)(1)(A)(iv); (9 FAM 40.11 N12)	212(d)(3)(A) waiver available upon recommendation of the consular officer to DHS/USCIS. (9 FAM 40.11 N13.2 and N14)	No waiver is available. However, a “CLASS A” inadmissibility finding by the panel physician may be overcome in the future according to CDC guidelines. (9 FAM 40.11 N13.2)

SECURITY AND RELATED GROUNDS

Class of Inadmissibility	NIV Waivers	IV Waivers
General Prejudicial Activities: Espionage, Sabotage, or Prohibited Export of Sensitive Technology, or Sensitive Information (INA 212(a)(3)(A)); (9 FAM 40.31)	No waiver is available but the inadmissibility applies only to current circumstances. Mandatory Security Advisory Opinion (SAO) required for inadmissibility finding.	No waiver is available but inadmissibility applies only to current circumstances.
Terrorist Activities (INA 212(a)(3)(B)); (9 FAM 40.32)	INA 212(d)(3)(A) waiver is available. SAO to VO/L/C is mandatory.	No waiver is available.
Entry Would Have Potentially Serious Adverse Foreign Policy Consequences (INA 212(a)(3)(C)); (9 FAM 40.33)	No waiver is available but inadmissibility applies to current circumstances. SAO is mandatory for inadmissibility finding.	No waiver is available but inadmissibility applies to current circumstances. SAO mandatory.
Membership or Affiliation with Communist or Other Totalitarian Party, Domestic or Foreign (applies only to immigrants) (INA 212(a)(3)(D)); (9 FAM 40.34)		INA 212(a)(3)(D) waiver available. Also, there are exceptions contained in INA 212(a)(3)(D) relating to past membership and/or involuntary membership.
Participation in Nazi Persecutions or Genocide and Commission of Acts of Torture or Extrajudicial Killings (INA 212(a)(3)(E)); (9 FAM 40.35(a) and 9 FAM 40.35(b))	INA 212(d)(3)(A) waiver is available for acts of torture or extrajudicial killing. SAO mandatory for finding.	No waiver is available.
Associations with Terrorist Organizations (INA 212(a)(3)(F)); (9 FAM 40.36)	INA 212(d)(3)(A) waiver is available. SAO mandatory	No waiver is available.
Recruitment or Use of Child Soldiers (INA 212(a)(3)(G)); (9 FAM 40.38)	INA 212(d)(3)(A) waiver is available. SAO mandatory	No waiver is available.

PUBLIC CHARGE

Class of Inadmissibility	NIV Waivers	IV Waivers
Public Charge (INA 212(a)(4)(A)); (9 FAM 40.41)	The refusal on this ground may be overcome. Typically, refusals are overcome if an applicant presents evidence that convinces the consular officer that the inadmissibility no longer applies.	No waiver is available. Applicants may overcome the finding by presenting evidence to convince you that the inadmissibility no longer applies. While there are provisions for overcoming the inadmissibility by posting a bond with DHS, the applicant is still subject to Affidavit of Support (AOS) and income requirements. Consequently, there are few circumstances in which a bond would be offered as an alternative to the AOS.

LABOR AND QUALIFICATIONS FOR CERTAIN IMMIGRANTS

Class of Inadmissibility	NIV Waivers	IV Waivers
Aliens Entering the United States to Perform Skilled or Unskilled Labor Whose Intended Employment Has Not Been Certified by the Department of Labor or Who is Unqualified for His/Her Certified Employment. (INA 212(a)(5)(A)); (9 FAM 40.51)	Not applicable to NIV.	No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.
Unqualified Physicians (INA 212(a)(5)(B)); (9 FAM 40.52)	Not applicable to NIV.	No waiver is available.
Uncertified Foreign Health Care Workers (INA 212(a)(5)(C)); (9 FAM 40.53 Notes)	Discretion must be applied on a case-by-case basis; reference 9 FAM 40.53 N3.	No waiver is available, but this can be overcome. See 9 FAM 40.53 N1.

