CA7 denies I-751 extreme hardship waiver because an alien has no protected liberty interest in discretionary immigration relief

Posted on January 6, 2014 by Mike Baker

CA7 Denies Extreme-Hardship Waiver for Petitioner Convicted of Marriage Fraud. The court denied the petition for review, finding that the petitioner’s due process argument failed because he had no legitimate claim of entitlement to an extreme-hardship waiver under INA §216(c)(4).

Anouar Darif was charged in a three-count superceding indictment with conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371, marriage fraud, in violation of 8 U.S.C. § 1325(c), and witness tampering, in violation of 18 U.S.C. § 1512(b)(1).   The first two counts were based on allegations that Defendant, a native of Morocco, paid $3000 to Dianna Kirklin (“Kirklin”), an American citizen, to marry him and help him obtain a United States visa.   The third count was based on a letter that Defendant sent to Kirklin while he was in jail pending trial, in which he urged Kirklin to contradict testimony she gave before the grand jury in Defendant’s case.

Before proceeding to trial, Defendant filed a motion in limine seeking to prevent the government from introducing into evidence letters he had written to Kirklin.   Defendant also filed a motion to dismiss for improper selective prosecution.   The district court denied both of Defendant’s motions.   The district court also rejected several of Defendant’s proposed jury instructions.   A jury found Defendant guilty on all three counts.

Darif’s due-process argument focuses exclusively on the denial of his request for an extreme-hardship waiver, a discretionary form of immigration relief. See § 1186a(c)(4)(A). So even if Darif was statutorily eligible for a hardship waiver, the decision whether to grant one remained entirely discretionary. And indeed, the BIA denied a waiver in its discretion. Because Darif has no legitimate claim of entitlement to an extreme-hardship waiver under § 1186a(c)(4), his due-process argument necessarily fails.
Anouar Darif No. 12-1050

ANOUAR DARIF, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 12-1050

United States Court of Appeals, Seventh Circuit.
Argued September 28, 2012.
Decided January 2, 2014.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Anouar Darif, a native and citizen of Morocco, married Dianna Kirklin, a citizen of the United States, and by virtue of the marriage was admitted into the United States as a conditional permanent resident in 2001. But the marriage was a sham. Darif was convicted of marriage fraud and related charges, and the Department of Homeland Security (“DHS”) initiated proceedings to remove him. An immigration judge (“IJ”) found Darif removable and rejected all of his arguments for relief. The Board of Immigration Appeals (“BIA” or “Board”) initially ordered further proceedings, but when the case returned to the BIA after remand, the Board likewise rejected all of Darif’s claims for relief from removal.

In his petition for review, Darif presses only his argument for an extreme-hardship waiver pursuant to 8 U.S.C. § 1186a(c)(4). He claims that the IJ was biased and otherwise denied him a full and fair hearing in violation of his right to due process. But regardless of the alleged flaws in the proceedings before the IJ, the BIA independently reviewed Darif’s request for a hardship waiver and exercised its discretion to deny it; we have no jurisdiction to review that discretionary determination. See 18 U.S.C. § 1252(a)(2)(B)(ii). Although we may review constitutional claims and questions of law, see id., Darif’s due-process argument cannot succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim is recast as a challenge to the legal sufficiency of Darif’s hearing under the governing statutes and regulations, Darif was not prejudiced because the BIA gave his hardship claim plenary and independent consideration and denied it in an exercise of its discretion. Accordingly, we deny the petition for review.

I. Background.

Darif and Kirklin married in December 2000 in Morocco. Later that month Kirklin submitted an I-130 Petition for Alien Relative, the petition that must be filed to enable an alien spouse to obtain lawful permanent residence status. The approval of Kirklin’s petition allowed Darif to obtain the necessary visa to enter the United States, which he did in December 2001.

Because alien spouses married to United States citizens are admitted for permanent residence on a conditional basis, see 8 U.S.C. § 1186a(a)(1), Darif’s status in the United States was as a conditional permanent resident. To remove that conditional status, Darif and Kirklin had to comply with a number of requirements prescribed by statute, including jointly filing an I-751 Petition to Remove Conditions on Residence and undergoing a personal interview. See id. § 1186a(c)-(d); Hammad v. Holder, 603 F.3d 536, 538 (9th Cir. 2010). Darif and Kirklin initiated the process for removing his conditional status by filing the necessary I-751 petition in September 2003.

At some point evidence emerged that Darif had paid Kirklin $3,000 for the marriage, exposing it as a sham. In 2004 Darif was charged with marriage fraud in violation of 8 U.S.C. § 1325(c), conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C. § 1512(b)(1). A jury convicted Darif on all three counts the following year, and we affirmed his convictions on appeal. See United States v. Darif, 446 F.3d 701 (7th Cir. 2006).

An alien spouse’s visa may be revoked if it was obtained through marriage fraud, see 8 U.S.C. § 1155; El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004), and marriage fraud is a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G). So in December 2005 the DHS terminated Darif’s conditional permanent resident status, see id. § 1186a(b)(1), and initiated removal proceedings the next month. The grounds for removal were threefold: (1) Darif’s conditional residency status had been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had committed marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was inadmissible at the time of entry, see id. § 1227(a)(1)(A). Notwithstanding his convictions, Darif continued to deny that his marriage was fraudulent.

Darif and Kirklin filed a number of petitions in an effort to stave off Darif’s removal. In January 2006 Kirklin filed a second I-130 Petition for Alien Relative seeking to establish that the marriage was really a good-faith marriage despite the jury’s verdict. In February 2006 Darif and Kirklin jointly filed another I-751 petition based on their continued marriage; they also asserted that Darif’s removal would cause extreme hardship. Finally, Darif filed his own I-751 petition relying solely on extreme hardship.

Only the request for an extreme-hardship waiver is at issue here, so we pause for a moment to sketch how this form of relief works. As we have noted, to remove the conditional status of permanent residence, an alien and his citizen spouse must jointly file a timely I-751 petition and submit to a personal interview. See id. § 1186a(c)(1). The petition must state, among other things, that the alien spouse and citizen spouse are married and that they did not marry for the purpose of gaining the alien spouse’s admission as an immigrant. Id. § 1186a(d)(1). The extreme-hardship waiver comes into play when the alien spouse cannot comply with the petition and interview requirements. See id. § 1186a(c)(4)(A). In that situation “[t]he Secretary of Homeland Security, in the Secretary’s discretion, may remove the conditional basis of the permanent resident status . . . if the alien demonstrates that . . . extreme hardship would result if such alien is removed.” Id. A favorable determination of extreme hardship would have counteracted at least one basis for Darif’s removal—that his conditional permanent residence status had been terminated. See id. § 1227(a)(1)(D)(ii).

Darif’s removal hearing was held on May 4, 2006, the day after we issued our opinion affirming Darif’s convictions. Darif and Kirklin appeared without an attorney. Apparently no one was aware of our decision the day before because the IJ continued the hearing to wait for the results of Darif’s criminal appeal. Darif maintains, however, that the judge made a number of off-the-record comments at this hearing suggesting that he was biased. Because the record reflects none of these comments, we take Darif’s version of events from his affidavit and accept it for the sake of argument. Darif states that at the beginning of the hearing, the IJ told Kirklin that she could let go of Darif’s arm because he was “not going anywhere . . . yet.” During the hearing itself, the judge referred to Darif’s convictions and said, “[Y]ou had better hope you win that appeal because if you don’t, you’re done, it’s over, you are out of here; there are no more continuances, no more chances.” The judge later referred again to Darif’s criminal case and told him that if he lost in the Seventh Circuit, he would lose in immigration court. Finally, when Darif asked the judge whether he should notify the court when his appeal was decided, the judge responded, “[O]h yeah, you can bring it in, we can get this over with real quick, the sooner the better.”

The IJ reconvened the hearing on June 1, 2006, having learned by then of our decision affirming Darif’s convictions. This time Darif appeared with counsel, so the judge continued the hearing to June 30 for purposes of “pleading and any and all forms of . . . relief.” The judge explained to Darif that on that date his counsel would tell the court “whether he wants to apply for a benefit or a defense.” Whether these statements meant that Darif needed to be prepared to present his evidence on all his claims for relief on June 30 would later become the subject of dispute.

At the June 30 hearing, the IJ determined that Darif was removable on all three grounds advanced by the government, essentially relying on Darif’s convictions for marriage fraud. Darif’s attorney then advised the judge that Darif was pursuing the following forms of relief: a continuance to allow adjudication of the recently filed I-130 and I-751 petitions; an extreme-hardship waiver under § 1186a(c)(4); a fraud waiver under 8 U.S.C. § 1227(a)(1)(H); withholding of removal under the Immigration and Nationality Act (“INA”); and protection under the Convention Against Torture (“CAT”).

The IJ first addressed Darif’s request for a continuance and denied it for lack of good cause. The judge noted that Darif had not informed the immigration authorities that his convictions had been affirmed and also that Darif’s convictions precluded him from establishing a good-faith marriage, which would doom the I-130 and I-751 petitions in any event. For good measure the judge added that even if the convictions did not have preclusive effect, he would deny the continuance in an exercise of his discretion.

The judge then addressed the request for an extremehardship waiver, expressing doubt that Darif was statutorily eligible because his conviction for marriage fraud meant that he never should have been conditionally admitted in the first place. Darif’s attorney took the position that the statute allowed for an extreme-hardship waiver despite the conviction. The judge was clearly skeptical and demanded legal authority in support of this position. Darif’s attorney responded that he was simply relying on his reading of the statute. The judge rejected the argument and held that Darif was statutorily ineligible for a hardship waiver as a consequence of his conviction of marriage fraud. The judge added that he would deny the waiver as a matter of discretion.

The judge moved next to Darif’s request for a fraud waiver under § 1227(a)(1)(H), quickly denying this form of relief because Darif did not have a qualifying spouse based on his fraudulent marriage and also because he was not otherwise admissible. That left only Darif’s requests for withholding of removal under the INA and protection under the CAT. The judge instructed Darif to call his first witness. Darif’s attorney was caught off guard and said that he was not prepared to present evidence. At this point a squabble ensued about whether at the June 1 hearing the judge had told Darif and his attorney to be prepared to introduce evidence on June 30.

The judge refused to continue the matter and insisted that Darif’s attorney move forward with evidence on the remaining forms of relief that Darif was requesting. Darif’s attorney declined, noting again that he did not have notice and was unprepared to move forward on the withholding and CAT claims. The judge construed Darif’s failure to present evidence as an abandonment of the claims and denied them. On September 1, 2006, the IJ issued a written order explaining his findings.

Before the written order issued, however, Darif moved for recusal, or in the alternative, rehearing. The motion was based primarily on the judge’s off-the-record comments at the May hearing. But Darif also maintained that recusal was necessary based on the judge’s handling of proceedings involving Ouaffa Melliani, a coconspirator in Darif’s marriage-fraud conspiracy. Finally, Darif contended that the IJ had denied him a full and fair opportunity to present evidence by insisting that he move forward at the June 30 hearing when he was unprepared to do so. The judge denied the motion in his September 1 written order denying relief from removal.

Darif appealed to the BIA and won a partial remand. The BIA found no basis for the IJ’s recusal and held that Darif was not eligible for a fraud waiver. But the BIA remanded for reconsideration of the claims for withholding of removal and protection under the CAT, concluding that it was reasonable for Darif’s counsel to assume that the IJ would not demand evidence on these forms of relief at the June 30 hearing. In a footnote the BIA also acknowledged that the IJ appeared to have erred in imposing a good-faith marriage requirement for eligibility for extreme-hardship waivers under § 1186a(c)(4), but suggested that the error was inconsequential because any application for such a waiver would be futile.

The IJ scheduled a new hearing in July 2008 but continued it twice to allow the Citizenship and Immigration Services (“USCIS”) to adjudicate the I-751 petition that Darif had filed seeking an extreme-hardship waiver. In early December 2008, the USCIS denied the extreme-hardship waiver because Darif was statutorily ineligible based on his technically still valid (if fraudulent) marriage to Kirklin.

