Resources on Ground of Inadmissibility and Deportability

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USCIS and the BIA have failed to articulate an official or even consistent interpretation of whether the three- or ten-year period for the unlawful presence grounds must be spent outside the United States after it has been triggered by a departure. This article attempts to spell out the arguments and summarize the current decisions.

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Based on updates to the USCIS Policy Manual, issued on April 24, 2020, you can no longer look to USCIS guidance to support the argument that unintentional false claims do not trigger admissibility.

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Under new Department of Homeland Security and Department of State regulations, having health insurance is a positive factor in determining whether an adjustment of status or immigrant visa applicant is likely to become a public charge. This resource reviews the types of health insurance that may be available to intending immigrants, how each type of insurance is viewed by DHS and DOS, and the types of documentation that must be submitted to show enrollment or future enrollment in a health insurance policy.

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In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the attorney general held that two or more convictions for driving under the influence during the qualifying time period presumptively bar an applicant for non-lawful permanent resident cancellation of removal from proving good moral character under section § 101(f) of the Immigration and Nationality Act.

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For several grounds of crime-based inadmissibility and deportability, the sentence imposed is part of the determination of whether the ground applies. For example, to be deportable for an aggravated felony theft offense, the noncitizen must have been sentenced to a term of imprisonment of at least one year. And to be eligible for the petty offense exception to inadmissibility for a crime involving moral turpitude, the crime must be punishable by no more than one year and any sentence imposed cannot exceed six months of incarceration. In situations where the sentence imposed is a component o

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Both the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) took major steps in 2018 to alter the assessment of the public charge ground of inadmissibility.  This FAQ addresses common issues of concern for intending immigrants regarding recent changes to the Foreign Affairs Manual (FAM) and proposed changes to the public charge regulations.

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Clients who sign applications for immigration benefits without fully understanding the details of what they are claiming could be putting their status at risk. Read more to learn about the BIA’s ruling on these types of cases.

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After the State Department modified the language in the Foreign Affairs Manual (FAM) regarding the public charge ground of inadmissibility, some consulates began taking a harder look at low income applicants’ eligibility for an immigrant visa. In particular, some consulates rejected affidavits of support filed by joint sponsor who were not family members. They also issued refusals based on a formal finding of public charge when they should have simply requested additional supporting documentation.

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On Saturday, DHS posted on its website the text of its much-anticipated proposed rule re-defining public charge.

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The Board of Immigration Appeals, or BIA, recently decided in Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018), that the respondent had provided “material support” to a terrorist organization under INA § 212(a)(3)(B)(iv)(VI), even though the amount of support provided was “de minimis.”

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The State Department’s new “90-Day” rule is now referenced in the U.S. Citizenship and Immigration Services Policy Manual section on fraud and misrepresentation.

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The Supreme Court decided Sessions v. Dimaya on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

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With no fanfare and little public notice, the Department of State (DOS) has amended the Foreign Affairs manual (FAM) to increase the burden of satisfying the public charge ground of inadmissibility for both immigrant and nonimmigrant visa applicants.

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Under INA Sec. 212(a)(6)(A)(i), persons who are present in the United States “without admission or parole” are inadmissible; this section of the law is what makes those individuals who entered without inspection, or “EWI”, inadmissible. By its express terms, however, the statute does not apply to certain battered women and children who can show a substantial connection between the battery or extreme cruelty they suffered and their unlawful entry into the United States.

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On Oct. 13, 2017, the Board of Immigration Appeals (BIA) issued its latest decision on eligibility for waivers of crime-based inadmissibility pursuant to INA § 212(h) in Matter of Vella, 27 I&N Dec. 138 (BIA 2017). While the issue on appeal in Vella is fairly narrow, this decision provides a useful opportunity to review some of the quirks of eligibility for 212(h) waivers.

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Recently the Board of Immigration Appeals (“BIA”) issued a decision in Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) where it analyzed two immigration sections of the INA – inadmissibility pursuant to INA 212(a)(3)(E)(iii)(II (an alien who assisted or otherwise participated in extrajudicial killing) and inadmissibility pursuant to INA 212(a)(6)(C)(i) (an alien who was inadmissible at the time of entry because of fraud or willful misrepresentation of a material fact).