INELIGIBLE FOR CITIZENSHIP

Class of Inadmissibility	NIV Waivers	IV Waivers
Permanently Ineligible for Citizenship (Immigrant Visas) (INA 212(a)(8)(A)); (9 FAM 40.81 Notes)	Not applicable.	No waiver is available. INA 212(c) relief is available for certain returning residents. Advisory Opinion required.
Any Alien Who Departed from or Remained Outside the United States to Avoid Service in the Armed Forces in Time of War or National Emergency (INA 212(A)(8)(B)); (9 FAM 40.82 Notes)	INA 212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available. INA 212(c) relief is available for certain returning residents.

MISCELLANEOUS

Class of Inadmissibility	NIV Waivers	IV Waivers
Practicing Polygamists (INA 212(a)(10)(A)); (9 FAM 40.101)	Not applicable.	No waiver is available. INA 212(c) relief is available for certain returning residents.
Guardian Required to Accompany Helpless Alien (INA 212(a)(10)(B)); (9 FAM 40.102)	Not applicable at time of visa application. This is applied only at the port of entry (POE) by DHS.	Not applicable at time of visa application.
International Child Abduction (INA 212(a)(10)(C)); (9 FAM 40.103 Notes)	212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Unlawful Voters (INA 212(a)(10)(D)); (9 FAM 40.104 Notes)	212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.
Former Citizens Who Renounced Citizenship to Avoid Taxation (INA 212(a)(10)(E)); (9 FAM 40.105 Notes)	212(d)(3)(A) waiver is available. Factors to be considered in deciding whether to recommend the waiver include the nature and date of the offense, possible rehabilitation of the alien’s character, and the necessity for, or urgency of, the alien’s proposed trip to the United States.	No waiver is available.

OTHER INADMISSIBILITIES

Class of Inadmissibility	NIV Waivers	IV Waivers
Educational Visitor Status: Foreign Residence Requirement; Waivers (INA 212(e)); (9 FAM 40.202)	The foreign residence requirement of INA 212(e) may be waived by the Department of Homeland Security (DHS) upon recommendation from CA/VO/L/W.	The foreign residence requirement of INA 212(e) may be waived by the DHS upon recommendation from CA/VO/L/W.
Presumption of Immigrant Status (INA 214(b)); (9 FAM 40.203 Notes)	No waiver is available.	Not Applicable.
Alien Who Knowingly Made a Frivolous Application for Asylum (INA 208(d)(6)); (9 FAM 40.206)	No waiver is available.	No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals (Section 401 of Public Law 104-114); (9 FAM 40.207 Notes)	Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.	No waiver is available.
Aliens Involved in Confiscation of Property of U.S. Nationals (Section 401 of Public Law 104-114); (9 FAM 40.207 Notes)	Where the Secretary of State finds, on a case by case basis, that the entry into the United States of the person who would otherwise be inadmissible under this section is necessary for medical reasons or for purposes of litigation of an action under Title III.	No waiver is available.
Aliens Involved in Political Killings (Section 616 of Public Law 105-277); (9 FAM 40.208)	No waiver is available.	No waiver is available.
Suspension of Entry or Imposition of Restrictions by President (INA 212(f))	No waiver is available.	No waiver is available.
Visa Overstay (INA 222(g)); (9 FAM 40.68 and 9 FAM 41.101)	No waiver except where extraordinary circumstances are found by the Secretary of State to exist.	Not applicable.
Persons Engaged in Forced Abortions or Sterilization (8 U.S.C. 1182(e))	If the Secretary of State determines that it is important to the national interest of the United States to do so and provides written notification to the appropriate congressional committees containing a justification for the waiver.	Not applicable.
Chinese and Other Nationals Engaged in Coerced Organ or Bodily Tissue Transplantation (8 U.S.C. 1182(f))	If the Secretary of State determines that it is important to the national interest of the United States to do so, and no later than 30 days after the issuance of a visa, the Secretary provides written notification to the appropriate Congressional committee containing a justification for the waiver.	Not applicable.
Persons Credibly Alleged to Have Aided and Abetted Colombian Insurgent and Paramilitary Groups (Section 3205 of Public Law 106-246)	1. If the Secretary of State finds, on a case by case basis, that the entry into the United States of a person who would otherwise be inadmissible under this section is necessary for medical reasons. 2. To permit the prosecution of such person in the United States or when the person has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed Forces of Columbia (FARC), the National Liberation Army (ELN), or the United Columbian Self Defense Organization (AUC). 3. The President may waive the limitation if he determines that the waiver is in the national interest.	No waiver is available.

