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AILA Doc. No. 19080202 | Dated November 18, 2019
This page supplements Kurzban's Immigration Law Sourcebook, and contains corrections, clarifications, and selected updates to the 16th Edition.
Click on a page number to see the update:
88-89 (Ch. 3) | 97 (Ch. 3) | 138 (Ch. 3) | 153 (Ch. 3) | 223 (Ch. 3) | 355 (Ch. 3) | 488 (Ch. 3) | 540 (Ch. 3) | 541 (Ch. 3) | 650 (Ch. 3) | 754 (Ch. 4) | 836 (Ch. 4) | 838 (Ch. 4) | 939 (Ch. 4) | 1025 (Ch. 5) | 1064 (Ch. 5) | 1116 (Ch. 5) | 1178 (Ch. 5) | 1200 (Ch. 5) | 1232-33 (Ch. 5) | 1312 (Ch. 6) | 1340 (Ch. 6) | 1457 (Ch. 7) | 1487-88 (Ch. 7) | 1562 (Ch. 7) | 1570 (Ch. 7) | 1672 (Ch. 8) | 1702 (Ch. 8) | 1946-47 (Ch. 10) | 2163 (Ch. 13) | 2167 (Ch. 13)
|p. 88-89 (Ch. 3, ¶ III.B.1.)||Admissibility
Replace paragraph 1 with the following:
1. Persons Likely to Become a Public Charge
INA §212(a)(4), 8 USC §1182(a)(4); 8 USC §1601-46; 8 CFR §§212.20-.23, 213.1, 214.1(a)(3)(iv), 245.4(b), 245.23, 248.1; 84 FR 41292-508 (Aug. 14, 2019); 22 CFR §40.41; 9 FAM 302.8-2(B); H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. 240–42. The statute provides that a non-citizen who “is likely at any time to become a public charge is inadmissible.” Prior case law defined public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” Gegiow v. Uhl, 239 U.S. 3 (1915). See Appendix F (p.2227) regarding public benefits.
1.1. DHS Regulations on Public Charge—USCIS published regulations on public charge effective Oct 15, 2019. 84 FR 41292-508 (Aug. 14, 2019); 8 CFR §212.20. The regulations define public charge at 8 CFR §212.21. The regulations and a public charge finding applies to AOS, E/S and C/S and if abroad under DOS guidelines to IVs and NIVs. The rule is not binding on DOJ (IJs/BIA) and not binding on DOS, although “it is DHS’s understanding that DOS will update its FAM to ensure consistency with the DHS rule.” 84 FR at 41315. In regard to E/S and C/S DHS is not applying the new rule as a ground of inadmissibility but as “a new condition for approval of extension of stay and change of status applications—that the applicant establish that the alien has not received since obtaining the nonimmigrant status.…one or more public benefits for more than 12 months in the aggregate within any 36-month period….Therefore DHS removed the future looking aspect of [the public charge] condition and will not request applicants for an extension of stay or change of status to submit a Form I-944.” 84 FR at 41329. For application of public charge by visa category and status, see 84 FR at 41336-46 at Tables 2-5.
1.2. Receipt of Public Benefits—A non-citizen is deemed to be a public charge, 8 CFR §212.21(a), if he is receiving one or more of the following public benefits for more than 12 months in the aggregate within any 36 month period (8 CFR §212.21(b)(1)-(6)):
(1) Any federal, state, local, or tribal cash assistance for income maintenance (other than tax credits) including (i) Supplemental Security Income (SSI) under 42 USC §1381 et seq.; (ii) Temporary Assistance for Needy Families (TANF) under 7 USC 601, et seq.; (iii) federal, state, or local cash benefit programs for income maintenance (often called “General Assistance in state context);
(2) Supplemental Nutrition Assistance Program (SNAP) under 7 USC 2011-2036c;
(3) Section 8 Housing Assistance under the Housing Choice Voucher Program under 42 USC 1437f;
(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8;
(5) Medicaid under 42 USC 1396 et seq. except for (i) emergency medical benefits under 42 USC 1396b(v)(2)-(3) and 42 CFR §440.255(c); (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq.; (iii) school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined by state or local law; (iv) benefits received by a non-citizen under the age of 21 or a woman during pregnancy (including the 60 day period beginning the last day of pregnancy);
(6) Public Housing under Section 9 under the US Housing Act of 1937.
(7) Double Counting—Receipt of more than one of the above public benefits in a one-month period will count as receipt of one month for each benefit so that receipt of two benefits in one month, for example, would count as receipt of benefits for two months. 8 CFR §212.21(a).
(8) Not Counted As Public Benefits for Public Charge—Many programs were not included in the list of public benefits including: WIC, School Breakfast/Lunch Programs, Head Start, Pell Grants, CHIP, D-SNAP (Disaster Supplemental Nutrition Assistance), Social Security Disability Insurance, 84 FR at 41386-92, and health insurance for which the non-citizen receives subsidies in the form of premium tax credits under the Affordable Care Act.
1.3. Exceptions to Receipt of Public Benefits—Receipt of a public benefit will not result in a finding of inadmissibility if at the time of receipt of the benefit or at the time of filing or adjudication of an AOS, E/S, or C/S the person:
(1) was enlisted in the U.S. Armed Forces under 10 USC 504(b)(1)(B) or 10 USC 504(b)(2);
(2) was actively serving in Ready Reserve;
(3) was the spouse or child of such a person;
(4) was exempt from public charge inadmissibility under 8 CFR §212.23(a) (refugees, asylees, Amerasian immigrants, Afghan and Iraqi interpreters, Cuban and Haitian entrants, Cuban Adjustment applicants, NACARA and HRIFA applicants, Lautenberg parolees, SIJs, registry applicants, TPS, A-1/A-2, C-2/C-3 (relating to UN and foreign government officials), G-1 through G-4 (international organization NIVs), NATO-1 through NATO-4 and NATO-6, T, U and VAWA visa applicants under certain circumstances (84 FR at 41298), American Indians born in Canada, Texas Band of Kickapoo Indians, Indochinese refugees, Polish and Hungarian parolees ). The comments indicate that the exemption not only applies to asylum or refugee status but to the application for AOS subsequent to a grant of asylum/refugee status. 84 FR at 41324 [the public charge rule “does not apply to asylum applicants, those granted asylum (asylees), and those seeking to adjust their status to that of a lawful permanent resident based on their asylee or refugee status”]
(5) filed the appropriate affidavit for exemption under an employment based category 8 CFR §212.23(b). However, “Congress did not exempt employment based EB-1A or EB-1B categories, or those seeking an NIW from the public charge ground of inadmissibility.” 84 FR at 41334-35.
