Category: Waivers of Inadmissibility

Waivers of Misrepresentation under the Immigration and Naturalization Act

I have represented several individuals, both before the Service and immigration courts, who were inadmissible for a material misrepresentation under the Immigration and Naturalization Act (INA). The typical problem involves a situation where a person was applying for a visitor’s visa, says that he/she is married when she is not, and now is applying for permanent residence based on a marriage petition. During the adjustment of status interview, the misrepresentation is discovered and the application is denied or put on hold to allow the client to apply for a waiver. In some cases the client is even placed in removal proceedings after the application is denied under Section 237(a)(1)(A) of the Act.

The good thing about these charges, if you were before the Service, is that you can apply for a waiver of the ground of inadmissibility under INA 212(i). The waiver allows the Attorney General to waive the ground of inadmissibility if the alien’s removal would lead to extreme hardship to the alien’s US citizen child or spouse. In the case of a VAWA applicant, the immigrant would qualify for the waiver if the removal would lead to personal hardship.

I have represented several clients in removal proceedings who were placed there for one reason or another. The government bears the burden of proving removability in removal proceedings. The immigrant’s chances of success in both instances depend on the availability of a qualifying relative to show hardship and the evidence that the Service possesses to prove the misrepresentation. I have always tell people, these are very complicated cases and no one should attempt to apply on their own (without an attorney).

Please let me know if you have any questions. Also, feel free to add me on Linkedin, Google+, twitter, or leave a comment using the form below.

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Fifth Circuit Rules that VAWA Does Not Trump K-1 Bar

The Fifth Circuit ruled last week that the approval of a VAWA petition does not trump the K visa bar. Le v. US Atty Gen. Under the Act, a person who enters the United States as a fiancé may not adjust her status except through marriage to the Petitioner. Le came the United States pursuant to a K-1 fiancé visa. The petitioner was already married and she could not marry him. She subsequently met a United States citizen who was abusive. She petitioned for a VAWA self petition which was approved. She subsequently filed for adjustment of status, which was denied by the District Director and she was placed in proceedings. While in proceedings she argued that she was eligible for adjustment of status or cancellation of removal. The IJ denied her requests since she entered as a K-1 visa holder and the BIA upheld.
Upon review before the Fifth Circuit, Le argued that her status can be adjusted since her approved VAWA petition trumped the K-1 bar. the court refused to follow such reasoning since, as it opined, the statute does not have such exception for VAWA self-petitioners and it could not breathe in such exception when the statutory language does not contain it.
Unfortunately for Ms. Le, the odds were stacked against her and she could not have won the case. VAWA allows an illegal immigrant to adjust her status if she proves that she was subjected to abuse, because the law waives such illegal entry but does not waive the K-1 bar. I wonder if she will petition for certiorari review.


Motions to Reopen Removal Proceedings Under Vartelas

Congress passed an overhaul of immigration law in 1996. These changes became known as IIRIRA, short for the Illegal Immigration Reform and Immigration Reform Act of 1996. One of the most important changes in that law was the changes in relief available for lawful permanent residents. One of the most prevalent forms of relief before the law was the availability of the INA 212(c) waiver, a form of relief that waived almost all forms of criminal convictions. The Supreme Court ruled in INS v. St. Cyr that the relief was retroactive, in other words it was still available for aliens who entered into criminal pleas before 1996, relying on the availability for that form of relief in immigration court. Another change was the change in the definition of “admission” under the Act. 

In  Vartelas , the main issue was whether the pre-IIRIRA definition of “admission” still applied to lawful permanent residents with pre-IIRIRA  convictions, when returning from a casual trip abroad. Vartelas  was a permanent resident who was classified as seeking admission after his return to the United States from a short trip abroad, because of a 1994 conviction. Vartelas  argued that the definition of “admission” under IIRIRA did not apply to him and the pre-IIRIRA definition should apply. Pre-IIRIRA, courts used the Fleuti doctrine, where a lawful permanent resident returning from a casual trip abroad was not classified as an applicant for admission.  In ruling that Vartelas  was not an applicant for admission, the Supreme Court ruled that the Fleuti doctrine was applicable to Vartelas’  case since IIRIRA’s definition of admission was not retroactive. Thus, the court reversed the removal order and remanded the case to the circuit court. 
The case can be used to reopen removal proceedings where the IIRIRA definition of “admission” was applied to cases where the alien pleaded guilty to a criminal charge before IIRIRA. The case should be reopened at the last court which had administrative control. You should contact an experienced immigration attorney to help you reopen your removal case if you believe that the case could help you.