Posted in 10 and “Permanent” Bars, Non-Immigrant Waivers, Noncitizens Previously Removed or Unlawfully Present, Nonimmigrants, stand-alone waiver of inadmissibility under section 212(h), Uncategorized, Waivers, Waivers of Inadmissibility | Tagged Inadmissibility and Waivers | Leave a comment

CA7 denies review for failure to establish identity and that he was inspected and admitted

Posted on April 21, 2014 by Mike Baker

[1]-The alien was placed on inquiry notice of his proceeding by the 1997 detention because he found the incident important enough to tell his father soon after, so whether the alien was a juvenile or not, he was placed on inquiry notice by the 1997 detention; [2]-The alien’s due process arguments regarding his 1997 detention failed because given the array of conflicting official documents that the alien had in his possession, the record did not compel the conclusion that he was born on June 13, 1982; [3]-The Board of Immigration Appeals did not err by finding that the alien did not establish by clear and convincing evidence that he was inspected and admitted into the United states as the documents strongly suggested that he did not pass through immigration and customs when he arrived in the United States.

The petitioner uses two names (Tarsem Singh and Simranjit Singh) and has used different birth certificate translations, listing birthdates that differ by as much as four years. He has passports showing both identities and has claimed three different dates of entry. In 1997, Singh was detained by INS. Singh asserts that he then spoke very little English and did not understand the agents. Charging documents indicate that he had counsel, but he claims that that and other information on the documents was incorrect. After his release, Singh’s father created a new identity for him. INS mailed notice of his immigration hearing to his employer’s address, but there is no evidence that Singh ever received it. Singh was ordered deported in absentia. In 2010, the immigration court granted Singh’s motion to reopen. Singh argued that, contrary to the I‐213, he was only 15 in 1997 so that his detention violated INS regulations and his due process rights and that he had been inspected and admitted into the U.S., so that he was eligible for adjustment of status, 8 U.S.C. 1255(a). The IJ ruled that Singh was removable. The BIA agreed, reasoning that even if Singh was 15 when he was detained, he was properly served with notice. INS regulations do not require service in the respondent’s native language, and personal service is effective for minors over age 14. The Seventh Circuit denied review. His claims hinged on establishing that he really was Tarsem and was 15 years old in 1997, which he could not do. Singh also could not establish that he was inspected and admitted when he entered this country.

The Board of Immigration Appeals’ (Board) legal conclusions are reviewed de novo, but the appellate court reviews the Board’s factual findings only for substantial evidence. The appellate court will not overturn the agency’s findings simply because it might have decided the case differently; rather, the appellate court may reverse only if the evidence compels a contrary result.
In the immigration context, personal service in English to a non-English-speaker typically satisfies due process because it puts the alien on notice that further inquiry is needed, leaving the alien to seek help from someone who can overcome the language barrier. It may be more difficult to put a juvenile on inquiry notice than an adult because juveniles may not recognize a need for further inquiry in circumstances where an adult would.
In general, an alien present in the United States without being admitted is inadmissible, 8 U.S.C.S. § 1182(a)(6)(A)(i). However, an alien who was inspected and admitted into the United States is eligible for adjustment of status, 8 U.S.C.S. § 1255(a). The alien has the burden of establishing inspection and admission by clear and convincing evidence, 8 U.S.C.S. §§ 1229a(c)(2)(B), 1361.

