Recent Ninth Circuit Decision on Heightened Discretionary Standards

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.

DHS Secretary Napolitano Announces Final Rule in Permitting Aliens With Unlawful Presence to File I-601 Hardship Waivers Before Leaving US

WASHINGTON—Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.

One of the more contentious aspects of this Final Rule involves aliens who are in removal proceedings. As written, anyone in deportation is not eligible for having their I-601 Hardship Waiver adjudicated before having to leave the U.S. to complete consular processing unless their case is administratively closed. Given the lack of action under the Prosecutorial Discretion guidelines by DHS local counsel, relief for aliens in removal under this Final Rule may be illusory.

Provisional Unlawful Presence Waivers of Inadmissiblity

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives

Interesting Question - Can Someone With an Approved U visa and I-192, But also Married to USC, Adjust Their Status Under INA 245(a)?

We have had several U-Visa Holders, who initially entered the US without inspection (EWI), but have been an approved I-918 and I-192, with an I-94 showing their admission date and they are married to United States citizen spouses who have filed and have approved I-130 Immediate Relative Visa Petitions, but have been denied adjustment of status.

There is seemingly some confusion about this issue of adjustment under INA section 245(a) as our USCIS denial letters quote the alien's ineligibly under 245(i). There is no question that after three years the U-Visa holder can adjust under 245(m), but then they must wait another 5 years before becoming eligible for naturalization.

However, there are valid legal arguments to support a 245(a) adjustment for an immediate relative, as the 245(c) & 245(k) bars are waived for immediate relatives.

I think the issue is not something that the Vermont Service Center has exclusive jurisdiction to decide, as it is their sole determination that no U-Visa holder can adjust under 245(a). As some U visa grantees first entered EWI, however the regulations state that they were lawfully admitted to the United States on the date the U visa is granted. This is aside from other inadmissibility issues that may arise.

I focus this response on an EWI granted U visa status that has not left the United States after the initial EWI. I'm in the 9th Circuit and we have Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), where the 9th Circuit held that the family unity grant rendered Garcia-Quintero admitted for calculation of the seven years for cancellation of removal for legal permanent residents. "Our decision focused on the aliens’ acceptance into the Family Unity Program”. Id. at 1015. As part of that acceptance, we looked at Garcia-Quintero’s enrollment in the program, specifically noting that it provided protection from deportation and that FUP beneficiaries “shall be inspected and admitted in the same immigration status as the alien had at the time of departure.” Id. at 1017-18. A U visa grantee received employment authorization, is protected from deportation and the language of the regulation states that they are lawfully admitted. Same benefits as that received by a family unity beneficiary. We deal with legal fictions all the time.