When Darif’s hearing reconvened in March 2009, the IJ agreed with the USCIS’s decision, reasoning that the statute permitted extreme-hardship waivers only when an applicant could not file a joint petition with his spouse and submit to a personal interview. The judge noted that because Darif was technically still married to Kirklin, he was capable of complying with the petition and interview requirements of § 1186a(c)(1) and therefore resort to the extreme-hardship waiver was statutorily impermissible.

Darif’s attorney took issue with that reading of the statute, and the proceedings again became contentious. The judge demanded to know whether any legal authority supported Darif’s counsel’s interpretation and warned him that a frivolous application was sanctionable. Darif’s attorney replied that he did not have any legal authority but was again relying on his understanding of the text of the statute. The judge responded by reading the sanctions regulations to Darif’s attorney.

The implied threat of sanctions prompted counsel to ask the judge to relieve him as Darif’s attorney. A drawn-out exchange then ensued about whether the judge should allow Darif’s attorney to withdraw. The judge ultimately refused, noting that the attorney knew Darif’s case and that withdrawal would disadvantage his client. This got things back on track, and counsel proceeded to introduce evidence regarding Darif’s requests for withholding of removal and CAT protection.

The IJ denied Darif’s applications for withholding and protection under the CAT. In his written decision, the judge also explained his conclusion that Darif was statutorily ineligible for an extreme-hardship waiver because he was still married and therefore could file a joint I-751 petition. Finally, the judge urged the BIA to consider imposing sanctions against Darif’s attorney for advancing a frivolous argument about the statutory availability of an extreme-hardship waiver.

In the meantime, Darif and Kirklin were divorced. Based on this new development and before appealing the IJ’s decision to the BIA, Darif moved to reopen. He was careful not to concede the earlier point that his then-still-intact (if fraudulent) marriage made him statutorily ineligible for a hardship waiver under § 1186a(c)(4). But he argued that his recent divorce removed that impediment to relief. He also submitted an affidavit and other documents to support his substantive claim that multiple hardships would flow from his removal: (1) removal would sever family ties by effectively preventing him from seeing his adopted son; (2) he had resided in the United States for eight years; (3) he suffered from chronic back problems; (4) the Moroccan government may presume him to be a terrorist and torture him; (5) the King of Morocco may persecute him for deserting from his government job; (6) he owned his own culinary business in the United States; (7) he had no other means of adjusting his immigration status; (8) he had assisted local authorities in a criminal prosecution; (9) he had no other negative immigration history and was law abiding while in the United States; and (10) he was gainfully employed and supported his family.

With the motion to reopen pending, Darif again appealed to the BIA. The BIA treated the motion to reopen as a motion to remand and considered it with his appeal. In a decision issued in December 2011, the BIA dismissed the appeal and denied the motion, rejecting Darif’s claims for withholding of removal and protection under the CAT because he had not established a likelihood that he would be persecuted upon his removal to Morocco. The BIA also rejected Darif’s request for an extreme-hardship waiver, holding that his conviction for marriage fraud outweighed his claimed hardships. Alternatively, the BIA determined that Darif’s proffer was insufficient to show that any of the claimed hardships qualified as extreme. Finally, the BIA declined to make a sanctions determination, noting that if the IJ was concerned about counsel’s conduct, he should have filed a complaint with the disciplinary counsel for the Executive Office for Immigration Review.

Darif petitioned this court for review.

II. Discussion.

Darif challenges only the denial of an extreme-hardship waiver under § 1186a(c)(4). The scope of our review is limited. Where, as here, the BIA issues its own opinion rather than adopting or supplementing the IJ’s opinion, we review only the BIA’s opinion. See Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010). As relevant here, the BIA did not adopt the IJ’s analysis of the extreme-hardship waiver but instead exercised its own plenary review and rejected the claim based on different reasoning.

More fundamentally, Congress has strictly limited our jurisdiction to review challenges like Darif’s. We generally lack jurisdiction to review decisions committed to the immigration agency’s discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii). Extremehardship waivers are a discretionary form of relief, see id. § 1186a(c)(4), so we lack jurisdiction to review the substance of the BIA’s decision,[1] see Johns v. Holder, 678 F.3d 404, 406 (6th Cir. 2012); Iliev v. Holder, 613 F.3d 1019, 1023 (10th Cir. 2010). We retain jurisdiction to review constitutional claims and issues of law, see § 1252(a)(2)(D), and Darif has organized his petition for review around an argument that he was denied due process because the IJ was biased and interfered with his ability to fully and fairly present his case.

It is well established that aliens generally have due-process rights in proceedings to determine their removability. See Reno v. Flores, 507 U.S. 292, 306 (1993); Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 101 (1903); Batanic v. INS, 12 F.3d 662, 666 (7th Cir. 1993). But this right does not extend to discretionary forms of relief from removal. See, e.g., Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008); Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005). We have repeatedly held that the opportunity for discretionary relief from removal is not a protected liberty interest because aliens do not have a legitimate claim of entitlement to it. See, e.g., Boadi v. Holder, 706 F.3d 854, 858 n.3 (7th Cir. 2013); Duron-Ortiz v. Holder, 698 F.3d 523, 529 (7th Cir. 2012); Delgado, 674 F.3d at 765; Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011); Hamdan, 425 F.3d at 1061. Rather, discretionary relief from removal is akin to “an `act of grace.'” Appiah v. U.S. INS, 202 F.3d 704, 709 (4th Cir. 2000) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996)).

Darif’s due-process argument focuses exclusively on the denial of his request for an extreme-hardship waiver, a discretionary form of immigration relief. See § 1186a(c)(4)(A). So even if Darif was statutorily eligible for a hardship waiver, the decision whether to grant one remained entirely discretionary. And indeed, the BIA denied a waiver in its discretion. Because Darif has no legitimate claim of entitlement to an extreme-hardship waiver under § 1186a(c)(4), his due-process argument necessarily fails.

In his reply brief, Darif recasts the due-process claim as an argument about the legal sufficiency of his hearing before the IJ under the applicable statutes and regulations. We have sometimes permitted this kind of recharacterization. See, e.g., Delgado, 674 F.3d at 766; Khan, 517 F.3d at 518. Although a denial of discretionary relief may not be challenged on procedural due-process grounds, removal proceedings are subject to certain statutory and regulatory procedural requirements. See 8 U.S.C. § 1229a; 8 C.F.R. § 1240.1(c); Delgado, 674 F.3d at 765-66. These include “notice and an opportunity for a fair hearing.” Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). More specifically, aliens in removal proceedings are statutorily entitled to a “reasonable opportunity to examine the evidence[,]. . . to present evidence[,] . . . and to cross-examine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). Regulations governing the immigration judge’s authority require the judge to “receive and consider material and relevant evidence.” 8 C.F.R. § 1240.1(c).

Accordingly, “[w]e have repeatedly reminded aliens claiming constitutional violations that immigration proceedings that meet statutory and regulatory standards comport with due process, and, as such, aliens are better-served by arguing instead that immigration proceedings infringed the statutory and regulatory right to a reasonable opportunity to present evidence.” Khan, 517 F.3d at 518. Whether the IJ failed to follow these statutory or regulatory procedures in denying a petition for discretionary relief is a question of law that we review de novo. See Delgado, 674 F.3d at 766.

But recasting his due-process argument as a claim about the IJ’s failure to follow the statutory and regulatory requirements doesn’t get Darif very far, for two independent reasons. First, arguments raised for the first time in a reply brief are waived. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 n.9 (7th Cir. 2012); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010); Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). Darif didn’t pivot to an argument under the statutes and regulations until his reply brief. The argument is therefore waived.

Second, even if we were to conclude that the IJ’s handling of the hardship-waiver question during the removal proceedings fell short of the requirements in the governing statutes and regulations, Darif must establish prejudice before we would vacate the agency’s decision. See Khan, 517 F.3d at 518; Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007). And there was no prejudice here. Whatever shortcomings there may have been in the proceedings before the IJ (and we do not conclude that there were shortcomings), the BIA itself fully and independently considered the evidence Darif submitted in support of his petition for an extreme-hardship waiver under § 1186a(c)(4). Based on this independent and plenary review, the BIA concluded that Darif did not deserve this form of relief as a matter of discretion. That is, the BIA assumed without deciding that Darif was statutorily eligible for a hardship waiver and concluded—without relying on the IJ’s decision—that a waiver should be denied in an exercise of discretion. This approach is entirely appropriate and effectively forecloses our further review. See Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006) (“[W]hen an agency is entitled to deny relief as an exercise of discretion, it is always unnecessary and often inappropriate for a court to discuss the eligibility issue.”).

Notably, Darif does not argue that the IJ’s mishandling of his case deprived the BIA of evidence it needed to evaluate the hardship question. In short, the BIA provided Darif what he claims the IJ did not: an unbiased, complete consideration of his claim for an extreme-hardship waiver under § 1186a(c)(4). Accordingly, even if the IJ failed to comply with his statutory and regulatory duties, Darif suffered no prejudice.

The petition for review is DENIED.

[1] The Ninth Circuit has taken the position that federal courts retain jurisdiction to review credibility determinations made by the agency when determining whether a petitioner is eligible for an extreme-hardship waiver. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005). This approach, however, has come under sharp criticism for its reliance on legislative history and its irreconcilability with the clear statutory text. See Iliev v. Holder, 613 F.3d 1019, 1024 (10th Cir. 2010); Contreras-Salinas v. Holder, 585 F.3d 710, 714 n.4 (2d Cir. 2009). Darif does not challenge an adverse credibility determination or the weight that the agency gave his evidence supporting his extreme-hardship petition, so we have no occasion to decide this legal point today.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, extreme hardship waiver, Good-Faith Marriage Waiver, I-751 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud, Petition for Removal of Conditions on Conditional Residence | Leave a comment

Kim v. Holder CA7 ineligible to adjust status because failed to maintain continuous lawful nonimmigrant status

Posted on December 21, 2013 by Mike Baker

Bd. did not err in ordering alien’s removal after his petition to adjust his status to that of lawful permanent resident had been denied due to alien’s failure to establish that he had been in lawful immigration status for 180-day period prior to his application to adjust his status. Record showed that alien’s F-2 status had been terminated on January 16, 2006, when United States Citizenship and Immigration Services (USCIS) terminated F-1 status of alien’s wife due to her non-attendance at school, and alien did not file his petition for change of status until August of 2007. While alien contended that USCIS mistakenly terminated his wife’s F-1 status, Bd. lacked jurisdiction to review USCIS’s discretionary denial of wife’s motion to reinstate her student status. Ct. also rejected alien’s claim that Bd. should have used prosecutorial discretion under 8 CFR section 1003.1(b) and (d) instead of ordering that he be removed because he no longer had valid visa to remain in country.

Kim, his wife Ko, and their children are citizens of South Korea who were admitted to the U.S. in 2003, as nonimmigrant visitors for pleasure. Before an extension expired, Ko, obtained an F-1 visa, changing her status to that of a nonimmigrant student. As beneficiary of his wife’s application, Kim’s status was changed to that of spouse of a nonimmigrant student. In 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated. U.S. Citizenship and Immigration Services stated that Ko was ineligible for reinstatement because she had stopped attending classes without informing the school of an illness that she later claimed. While Ko’s motion to reopen or reconsider was pending, Kim became the beneficiary of an approved immigrant visa as an alien worker and moved to adjust his status to that of lawful permanent resident. USCIS denied the application, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the U.S. In 2009, DHS charged Kim removable under 8 U.S.C. 1227(a)(1)(B). Kim argued that his failure to maintain legal status was due to circumstances beyond his control. The IJ found Kim removable. The BIA dismissed an appeal. The Seventh Circuit denied a petition for appeal.