(6) received a waiver due to S visa status
(7) was in any other category in a law that exempts public charge inadmissibility
(8) was a child of a US citizen whose admission will result in automatic citizenship under INA §320 including adopted children
(9) was a child entering the US for purposes of attending an interview for citizenship under INA §322
1.4. Receipt of a Public Benefit Is A Requirement for a Finding of Public Charge—8 CFR 212.21(e). The applicant must actually receive the benefit to be considered a public charge for receipt of a public benefit. Applying for a benefit or certification for future receipt of a public benefit does not constitute receipt, although it may suggest a likelihood of future receipt under the totality of the circumstances test. But a non-citizen’s “receipt of, application for, or certification for public benefits solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.” See also 84 FR at 41334 [“if an alien is the person receiving benefits on behalf of another (for instance as a parent, legal guardian) the alien will not be considered to have received, been certified for, or applied for such public benefit”]. In discussing the rule’s impact DHS stated the following: “Because DHS will not consider receipt of public benefits by U.S. citizens and aliens not subject to public charge inadmissibility, the receipt of public benefits by these individuals will not be counted against or made attributable to immigrant family members who are subject to this rule. Accordingly, DHS believes that it would be unwarranted…to disenroll from a public benefit program or forego enrollment in response to this rule when such individuals are not subject to the rule.” 84 FR at 41313. In regard to receipt of public benefits by those entitled to such federal or state benefits, “DHS also disagrees with commenters that this rule changes federal and state decision-making regarding aliens’ access to public benefits. The rule itself does not prohibit any eligible alien or citizen from accessing public benefits for which they qualify.” 84 FR at 41317.
1.5. Totality of the Circumstances—8 CFR §212.21(c), 8 CFR §212.22; 84 FR at 41396-401; FAM 302.8-2(B)(3). To determine likelihood of becoming a public charge in the future, the officer must determine whether under the “totality of the circumstances” it is “more likely than not” that “at any time in the future” the applicant will be a public charge. 84 FR at 41392-93. In DHS’ view the standard does not require a finding that the person will be a public charge indefinitely but only that s/he is likely to become a public charge any time in the future without remaining a public charge indefinitely. 84 FR at 41352. A determination that a person is a public charge because of the receipt of public benefits as defined supra regarding the acceptance of 12 months of public benefits over a 36 month period does not mean that the person is automatically inadmissible as likely to be a public charge. Rather, it will be considered a heavily weighted negative factor. 84 FR at 41358 [“As with the proposed rule, current receipt or past receipt of more than 12 months of public benefits in the aggregate, in any 36-month period will not necessarily be dispositive in the inadmissibility determination; i.e. in determining whether the alien is like to become a public charge at any time in the future, but will be considered a heavily weighted negative factor in the totality of the alien’s circumstances.”]
The officer is charged with “weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits as defined in 8 CFR 212.21(b) for more than 12 months in the aggregate within any 36 month period.” 8 CFR §212.22(a). “The presence of a single positive or negative factor or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible…” 84 FR at 41295. The minimum factors that must be considered under 8 CFR §212.22(b)(1)-(7) are the person’s:
(1) Age—Does his age impact the person’s ability to work? It would be a negative factor if the person were younger than 18 or older than 61 and otherwise a positive factor. 84 FR at 41295, 41401-05.
(2) Health—Has the person been diagnosed with a condition likely requiring extensive medical treatment or institutionalization? 84 FR at 41405-12. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
(3) Family status—Does household size as defined under 8 CFR §212.21(d) makes it more likely than not that he will be a public charge? 84 FR at 41412-13.
(4) Assets, resources and financial status—Is household gross income at least 125% of poverty guidelines based upon household size defined in 212.21(d)? If less, look to other assets? Does person have sufficient assets to cover reasonably foreseeable medical costs? Does person have any financial liabilities? Has the person applied for, been certified to receive, or receive public benefits? Has the person disenrolled in the public benefit or proof that he does not or would not qualified for such benefit, 84 FR at 41299? Has person received fee waivers for immigration benefits? 8 CFR §212.22(b)(4)(ii)(F), 84 FR at 41299 [fee waivers for benefits that do not include public charge are not considered], Credit history? See generally 84 FR at 41413-29.
(5) Education and Skills—Is education/skills adequate to obtain or maintain lawful employment? Employment history? Tax transcript for three years or other credible evidence? High school diploma? Proficient in English and other languages? Is the person a primary care giver for a child or an elderly, ill or disabled person in his household as defined under 8 CFR §§212.21(f), 212.22(b)(5)(ii)(E), 84 FR at 41298 [“This factor is intended to take into consideration difficult-to-monetize contributions by aliens who may lack current employment or an employment history due to their full time, unpaid care of household members”]. 84 FR at 41429-38.
(6) Prospective immigration status and Expected Period of Admission—If NIV, the anticipated period of temporary stay?
(7) An I-864 Affidavit—Sponsor’s annual income and resources? Relationship to applicant? Has sponsor submitted other I-864s? The affidavit of support and the likelihood the affidavit sponsor would actually provide support is a factor to determine the likelihood that the non-citizen would become a public charge. 8 CFR §212.22(b)(7). However, the existence of the I-864 by itself does not preclude a public charge finding. 84 FR at 41320, 41438-41.
Heavily weighted negative factors, 8 CFR §212.22(c)(1); 84 FR at 41441-46.
(1) Person is not a full-time student and is authorized to work but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of employment
(2) Has received in the past or has been certified or approve to receive one or more public benefits as defined in 212.21(b) for more than 12 months in the aggregate within any 36-month period, 84 FR 41297
(3) Has been diagnosed with a medical condition requiring extensive treatment or institutionalization and is not insured nor has the ability to pay for reasonable foreseeable medical costs
(4) Prior finding of inadmissibility or deportability for public charge by an IJ/BIA.
Heavily weighted positive factors, 8 CFR §212.22(c)(2); 84 FR at 41446-50.
(1) Household income 250% above poverty guidelines
(2) Authorized to work and has current employment in a legal industry where income is 250% above poverty guidelines
(3) Private health insurance for the expected period of admission but it does not include “health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act” 84 FR at 41449. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
Benefits received prior to Oct. 15, 2019, 8 CFR §212.22(d) —receipt of public benefits defined in the regulations prior to Oct. 15, 2019 will be considered a negative factor but not “any other [kinds of ] public benefits” that were received prior to that date. This means that an officer may consider: (1) any receipt of cash public benefits that were received prior to Oct. 15, 2019 as designated in the original INS Interim Field Guidance, 84 FR at 41297 n. 18 [“DHS will not apply this rule to benefits received before the effective date of the rule, except for those benefits that would have been considered under the 1999 Interim Field Guidance”], 84 FR at 41318; and (2) receipt of cash and non-cash public benefits as defined in the new rule even if they were less than the 12/36 month thresholds. 84 FR at 41297 [“Under the final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold…”].
1.6. Law Prior to Regulations—The law, prior to the regulations, included the same factors including whether the alien has received public assistance, his or her age, capacity to earn a living, health, family situation, work history, affidavits of support and physical and mental condition. Matter of A-, 19 I&N Dec. 867 (Comm. 1988) [unemployed woman who is young and has no physical or mental impediments that would affect her ability to earn a living is not a public charge]. See also Matter of Vindman, 16 I&N Dec. 131 (RC 1977); Howe v. United States ex rel. Savitsky, 247 F. 292 (2d Cir. 1917); Ex Parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). Under IIRIRA §531(a), INA §212(a)(4)(B)(i), Congress mandated that the following factors be taken into account in deciding public charge: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Former guidance also at INS, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26, 1999) [person “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense” but was not understood to include receipt of non-cash benefits such as Medicaid, SNAP/food stamps, housing vouchers].
1.7. Affidavit of Self-Sufficiency—8 CFR §245.4(b). For purposes of meeting the requirements of the public charge provision, an applicant for AOS must submit a Form I-944 declaration of self-sufficiency as part of his or her application.