__________________________________________
TARSEM SINGH, Petitioner,
v.
ERIC H. HOLDER JR., Attorney General of the United States, Respondent.

No. 13-2552.
United States Court of Appeals, Seventh Circuit.

Argued February 19, 2014.
Decided April 16, 2014.
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

The tidy caption for this petition for review belies the mystery of petitioner Singh’s true identity. We are not confident of his full name or birthdate, for he possesses abundant, purportedly official documentation for several identities. Perhaps Mycroft Holmes, who solved complex international mysteries without ever leaving his armchair, would have been able to ferret out Singh’s true identity over a cup of Earl Grey tea. Unfortunately, the facts in this case leave us unable to distinguish the impossible from the merely improbable, so Singh’s true identity remains a mystery.

Our inability to ascertain Singh’s identity dooms his petition for review of an order finding him removable from the United States. Singh claims that the Board of Immigration Appeals erred in concluding that he received constitutionally adequate notice of his immigration proceedings during his detention by Immigration and Naturalization Services officers in 1997.[1] He also argues that the Board erred in finding that he could not establish inspection and admission into the United States. See 8 U.S.C. § 1255(a). Singh’s due process claims hinge on establishing that he really is Tarsem Singh and was just fifteen years old when he was detained by the INS in 1997, which he is unable to do. Singh also cannot establish by clear and convincing evidence that he was inspected and admitted into the United States when he entered this country. We therefore deny his petition for review.

I. Factual and Procedural Background

The petitioner says he is Tarsem Singh, born on June 13, 1982. He also claims that he entered the United States in May 1995. The abundant documents he has provided to immigration authorities, however, tell a more complicated story. In these documents, we see that Mr. Singh uses two names: Tarsem Singh and Simranjit Singh. He has provided to immigration authorities at least three different birth certificate translations (two for Tarsem Singh and one for Simranjit Singh). These translations list birthdates that differ by as much as four years. (Singh seems never to have provided an original birth certificate to U.S. immigration authorities.) He also possesses a photocopy of a passport for Tarsem Singh and a passport for Simranjit Singh that have different birthdates on them. (Singh claims that the passport photocopy is a copy of the passport he showed INS officials when he was detained in 1997; the original, he says, was lost.) Finally, Singh has claimed three different dates of entry into the United States separated by as much as three years.

Singh is a citizen of India and was born there in the late 1970s or early 1980s. At some point between 1994 and 1997, Singh entered the United States illegally. According to Singh, he was smuggled into the country on a commercial flight while dressed as a young girl and with the smuggler’s daughter’s passport. After he reached the United States and his family paid the smuggler, Singh says, he was released to his father and lived with him near Chicago.

We can say with confidence that in July 1997, while traveling to Virginia by bus to take a job there, Singh was detained by INS agents. The I-213 charging document the INS filled out during that detention lists his date of birth as May 21, 1978, making him nineteen years old when he was detained. It also shows a date of entry just one week prior to the detention and says that Singh was admitted without inspection. (Singh claims these entries were incorrect.) Finally, the I-213 also indicates that Singh was represented by counsel during his questioning, which Singh denies. Singh asserts that he spoke very little or no English at the time and did not understand the agents’ questions or statements to him.

The INS provided Singh with a Notice To Appear and released him to his employer, a Mr. Kapania, whose address was listed on the I-213 as Singh’s United States address. Kapania completed an I-134 affidavit of support but did not execute an agreement to care for Singh’s well-being and ensure his presence at all future immigration proceedings. See 8 C.F.R. § 236.3(b)(4).