Kim v. Holder CA7

YOUNG DONG KIM, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States Respondent.

No. 12-1626.

United States Court of Appeals, Seventh Circuit.

Argued: November 1, 2012.

Decided: December 16, 2013.

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

Young Dong Kim petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA” or “Board”). The Board determined that Kim was ineligible to adjust his status to that of lawful permanent resident because he failed to maintain continuous lawful nonimmigrant status prior to applying for adjustment. We conclude that Kim’s petition must be denied.

I.

Kim, his wife Jung O. Ko, and their two children are citizens of South Korea who were admitted to the United States on August 6, 2003, as nonimmigrant visitors for pleasure. Their B-2 visas allowed them to remain in the United States until February 2, 2004. They received an extension of this temporary period until August 2, 2004. On April 21, 2004, Kim’s wife, Ko, applied to change her status to that of a nonimmigrant student and her F-1 visa was granted on June 28, 2004. As a beneficiary of his wife’s application, Kim’s status was changed to that of the spouse of a nonimmigrant student, also known as F-2 status. Kim’s F-2 status was valid so long as his wife maintained her F-1 status.[1]

On January 16, 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated for reasons that will become apparent below. On May 9, 2006, Ko applied to reinstate her F-1 status with the United States Citizenship and Immigration Services (“USCIS”). On June 5, 2006, USCIS denied Ko’s application. Citing 8 C.F.R. § 214.2(f)(16), the Acting District Director explained:

You are deemed ineligible to file for a reinstatement of status to F-1 because you failed to establish to the satisfaction of the Service, that the violation of status resulted from circumstances beyond your control. You claimed that your failure to maintain your F[-]1 status was caused by circumstances beyond your control because of a serious illness. The letter from your doctor shows that you had been under his care starting December 17, 2005 through January 13, 2006. On June 2, 2006, your previous school was contacted and informed the Service that you stopped attending classes starting November 6, 2005. The school also stated that they do not know the reason why you stopped attending your classes. You have failed to inform your school DSO about your illness and as a result, your status was terminated by Goal Training, Inc. due to subject failure/s. Therefore, there is no other alternative than to deny the application for reinstatement.

Administrative Record (“A.R.”) at 292-93.[2]

On July 7, 2006, Ko filed a motion to reopen or reconsider the June 5, 2006 decision. The District Director denied Ko’s motion on May 15, 2008:

The motion allegedly indicates that the student, Jung O. Kim, has not been out of status for more than 5 months at the time of filing the request for reinstatement. To reiterate, the previous DSO, Tatiana Hamilton, was contacted on June 2, 2006. She stated that the student stopped attending her classes starting November 6, 2005. Additionally, the DSO stated that the school was never informed of the reason why the student stopped attending her classes and as a result, her status was terminated by Goal Training, Inc. Further, on April 15, 2008, the new DSO of Goal Training, Inc., Helen Andrusik, was contacted. Ms. Andrusik confirmed that the information provided by the previous DSO’s [sic] is highly accurate. She also stated that the student[`]s failing grades are likely caused by the attendance problems. Therefore, based on these facts, it was concluded that you fell out of status for over 5 months before your request for reinstatement was filed.

A.R. at 294-95.

While Ko’s motion to reopen or reconsider was still pending, Kim became the beneficiary of an approved immigrant visa petition for an alien worker, also known as a Form I-140 visa petition. In August 2007, Kim moved to adjust his status to that of lawful permanent resident based on his approved I-140 visa petition. In July 2009, the USCIS denied Kim’s application to adjust his status, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the United States. In particular, the USCIS noted that Kim’s F-2 status was terminated in January 2006 when Ko lost her F-1 status. And, of course, Ko’s request for reinstatement of student status had been denied on June 5, 2006. Because Kim had failed to maintain lawful status for more than 180 days before applying to adjust his status, the USCIS deemed him ineligible to adjust his status under 8 U.S.C. § 1255(I). See also 8 U.S.C. § 1255(k)(2).

In October 2009, the Department of Homeland Security (“DHS”) issued Kim a Notice to Appear, charging him with being removable because he had overstayed his visa. See 8 U.S.C. § 1227(a)(1)(B). At a May 20, 2010 hearing before an immigration judge (“IJ”), Kim acknowledged that he was admitted to the United States on August 6, 2003 as a nonimmigrant B-2 visitor, that he was granted F-2 status on June 29, 2004, and that his F-2 status was terminated on January 16, 2006. But he denied that he remained in the United States without authorization after that date and denied that he was removable as charged. At this hearing and at another hearing in August 2010, Ko testified regarding the circumstances of the termination of her student status. Ko said that she stopped attending classes in February 2006 after the school wrongfully terminated her status for non-payment of tuition. She also testified that she became ill in January 2006 and could not attend school for that reason. Kim argued that his failure to maintain legal status from January 2006 through May 2008 was due to circumstances beyond his control and should be excused for that reason. He also maintained that his failure to maintain legal status was due to technical reasons, a failure which could also be legally excused.

The IJ found Kim removable and determined that he was ineligible for adjustment of status. Noting that Kim’s F-2 status terminated on January 16, 2006, the IJ found that Kim’s status was not reinstated or extended at any time by the DHS, and thus he had not maintained continuous lawful status as required. The IJ rejected Kim’s argument that Ko was dropped from the school register for technical reasons or through no fault of her own, and that the USCIS should have reinstated her. The IJ noted that he lacked the authority to reinstate Ko’s student status because the decision was within the sole discretion of the USCIS. Moreover, the IJ determined that Ko did not maintain her status during the time she was seeking reopening or reconsideration of the initial decision, distinguishing her case from that of In re L-K, 23 I&N Dec. 677 (BIA 2004). The IJ also concluded that the circumstances presented did not fall within the “technical reasons” exception that Kim sought to apply. 8 U.S.C. § 1255(c) and (k). Because Kim’s status was dependent on that of Ko, Kim was therefore subject to removal as charged. In addition to being removable as charged, Kim was not eligible for adjustment of status due to his failure to continuously maintain lawful nonimmigrant status. The IJ granted Kim, Ko and their children voluntary departure.

Kim filed a timely appeal to the BIA, arguing that the termination of his lawful status in January 2006 was improper, and that his failure to maintain legal status was due to excusable technical reasons. The BIA dismissed the appeal. The Board noted that neither the IJ nor the BIA have the authority to review the decision by USCIS denying Ko’s application to reinstate her student status. The BIA also agreed with the IJ that Ko and Kim’s failure to maintain lawful status could not be characterized as being through no fault of their own or for technical reasons under 8 U.S.C. § 1255(c)(2) and 8 C.F.R. § 1245.1(d)(2). Accordingly, the BIA concluded that Kim was ineligible to adjust his status, and the appeal was dismissed. Kim now petitions for review of the Board’s order.

II.

In his petition for review, Kim contends that the BIA’s review should have included consideration of a June 17, 2011 Memorandum issued by the Director of U.S. Immigration and Customs Enforcement (“ICE”) setting forth guidance on the exercise of prosecutorial discretion. He also contends that the BIA erred when it agreed with the IJ’s findings because the findings of the IJ and USCIS were in conflict. A more thorough review of the facts, Kim argues, would reveal that the DSO made a mistake and that Ko’s status was terminated through no fault of her own.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Cece, 733 F.3d at 675-76. We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Cece, 733 F.3d at 668-69.

A.

In June 2011, the ICE Director issued a Memorandum setting forth guidance on the exercise of prosecutorial discretion in immigration enforcement actions. See www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf (last visited Nov. 22, 2013) (hereafter “Memorandum”). The Memorandum acknowledged that ICE has limited resources to remove those who are in the United States illegally, and that the agency should therefore use its resources to ensure that enforcement priorities are met. In particular, the Memorandum specified that the agency’s limited resources should be used to promote national security, border security, public safety, and the integrity of the immigration system. In civil immigration enforcement actions, the Memorandum encouraged authorized ICE personnel to exercise prosecutorial discretion in a manner that promoted the stated goals. The Memorandum defined the broad range of enforcement decisions to which this discretion could be applied, set forth the particular agency personnel authorized to exercise that discretion, and provided an extensive list of factors to consider in exercising prosecutorial discretion.

Kim first faults the BIA for failing to consider the issue of prosecutorial discretion. Citing 8 U.S.C. § 1252(d)(1), the government contends that we should not reach this issue because Kim failed to raise it before the Board. But section 1252(d)(1) applies to the exhaustion of “administrative remedies available to the alien as of right,” and the Memorandum, by its own terms, does not “create any right or benefit, substantive or procedural, endorsable at law by any party in any administrative, civil or criminal matter.” Memorandum, at 6. See also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right”). Moreover, the Memorandum by its terms allows for an exercise of prosecutorial discretion at virtually any stage of a removal action, including on appeal.

But there are at least two other reasons that Kim’s claim for an exercise of prosecutorial discretion by the BIA must fail. First, the BIA does not possess the prosecutorial discretion detailed in the Memorandum. See 8 C.F.R. § 1003.1(b) and (d) (setting forth the appellate jurisdiction of the BIA and the Board’s powers generally). Indeed, the Memorandum itself lists the ICE employees who possess prosecutorial discretion and the members of the Board are not among those listed. Memorandum, at 3. Second, exercises of prosecutorial discretion by the DHS generally are immune from judicial review. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-92 (1999). See also 8 U.S.C. § 1252(g) (“Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”).

As the Supreme Court noted:

There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”-which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience.

American-Arab Anti-Discrimination Committee, 525 U.S. at 483-84. Whether to exercise the prosecutorial discretion outlined in the Memorandum plainly comes within the purview of section 1252(g) and the Supreme Court’s decision in the American-Arab Anti-Discrimination Committee case. We therefore lack jurisdiction to review this claim.

B.

The USCIS found that Ko stopped attending school on November 6, 2005, and that she failed to inform the DSO why she stopped attending classes. Ko claimed that she stopped coming to class because of a serious illness but the USCIS rejected this explanation because a letter from her doctor demonstrated that she was under his care from December 17, 2005 through January 13, 2006, a period that began approximately five weeks after Ko stopped attending classes. The IJ found that Ko’s non-immigrant student status was terminated “on or about January 16, 2006,” which resulted in Kim losing his derivative status as well. The BIA agreed with this finding. In his petition for review, Kim contends that the finding by the USCIS that Ko stopped attending school in November 2005 was in error. Kim asserts that he provided documentary evidence that Ko was in class through January 2006 and that the DSO simply made a mistake. Kim also points out that the IJ found that Ko attended classes until January 2006, a finding that conflicts with that of the USCIS conclusion that Ko stopped attending classes on November 6, 2005. In light of this discrepancy, Kim argues that the BIA should not have deferred to the fact-findings of the IJ but should have independently reviewed the record and concluded that Ko lost her student status through no fault of her own, due to an error by the school’s DSO. Because Ko lost status through no fault of her own, Kim argues that he remained eligible to adjust his status based on his approved I-140 visa petition.

An alien may be eligible for adjustment of status “by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a). However, an alien who “is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States” is not eligible for adjustment of status. 8 U.S.C. § 1255(c)(2). For immigrants seeking an employment-based adjustment of status, as Kim was seeking here, the statute provides an exception to the requirement of continuous lawful status if the “alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days—(A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise violated the terms and conditions of the alien’s admission.” 8 U.S.C. § 1255(k).

Kim’s lawful status was terminated as of January 16, 2006 at the latest, when Ko lost her student status. Kim does not dispute that USCIS denied Ko’s motion to reinstate her student status on June 5, 2006. Kim filed his application for an adjustment of status more than a year later, in August 2007. The record indisputably establishes, therefore, that Kim was out of lawful status for more than 180 days prior to filing his application to adjust his status.