1.8. DOS Regluations on Public Charge—22 CFR §40.41; 84 FR 54996-015 (Oct. 11, 2019). DHS issued interim final rules that apply to NIVs and IVs, but adopts all exemptions from the public charge provisions of all persons and categories found at 8 CFR §212.23(a), 84 FR at 54996; 22 CFR §40.41(a). See also 9 FAM 302.8-2(A), 302.8-2(B)(6). DOS rulemaking is designed “to align the Department’s standards with those of the Department of Homeland Security” to avoid inconsistent outcomes. 84 FR at 54996, 55000-01. Like DHS, DOS is using the “totality of the circumstances” approach at the time of the visa application and will look, at a minimum, at the Congressional mandated criteria of “age, health, family status, assets, resources, financial status, education and skills.” 22 CFR §40.41(a); 9 FAM 302.8-2(B)(2). The standard that will be applied is the preponderance of the evidence standard (interpreting “likely” to be “more likely than not,” i.e. “probable” see 84 FR at 55001), and no one factor, with the exception of the lack of a sufficient I-864 where required, will make the person more likely than not to become a public charge. 22 CFR §40.41(a). Conversely, DOS has already adopted the position that an Affidavit of Support (I-864) by itself may not satisfy the public charge grounds as they are distinct requirements that must be separately satisfied. 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122 [holding for the first time in Jan. 2018 that a sufficient affidavit of support is only “one factor in the totality of the applicant’s circumstances”], but the affidavit of support will be a positive factor in the totality of the circumstances. 22 CFR §40.41(a)(7) A public charge determination is prospective and although past or current receipt of public assistance is relevant the “determination must be made on the present circumstances.” 9 FAM 302.8-2(B)(1)(f)(1)(b). The Department has recognized, however, that consular officers “will consider whether any identified third party is willing and able to financially support” the person while in the US. 22 CFR §40.41(a). A third party could be, for example, a parent or child of a B-1/B-2 applicant. 84 FR at 55001.
The latest updated FAM provisions and the interim DHS regulations suggest that consular officers will be much tougher on public charge than in the past when applying Congressionally mandated criteria. Here are the references:
(1) Age: 22 CFR §40.41(a)(1); 9 FAM 302.8-2(B)(2)(d). Person’s age between 18 and 62 is a positive factor. Under 18 or over 62 (above early retirement) is a negative factor. However, consular officers may consider other factors for minors such as support provided by parents, legal guardians or other sources 22 CFR §40.41(a)(1), and an offer of employment of a 17 year old or having education or living expenses paid by another person could be positive factors. 84 FR at 55001. But a person over 62 may have to overcome the adverse consequence of being unable to work or the potential for healthcare related costs. 22 CFR §40.41(a)(1).
(2) Health: 22 CFR §40.41(a)(2); 9 FAM 302.8-2(B)(2)(b). Consider whether the person has been diagnosed with a medical condition requiring extensive medical care or institutionalization that would interfere with the ability to work, attend school, or care for herself. Consular officers will consider panel physician reports where required. A Class B medical condition regarding a communicable disease of public health significance is not alone a determinative factor. The consular officer will consider evidence of health insurance or ability to pay medical expenses, but the lack of health insurance alone would not make a person more likely than not to be a public charge. 84 FR at 55002. The Presidential Proclamation 9945 (Oct. 4, 2019), 84 FR 53991 that bars entry into the U.S. of an immigrant (with certain exceptions) who is not covered by approved health insurance within 30 days of his or her entry into the U.S. unless he or she possesses the financial resources to pay for reasonably foreseeable medical costs does not appear to apply to AOS but only to immigrant visas. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
(3) Family Status: 22 CFR §40.41(a)(3); 9 FAM 302.8-2(B)(2)(c). Household size is a positive factor if the family size makes it unlikely that the person would receive public benefits at any time in the future. 84 FR at 55002. This factor will be considered along with the factor concerning assets, resources and financial status such as the gross income of the household.
(4) Assets, Resources, and Financial Status. 22 CFR §40.41(a)(4). Positive factor if person’s annual gross income is 125% of the Poverty Guidelines (or 100% if on active duty other than training). If less than 125/100 % must consider the total value of the household assets and resources and determine if they are at least 5 times the difference between household gross income and 125% of Poverty Guidelines. However, if the person is the spouse or child of a USC then it is three times the difference. If the amount is reached it is a positive factor. Assets and other factors include: annual gross income; cash assets; non-cash assets that can be converted to cash within 12 months; financial liabilities; receipt or approval to receive public benefits on or after Oct. 15, 2019; received a fee waiver from DHS on or after Oct. 15, 2019; private health insurance. Income received from public benefits and income from illegal activities cannot be considered. The fee waiver does not apply where the applicant’s status has materially improved since the waiver or where the waiver was granted for a petition/application not covered by public charge. 84 FR 55002. In regard to health insurance, note, infra at 2 ____ reference to Presidential Proclamation 9945, 84 FR 53991-94 (Oct 4, 2019) mandating health insurance (with certain exceptions) for all immigrant visas. Unlike DHS rules, DOS did not include credit history and credit scores “primarily because visa applicants generally would not have an active or recent credit history in the United States.” 84 FR at 55003. The rule, unlike previous FAM guidance only focuses on receipt of public assistance by the applicant and does not include receipt of public benefits by family members in the household. Id.
(5) Education and Skill. 22 CFR §40.41(a)(5). Look to history of employment, education level (high school diploma or equivalent), any occupational skills, certifications or licenses, English and other language proficiency. Another factor would be if the person was a primary care provider 18 years or older caring for the well-being of a minor, elderly, ill or disabled person in the household. If a person seeks to demonstrate future employment to refute any inference of public charge, he may submit an offer of employment. The submission of an offer of employment must be sworn to and subscribed before a notary and must contain the signatory’s title. 22 CFR §40.41(f). Under the education and work experience criteria DOS officers are directed to carefully scrutinize I-140 approvals and labor certifications including reviewing (i) whether the applicant’s education and work experience are compatible with the duties in the job offered; and (2) whether the position is permanent and meets the prevailing wage. 9 FAM 302.8-2(B)(2)(e).
(6) Visa Classification Sought. 22 CFR §40.41(a)(6). This factor will vary depending upon the visa sought. For example, a consular officer’s determination of a B-1 who plans to attend a week-long business meeting is different than an H-1B who will be in US for years. Consular officers will look at the visa classification and the purpose and duration of travel because the status sought by the applicant “will be highly relevant” for the totality of the circumstances determination. 84 FR at 55003-04.
(7) Heavily Weighted Factors—22 CFR §40.41(a)(8)
(a) Heavily Weighted Negative Factors—22 CFR §40.41(a)(8)(i).
(i) Not a full time student and unable to establish he or she is currently employed, has recent employment history, or a reasonable prospect of future employment;
(ii) Has received or been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period (with receipt of two benefits in one month counting as two months) beginning no earlier than Oct. 15, 2019 or prior to adjudication of the visa application, whichever is later;
(iii) Has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the person’s ability to provide for himself or herself, attend school or work, and does not have health insurance or financial resources to pay for reasonably foreseeable medical costs
(iv) Has previously been found inadmissible or deportable as a public charge
(b) Heavily Weighted Positive Factors—22 CFR §40.41(a)(8)(ii)
(i) Has income, assets, resources or support at least 250% above the Poverty Guidelines for household size [cannot consider income from public benefits]
(ii) Applicant is authorized to work and is currently employed with an annual income of at least 250% above the Poverty Guidelines
(iii) Has private health insurance (other than tax credits through Affordable Care Act)
(c) Benefits Received Prior to Oct. 15, 2019—22 CFR §40.41(a)(9). Negative factor, but not a heavily weighted negative factor is receipt of cash assistance for income maintenance including SSI, TANF, State and local cash assistance programs for income maintenance (“General Assistance”), and programs (including Medicaid) supporting persons who are institutionalized for long-term care that were received or certified for receipt before Oct. 15, 2019.
