My office was hired in mid 2011 to pursue a motion to reopen (MTR) before the Immigration Court, by a citizen an national of Kenya who had been ordered to voluntarily depart the United States by an Immigration Judge in May of 2011. Our MTR highlighted certain "changed circumstances" and conditions in Kenya which we believed warranted reopening.
Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial. Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.
In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.
We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter). We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.
On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons. That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.
Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.
Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous. Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.
Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period. All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.
The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.
We are respectful of OIL's thoughtfulness and professionalism in this complex case.
By: Duane M. Hamilton, Esq.
Thursday, July 17, 2014
Wednesday, July 9, 2014
ANOTHER KENYAN I-601 WAIVER SUCCESS STORY AND THE CONCEPT OF "EXTREME HARDSHIP"
Innocent errors or omissions on non-immigrant visa applications to the United States can sometimes lead to incredibly serious consequences later in an alien's attempt to adjust his or her status to Lawful Permanent Residence (LPR) in the United States. So it was for a client of mine from Kenya who I have had the privilege of representing since January 2013.
The case was to be a straightforward adjustment before USCIS where the alien is married to a US Citizen (USC) and is immigrating on that basis. However, a wrinkle developed after the interview wherein we were notified that USCIS believed that the alien had made a fraudulent representation on the visa application. We found however that what was alleged to have been a fraudulent misrepresentation, was nothing more than the alien's innocent failure to update the visa application at the visa interview, with new and relevant information which had come to pass after the visa application had been filed, but before such visa interview.
Nevertheless, we were forced to file an I-601 waiver application and relevant documentation in support of that application in an attempt to waive the alleged visa fraud. In this process we are required to demonstrate that the removal of the alien would cause "extreme hardship" to the USC spouse. The term "extreme hardship" is subject to the discretionary interpretation of the adjudicator on a case by case basis. However, 8 C.F.R. 1240.58 lists 14 factors to examine in the analysis of whether the alien has demonstrated such hardship as follows:
1. The age of the alien, both at the time of entry to the United States and at the time of application;
2. The age, number and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
3. The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4. The alien's ability to obtain employment in the country to which the alien would be returned;
5. The alien's length of residence in the United States;
6. The existence of other family members who are or will be legally residing in the United States;
7. The financial impact of the alien's departure;
8. The impact of a disruption to educational opportunities;
9. The psychological impact of the alien's deportation;
10.The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent residence status.
This list is by no means exhaustive and there may be other factors which are peculiar to a family or couple and their circumstances which might well qualify the alien for the waiver. However, "extreme hardship" is thought to be something beyond the common inconveniences or hardships normally associated with deportation, and economic hardships alone are usually insufficient to qualify the alien for the waiver. A combination of hardships however, in aggregate, could well warrant approval. It is also wise to pay particular attention to what the USC family member would suffer if the alien is deported.
In our case there were unique hardships which were revealed to both the alien and USC spouse, which were able to successfully articulate in the waiver application and its attachments, and which we felt would be persuasive.
On July 7, 2014, my office was advised by e-mail that the 601 waiver and adjustment of status had been approved. The client should be receiving formal approval notices and the green card in a matter of weeks.
Congratulations to this client and gratitude as always, to USCIS.
By: Duane M. Hamilton
The case was to be a straightforward adjustment before USCIS where the alien is married to a US Citizen (USC) and is immigrating on that basis. However, a wrinkle developed after the interview wherein we were notified that USCIS believed that the alien had made a fraudulent representation on the visa application. We found however that what was alleged to have been a fraudulent misrepresentation, was nothing more than the alien's innocent failure to update the visa application at the visa interview, with new and relevant information which had come to pass after the visa application had been filed, but before such visa interview.
Nevertheless, we were forced to file an I-601 waiver application and relevant documentation in support of that application in an attempt to waive the alleged visa fraud. In this process we are required to demonstrate that the removal of the alien would cause "extreme hardship" to the USC spouse. The term "extreme hardship" is subject to the discretionary interpretation of the adjudicator on a case by case basis. However, 8 C.F.R. 1240.58 lists 14 factors to examine in the analysis of whether the alien has demonstrated such hardship as follows:
1. The age of the alien, both at the time of entry to the United States and at the time of application;
2. The age, number and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
3. The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4. The alien's ability to obtain employment in the country to which the alien would be returned;
5. The alien's length of residence in the United States;
6. The existence of other family members who are or will be legally residing in the United States;
7. The financial impact of the alien's departure;
8. The impact of a disruption to educational opportunities;
9. The psychological impact of the alien's deportation;
10.The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent residence status.
This list is by no means exhaustive and there may be other factors which are peculiar to a family or couple and their circumstances which might well qualify the alien for the waiver. However, "extreme hardship" is thought to be something beyond the common inconveniences or hardships normally associated with deportation, and economic hardships alone are usually insufficient to qualify the alien for the waiver. A combination of hardships however, in aggregate, could well warrant approval. It is also wise to pay particular attention to what the USC family member would suffer if the alien is deported.
In our case there were unique hardships which were revealed to both the alien and USC spouse, which were able to successfully articulate in the waiver application and its attachments, and which we felt would be persuasive.
On July 7, 2014, my office was advised by e-mail that the 601 waiver and adjustment of status had been approved. The client should be receiving formal approval notices and the green card in a matter of weeks.
Congratulations to this client and gratitude as always, to USCIS.
By: Duane M. Hamilton
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