That failure to maintain lawful status could be excused if Kim could demonstrate that it occurred through no fault of his own or that it was due to technical reasons. 8 U.S.C. § 1255(c)(2); 8 C.F.R. § 1245.1(d)(2). The regulation clearly spells out what is meant by “fault” and “technical reasons.” In relevant part, the regulation states:

No fault of the applicant or for technical reasons. The parenthetical phrase other than through no fault of his or her own or for technical reasons shall be limited to:

(I) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for example, where a designated school official certified under § 214.2(f) of 8 CFR chapter I or an exchange program sponsor under § 214.2(j) of 8 CFR chapter I did not provide required notification to the Service of continuation of status, or did not forward a request for continuation of status to the Service); or

(ii) A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason.

8 C.F.R. § 1245.1(d)(2). Neither provision could alter the outcome here. Even if Ko’s motion to reinstate her student status was a timely filed request to maintain status within the meaning of 8 C.F.R. § 1245.1(d)(2)(ii), DHS took action by denying her request on June 5, 2006. Yet Kim did not file his request to adjust his status until August 2007, more than one year later and well beyond the 180 day limit. And Kim did not raise section 1245.1(d)(2)(I) until he filed this petition for review, failing to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1). A failure to exhaust “usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal.” Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011). No exception to that general rule applies in this instance.

Finally, there is no real discrepancy between the findings of the USCIS and the IJ. The USCIS determined that Ko stopped attending classes in November 2005, and her F-1 student status was terminated on January 16, 2006. As Ko’s spouse, Kim’s F-2 status terminated that same day. The IJ found that Ko’s student status was terminated “on or about January 16, 2006.” The IJ also remarked that “Ko dropped out of school in January of 2006.” Any discrepancy about the date would not matter in any case because neither the IJ nor the BIA may review the USCIS’s discretionary denial of a motion to reinstate student status. See 8 C.F.R. § 214.2(f)(16)(ii) (“if the Service does not reinstate the student, the student may not appeal that decision.”). See also In re Yazdani, 17 I&N Dec. 626, 628 (BIA 1981) (“The power, however, to reinstate student status or grant an extension of nonimmigrant stay lies within the exclusive jurisdiction of the District Director and neither the immigration judge nor the Board may review the propriety of the District Director’s determinations.”). Because the IJ and the Board had no authority to review the USCIS’s reasons for denying reinstatement, the asserted discrepancy between the findings of the USCIS and the IJ are irrelevant to Kim’s petition for review. Moreover, when Ko moved for reinstatement, she failed to demonstrate that she met the remaining requirements for reinstatement, including the requirement that the DSO submit a form recommending reinstatement. See 8 C.F.R. § 214.2(f)(16)(I). Kim offers no evidence in his petition that Ko met that additional requirement, and any error related to the date that Ko’s status was terminated could not affect the outcome here. The petition for review is therefore

DISMISSED IN PART AND DENIED IN PART.

[1] At that time, Kim’s status and that of his children depended on Ko’s status as a student. After Kim applied for adjustment of status, his case was consolidated with those of his wife and children in the agency below. The BIA’s final order of removal applied to Kim, Ko and their children, and our ruling on Kim’s petition also applies to the entire family.

[2] A “DSO” is a “Designated School Official.” In order for a school to be certified for the Student and Exchange Visitor Program (“SEVP”), the school must have dedicated employees for assisting and overseeing enrolled students holding F and M visas. DSOs must have an office at the school and be accessible to the F and/or M students at their school. They must also update and maintain student records in the Student and Exchange Visitor Information System (“SEVIS”). See 8 C.F.R. § 214.3(l); http://studyinthestates.dhs.gov/schools/dso (last visited November 8, 2013).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, extension of nonimmigrant stay | Tagged , | Leave a comment

CA7 denies Chinese Fujian Province Asylum based on family planning policy due to failure to present evidence of financial situation

Posted on December 12, 2013 by Mike Baker

Chen v. Holder Docket: 13-1758 Opinion Date: December 11, 2013

Chen faced deportation to Fujian Province and claimed to face a significant risk of persecution there because, since coming to the U.S. in 2002, she has given birth to two children in violation of China’s one‐child policy. The Board of Immigration Appeals denied her petition for asylum. The Seventh Circuit upheld the denial, noting that the Chinese government recently announced that it will permit an urban husband and wife, at least one of whom was an only child, to have two children. Chen’s husband is not an only child; Chen testified that her mother‐in‐law was punished for violating the policy. There is no information on whether Chen is an only child or whether the new policy will be applied retroactively. Fujian Province seems to enforce the one‐child policy more strictly. Nonetheless, the BIA noted that forced sterilization has become very rare and noted that Chen could avoid penalty by not registering the children with the government as permanent residents of China. The children would not be entitled to free public education, subsidized health care, and other benefits, but Chen’s failure to present evidence concerning her financial situation “is a fatal weakness in her case.”

13-1758-2013-12-11

XUE JUAN CHEN, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.



United States Court of Appeals, Seventh Circuit.

Argued October 8, 2013.

Decided December 11, 2013.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Once again we confront a challenge to the denial by the Board of Immigration Appeals of asylum to a Chinese woman whom the government wants to deport to China’s Fujian Province. She claims to face a significant risk of persecution there because, since coming to the United States in 2002, she has given birth to two children in violation of China’s one-child policy (the official designation is “family planning policy”). For similar cases see, e.g., Li Ying Zheng v. Holder, 722 F.3d 986 (7th Cir. 2013); Qiu Yun Chen v. Holder, 715 F.3d 207 (7th Cir. 2013); Xiu Zhen Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008).

Recently the Chinese government announced that it’s relaxing the one-child policy—it will permit an urban husband and wife at least one of whom was an only child to have two children. See, e.g., Chris Buckley, “After Decades, China Will Ease One-Child Policy,” New York Times, Nov. 16, 2013, p. A1, www.nytimes.com/2013/11/16/world/asia/china-to-loosen-its-one-child-policy.html (visited—as were all the websites cited in this opinion—on December 10, 2013). The petitioner’s husband is not an only child; the petitioner testified without contradiction that her mother-in-law was punished for violating the one-child policy. There is no indication whether the wife is an only child. There is also no indication that the new policy will be applied retroactively. Moreover, Fujian Province, as we have pointed out in previous cases (most recently in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209-10, 212), appears to march to its own beat, enforcing the one-child policy more strictly than existing Chinese law appears to permit. This makes it uncertain whether the petitioner will benefit from the new policy of the central government—a policy moreover merely announced and not yet implemented. (Chris Buckley’s article, supra, quotes a Chinese demographer as saying that “Now [the government is] just talking about launching this, but the specific policies have to be developed at the operational level.”) Prudently, the Justice Department has filed no post-argument submission suggesting that the new policy should affect our consideration of the petitioner’s appeal.

The Board’s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff’s alternative (and clearly meritless) claim for relief—withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be original—though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49-page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client.

An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party’s brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not how an adversarial system of adjudication works. Unlike the inquisitorial systems of Continental Europe, Japan, and elsewhere, our system is heavily dependent on the parties’ lawyers for evidence, research, and analysis. See Stephen McG. Bundy & Einer R. Elhauge, “Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation,” 79 Cal. L. Rev. 313, 315-19 (1991); cf. John Thibaut, Laurens Walker & E. Allan Lind, “Adversary Presentation and Bias in Legal Decisionmaking,” 86 Harv. L. Rev. 386, 386-90 (1972). American judges’ dependence on lawyers is suggested by the fact that the ratio of lawyers to judges is 6.29 times higher in the United States than in the principal Continental European judiciaries. Calculated from European Commission for the Efficiency of Justice, Evaluation Report on European Judicial Systems, p. 144 tab. 7.1, p. 308 tab. 12.1 (2012), www.coe.int/t/dghl/cooperation/cepej/evaluation/ 2012/Rapport_en.pdf; American Bar Association, Lawyer Demographics (2011), www.americanbar.org/content/dam/ aba/migrated/marketresearch/PublicDocuments/lawyer_ demographics_2011.authcheckdam.pdf; The American Bench: Judges of the Nation (Jenny Kimball et al. eds., 22d ed. 2012). We’re neither authorized nor equipped to write a lawyer’s brief for him.

The inadequacy of the brief in this case is especially unfortunate because the Board’s opinion and that of the immigration judge contain errors that have led to reversals of the Board in previous cases, though there are also, as we’ll see, critical gaps in the petitioner’s evidence.

The Board placed great weight on the fact that the petitioner may be able to avoid being forcibly sterilized upon returning to Fujian with her two children simply by not registering the children with the government as permanent residents of China. The Board pointed out that parents of children born abroad can, when they return to China, choose to either register their children and thus “obtain free public education and other benefits [for the children] or opt not to register their children, send them to private school, and pay more for similar benefits [including health care].” An unregistered child is (probably—little about Chinese law is certain, because China does not have the “rule of law” as understood in our legal system) not counted against the number of children (one, with immaterial exceptions) allowed by Chinese law. But unregistered persons appear to be virtual outlaws, and most Chinese families can afford neither private school nor private doctors. Congressional-Executive Commission on China, China’s Household Registration System: Sustained Reform Needed to Protect China’s Rural Migrants 7-10 (2005); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 61. The government’s brief candidly acknowledges the “severe consequences” of nonregistration.

The Board went on to say that even if the petitioner were found to have violated the one-child policy (that is, if she rejected the option of not registering her children), State Department and other country reports indicate that forced sterilizations have become so rare in Fujian Province that she had not “demonstrated a reasonable possibility that she would be forcibly sterilized if she returns to China.” But the Board in saying such things was cherry-picking among country reports (and within a 2007 State Department report) and other public documents, as in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209-10. And it was ignoring evidence from other sources, including a Fujian government website that states that sterilization is mandatory for violators of the one-child policy. Id. at 212; “Replies to Robert Lin,” http://fjjsw.gov.cn:8080/html/5/383/XXXX_XXXXXXXXX.html (English translation at www.microsofttranslator.com/ bv.aspx?ref=IE8Activity&from=&to=en&a=http%3a%2f%2ffjj sw.gov.cn%3a8080%2fhtml%2f5%2f383%2f9626_200856322.h tml) (“.gov.cn” is the Chinese Government’s official web portal). The Board also applied the standard for authentication of documentary evidence that we rejected in Qiu Yun Chen v. Holder as too restrictive. 715 F.3d at 211.

The alternative to forced sterilization, the Board thought, might be a fine. But the Board ruled that even if the petitioner were fined 10 times her annual disposable income, she had not proved that imposition of such a fine would amount to persecution because “before she bought the restaurant she now owns, she made enough to send a few hundred dollars to China monthly.” That restaurant, which she owns jointly with her husband, is in Appleton, Wisconsin. There is no reason to think that she could earn a comparable income in China; and if not, she could not pay the fine. (But it remains to consider whether her husband might be able to pay it— read on.)

The petitioner’s lawyer could have found some live ammunition in the immigration judge’s opinion, no part of which the Board questioned. It states that the petitioner’s “testimony at her hearings was candid, internally consistent, and consistent with her asylum application and supporting documents. Moreover, many of the facts to which [she] testified and about which she had personal knowledge are corroborated by reliable supporting documents in the record. At her individual hearings, the Government did not attempt to impeach her credibility. The Court therefore finds the [petitioner’s] testimony credible.”

The petitioner testified that before coming to the United States in 2002 she had worked in a factory in which she earned 300 to 400 yuan a month. In 2002 this was a little more than $48 ($580 a year) at the official exchange rate of 8.277 yuan to a dollar. See Board of Governors of Federal Reserve System, “Historical Rates for the Chinese Yuan Renminbi,” www.federalreserve.gov/releases/h10/hist/ dat00_ch.htm. The immigration judge also accepted the petitioner’s estimate of 30,000 yuan as the fine she’d have to pay for violating the one-child policy. At the official exchange rate of 6.663 yuan per dollar in December 2012 (when the immigration judge rejected the asylum application), that is $4,502.