(8) Definition of Public Charge and Public Benefits are the same as DHS. 22 CFR §40.41(a)(9)(b),(c)
1.9. Public Charge Bond—8 CFR §213.1; 84 FR at 41450-57. A person found inadmissible as a public charge may, if otherwise admissible, submit a public charge bond in the discretion of DHS. If a person has one or more heavily weighted negative factors as defined in 212.22 DHS “generally will not favorably exercise discretion to allow submission of a public charge bond.” A surety bond under 8 CFR §103.6 or a cash or cash equivalent bond may be accepted. The minimum bond amount is $8,100 which will be annually adjusted using CPI-U. The bond will remain in effect until the person naturalizes or otherwise obtains USC, permanently departs the US, dies, reaches his or her 5 year as an LPR, or changes immigration status to one not subject to public charge inadmissibility. Obligors may be substituted.
1.10. Affidavit of Support (I-864)
8 CFR pt. 213a, 22 CFR §40.41; AFM at 20.5; 71 FR 35732–57 (June 21, 2006); 62 FR 54346 (Oct. 20, 1997); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006), AILA Doc. No. 06063013; 9 FAM 302.8-2(B)(2)(b)–(e), 302.8-2(B)(4).
In order to obtain LPR status, the beneficiary must submit an affidavit of support (I-864) by a sponsor. Customary affidavits of support (I-134) traditionally carried some weight in determining public charge even though they have not been considered to create a legal obligation. Matter of Kohama, 17 I&N Dec. 257 (AC 1978), but now under INA §213A, I-864 affidavits are required for most family-based and some employment-based cases. The submission of an I-864 is a positive factor in determining public charge but is not considered sufficient alone to determine public charge either before USCIS or DOS. 8 CFR §212.22(b)(7); 22 CFR §40.41(a)(7); 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122 [holding for the first time in Jan. 2018 that a sufficient affidavit of support is only “one factor in the totality of the applicant’s circumstances”]; 84 FR 41320, 41438-41. Conversely, the failure to submit an I-864 would be determinative of a lack of public charge. 22 CFR §40.41(a). See also Tadevosyan v. Holder, 743 F.3d 1250, 1254-57 (9th Cir. 2014) [reversed denial of motion to reopen where BIA’s improperly determined that petitioner had not submitted sufficient evidence in support of his I-864 to overcome a public charge claim].
(1) Effective Date for I-864 and Relationship to New Public Charge Regulations—The affidavit of support provisions do not apply to persons who applied for IVs (i.e., signed an OF-230 in front of consular officer) before Dec. 19, 1997. Cable, DOS, 97-State-238374 (Dec. 22, 1997), reprinted in 75 No. 1 Interpreter Releases 3, 7–8 (Jan. 5, 1998). The new public charge regulations consider the affidavit of support and the likelihood the affidavit sponsor would actually provide support as a factor to determine the likelihood that the non-citizen would become a public charge. 8 CFR §212.22(b)(7). However, the existence of the I-864 by itself does not preclude a public charge finding. 84 FR at 41320, 41438-41.
(2) The I-864 Sponsor—INA §213A(f), 8 CFR §213a.2(c). The sponsor must be a USC or LPR, 18 years of age, domiciled in U.S., and have an income 125% above the federal poverty line, INA §213A(f)(1). The sponsor may also be a conditional resident. Memo, Aytes, (June 27, 2006), supra at p. 5 (d)(1). In family-based cases, the sponsor must be the petitioning family member. This sponsorship requirement includes persons seeking residency as orphans (unless the orphan would become a USC upon entry under INA §320) and adjustment after admission on a K visa. 8 CFR §213a.2(a)(2)(i)(A). Where more than one petition has been filed, the sponsor must be the petitioner on the petition used for residency. 8 CFR §213a.2(b)(1). The I-864 requirement also applies to employment-based cases, but only where a relative filed the I 140 petition or where the relative has a “significant ownership interest,” in the entity that filed the petition. “Relative” is defined as a husband, wife, father, mother, child, adult son or daughter, brother or sister. 8 CFR §213a.1. “Significant ownership interest” means 5% or more. 8 CFR §213a.1. However, if the relative who owns an interest in the company is not a USC or LPR, the I-864 is not required. 8 CFR §213a.2(b)(2); Cable, DOS, 98-State-042068 (Mar. 12, 1998), AILA Doc. No. 98031291. An I-864 is also not required if the relative is a brother or sister who is not a U.S. citizen. 8 CFR §213a.2(a)(2)(i)(C). All sponsors must be 18 years of age, but if under 18 can cure the improper filing by signing the I-864 again on or after his 18th birthday, before a decision on the IV or AOS application. 71 FR 35732, 35734 (June 21, 2006). In following-to-join cases, a person who meets the qualification of a sponsor may file the I-864 if the petitioning sponsor has died. Cable, DOS, 98-State-133584 (July 22, 1998), AILA Doc. No. 98072291.
(3) I-864 Does Not Apply to Certain Cases—The I-864 does not apply to employment cases other than those described in the preceding paragraph involving a relative. Similarly, the I-864 is not required for: (1) diversity immigrants; (2) special immigrants; (3) self-petitioning immigrants (widows/widowers, spouses/children subjected to battery or extreme cruelty, and certain children, spouses and grandparents under the USA PATRIOT Act); (4) refugees and asylees adjusting status; (5) Cuban adjustment applicants; (5) registrants under INA §249; and (6) persons who have already earned or can be credited with 40 quarters of coverage pursuant to SSA regulations. 9 FAM 302.8-2(B)(2)(d); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006) at p.5, AILA Doc. No. 06063013; Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), AILA Doc. No. 00032704; USCIS Policy Memo, PM-602-0017, Approval of Petitions and Applications after the Death of the Qualifying Relative under the New Section 204(l) of the INA, (Dec. 16, 2010) at. 2, AILA Doc. No. 11011061 [I-864 not need where widow(er) I 130 petition coverts automatically to I 360]. An I-864 is not required in a family-based petition where the beneficiary (child of USC) will be immediately eligible to become a USC under INA §320(a). 8 CFR §213a.2(a)(2)(ii)(E); Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), AILA Doc. No. 01060821; Cable, DOS, 01-State-105806 (June 16, 2001), AILA Doc. No. 01061691 [children adopted abroad in IR-3 category do not require an I-864 affidavit]. An affidavit is also not required for a child admitted as an LPR under INA §211(a) and 8 CFR §211.1(b)(1) when returning with her LPR/USC parent. 8 CFR §213a.2(a)(2)(ii)(D). Derivative beneficiaries of employment-based petitions and K-1 and K-3 applicants do not require an I-864 until seeking AOS. An I-864 is not required if, at the time the applicant seeks an IV or AOS, he has already worked or can be credited with working 40 qualifying quarters of coverage. 8 CFR §213a.2(a)(2)(ii)(C); 71 FR 35732, 35733 (June 21, 2006); Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/21 (May 17, 2001), AILA Doc. No. 01060729. Quarters are calculated based on the amount of income earned during the course of the year, rather than the actual number of days worked within a given quarter. To prove 40 quarters of earnings an applicant may request certified earnings records from the Social Security Administration. Cable, DOS, 02-State-034687 (Feb. 22, 2002), AILA Doc. No. 02022233. A person may also be credited with quarters worked by his or her parent before he or she was 18. INA §213A(a)(3)(B)(i). Where the I-864 is not required because of credit for quarters worked, the I-864W must be filed.