Roughly a month after Singh’s detention and release, Singh’s father collected him from Kapania’s house after he quarreled with Kapania over Singh’s wages and treatment. According to Singh, his father was very upset when Singh told him that he had been stopped by police. (Singh says he did not understand, let alone tell his father, that he had been detained by the INS and was required to appear at an immigration hearing.) Singh claims that his father decided that the stop made it necessary to create a new identity for him. Singh contends that although he had previously been (and truly is) fifteen-year-old Tarsem Singh born on June 13, 1982, from then on he became nineteen-year-old Simranjit Singh born on February 4, 1978. Singh asserts that his mother, who was still living in India, procured a new Indian birth certificate and passport for him with the new false identity and that his father told him to use only the new identity from that time. According to Singh, he has lived as Simranjit Singh ever since.

After Singh’s detention in Virginia in 1997, the INS mailed notice of the date and time of his immigration hearing to Kapania’s address in Virginia. There is no evidence that Kapania passed along the information to Singh or his father, or that Singh ever received notice of his hearing. Singh did not appear at the hearing, and on November 20, 1997, he was ordered deported in absentia.

INS officials do not appear to have connected Singh’s new identity to the 1997 deportation order until 2010, when Singh himself filed a motion to reopen his 1997 immigration proceeding on the ground that he did not receive notice of that proceeding. The immigration court granted his motion to reopen and conducted two new hearings in 2011. In those hearings, Singh moved to terminate the proceedings, arguing that contrary to the I-213, he was only fifteen when he was detained in 1997 so that his detention violated INS regulations and his due process rights. See 8 C.F.R. § 236.3. He also argued that he had been inspected and admitted into the United States, so that he might be eligible for adjustment of his immigration status. See 8 U.S.C. §1255(a).

The immigration judge ruled that Singh was removable. The judge found that because Singh seemed to have told the INS agents that he was nineteen when they detained him, they had no reason to think he was actually fifteen instead. Further, Singh was personally served with his Notice To Appear. Under INS regulations, that is deemed effective service for aliens over fourteen years old. 8 C.F.R. § 103.8(c)(2)(ii). The judge therefore concluded that the proceedings against Singh had been properly initiated and that there was no due process problem. The judge also rejected Singh’s claim that he had been inspected and admitted. His history of fraud and deception since entering the United States made his story difficult to credit, and the story was not clearly and convincingly corroborated. The judge therefore concluded that Singh was removable but granted his request for a voluntary departure.

The Board of Immigration Appeals agreed on all points. The Board held that even if Singh was actually fifteen rather than nineteen when he was detained, he was still properly served with the Notice To Appear. INS regulations do not require service in the respondent’s native language, and personal service is effective service for all minors over age fourteen. 8 C.F.R. § 103.8(c)(2)(ii). Further, according to the Board, Singh’s post-detention change of identity showed that he had actual notice of the immigration proceedings, so no due process violation occurred. The Board also held that even if the INS’s special provisions for the release of juveniles had been violated, see 8 C.F.R. § 236.3, reopening Singh’s proceedings in 2010 cured any possible due process problem. Finally, the Board agreed with the immigration judge that Singh had not established inspection and admission. His testimony was not clear and convincing in light of his fraudulent and deceptive behavior since arriving in the United States, as well as the lack of corroboration of his account. This petition for review followed. We have jurisdiction under 8 U.S.C. § 1252.

II. Analysis

The Board issued a free-standing opinion, rather than merely adopting and supplementing the immigration judge’s decision, so we review the Board’s decision. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). The Board’s legal conclusions are reviewed de novo, but we review the Board’s factual findings only for substantial evidence. Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010). “[W]e will not overturn the agency’s findings simply because we might have decided the case differently;” rather, we may reverse only if the evidence compels a contrary result. Id.

A. Due Process—Notice of the 1997 Proceeding

Singh argues first that the INS’s behavior when it detained him in 1997 was not reasonably calculated to provide him with actual notice of his proceedings and a meaningful opportunity to be heard, as required to satisfy due process. See Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999). Specifically, Singh argues that providing him with his Notice To Appear in a language he did not understand and then releasing him to his employer without taking the special precautions required in juvenile releases by 8 C.F.R. § 236.3 did not provide him with constitutionally adequate notice and thus violated his right to due process. Reopening his case did not cure the due process violation, Singh claims, because the INS continues to treat the 1997 detention as valid, making him ineligible for discretionary cancellation of removal. See 8 U.S.C. § 1229b(b) & (d).