The immigration judge noted that the petitioner and her husband had invested $80,000 to buy their restaurant in Wisconsin, but that “otherwise, she has few assets, and her restaurant has not yet been very profitable.” So far as appears, the bulk of the $80,000 was borrowed. She acknowledged earning more than $1,000 a month in 2009 (the year before she testified before the immigration judge). That isn’t a great deal, but there is no evidence of what her husband’s earnings are. That is one yawning gap in the record; another is the absence of any evidence concerning the husband’s earning potential in China. These are serious gaps, attributable to the petitioner.

Refreshingly, after listing the “voluminous country conditions evidence regarding family planning policies in China” and noting their lack of consistency, the immigration judge said of these materials that “taken together … they depict China as a country with serious human rights problems and a strict family planning policy that severely restricts the number of children couples are allowed to have.” He went on to say that China’s human rights record is “poor” in a number of respects, including a “coercive birth limitation policy”; “local officials are under intense pressure to achieve family planning goals; physical coercion is sometimes reported. These findings are echoed throughout the record in submissions by both the Government and the [petitioner]…. Enforcement and application of the family planning policy are uneven and vary widely from region to region…. [M]edia sources, and hundreds of asylum claimants have described forcible and coercive sterilizations and abortions. In fact, Chinese government officials concede that overzealous officials may have perpetrated such acts.”

Yet the immigration judge’s opinion states that although documents “from committees in [the petitioner’s] and her husband’s village and town also suggest that she could be sterilized if she returned to China,” the documents “do not indicate that [she] would be forcibly sterilized; they only state that she `must’ be sterilized.” But doesn’t “must” imply “would”? We’re also perplexed by the immigration judge’s having given little (actually it seems zero) weight, on the ground of bias, to documents in which neighbors and friends of the petitioner reported forced sterilizations, yet giving no greater weight to similar documents submitted by strangers in other cases, on the ground that those were— other cases. We criticized this heads I win, tails you lose approach to evidence in our opinion in the earlier Chen case. See 715 F.3d at 212. And even if the immigration judge could ignore the documents, he could not, consistent with his determination that the petitioner’s testimony was credible, ignore as he did her testimony that a sister-in-law, cousin-in-law, several aunts, and her mother-in-law all were sterilized because they’d violated the one-child policy.

The immigration judge concluded (as did the Board when it reviewed his decision) that the petitioner could avoid persecution simply by not registering her children. Yet that could result in great hardship unless she is wealthy. The immigration judge said she’d “presented no evidence to demonstrate that the higher expenses incurred by forgoing the benefits obtained by registering in the household registration system would cause such `severe economic damage’ that it would amount to persecution.” But depending on how great the expense of educating and providing health care for two unregistered children is, registration may be no less costly than the $4,502 fine that she may not be able to pay. It seems questionable to require her to calculate these expense items rather than for the judge to derive them from credible studies. If she can’t get better work than as a factory hand, it’s hard to see how she can afford to provide private education and private health care for her children.

If she neither forgoes registering her children nor pays a fine (what is called a “social compensation fee”), she risks forcible sterilization. Yet even if she either forgoes registering her children or pays the fine, some risk of forcible sterilization would remain, since Fujian Province appears to have an independent family planning policy stricter than the national policy. See Qiu Yun Chen v. Holder, supra, 715 F.3d at 209; Ji Cheng Ni v. Holder, 715 F.3d 620, 626 (7th Cir. 2013); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 58; Congressional-Executive Commission on China, Annual Report 90-91 (2012) and 2013 Annual Report 92 (quoted below). But presumably the Board’s conclusion that if the petitioner either doesn’t register her children or pays the social compensation fee the risk of forcible sterilization by the Fujian authorities would not rise to a level that would entitle her to asylum would withstand judicial review. See Huang v. Mukasey, 534 F.3d 618, 620-21 (7th Cir. 2008). The crucial question therefore is whether she can afford either the fine, or the costs that failure to register her children would entail. Those costs seem very high, as we’ve said, but she made no attempt to quantify them. As to whether she can afford to pay the fine instead, the immigration judge pointed out that she had “provided very little evidence regarding her personal financial situation.” He also noted that “she paid a large amount of money to smugglers to get to the United States” and that “the most exorbitant fine described in the record [$6,800] … is less than 10% of the [petitioner’s] investment in her restaurant”—a meaningless observation, if indeed the money to buy the restaurant was borrowed and she will return to a factory job if she is deported to China. But she presented no evidence of how much she and her husband (or other members of her family) paid the smugglers. Maybe there is family wealth, although her having been a factory worker in China suggests otherwise.

Also missing from the record is evidence of the husband’s earning potential in China. But the record does contain an affidavit signed by him (though ignored by the parties and the Board) in which he states that “we will … be fined for a huge amount of money because we have violated the [Fujian] Family Planning Policy. … Although we might be able to pay the fines, but we are not willing to because we think we have the right to give births” (emphasis added). This could be regarded as a fatal concession.

We continue to be distressed, however, by the Board’s seeming failure to consider the annual reports of the Congressional-Executive Commission on China, a responsible federal agency, where we read for example that “at least 18 of China’s 31 provincial-level jurisdictions permit officials to take steps to ensure that birth quotas are not exceeded; in practice, these steps can include forced abortion and forced sterilization.” Congressional-Executive Commission on China, 2009 Annual Report 153, 371 n. 24, citing the State Department’s 2008 Human Rights Report on China. And evidently the situation has worsened (though the new policy announcement, discussed at the beginning of this opinion, may herald amelioration): “provincial-level population planning regulations in at least 22 of China’s 31 provinciallevel jurisdictions explicitly endorse the practice [forced abortion], often referred to as a `remedial measure’ (bujiu cuoshi), as an official policy instrument.” Congressional-Executive Commission on China, 2013 Annual Report 100, 226 n. 36. And in the Commissioner’s 2009 report we read that a township in Fujian Province advised its officials “to `strictly act on the demand to carry out [sterilization] within one month’ for women who give birth to a second or third child.” Congressional-Executive Commission on China, 2009 Annual Report 155. Fujian is reported to have adopted an elaborate system of rewards and penalties for officials who do and do not fulfill forced-abortion and forced-sterilization targets. Id. at 156. Finally,

between October 2012 and July 2013, the Commission noted reports from at least eight provinces (Hubei, Guangdong, Anhui, Shandong, Henan, Guizhou, Hunan, and Fujian) using phrases such as “spare no efforts” (quanli yifu or fenli), “use all means necessary” (qian fang bai ji), “implement `man-on-man’ military tactics” (shixing “rendingren” zhanshu), “fight the family planning battle” (dahao jisheng gongjianzhan), and “assault and storm the fortifications” (tuji gongjian) to urge officials to implement family planning measures. The implementation measures promoted in these reports were harsh and invasive, including “remedial measures,” the “two inspections” (intrauterine device (IUD) inspections and pregnancy inspections), the “four procedures” (IUD implants, first-trimester abortions, mid- to late-term abortions, and sterilization), and the collection of “social maintenance fees.”

Congressional-Executive Commission on China, 2013 Annual Report 100 (footnotes omitted).

Still, both the immigration judge’s opinion and the Board’s opinion are improvements on what we faced in the Qiu Yun Chen case that we’ve been citing. And the government’s brief is refreshingly candid in acknowledging deficiencies in the agency’s analysis of China’s one-child policy. But the petitioner’s failure to present evidence concerning her and her husband’s financial situation is a fatal weakness in her case.

The petition to review the Board’s denial of asylum is

DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, China one-child policy, China’s family planning policy, family planning policy, Fujian Province | Leave a comment

Submitting an Affidavit of Support-USCIS form I-864

Posted on November 8, 2013 by Mike Baker

What is an Affidavit of Support?

An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative (or other individual) coming to live in the United States. The sponsor is usually the petitioner of an immigrant petition for a family member.

An affidavit of support is legally enforceable; the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).

The law concerning affidavits of support is found in Immigration and Nationality Act (INA) sections 212(a)(4) and 213A. The provisions are codified in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR 213a.

212(a)(4)(A) Public Charge

Section 212(a) of Act: Section 212(a)(4)(A) of the Act renders inadmissible any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General or the Secretary of the Department of Homeland Security at the time of application for admission or adjustment of status, is likely at any time to become a public charge.

Submitting an Affidavit of Support

The following individuals are required by law to submit a Form I-864, Affidavit of Support, completed by the petitioner to obtain an immigrant visa or adjustment of status:

All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family based preferences:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
  • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based preference immigrants in cases only when a U.S. citizen or permanent resident relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.

Note: An individual listed above does not need to submit an affidavit of support if they can show that they EITHER:

  • Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
  • Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
  • Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000

When NOT to Submit an Affidavit of Support

The following types of people do not need to file an affidavit of support:

  • An individual who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States
  • An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a Self-Petitioning Widow or Widower
  • An individual who has an approved Form I-360 as a battered spouse or child
  • Orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have seen the child before or during the adoption

Affidavit of Support For Fiancé(e), Spouse, or Child as a “K” Nonimmigrant

If your relative is either a “K-1” fiancé(e), a “K-3” spouse, or a “K-2” or “K-4” child of fiancé(e) or spouse, you do not need to submit an affidavit of support at the time you file your Form I-129F petition. Instead, you should submit an affidavit of support at the time that your fiancé(e), spouse, or child adjusts status to permanent resident after coming to the United States.

Sponsor for Affidavit of Support

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, and that you still have your domicile in the United States.

Section 213A of the INA permits both a “joint sponsor” and a “substitute sponsor” in certain cases.

Joint Sponsor

A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.

Substitute Sponsor

If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways:

  • Spouse
  • Parent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Child (if at least 18 years of age)
  • Son
  • Daughter
  • Son-in-law
  • Daughter-in-law
  • Sister-in-law
  • Brother-in-law
  • Grandparent
  • Grandchild
  • Legal guardian of the beneficiary

You must also:

  • Be U.S. citizen or national or a permanent resident
  • Be at least 18 years of age
  • Be domiciled (live) in the United States
  • Meet all of the financial requirements of a sponsor pursuant to INA 213A

The substitute sponsor assumes all of the obligations of an I-864 sponsor.

How to File an Affidavit of Support

You, the sponsor, should complete Form I-864 when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United States. If you have a joint sponsor, they must also complete Form I-864. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate Form I-864A, Contract Between Sponsor and Household Member.

You are required to provide your U.S. federal income tax return for the most recent tax year as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax return or evidence establishing that you were not required to file will delay action on your relative’s application for permanent residence. If this information is not provided, this will result in denial of an immigrant visa or adjustment of status.

When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.

Income Requirements

You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size. (Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring.)

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.

Retirement income (pension and SS) can be used on the I-864. A retired person who has income on his tax return – e.g. interest income, annuity, pension, social security benefits, etc. – can use that income on the I-864. HOWEVER, you should expect some delays at the NVC as it is nonstandard income and anything nonstandard gets you an RFE at the NVC. Just accept that you will have to jump through a few hoops and get an RFE and it will take an extra one to three months.

Show pension documents (preferably recent ones) demonstrating how much income one gets from the pension; and file social security documents showing income from that. Provide these along with his tax returns for the last three years, and you should ok.

To see if you are above the poverty level, see the “Form I-864P” page.

If You Can’t Meet the Minimum Income Requirements: If you cannot meet the minimum income requirements using your earned income, you have various options:

You may add the cash value of your assets. This includes money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).
Exceptions:

  • If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The minimum cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guide line for the household.
  • If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets need to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.

You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members. You may count the assets of the relatives you are sponsoring.

Income from the intending immigrant can be used if that income will continue from the same source after immigration, and if the intending immigrant is currently living in your residence.

If the intending immigrant is your spouse, his or her income can be counted regardless of current residence, but it must continue from the same source after he or she becomes a lawful permanent resident. Evidence of the same source of income must be provided. If the intending immigrant is any other relative, the income must be continuing from the same source after he or she obtains lawful permanent resident status, and the intending immigrant must currently live with you in your residence. Evidence must be provided to support both requirements.