(4) Household Wage-Earners (I-864A), Joint Sponsors, and Substitute Sponsors—The I-864 sponsor must demonstrate that he or she has income that meets at least 125% of the poverty guidelines, as described below. If the sponsor’s income is insufficient to meet the minimum income requirements, he or she may include a household wage-earner, who must sign an I-864A, or a joint or substitute sponsor, who must file his or her own I-864.
(a) Income Defined—Income for purposes of the I-864 means the total unadjusted income as shown on the tax return, before deductions. Total unadjusted income includes not only salary (if any) but also monetary gains from any other source, such as rent, interest, dividends, etc. 9 FAM 302.8-(B)(4)(f)(1).
(b) Household Wage-Earner on I-864A—The income of a household wage-earner (including the sponsor’s spouse and other persons claimed as dependents in the most recent tax year, whether or not they reside in the sponsor’s household, and other relatives (father, mother, adult son, adult daughter, brother or sister) who have the same principal residence as the sponsor) may be included if they are at least 18 years old. The household member need not be a USC or LPR. 8 CFR §213a.2(c)(2)(i)(C)(1); 8 CFR §213a.1 (defining “Household size”) “Household income” may include the income of the intending immigrant if he or she is the sponsor’s spouse or has the same principal residence as the sponsor, and the income is the result of “lawful employment in the United States” or from “some other lawful source” that will continue to be available after LPR status is acquired. 8 CFR §213a.1. In order to have their income counted, household members are required to file an I-864A, which is a written contract between the sponsor and them, providing that they will be jointly and severally liable for any reimbursement obligation that the sponsor may incur. 9 FAM 302.8-2(B)(6)(b)(1).
(c) Joint Sponsor—If the sponsor cannot meet the minimum-income requirements, he or she may also seek a joint sponsor. The joint sponsor must be at least 18 years of age, be a USC or LPR, and be domiciled in the United States. 8 CFR §213a.2(c)(1). The joint sponsor must file a separate I-864 and must meet the minimum income requirements separate and apart from the sponsor. 8 CFR §213a.2(c)(1)(i). The joint sponsor’s household income must equal at least 125% of the Poverty Guidelines for the joint sponsor’s household size unless he is on active duty in the Armed Forces and the immigrant is his spouse or child, in which case, he need only have income equal to 100% of the Poverty Guidelines. 8 CFR §213a.2(c)(2)(iii)(C). The sponsor and joint sponsor cannot pool their incomes and an intending immigrant may not have more than one joint sponsor. 71 FR 35732, 35734 (June 21, 2006). However, it is not necessary for all derivative beneficiaries to have the same joint sponsor and a family may be divided so that there are joint sponsors for different family members. 8 CFR §213a.2(c)(2)(iii)(C); 71 FR 35732, 35734–35 (June 21, 2006). There may not be more than 2 joint sponsors for any family group. 8 CFR §213a.2(c)(2)(iii)(C).
(d) Substitute Sponsor—If the petitioner dies before the intending immigrant obtains his IV or AOS in a family sponsored case, a substitute sponsor, under certain conditions, is permitted. 8 CFR §213a.2(c)(2)(iii)(D); 71 FR 35732, 35735 (June 21, 2006). See also in this section “Death of the Sponsor,” ¶ (7) (p.97), infra.
(e) Withdrawing Sponsorship—8 CFR §213a.2(f). A sponsor may withdraw the I-864 before the IV is issued or AOS granted but must do so in writing. Once the AOS is issued the sponsor remains obligated. The same is true of a sponsor for an IV. However, in the IV context, a sponsor may also end his or her obligation if she withdraws the visa petition in writing and notifies the DOS officer who issued the visa of the withdrawal. 8 CFR §213a.2(f)(1).
(f) Sponsorship in K-1 Marriage AOS Cases—In Matter of Song, 27 I&N Dec. 488 (BIA 2018) the BIA ruled that an fiancée applicant for AOS who fulfilled all the terms of the K-1 by entering and marrying within 90 days could nevertheless be denied AOS if she later divorces and her former husband withdraws the I-864 in writing prior to the AOS.
(5) Domicile Requirement
(a) Generally—The affidavit must be from the petitioning relative and any other qualifying person under INA §213A(f). The affiant must be domiciled in the U.S., thereby precluding USCs who are domiciled abroad from sponsoring. 8 CFR §213a.2(c)(1)(ii); Legal Opinion, G.C., INS, Legal Opinion No. 97-10 (July 8, 1997), reprinted in 75 No. 10 Interpreter Releases 380–83 (Mar. 16, 1998); Park v. Holder, 572 F.3d 619 (9th Cir. 2009) [where husband/petitioner not domiciled in U.S. wife was not eligible for AOS]. Domicile is defined as the person’s principal, actual dwelling place. 8 CFR §213a.1. DOS defines it as the place where the person has a residence as defined in INA §101(a)(33). Cable, DOS, 97-State-235619 (Dec. 19, 1997), AILA Doc. No. 98010690. However, a person residing abroad may still be domiciled in the U.S. if he went abroad pursuant to INA §§316(b), 317, or 319(b) relating to residency for naturalization purposes. 8 CFR §213a.2(c)(1)(ii)(A); Memo, G.C., INS, supra; AFM §20.5. DOS agrees. Cable, DOS 98-State-042068 (Mar. 12, 1998), reprinted in 75 No. 13 Interpreter Releases 468–70 (Apr. 6, 1998). Under DOS guidelines a person domiciled abroad who wishes to take up his residence again in the U.S. may do so and “[t]here is no requirement that the residence have been established for any length of time.… [T]he sponsor must have taken steps to make the U.S. his immediate principal place of abode. Such steps might include finding U.S. employment, locating a place to live, registering children in U.S. schools and other indices of residence. The sponsor should also have made arrangements to relinquish residence in the third country.” Cable, 98-State-042068, supra. Under DHS guidelines, the sponsor domiciled abroad must establish by a preponderance of the evidence that he or she will establish a domicile in the U.S. “on or before the date of the principal intending immigrant’s admission or adjustment of status.” 8 CFR §213a.2(c)(1)(ii)(B); 71 FR 35732, 35734 (June 21, 2006). If the sponsor enters the U.S. at the same time as the beneficiary with the intention of establishing her principal residence in the U.S., the sponsor shall be deemed to have established a domicile in the U.S. Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 6 (June 27, 2006), AILA Doc. No. 06063013. Some ways to establish domicile in the U.S. where the sponsor has been living abroad include: (1) finding employment in the U.S.; (2) securing a residence in the U.S.; (3) register children in U.S. schools; (4) relinquish residence abroad; and (5) other evidence of residence. See http://nvc.state.gov/aos.
(b) Change of Address—Sponsors who changes their address must notify USCIS on Form I 865 within 30 days of the change. Failure to file results in monetary penalties above and beyond the payment for lost means-tested public benefits. INA §213A(d), 8 USC §1183a(d); 8 CFR §213a.3; 71 FR 35732, 35740 (June 21, 2006).