Singh concedes that the INS personally served him with a copy of his Notice To Appear before releasing him in 1997, which complied with the INS’s notice regulations. See 8 C.F.R. § 103.8. He argues, however, that the personal service was ineffective in his case because he did not speak sufficient English to understand what the INS officers told him and could not read the notice. In the immigration context, personal service in English to a non-English-speaker typically satisfies due process because it puts the alien on notice that further inquiry is needed, leaving the alien to seek help from someone who can overcome the language barrier. See Nazarova v. I.N.S., 171 F.3d 478, 483 (7th Cir. 1999); Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) (collecting cases). It may be more difficult to put a juvenile on inquiry notice than an adult because juveniles may not recognize a need for further inquiry in circumstances where an adult would. We know, however, that Singh was in fact placed on inquiry notice of his proceeding by the 1997 detention because he found the incident important enough to tell his father soon after.[2] So whether Singh was a juvenile or not, he was placed on inquiry notice by the 1997 detention.

Singh also argues that personal service of the Notice To Appear was insufficient to satisfy due process requirements in his case because he was a juvenile when the INS detained him, and the INS failed to follow its regulations outlining special protections when a juvenile is released from INS custody. See 8 C.F.R. § 236.3. He claims that the release protections in § 236.3 work in concert with the notice provisions in 8 C.F.R. § 103.8 to provide constitutionally adequate notice to juveniles and that failing to comply with § 236.3 thus violated his right to due process. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1159-61 (9th Cir. 2004) (in light of due process concerns, construing regulations now codified as § 236.3 to require notice to responsible adult for teenage aliens).[3]

The factual foundation for this argument of course is that Singh was only fifteen when he was detained in 1997, as he now claims. This is not a self-evident proposition. In 1997, the INS noted on Singh’s I-213 that he was born on May 21, 1978, making him nineteen when he was detained. (The Board later found that Singh at least told the INS that he was nineteen.) If the I-213 is correct (which Singh disputes), then the special protections for juveniles in 8 C.F.R. § 236.3 would not have applied to Singh’s 1997 detention because they apply only to persons under the age of eighteen. See 8 C.F.R. § 236.3(a). So, Singh’s due process argument regarding § 236.3 hinges on establishing that he was in fact only fifteen when he was detained in 1997.

In other words, we could reach the merits of his due process challenge and reverse the Board’s decision on this ground only if we found that the evidence compelled the conclusion that Singh’s true birthdate is June 13, 1982, as he contends now. See Zhu v. Gonzales, 465 F.3d 316, 318 (7th Cir. 2006) (“We will not grant the petition for review unless the petitioner demonstrates that the evidence not only supports reversal of the BIA’s decision, but compels it.”) (emphasis in original, internal quotations omitted).

We cannot make that finding. Singh has fallen far short of establishing that the evidence compels a conclusion that he was born on June 13, 1982. The I-213 lists his birthdate as May 21, 1978. Singh possesses a birth certificate translation for Tarsem Singh showing a birthdate of June 13, 1982, but he also possesses a passport and birth certificate for Tarsem Singh with a birthdate of May 21, 1982.[4] And that’s only for Tarsem Singh. He also possesses extensive documentation showing that his name is Simranjit Singh and he was born on February 4, 1978.[5] Given the array of conflicting, supposedly official documents that Singh has in his possession, the record simply does not compel the conclusion that he was born on June 13, 1982. Singh’s due process arguments regarding his 1997 detention therefore fail.