However, an intending immigrant in this case does not need to complete form I-864A unless the intending immigrant has a spouse and/or children immigrating with him or her. In this instance, the contract relates to support for the spouse and/or children.

Responsibilities as a Sponsor

When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s) generally until they become U.S. citizens or can be credited with 40 quarters of work. Your obligation also ends if you or the individual sponsored dies or if the individual sponsored ceases to be a permanent resident and departs the United States.

Note: Divorce does NOT end the sponsorship obligation.

If the individual you sponsored receives any “means-tested public benefits,” you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant.

Change of Address

If you change your address after you become a sponsor, you are required by law to notify the USCIS within 30 days by filing Form I-865, Sponsor’s Notice of Change of Address. If you fail to notify the USCIS of your change of address, you may be fined.
____________________________________________________________________
TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 213a — AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS (Part 213a added effective 12/19/97; 62 FR 54346) \ § 213a.2 Use of affidavit of support.

§ 213a.2 Use of affidavit of support. (Revised effective 11/28/11; 76 FR 53764)

(a) Applicability of section 213a affidavit of support. (1)(i)(A) In any case specified in paragraph (a)(2) of this section, an intending immigrant is inadmissible as an alien likely to become a public charge, unless the qualified sponsor specified in paragraph (b) of this section or a substitute sponsor and, if necessary, a joint sponsor, has executed on behalf of the intending immigrant an affidavit of support on the applicable form designated by USCIS in accordance with section 213A of the Act and the form instructions. Each reference in this section to Form I-864 is deemed to be a reference to all such forms designated by USCIS for use by a sponsor for compliance with section 213A of the Act. (Paragraph (a)(1) revised effective 7/21/06; 71 FR 35732 )

(B) If the intending immigrant claims that, under paragraph (a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is exempt from the requirement to file an affidavit of support, the intending immigrant must include with his or her application for an immigrant visa or adjustment of status an exemption request on the form designated by USCIS for this purpose.

(ii) An affidavit of support is executed when a sponsor signs and submits the appropriate forms in accordance with the form instructions to USCIS or the Department of State, as appropriate.

(iii) A separate affidavit of support is required for each principal beneficiary.

(iv) Each immigrant who will accompany the principal intending immigrant must be included on the affidavit. See paragraph (f) of this section for further information concerning immigrants who intend to accompany or follow the principal intending immigrant to the United States.

(v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this section, the Department of State consular officer, immigration officer, or immigration judge will determine the sufficiency of the affidavit of support based on the sponsor’s, substitute sponsor’s, or joint sponsor’s reasonably expected household income in the year in which the intending immigrant filed the application for an immigrant visa or for adjustment of status, and based on the evidence submitted with the affidavit of support and the Poverty Guidelines in effect when the intending immigrant filed the application for an immigrant visa or adjustment of status.

(B) If more than one year passes between the filing of an affidavit of support or Form I-864A and the hearing, interview, or examination of the intending immigrant concerning the intending immigrant’s application for an immigrant visa or adjustment of status, and the Department of State officer, immigration officer or immigration judge determines, in the exercise of discretion, that the particular facts of the case make the submission of additional evidence necessary to the proper adjudication of the case, then the Department of State officer, immigration officer or immigration judge may direct the intending immigrant to submit additional evidence. A Department of State officer or immigration officer shall make the request in writing, and provide the intending immigrant not less than 30 days to submit the additional evidence. An immigration judge may direct the intending immigrant to submit additional evidence and also set the deadline for submission of the initial evidence in any manner permitted under subpart C of 8 CFR part 1003 and any local rules of the Immigration Court. If additional evidence is required under this paragraph, an intending immigrant must submit additional evidence (including copies or transcripts of any income tax returns for the most recent tax year) concerning the income or employment of the sponsor, substitute sponsor, joint sponsor, or household member in the year in which the Department of State officer, immigration officer, or immigration judge makes the request for additional evidence. In t his case, the sufficiency of an affidavit of support and any Form I-864A will be determined based on the sponsor’s, substitute sponsor’s, or joint sponsor’s reasonably expected household income in the year the Department of State officer, immigration officer or immigration judge makes the request for additional evidence, and based on the evidence submitted in response to the request for additional evidence and on the Poverty Guidelines in effect when the request for evidence was issued.

(2) (i) Except for cases specified in paragraph (a)(2)(ii) of this section, paragraph (a)(1) of this section applies to any application for an immigrant visa or for adjustment of status filed on or after December 19, 1997, in which an intending immigrant seeks an immigrant visa, admission as an immigrant, or adjustment of status as: (Corrected 12/3/97; 62 FR 64048)

(A) An immediate relative under section 201(b)(2)(A)(i) of the Act, including orphans and any alien admitted as a K nonimmigrant when the alien seeks adjustment of status; (Revised effective 7/21/06; 71 FR 35732)

(B) A family-based immigrant under section 203(a) of the Act; or

(C) An employment-based immigrant under section 203(b) of the Act, if a relative (as defined in 8 CFR 213a.1) of the intending immigrant is a citizen or an alien lawfully admitted for permanent residence who either filed the employment-based immigrant petition or has a significant ownership interest in the entity that filed the immigrant visa petition on behalf of the intending immigrant. An affidavit of support under this section is not required, however, if the relative is a brother or sister of the intending immigrant, unless the brother or sister is a citizen. (Revised effective 7/21/06; 71 FR 35732)

(ii) Paragraph (a)(1) of this section shall not apply if the intending immigrant:

(A) Filed a visa petition on his or her own behalf pursuant to section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or (iii) of the Act, or who seeks to accompany or follow-to-join an immigrant who filed a visa petition on his or his own behalf pursuant to section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or (iii) of the Act; (Amended effective 7/21/06; 71 FR 35732)

(B) Seeks admission as an immigrant on or after December 19, 1997, in a category specified in paragraph (a)(2)(i) of this section with an immigrant visa issued on the basis of an immigrant visa application filed with the Department of State officer before December 19, 1997; (Revised effective 7/21/06; 71 FR 35732)

(C) Establishes, on the basis of the alien’s own Social Security Administration record or those of his or her spouse or parent(s), that he or she has already worked, or under section 213A(a)(3)(B) of the Act, can already be credited with, 40 qualifying quarters of coverage as defined under title II of the Social Security Act, 42 U.S.C. 401, et seq ; (Added effective 7/21/06; 71 FR 35732)

(D) Is a child admitted under section 211(a) of the Act and 8 CFR 211.1(b)(1); or (Added effective 7/21/06; 71 FR 35732)

(E) Is the child of a citizen, if the child is not likely to become a public charge (other than because of the provision of section 212(a)(4)(C) of the Act), and the child’s lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship under section 320 of the Act, as amended. This exception applies to an alien orphan if the citizen parent(s) has (or have) legally adopted the alien orphan before the alien orphan’s acquisition of permanent residence, and if both adoptive parents personally saw and observed the alien orphan before or during the foreign adoption proceeding. An affidavit of support under this part is still required if the citizen parent(s) will adopt the alien orphan in the United States only after the alien orphan’s acquisition of permanent residence. If the citizen parent(s) adopted the alien orphan abroad, but at least one of the adoptive parents did not see and observe the alien orphan before or during the foreign adoption proceeding, then an affidavit of support under this part is still required, unless the citizen parent establishes that, under the law of the State of the alien orphan’s intended residence in the United States, the foreign adoption decree is entitled to recognition without the need for a formal administrative or judicial proceeding in the State of proposed residence. In the case of a child who immigrates as a Convention adoptee, as defined in 8 CFR 204.301, this exception applies if the child was adopted by the petitioner in the Convention country. An affidavit of support under this part is still required in the case of a child who immigrates as a Convention adoptee if the petitioner will adopt the child in the United States only after the child’s acquisition of permanent residence. (Amended effective 11/5/07; 72 FR 56832) (Added effective 7/21/06; 71 FR 35732)

(b) Affidavit of support sponsors. The following individuals must execute Form I-864 on behalf of the intending immigrant in order for the intending immigrant to be found admissible on public charge grounds:

(1) For immediate relatives and family-based immigrants. The person who filed the Form I-130 or Form I-600 immigrant visa petition (or the Form I-129F petition, for a K nonimmigrant seeking adjustment), the approval of which forms the basis of the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or a family-based immigrant, must execute an affidavit of support on behalf of the intending immigrant. If the intending immigrant is the beneficiary of more than one approved immigrant visa petition, it is the person who filed the petition that is actually the basis for the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status who must file an affidavit of support. (Revised effective 7/21/06; 71 FR 35732)

(2) For employment-based immigrants. A relative of an intending immigrant seeking an immigrant visa under section 203(b) of the Act must file an affidavit of support if the relative either filed the immigrant visa petition on behalf of the intending immigrant or owns a significant ownership interest in an entity that filed an immigrant visa petition on behalf of the intending immigrant, but only if the relative is a citizen or an alien lawfully admitted for permanent residence. If the intending immigrant is the beneficiary of more than one relative’s employment-based immigrant visa petition, it is the relative who filed the petition that is actually the basis for the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status who must file the Form I-864. (Revised effective 7/21/06; 71 FR 35732)

(c) Sponsorship requirements. (1)(i) General. A sponsor must be: (Revised effective 7/21/06; 71 FR 35732)

(A) At least 18 years of age;

(B) Domiciled in the United States or any territory or possession of the United States; and

(C)( 1 ) A citizen or an alien lawfully admitted for permanent residence in the case described in paragraph (a)(2)(i) of this section; or

( 2 ) A citizen or national or an alien lawfully admitted for permanent residence if the individual is a substitute sponsor or joint sponsor.

(ii) Determination of domicile. (A) If the sponsor is residing abroad, but only temporarily, the sponsor bears the burden of proving, by a preponderance of the evidence, that the sponsor’s domicile (as that term is defined in 8 CFR 213a.1) remains in the United States, provided, that a permanent resident who is living abroad temporarily is considered to be domiciled in the United States if the permanent resident has applied for and obtained the preservation of residence benefit under section 316(b) or section 317 of the Act, and provided further, that a citizen who is living abroad temporarily is considered to be domiciled in the United States if the citizen’s employment abroad meets the requirements of section 319(b)(1) of the Act.

(B) If the sponsor is not domiciled in the United States, the sponsor can still sign and submit an affidavit of support so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant’s application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant’s application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the pri ncipal intending immigrant’s arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor’s own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor’s withdrawal of the application for admission.

(2) Demonstration of ability to support intending immigrants. In order for the intending immigrant to overcome the public charge ground of inadmissibility, the sponsor must demonstrate the means to maintain the intending immigrant at an annual income of at least 125 percent of the Federal poverty line. If the sponsor is on active duty in the Armed Forces of the United States (other than active duty for training) and the intending immigrant is the sponsor’s spouse or child, the sponsor’s ability to maintain income must equal at least 100 percent of the Federal poverty line.

(i) Proof of income. (A) The sponsor must include with the Form I-864 either a photocopy or an Internal Revenue Service-issued transcript of his or her complete Federal income tax return for the most recent taxable year (counting from the date of the signing, rather than the filing, of the Form I-864). However, the sponsor may, at his or her option, submit tax returns for the three most recent years if the sponsor believes that these additional tax returns may help in establishing the sponsor’s ability to maintain his or her income at the applicable threshold set forth in Form I-864P, Poverty Guidelines. Along with each transcript or photocopy, the sponsor must also submit as initial evidence copies of all schedules filed with each return and (if the sponsor submits a photocopy, rather than an IRS transcript of the tax return(s)) all Forms W-2 (if the sponsor relies on income from employment) and Forms 1099 (if the sponsor relies on income from sources documented on Forms 1099) in meeting the income threshold. The sponsor may also include as initial evidence: Letter(s) evidencing his or her current employment and income, paycheck stub(s) (showing earnings for the most recent six months, financial statements, or other evidence of the sponsor’s anticipated household income for the year in which the intending immigrant files the application for an immigrant visa or adjustment of status. By executing Form I-864, the sponsor certifies under penalty of perjury under United States law that the evidence of his or her current household in come is true and correct and that each transcript or photocopy of each income tax return is a true and correct transcript or photocopy of the return that the sponsor filed with the Internal Revenue Service for that taxable year.