(6) Income Requirements—The 125% guideline is determined in relationship to the household size. 8 CFR §213a.2(c)(2)(ii)(C).
(a) Household Size—The household size includes the sponsor, the sponsor’s spouse, and the sponsor’s children unless they are at least 18 and were not claimed as dependents. Household size also includes: (1) any other person (whether or not related to the sponsor) whom the sponsor has claimed as a dependent in the most recent tax year, even if he or she does not reside with the sponsor; (2) all persons sponsored previously where the obligation has not terminated; and (3) all persons currently sponsored. Spouses or children of the intending immigrant will not be counted if they do not currently reside in the U.S. and do not seek to immigrate within 6 months (i.e., “following to join”), or if they are already a USC/LPR. 8 CFR §213a.1. All the above persons, when added together, constitute the number of people in the household for purposes of the federal poverty guidelines.
(b) Poverty Guidelines—The 125% measurement based on 2018 poverty guidelines, 83 FR 2642-44 (Jan. 18, 2018) except Alaska and Hawaii, which are higher, see I-864P, reprinted in 9 FAM 302.8-2(B)(17), are as follows: for one person ($15,175); 2 people ($20,575); 3 people ($25,975); 4 people ($31,375); 5 people ($36,775); 6 people ($42,175); 7 people ($47,575); and 8 people ($52,112.). After 8 household members add $5,400 ($4,320 x 125%) for each additional person. USCIS Form I-864P, 9 FAM 302.8-2(B)(17); DHS, 2018 HHS Poverty Guidelines for Affidavit of Support, , reprinted in 95 No. 14 Interpreter Releases Art. 4, Appx III, p. 25 (Apr. 2, 2018). The sponsor may count disability benefits and Social Security benefits (but not SSI) in computing his or her income. Cable, DOS (98-State-133584) (July 22, 1998), AILA Doc. No. 98072291. For USCIS purposes, the guidelines become effective in March following their release in January. Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 15, 18 (June 27, 2006), AILA Doc. No. 06063013. For more about the poverty guidelines go to http://aspe.hhs.gov/poverty.
(c) Sponsor on Active Duty—If the petitioner is on active duty in the Armed Forces he need only meet 100% of the federal poverty guidelines if the intending immigrant is his spouse or child. 8 CFR §213a.2(c)(2)(ii)(C).
(d) Assets and Other Income—If the sponsor cannot meet the 125% figure, he or she may provide evidence of other assets that are readily available, including the assets and income of other household members. See in this section, ¶ (4)(a) (p.94), supra. See also Joint Sponsor requirements, ¶ (4)(c) (p.95), supra.
(e) Assets—The sponsor may also include other assets in addition to salary and income. Evidence of assets include: (1) bank statements covering the last 12 months or statement from officer of bank/financial institution; (2) stocks, bonds and CDs and dates acquired; (3) other personal property; and (4) real estate. 8 CFR §213a.2(c)(2)(iii)(B); 9 FAM 302.8-2(B)(4)(U)(g)(2); AFM 20.5. In determining sufficiency of assets, the value of the assets less any offsetting liabilities must exceed by at least 5 times, the poverty guidelines minus the sponsor’s household income (e.g., if poverty guidelines call for $10,600 for 2 and person earns $8,600 they must show 5 x $2,000 = $10,000 in assets). If the intending immigrant is the spouse or child of a USC and the child has reached her 18th birthday, the adjudicator may use 3 times the guidelines, rather than 5 times. 8 CFR §213a.2(c)(2)(iii)(B)(1). May count significant assets outside the U.S. as long as they are readily convertible to cash within 1 year. 9 FAM 302.8-2(B)(4)(U)(g)(2).
(f) Other Income—The sponsor may rely on income that is not subject to taxation such as a housing allowance for clergy or military personnel. The sponsor’s use of means-tested benefits does not disqualify him or her from being the sponsor. It simply means those benefits are not counted toward income. Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), AILA Doc. No. 00032704.
(7) Death of the Sponsor—INA §213A(f)(5). If sponsor dies before all qualified family members have immigrated, certain relatives may step in as a substitute sponsor. 8 CFR §213a.2(c)(2)(iii)(D); 71 FR 35732, 35735 (June 21, 2006); 9 FAM 302.8-2(B)(4)(e), 504.2-B(C)(4); Cable, DOS (98-State-112510) (June 23, 1998), reprinted in 75 No. 25 Interpreter Releases 913, 916 (July 6, 1998). Under the Family Sponsor Immigration Act of 2002, PL 107-150, 116 Stat. 74 (Mar. 13, 2002) certain relatives who are at least 18 years of age (spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian) may be substituted to meet the affidavit of support requirements under INA §213A(f)(5) when the petitioning relative has died after approval of the petition and the Sec. of DHS, on humanitarian grounds, decides to reinstate the petition. A substitute sponsor is not required where the beneficiary can be credited with 40 qualifying SSA quarters, including quarters earned by a parent when the individual was under age 18 or a spouse during the marriage. INA §213A(a)(3)(A) & (B). The beneficiary of the I 130 must ask the Secy. of DHS to reinstate the petition, who must determine it is appropriate for humanitarian reasons, and the beneficiary must demonstrate she has a substitute sponsor designated under the Act. 8 CFR §§205.1(a)(3)(i)(C)(2), 1205.1(a)(3)(i)(C)(2). The Act applies with respect to deaths occurring before, on, or after the date of the enactment. Cable, DOS, 02-State-071485 (Apr. 15, 2002) at ¶4, AILA Doc. No. 02041732. A person whose case was denied on grounds that no substitute sponsor was permissible prior to the Family Sponsor Immigration Act, may file a motion to reopen beyond the time limit and the new law should be considered a “sufficient reason” for filing the motion late. Memo, Williams, Ex. Assoc. Comm., Field Operations, HQADJ/70/21.1.13 (June 15, 2002), AILA Doc. No. 02120941. However, the category of persons who may benefit from a substitute family sponsor was dramatically enlarged for beneficiaries in the U.S. by the DHS Appropriations Act, PL 111-83 §568(e) (Oct. 28, 2009). A substitute family member described above may serve as a substitute sponsor where the applicant’s petition is pending or has been approved pursuant to INA §204(l). This section requires the petition be approved unless approval would not be in the public’s interest. INA §213A(f)(5)(B)(ii). The beneficiary simply needs to show that the petition is pending or was approved. INA §204(l).
(8) Forms I-864, I-864EZ, I-864W, I-134—The specialized affidavit of support under INA §213A is filed on Form I-864 by sponsors, joint sponsors, and substitute sponsors. A simplified version of the I-864 is available on Form I-864EZ. 8 CFR §213a.2(a)(1)(i)(A). The I-864EZ is used where there is one beneficiary, the sponsor has a W-2 and there are no asset or joint sponsor issues. Household wage-earners file Form I-864A. Persons who are not required to file an I-864 because they have earned 40 quarters of coverage under the Social Security Act, or who are intending immigrant children who will become USCs by virtue of the Child Citizenship Act of 2000, or who are self-petitioning widows(ers) or battered spouses or children, must file an I-864W exemption. Persons required to meet the public charge ground but who are not required to submit an I-864 may use the I-134 affidavit of support if necessary.