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Effective September 2017, the DOS has replaced the 30/60 day rule with a new standard that is likely to subject more individuals to a presumption of misrepresentation.

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The Department of State recently issued its annual report of “ineligibility findings” relating to immigrant and nonimmigrant visa applications in Fiscal Year 2016.

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This article covers the review and adjudication of the affidavit of support by United States Citizenship and Immigration Services and the State Department. Each agency applies a slightly different procedure, as seen in an “assessment letter” currently used by the National Visa Center and the Request for Initial Evidence used by USCIS. Bear in mind that each agency’s analysis and interpretation of the requirements, as well as its communication with the sponsor, is subject to frequent change.

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Since 1997, immigration law has required every petitioner in a family-based petition to complete an affidavit of support on behalf of the intending immigrant. The sponsor must either demonstrate the means to maintain an annual income equal to at least 125 percent of the federal poverty income line or obtain a joint sponsor who can meet that threshold.

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Regulations for health-based grounds of inadmissibility have been updated by U.S. Citizenship and Immigration Services. The Nov. 2, 2016, update to the USCIS Policy Manual reflects changes made earlier this year to Department of Health and Human Services and Centers for Disease Control regulations. Effective March 28, 2016, the HHS final rule amended the regulations governing the medical exam that intending immigrants and refugees must undergo before admission to the United States.

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Under INA § 212(a)(6)(C)(ii), individuals who make a false claim to citizenship on or after Sept. 30, 1996, for any benefit or purpose under federal or state law are inadmissible. The impact of this ground of inadmissibility has been particularly harsh because no waiver is available. However, what if the person making the false claim mistakenly believed that he or she was a U.S. citizen? Or what if the person making the false claim was a minor under age 18? 

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On Oct. 12, 2016, the Board of Immigration Appeals published a precedential opinion in the long-running saga of Matter of Silva-Trevino. Two prior attorneys general, as well as many courts of appeal, had previously weighed in on the issues presented.

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We know what the law says about individuals who make a false claim of U.S. citizenship – they are permanently barred from immigrating. We realize that this ground of inadmissibility is defined very broadly: if done while seeking any purpose or benefit under the Immigration Act or any other federal or state law. INA § 212(a)(6)(C)(ii)(I).

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Immigration adjudicators must use a “circumstance-specific” approach in determining whether a conviction for a crime of violence was committed against a person in a protected relationship to the defendant, ruled the Board of Immigration Appeals on May 27.

The analysis is critical in determining deportability under INA § 237(a)(2)(E)(i). Matter of H. Estrada26 I&N Dec. 749 (BIA 2016).

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Twenty-one new group exemptions to the terrorism-related inadmissibility grounds (TRIG), found at INA § 212(a)(3)(B), were announced by Homeland Security Secretary Jeh Johnson on April 13.

TRIG has three essential, interrelated prongs: (1) “engaging in” (2) “terrorist activity,” and (3) belonging to or working on behalf of a “terrorist organization.” INA § 212(a)(3)(B) makes inadmissible any non-citizen who:

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The Center for Disease Control (CDC) and Department of Health and Human Services (HHS) issued a final rule, effective March 28, 2016, amending its regulations governing medical examinations that non-citizens must undergo before they may be admitted to the United States. 42 CFR § 34.

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On January 1, 2016, an important law went into effect in California. AB 1352 eliminated the effect of a deferred entry of judgement disposition on a person’s immigration status or eligibility for an immigration benefit. The criminal codes of most states include some form of rehabilitative scheme for minor offenses that erases an offense from a person’s record under state law if he or she complies with certain requirements imposed by the court. Immigration law, however, has its own definition of a conviction, which often differs from state law.

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On June 1, 2015, the Supreme Court ruled on a case relating to a state court conviction for drug paraphernalia – in this case a sock containing Adderall tablets – and whether that was sufficient to remove a lawful permanent resident. Mellouli v.