(B) If the sponsor had no legal duty to file a Federal income tax return for the most recent tax year, the sponsor must explain why he or she had no legal duty to a file a Federal income tax return for that year. If the sponsor claims he or she had no legal duty to file for any reason other than the level of the sponsor’s income for that year, the initial evidence submitted with the Form I-864 must also include any evidence of the amount and source of the income that the sponsor claims was exempt from taxation and a copy of the provisions of any statute, treaty, or regulation that supports the claim that he or she had no duty to file an income tax return with respect to that income. If the sponsor had no legal obligation to file a Federal income tax return, he or she may submit other evidence of annual income. The fact that a sponsor had no duty to file a Federal income tax return does not relieve the sponsor of the duty to file Form I-864.

(C)(1) The sponsor’s ability to meet the income requirement will be determined based on the sponsor’s household income. In establishing the household income, the sponsor may rely entirely on his or her personal income, if it is sufficient to meet the income requirement. The sponsor may also rely on the income of the sponsor’s spouse and of any other person included in determining the sponsor’s household size, if the spouse or other person is at least 18 years old and has completed and signed an affidavit of support. A per son does not need to be a U.S. citizen, national, or alien lawfully admitted for permanent residence in order to sign an affidavit of support.

(2) Each individual who signs Form I-864A agrees, in consideration of the sponsor’s signing of the Form I-864, to provide to the sponsor as much financial assistance as may be necessary to enable the sponsor to maintain the intending immigrants at the annual income level required by section 213A(a)(1)(A) of the Act, to be jointly and severally liable for any reimbursement obligation that the sponsor may incur, and to submit to the personal jurisdiction of any court that has subject matter jurisdiction over a civil suit to enforce the contract or the affidavit of support. The sponsor, as a party to the contract, may bring suit to enforce the contract. The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.

(3) If there is no spouse or child immigrating with the intending immigrant, then there will be no need for the intending immigrant to sign an affidavit of support, even if the sponsor will rely on the continuing income of the intending immigrant to meet the income requirement. If, however, the sponsor seeks to rely on an intending immigrant’s continuing income to establish the sponsor’s ability to support the intending immigrant’s spouse or children, then the intending immigrant whose income is to be relied on must sign the Form I-864A.

(4) If the sponsor relies on the income of any individual who has signed Form I-864A, the sponsor must also include with the Form I-864 and Form I-864A, with respect to the person who signed the Form I-864A, the initial evidence required under paragraph (c)(2)(i)(A) of this section. The household member’s tax return(s) must be for the same tax year as the sponsor’s tax return(s). An individual who signs Form I-864A certifies, under penalty of perjury, that the submitted transcript or photocopy of the tax return is a true and correct transcript or photocopy of the Federal income tax return filed with the Internal Revenue Service, and that the information concerning that person’s employment and income is true and correct.

(5) If the person who signs the Form I-864A is not an intending immigrant, and is any person other than the sponsor’s spouse or a claimed dependent of the sponsor, the sponsor must also attach proof that the person is a relative (as defined in 8 CFR 213a.1) of the sponsor and that the Form I-864A signer has the same principal residence as the sponsor. If an intending immigrant signs an affidavit of supportA, the sponsor must also provide proof that the sponsored immigrant has the same principal residence as the sponsor, unless the sponsored immigrant is the sponsor’s spouse.

(D) Effect of failure to file income tax returns. If a sponsor, substitute sponsor, joint sponsor, or household member did not file a Federal income tax return for the year for which a transcript or photocopy must be provided, the Form I-864 or Form I-864A will not be considered sufficient to satisfy the requirements of section 213A of the Act, even if the household income meets the requirements of section 213A of the Act, unless the sponsor, substitute sponsor, joint sponsor, or household member proves, by a preponderance of the evidence, that he or she had no duty to file. If the sponsor, substitute sponsor, joint sponsor or household member cannot prove that he or she had no duty to file, then the Form I-864 or Form I-864A will not be considered sufficient to satisfy the requirements of section 213A of the Act until the sponsor, substitute sponsor, joint sponsor, or household member proves that he or she has satisfied the obligation to file the tax return and provides a transcript or copy of the return.

(ii) Determining the sufficiency of an affidavit of support. The sufficiency of an affidavit of support shall be determined in accordance with this paragraph.

(A) Income. The sponsor must first calculate the total income attributable to the sponsor under paragraph (c)(2)(i)(C) of this section for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status.

(B) Number of persons to be supported. The sponsor must then determine his or her household size as defined in 8 CFR 213a.1.

(C) Sufficiency of income. Except as provided in this paragraph, or in paragraph (a)(1)(v)(B) of this section, the sponsor’s affidavit of support shall be considered sufficient to satisfy the requirements of section 213A of the Act and this section if the reasonably expected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status, calculated under paragraph (c)(2)(iii)(A) of this section, would equal at least 125 percent of the Federal poverty line for the sponsor’s household size as defined in 8 CFR 213a.1 under the Poverty Guidelines in effect when the intending immigrant filed the application for an immigrant visa or for adjustment of status, except that the sponsor’s income need only equal at least 100 percent of the Federal poverty line for the sponsor’s household size, if the sponsor is on active duty (other than for training) in the Armed Forces of the United States and the intending immigrant is the sponsor’s spouse or child. The sponsor’s household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status shall be given the greatest evidentiary weight; any tax return and other information relating to the sponsor’s financial history will serve as evidence tending to show whether the sponsor is likely to be able to maintain his or her income in the future. If the projected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status meets the applicable income threshold, the affidavit of support may be held to be insufficient on the basis of the household income but only if, on the basis of specific facts, including a material change in employment or income history of the sponsor, substitute sponsor, joint sponsor or household member, the number of aliens included in Forms I-864 that the sponsor has signed but that have not yet entered into force in accordance with paragraph (e) of this section, or other relevant facts, it is reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligations.

(iii) Inability to meet income requirement. (A) If the sponsor is unable to meet the minimum income requirement in paragraph (c)(2)(iii) of this section, the intending immigrant is inadmissible under section 212(a)(4) of the Act unless:

(1) The sponsor, the intending immigrant or both, can meet the significant assets provision of paragraph (c)(2)(iv)(B) of this section; or

(2) A joint sponsor executes a separate Form I-864.

(B) Significant assets. The sponsor may submit evidence of the sponsor’s ownership of significant assets, such as savings accounts, stocks, bonds, certificates of deposit, real estate, or other assets. An intending immigrant may submit evidence of the intending immigrant’s assets as a part of the affidavit of support, even if the intending immigrant is not required to sign an affidavit of support. The assets of any person who has signed an affidavit of support may also be considered in determining whether the assets are sufficient to meet this requirement. To qualify as “significant assets” the combined cash value of all the assets (the total value of the assets less any offsetting liabilities) must exceed:

(1) If the intending immigrant is the spouse or child of a United States citizen (and the child has reached his or her 18th birthday), three times the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section);

(2) If the intending immigrant is an alien orphan who will be adopted in the United States after the alien orphan acquires permanent residence (or in whose case the parents will need to seek a formal recognition of a foreign adoption under the law of the State of the intending immigrant’s proposed residence because at least one of the parents did not see the child before or during the adoption), and who will, as a result of the adoption or formal recognition of the foreign adoption, acquire citizenship under section 320 of the Act, the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section);

(3) In all other cases, five times the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section).

(C) Joint sponsor. A joint sponsor must execute a separate affidavit of support on behalf of the intending immigrant(s) and be willing to accept joint and several liability with the sponsor or substitute sponsor. A joint sponsor must meet all the eligibility requirements under paragraph (c)(1) of this section, except that the joint sponsor is not required to file a visa petition on behalf of the intending immigrant. The joint sponsor must demonstrate his or her ability to support the intending immigrant in the manner specified in paragraph (c)(2) of this section. A joint sponsor’s household income must meet or exceed the income requirement in paragraph (c)(2)(iii) of this section unless the joint sponsor can demonstrate significant assets as provided in paragraph (c)(2)(iv)(A) of this section. The joint sponsor’s household income must equal at least 125 percent of the Poverty Guidelines for the joint sponsor’s household size, unless the joint sponsor is on active duty in the Armed Forces and the intending immigrant is the joint sponsor’s spouse or child, in which case the joint sponsor’s household income is sufficient if it equals at least 100 percent of the Poverty Guidelines for the joint sponsor’s household size. An intending immigrant may not have more than one joint sponsor, but, if the joint sponsor’s household income is not sufficient to meet the income requirement with respect to the principal intending immigrant, any spouse and all the children who, under section 203(d) of the Act, seek to accompany the principal intending immigrant, then the joint sponsor may specify on the affidavit that it is submitted only on behalf of the principal intending immigrant and those accompanying family members specifically listed on the affidavit. The remaining accompanying family members will then be inadmissible under section 212(a)(4) of the Act unless a second joint sponsor submits an affidavit(s) on behalf of all the remaining family members who seek to accompany the principal intending immigrant and who are not included in the first joint sponsor’s affidavit. There may not be more than two joint sponsors for the family group consisting of the principal intending immigrant and the accompanying spouse and children.

(D) Substitute sponsor. In a family-sponsored case, if the visa petitioner dies after approval of the visa petition, but the U.S. Citizenship and Immigration Services determines, under 8 CFR 205.1(a)(3)(i)(C), that for humanitarian reasons it would not be appropriate to revoke approval of the visa petition, then a substitute sponsor, as defined in 8 CFR 213a.1, may sign the Form I-864. The substitute sponsor must meet all the requirements of this section that would have applied to the visa petitioner, had the visa petitioner survived and been the sponsor. The substitute sponsor’s household income must equal at least 125% of the Poverty Guidelines for the substitute sponsor’s household size, unless the intending immigrant is the substitute sponsor’s spouse or child and the substitute sponsor is on active duty in the Armed Forces (other than active duty for training), in which case the substitute sponsor’s household income is sufficient if it equals at least 100% of the Poverty Guidelines for the substitute sponsor’s household size. If the substitute sponsor’s household income is not sufficient to meet the requirements of section 213A(a)(f)(1)(E) of the Act and paragraph (c)(2) of this section, the alien will be inadmissible unless a joint sponsor signs an affidavit of support.

(iv) Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

(v) Verification of employment, income, and assets. The Federal Government may pursue verification of any information provided on or with Form I-864, including information on employment, income, or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration. To facilitate this verification process, the sponsor, joint sponsor, substitute sponsor, or household member must sign and submit any necessary waiver form when directed to do so by the immigration officer, immigration judge, or Department of State officer who has jurisdiction to adjudicate the case to which the Form I-864 or I-864A relates. A sponsor’s, substitute sponsor’s, joint sponsor’s, or household member’s failure or refusal to sign any waiver needed to verify the information when directed to do so constitutes a withdrawal of the Form I-864 or I-864A, so that, in adjudicating the intending immigrant’s application for an immigrant visa or adjustment of status, the Form I-864 or Form I-864A will be deemed not to have been filed.

(vi) Effect of fraud or material concealment or misrepresentation. an affidavit of support or Form I-864A is insufficient to satisfy the requirements of section 213A of the Act and this part, and the affidavit of support shall be found insufficient to establish that the intending immigrant is not likely to become a public charge, if the Department of State officer, immigration officer or immigration judge finds that Form I-864 or Form I-864A is forged, counterfeited, or otherwise falsely executed, or if the Form I-864 or Form I-864A conceals or misrepresents facts concerning household size, household income, employment history, or any other material fact. Any person who knowingly participated in the forgery, counterfeiting, or false production of an affidavit of support or Form I-864A, or in any concealment or misrepresentation of any material fact, may be subject to a civil penalty under section 274C of the Act, to criminal prosecution, or to both, to the extent permitted by law. If the person is an alien, the person may also be subject to removal from the United States.