(9) Procedure—The I-864 and all supporting documents are filed with the I-485 and all other required documents when seeking AOS. If the applicant is seeking an IV, the I-864 and supporting documents are sent to NVC. The I-864 should be filed within 6 months of being signed. However, DOS may accept, on a case-by-case basis, affidavits signed as long as one year before the interview. Cable, DOS (99-State-220435) (Nov. 28, 1998), reprinted in 76 No. 6 Interpreter Releases 247 (Feb. 8, 1999). If the I-864 and I-864A (if needed) is properly signed, only one original is needed. Family members can attach copies. Cable, DOS, 98-State-092491 (May 22, 1998), AILA Doc. No. 98060590. For consular procedures regarding review of I-864 see 9 FAM 302.8-2(B)(12)-(17). The original “ink” signature on an application need not be filed as DOS and the NVC will accept copies that contain the signature. Press Release, DOS, Ink Signature No Longer Required on Affidavits of Support (Dec. 28, 2016), AILA Doc. No. 16122801.
(10) Documentary Requirements
(a) Generally—The sponsor is required to submit with the I-864: (a) federal tax returns for the most recent year, including W-2 forms; (b) evidence of current employment; (c) evidence that sponsor’s income is sufficient to meet the income requirements; and (d) the current edition of the poverty guidelines (I-864P). INA §§213A(f)(6)(A) & (B); 8 CFR §§213a.2(a)(1)(ii), 213a.2(c)(2)(i)(A). The sponsor’s income must meet the 125% requirement of the poverty guidelines in effect at the time the I-864 was submitted. Memo, Aytes, Acting Dir. Operations, USCIS, HQOPRD 70/21.1.13 (Nov. 23, 2005), AILA Doc. No. 05120210; Cable, 06-State-051172, supra at ¶4. The affidavit will normally be held sufficient unless there are specific facts, including a material change in employment or income history, implying that the sponsor may not be able to maintain household income and meet sponsorship obligations. 8 CFR §213a.2(c)(2)(ii)(C). Consular officers are not to require an employment letter unless there is some reason to question the veracity of the income stated. Cable, 06-State-051172, supra at ¶4. 9 FAM 302.8-2(B)(13)(e)
(b) Tax Returns—USCIS and DOS have determined that the past year’s tax return is sufficient and that a sponsor is no longer required to provide 3 years of returns. 8 CFR §213a.2(c)(2)(i); 9 FAM 302.8-2(B)(13)(e)(3)(d)(1). Photocopies of tax returns or IRS-generated transcripts are allowed. 71 FR 35732, 35738 (June 21, 2006). Sponsors need only submit tax returns in years they were obligated to file, but if they had no legal duty to file, they must provide an explanation. 8 CFR §213a.2(c)(2)(i)(B); Cable, DOS, 98-State-133584 (July 22, 1998), AILA Doc. No. 98072291. A DOS officer may request a tax summary prepared by IRS only if the officer has doubts about the validity of the tax returns. Id. Amended returns are permissible. USCIS may accept a transcript of the taxpayer’s income tax return where the taxpayer files an IRS 4506T. Because IRS issues this document, it is not necessary to ask the sponsor for a W-2 or 1099. Aytes Memo (Nov. 23, 2005), supra.
(c) Household Members—A household member who has signed an I-864A must also provide such documentation, including a tax return for the same year as submitted by the sponsor. 8 CFR §213a.2(c)(2)(i)(C)(4).
(d) Processing Delays and Documentation—The sufficiency of the I-864 should be based on the evidence submitted unless more than one year has passed between filing and examination, in which case the adjudicator or IJ may request additional evidence. 8 CFR §§213a.2(a)(1)(v)(A) & (B). But see Cable, 06-State-051172, supra at ¶4 [the delay between the date of signing the I-864 and the date of the visa interview should not be a basis to request updated information]. For additional consular procedural issues see 9 FAM 302.8-2(B)(4)(f) and (B)(12)-(16).
(11) Affidavit as Enforceable Contract
(a) Generally—The I-864 affidavit of support is now an enforceable contract against the affiant. INA §213A(a), 8 USC §1183a(a). The sponsor and joint sponsor are “jointly and severally liable.” 71 FR 35732, 35743 (June 21, 2006). Execution of the I-864 creates a contract but the obligation begins after the sponsored immigrant “acquires permanent residence.” 8 CFR §213a.2(d); 71 FR 35732, 35740 (June 21, 2006). The affidavit is enforceable by the sponsored person, the local, state or federal government, or any agency providing a means-tested public benefit until the sponsored immigrant is: (1) naturalized; (2) ceases to be an LPR and departs the U.S.; (3) obtains a new grant of AOS in a removal proceeding; (4) has earned or been credited with 40 qualifying quarters under Title II of the Social Security Act (approx. 10 years) not including periods where means-tested benefits were received; or (5) dies. 8 CFR §213a.2(e)(2)(i). Divorce does not end the obligation of support; nor a premarital agreement. Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [neither a divorce decree nor a premarital agreement terminates the obligation of support]. Nor does a martial settlement agreement. Cyrousi v. Kashyap, 386 F.Supp.3d 1278, 1282-83 (C.D. Cal. 2019) [agreement upon divorce did not absolve affiant of responsibility]. Qualifying quarters are attributed to the child (if under 18) or the spouse (if they remain married). Cyrousi, 376 F.Supp.3d at 1286-87 [to reach 40 quarters can credit affiant spouse’s quarters as well as immigrant’s and it is crediting work not whether it appears on social security statement]. An action need be brought no later than 10 years after the date the sponsored person received any means-tested public benefit. The contract is only enforceable if the government agency seeking enforcement published that the benefit is a means-tested public benefit prior to the date the benefit was first provided the immigrant. 71 FR 35732, 35742 (June 21, 2006). The affiant is now required to report his or her change of address or be subject to a fine which may range from $250 to $5,000. INA §213A(d).
(b) Means-Tested Public Benefits—Supplemental Security Income (SSI); and Temporary Assistance to Needy Families (TANF). 62 FR 45256, 45284 (Aug. 26, 1997). It also includes state means-tested benefits. 8 CFR §213a.4(b). The following benefits are exempt: emergency medical care; short term, noncash in-kind emergency disaster relief; benefits under National School Lunch Act and similar state and local programs; benefits under Food Stamps, Child Nutrition Act of 1966 and similar state/local programs; WIC (Supplemental Nutrition Program for Women, Infants, and Children); public assistance for immunizations and for testing and treatment of communicable diseases; emergency Medicaid, Medicare, Children’s Health Insurance Program (CHIP), payment for foster care and adoption assistance; services, or assistance (such as soup kitchens, crisis counseling and intervention and short-term shelter) specified by the AG; student assistance under Titles IV, V, IX, and X of Higher Education Assistance Act of 1965 and Titles IV, VII and VIII of Public Health Service Act; benefits under Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and benefits under Job Training Partnership Act. 9 FAM 302.8-2(A)(c); Cable, DOS, 97-State-228462 (Dec. 6, 1997), reprinted in 74 No. 47 Interpreter Releases 1,889–94 (Dec. 15, 1997). HUD programs are not considered to fall under the category of federal means-tested public benefits. 65 FR 49994 (Aug. 21, 2000. See also A Quick Guide to Public Charge and Receipt of Public Benefits (Oct. 18, 1999), reprinted in 76 No. 43 Interpreter Releases 1613, 1637–38 (Nov. 8, 1999). See also Fact Sheet, USCIS, Public Charge (Oct. 20, 2009) at p. 2, AILA Doc. No. 09102970 [listing benefits not subject to public charge including noncash benefits under TANF, job training programs, emergency disaster relief, child care services, housing benefits, and unemployment and Social Security]. A Presidential Memorandum issued in 2019 set forth guidelines for the enforcement and reimbursement of benefits from sponsors when means-tested public benefits are taken by beneficiaries of petitions. Memorandum, President of the U.S., Enforcing the Legal Responsibilities of Sponsors of Aliens (May 23, 2019), AILA Doc. No. 19052470. For a more completed discussion of Means-Tested Public Benefits see infra Chapter 6, XIII, K, 2at pp___ Means-Tested Public Benefits and Appendix F.