B. Admission and Inspection

Singh also argues that we should reverse the Board and hold that he established inspection and admission into the United States. In general, “[a]n alien present in the United States without being admitted” is inadmissible. 8 U.S.C. § 1182(a)(6)(A)(i). However, an alien who was inspected and admitted into the United States is eligible for adjustment of status. 8 U.S.C. § 1255(a). The alien has the burden of establishing inspection and admission by clear and convincing evidence. See 8 U.S.C. §§ 1229a(c)(2)(B), 1361. So, if Singh can establish by clear and convincing evidence that he was inspected and admitted into the United States, he would be eligible for adjustment of status. Otherwise, he is ineligible for that relief. The Board held that Singh failed to meet this burden.

The Board did not err on this point. Singh asserts that he entered the United States via commercial airliner at JFK International Airport in New York. He admits, however, that he does not specifically remember passing through customs or being inspected by immigration officials. He has also claimed three different dates of entry in different immigration documents and proceedings, undercutting the credibility of his story. Singh’s corroborating witnesses similarly attest to the fact that Singh told them he had arrived on an airplane, but they do not recall him saying anything about customs. These accounts do not establish inspection and admission. Even if Singh arrived in the United States via commercial airliner, we hesitate to assume that smugglers exit airports only by passing through immigration and customs controls.

Singh’s I-213 and the I-130 petition filed on his behalf in 2001 reinforce our concerns.[6] The I-213 stated that there were no visa or entry stamps on the passport Singh provided to the INS. The alleged photocopy of that passport that Singh has provided in these proceedings similarly lacks any signs of inspection or admission. The I-213 also stated that Singh had been admitted without inspection, as did the I-130 petition for an alien relative that Singh’s then-wife filed on his behalf in 2001. These documents strongly suggest that Singh did not pass through immigration and customs when he arrived in the United States. The Board therefore did not err by finding that Singh did not establish by clear and convincing evidence that he was inspected and admitted into the United States.

We therefore DENY Singh’s petition for review.

[1] The INS ceased to exist in 2003 when most of its functions were transferred to the newly-created Department of Homeland Security. Since the focus of this petition is on events under INS jurisdiction, we use that reference for simplicity’s sake.

[2] Singh argues that telling his father does not show that he had actual notice because he did not understand that he had been detained by the INS. Actual notice is not required; inquiry notice suffices to satisfy due process. Nazarova, 171 F.3d at 483.

[3] Our conclusion that Singh was placed on inquiry notice by the 1997 proceeding does not resolve this argument. Singh argues that due process requires not only service to the juvenile, but also releasing the juvenile into the custody of a parent, guardian, adult relative, or other adult who will care for the juvenile and ensure his or her presence at future immigration proceedings. See 8 C.F.R. § 236.3. This would imply that placing the juvenile on inquiry notice, without also ensuring that he is shepherded through the immigration process by a responsible adult, does not satisfy due process. See Flores-Chavez, 362 F.3d at 1159-61. We do not decide that legal question, however, because the factual foundation is missing here.

[4] Singh claims that the date on the I-213 is a transcription error. He submits an alleged photocopy of the passport he says he provided to the INS in 1997. The photocopy has a birthdate of May 21, 1982, contradicting the birthdate he asserts now. (Singh has not submitted a passport for Tarsem Singh that lists a birthdate of June 13, 1982, which he claims is his true birthdate.) Regardless of this discrepancy, the conflicting, supposedly authentic documents he has submitted to immigration authorities make it impossible to rely on this passport photocopy as conclusive evidence of his true birthdate or even the birthdate that he gave the INS in 1997.

[5] The Immigration Services Field Office Director who reviewed the I-130 petition that Singh’s wife made on his behalf in 2011 appears to be the only immigration official to have conducted a detailed examination of Singh’s documentation. She concluded that the most credible documents showed Singh’s date of birth to be February 4, 1978, which would of course make him nineteen when he was detained in 1997. We do not rely on that finding, but it gives us added confidence in concluding that Singh cannot establish that he was fifteen when he was detained in 1997.

[6] The 2001 I-130 petition was filed by Singh’s wife at the time. Singh has since divorced and remarried; his current wife filed an I-130 petition on his behalf in 2011, as discussed above in note 5.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, inspected and admitted | Leave a comment

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