(d) Legal effect of affidavit of support. Execution of an affidavit of support under this section creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local governmental agency or private entity that administers any means-tested public benefits program. The sponsored immigrant, or any Federal, State, or local governmental agency or private entity that provides any means-tested public benefit to the sponsored immigrant after the sponsored immigrant acquires permanent resident status, may seek enforcement of the sponsor’s obligations through an appropriate civil action.

(e) Commencement and termination of support obligation. (1) With respect to any intending immigrant, the support obligation and change of address obligation imposed on a sponsor, substitute sponsor, or joint sponsor under Form I-864, and any household member’s support obligation under Form I-864A, all begin when the immigration officer or the immigration judge grants the intending immigrant’s application for admission as an immigrant or for adjustment of status on the basis of an application for admission or adjustment that included the Form I-864 or Form I-86 4A. Any person completing and submitting an affidavit of support as a joint sponsor or an affidavit of support as a household member is not bound to any obligations under section 213A of the Act if, notwithstanding his or her signing of an affidavit of support or Form I-864A, the Department of State officer (in deciding an application for an immigrant visa) or the immigration officer or immigration judge (in deciding an application for admission or adjustment of status) includes in the decision a specific finding that the sponsor or substitute sponsor’s own household income is sufficient to meet the income requirements under section 213A of the Act. (Paragraph (e) revised effective 7/21/06; 71 FR 35732)

(2)(i) The support obligation and the change of address reporting requirement imposed on a sponsor, substitute sponsor and joint sponsor under Form I-864, and any household member’s support obligation under Form I-864A, all terminate by operation of law when the sponsored immigrant:

(A) Becomes a citizen of the United States;

(B) Has worked, or can be credited with, 40 qualifying quarters of coverage under title II of the Social Security Act, 42 U.S.C. 401, et seq., provided that the sponsored immigrant is not credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives or received any Federal means-tested public benefit;

(C) Ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States (if the sponsored immigrant has not filed USCIS Form I-407, Abandonment of Lawful Permanent Resident Status, this provision will apply only if the sponsored immigrant is found in a removal proceeding to have abandoned that status while abroad);

(D) Obtains in a removal proceeding a new grant of adjustment of status as relief from removal (in this case, if the sponsored immigrant is still subject to the affidavit of support requirement under this part, then any individual(s) who signed the Form I-864 or I-864A in relation to the new adjustment application will be subject to the obligations of this part, rather than those who signed an affidavit of support or I-864A in relation to an earlier grant of admission as an immigrant or of adjustment of status); or

(E) Dies.

(ii) The support obligation under Form I-864 also terminates if the sponsor, substitute sponsor or joint sponsor dies. A household member’s obligation under Form I-864A terminates when the household member dies. The death of one person who had a support obligation under an affidavit of support or Form I-864A does not terminate the support obligation of any other sponsor, substitute sponsor, joint sponsor, or household member with respect to the same sponsored immigrant.

(3) The termination of the sponsor’s, substitute sponsor’s, or joint sponsor’s obligations under Form I-864 or of a household member’s obligations under Form I-864A does not relieve the sponsor, substitute sponsor, joint sponsor, or household member (or their respective estates) of any reimbursement obligation under section 213A(b) of the Act and this section that accrued before the support obligation terminated.

(f) Withdrawal of Form I-864 or Form I-864A. (1) In an immigrant visa case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to a Department of State officer, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member if he or she does so in writing and submits the document to the Department of State officer before the actual issuance of an immigrant visa to the intending immigrant. Once the intending immigrant has obtained an immigrant visa, a sponsor, substitute sponsor, joint sponsor, or household member cannot disavow his or her agreement to act as a sponsor, joint sponsor, or household member unless the person or entity who filed the visa petition withdraws the visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A)or 8 CFR 205.1(a)(3)(iii)(C), and also notifies the Department of State officer who issued the visa of the withdrawal of the petition.

(2) In an adjustment of status case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to an immigration officer or immigration judge, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member only if he or she does so in writing and submits the document to the immigration officer or immigration judge before the decision on the adjustment application.

(g) Aliens who accompany or follow-to-join a principal intending immigrant. (1) To avoid inadmissibility under section 212(a)(4) of the Act, an alien who applies for an immigrant visa, admission, or adjustment of status as an alien who is accompanying, as defined in 22 CFR 40.1, a principal intending immigrant must submit clear and true photocopies of the signed Form(s) I-864 (and any Form(s) I-864A) filed on behalf of the principal intending immigrant. (Paragraph (g) added effective 7/21/06; 71 FR 35732)

(2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, an alien who applies for an immigrant visa, admission, or adjustment of status as an alien who is following-to-join a principal intending immigrant must submit a new affidavit of support, together with all documents or other evidence necessary to prove that the new affidavits comply with the requirements of section 213A of the Act and 8 CFR part 213a.

(ii) When paragraph (g)(2)(i) of this section requires the filing of a new affidavit for an alien who seeks to follow-to-join a principal sponsored immigrant, the same sponsor who filed the visa petition and affidavit of support for the principal sponsored immigrant must file the new affidavit on behalf of the alien seeking to follow-to-join. If that person has died, then the alien seeking to follow-to-join is inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1, signs a new affidavit that meets the requirements of this section. Persons other than the person or persons who signed the original joint affidavit on behalf of an lien who seeks to follow-to-join a principal sponsored immigrant.

(iii) If a joint sponsor is needed in the case of an alien who seeks to follow-to-join a principal sponsored immigrant, and the principal sponsored immigrant also required a joint sponsor when the principal sponsored immigrant immigrated, that same person may, but is not required to be, the joint sponsor for the alien who seeks to follow-to-join the principal sponsored immigrant.

Posted in Adjustment of Status, Affidavit of Support I-864, I-864P, Poverty Guidelines | Tagged , | Leave a comment

Update: New Illinois Temporary Visitor Driver’s License (TVDL)

Posted on October 26, 2013 by Mike Baker

On January 27, 2013, the governor signed Senate Bill 957 into law allowing non-visa status individuals to obtain a temporary visitor driver’s license (TVDL). In December 2013, non-visa status applicants will begin the process of obtaining a TVDL. Appointments are required. Please review the required documents in the links provided prior to your appointment.

The Secretary of State’s Office will begin accepting appointments for the Temporary Visitors Driver’s License (TVDL) in the middle of November. Please check back for updated information.

What requirements will applicants need to meet to get a TVDL?

To qualify for a TVDL, an undocumented immigrant must

  • Prove that she has lived in Illinois for at least one year;
  • Provide a valid unexpired passport or consular ID;
  • Provide other proof of her identity and residency that the Secretary of State might require;
  • Provide documentation that she is not eligible for a Social Security Number;
  • Pass all applicable vision, written, and road tests;
  • Show proof of insurance for the vehicle she uses for the road test;
  • Pay a $30 fee.

What will the application process be?

1st step (making the appointment):

Applicants will need to request an appointment at one of 25 Secretary of State facilities by going online at www.cyberdriveillinois.com or by calling a toll free number which will be announced in November.

The TVDL applications will be made available at 25 facilities throughout the state. 13 will be in the city of Chicago and 12 will be in downstate Illinois.

2nd step (day of appointment):

Applicants will check-in at the facility at their scheduled appointment time. A Secretary of State employee will check the applicant’s documents. The applicant will take the vision test, pay the fee, take the written test and road test, and sign the application form which will be scanned. The applicant’s picture and signature will be taken.

Applicants will not receive their TVDL on the day of the appointment.

3rd step (receiving the card):

The card will be mailed to the applicant after the application information has been verified. Most applicants should receive their TVDL within 15-20 business days.

If the application is not approved, the applicant will receive a denial letter. The letter will include a telephone number to call to so that the applicant can learn how to resolve the problem and apply again.

Will the Secretary of State still be checking my driving record?

The Secretary of State will be checking an applicant’s previous driving record.

Anyone who gave false information to the Secretary of State on a previous license or ID application must serve a one year suspension before he or she can be eligible to receive a TVDL.

What is the process for serving the suspension?

Individuals who gave false information to the Secretary of State on a previous license application will have a hearing at the Secretary of State. At a minimum, the individual will have to serve a one year suspension period. The suspension period will begin the date the individual comes forward and has the hearing with the Secretary of State.

What is the renewal process?

There will be no renewals by mail or online. TVDL holders will need to make an appointment to re-apply for a new TVDL up to 90 days prior to the expiration date.

Where will applicants be able to apply?

The Secretary of State intends to make TVDL applications available at most of its facilities. (Currently TVDLs are available at only certain facilities.)

Will applicants get a TVDL the same day as they apply?

No. The Secretary of State will need to review and verify the documents that get submitted with the application. SoS will then issue the TVDL from a central facility and send it to the applicant by mail.

Will the Secretary of State have enough resources to implement this law?

The Secretary of State estimates that its first-year costs to implement TVDLs would be approximately $800,000. SoS will therefore have enough money to pay for TVDLs if as few as 30,000 individuals apply (out of potentially 250,000), each paying $30 each.

Is the TVDL valid as proof of identity?

No—and as a result, the TVDL cannot be used for voting, getting a firearms identification card, boarding an airplane, or entering a federal building. However, hospitals, first responders, and others could still use the TVDL as a document to indicate the person’s name and address. TVDL holders could still provide passports and consular identification cards as proof of identity.

Could the TVDL be used as a bond card?

Yes. Drivers with TVDLs can produce the card as bond during a traffic stop, just as drivers with regular licenses can. They would get ticketed rather than being arrested (because they cannot produce bond) and ending up in the criminal justice and immigration enforcement pipeline. Police time and jail space will no longer be taken up with so many motorists who are arrested for driving without a license.

What happens if someone with a TVDL drives without insurance?

TVDL holders will be subject to all provisions of the Vehicle Code, including those requiring insurance coverage. In fact, anyone applying for any license, including a TVDL, must prove that the vehicle she is using for her road test is insured. Finally, if someone with a TVDL is stopped and cannot show proof of insurance, the TVDL becomes invalid, and the motorist can be ticketed for driving without a license.

If someone with a TVDL is stopped, will law enforcement know that the person is undocumented?

TVDLs will be available to both visa holders and undocumented immigrants, so law enforcement officers cannot assume that anyone with a TVDL is undocumented.

Does the TVDL grant any status to undocumented immigrants?

Immigration status is a matter of federal law. TVDLs issued under state law cannot convey any immigration status. TVDLs would do nothing more than enable undocumented immigrants to comply with our state’s traffic laws.

What is a Temporary Visitor Driver’s Licenses (TVDL)?

The TVDL is an existing document that is now available to many foreign-born individuals living in Illinois. Since 2005, Illinois has issued TVDLs to individuals who do not have SSNs but who have lawful immigration status. Such individuals include foreign students, spouses and children of temporary workers, long-term visitors, and others who are not authorized to work under our immigration laws. Many of these individuals still need to drive on a regular basis to get to classes, shop, take their children to school, or attend to other family and personal business. SB 957 makes TVDLs available to undocumented motorists who also need to drive for these purposes.

TVDLs are visually distinct from regular licenses: TVDLs current use a purple color scheme, as opposed to the red scheme used for regular licenses. TVDLs are also clearly marked as “not valid for identification.”

Why TVDLs instead of regular licenses?

The federal REAL ID Act requires that states can issue regular driver’s licenses only to those individuals with lawful immigration status. Because they are visually distinct from regular licenses and are marked as not valid for identification, TVDLs already comply with REAL ID while still enabling undocumented immigrants to drive legally.

Posted in Temporary Visitor Driver’s License, TVDL, Update: Temporary Visitor Driver’s License Illinois | Tagged | Leave a comment