(c) Affidavit Used to Claim Support—Congress “clearly intended to permit the sponsored immigrant to sue to enforce the support obligation, if necessary.” 71 FR 35732, 35743 (June 21, 2006). In addition to the obligation to the U.S. government or the states to repay any means-tested public benefits, and in addition to any alimony payments, the sponsor and even the joint sponsor (and the household member who signs the I-864A) may have a continuing responsibility to support the immigrant and his or her family at 125% of the poverty guideline. INA §213A(a)(1)(A), 8 USC §1183a(a)(1)(A). [“the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.”] The I-864 instructions clearly state that: “By signing this form, you, the sponsor, agree to support the intending immigrant and any spouse and/or children immigrating with him or her.” Form I-864, p.1 (Sponsor’s Obligation). Part 7 of the I-864 further states: “I agree to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines. I understand that my obligation will continue until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the United States permanently, or die.” The support obligation, however, begins only when the immigration officer or IJ “grants” the immigrant’s application for admission or her adjustment of status. 8 CFR §213a.2(e); 71 FR 35732, 35740 (June 21, 2006). See also 8 CFR §213a.2(f) [criteria for withdrawal of affidavit before approval]; 8 CFR §213a.2(c)(2)(v) [failure to sign waiver needed to verify information constitutes a withdrawal].
(d) Enforcement of I-864—An action to enforce the I-864 may be brought in either state or federal court. Madrid v. Robinson, 218 F.Supp.3d 482, 484-87 (W.D. Va. 2016) [court recognized that a federal cause of action is created by 8 USC §1183a(e)(1) and that the federal court had jurisdiction to enforce agreement despite defendant’s claim it was a breach of contract only enforceable in state court]. Courts have found the I-864 enforceable and have ordered support payments to a former spouse. Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) [the sponsored immigrant is a third party beneficiary whose rights exist “apart from whatever rights [she] might or might not have under Wisconsin divorce law,” and she has no legal obligation to mitigate damages]; In re Marriage of Dickson, 337 P.3d 72 (Kan. App. 2014) [maintenance and support in divorce proceedings are separate and apart from I-864 obligations]; Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D. Cal. 2008) [I-864 is legally enforceable but recognizing certain set-offs]; Naik v. Naik, No. A-6270-05T5 (N.J. Super. Apr. 14, 2008) [I-864EZ creates legally enforceable contract but there is a set-off for spousal and child support and equitable distribution]; Cheshire v. Cheshire, No. 3:05-CV-00453-TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006) [under INA §213A(a)(1), the sponsor’s obligation under the I-864 to support his former wife is contractual and independent of reimbursement to the government or alimony]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 1290658 (N.D. Ind. May 27, 2005) [granting summary judgment on liability]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) [finding I-864 enforceable and ordering defendant to pay former spouse support at 125% of the poverty guidelines]. See also Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007) [lower court erred in finding defendant not eligible to seek enforcement of the I-864 on grounds that the statute was for public benefit only]; Davis v. Davis, No. WD-04-020, 2004 WL 2924344 (Ohio App. 6 Dist. Dec. 17, 2004) [reversing trial court’s decision to decline jurisdiction to enforce I-864]. Enforceability also extends to co-signatories, including parents of petitioner who co-signed. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016). But see Kawai v. Uacearnaigh, 249 F.Supp.3d 821 (D.S.C. 2017) [dismissing I-864 action in federal court under Younger abstention because of on-going family court proceedings where the federal claims may adequately be raised in the state court divorce proceedings]; Yaguil v. Lee, 2014 WL 1400959 (E.D. Cal Apr. 10, 2014) [dismissal on res judicata grounds because I-864 was raised in settlement conference in divorce proceedings]; but see Li Liu v. Kell, 299 F.Supp.3d 1128, 1132-33 (W.D. Wash. 2017) [res judicata defense denied on facts of case]. See also Tornheim v. Kohn, No. 00 CV 5084 (SJ), 2002 WL 482534 (E.D.N.Y. Mar. 26, 2002) [declining to enforce I 134 affidavit of support]; Davis v. U.S., 499 F.3d 590 (6th Cir. 2007) [dismissing action for declaratory judgment under the Rooker-Feldman doctrine by legally separated U.S. husband to determine amount owed to wife and step-sons under I-864 after wife obtained support ruling in state court]. The obligation may not be dischargeable in bankruptcy. Cook v. Cook, 473 B.R. 468 (M.D. Fla. 2012) [$100,000+ judgment under the affidavit of support from a 3-month marriage was enforceable, despite previous payment of $29,000+ in alimony, and was not dischargeable in bankruptcy because it was a domestic support obligation under 11 USC §523(a)(5)].
(i) Premarital Agreements—The comments to the regulations take no view on whether divorce affects support obligations under the affidavit, but notes that a sponsored immigrant, in a divorce settlement, can surrender his or her right to sue the sponsor to enforce the I-864. 71 FR 35732, 35740 (June 21, 2006); Blain v. Herrell, No. 10-00072 ACK-KSC, 2010 WL 2900432 (D. Haw. July 21, 2010) at pp. 5-6 [dismissing complaint with prejudice to enforce I-864 and finding that prenuptial agreement barred enforcement because it is a “basic principle of contract law that a party may waive legal rights”]. But see Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [a premarital agreement does not terminate the obligation of support]; Toure-Davis v. Davis, No. WGC-13-916, 2014 WL 1292228 (D. Md. Mar. 28, 2014) [antenuptial agreement signed before affidavit of support does not relieve obligation and court discounted comments to regulations].
(ii) Other Remedies—The enforcement statute also includes other remedies such as “payment of legal fees and other costs of collection” 8 USC §1183a(c). See Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. 3d DCA 2008) [legal fees limited to collecting on judgment obtained, not seeking judgment]; Matloob v. Farham, No. WDQ-11-1943, 2014 WL 1401924 (D. Md. Apr. 9, 2014) and 2014 WL 4977667 (D. Md. Oct. 1, 2014) [awarded attorney’s against pro se defendant]. But see Yaguil v. Lee, 2014 WL 3956693 (E.D. Cal Aug. 13, 2014) [sponsor may not recover fees as INA §213A(c) is not a prevailing party statute but one for the benefit of the beneficiary only]. Beneficiary also entitled to specific performance requiring sponsor continue his obligations unless one of the terminating conditions applies. Santana v. Hatch, No. 15-cv-89-wmc, 2016 WL 1734117 (W.D. Wis. Apr. 29, 2016) [awarding specific performance and attorney’s fees].
(e) Calculation of Damages—The calculation of damages under the I-864 is based on whether the beneficiary had income that annually reached 125% of the poverty guidelines. One court has found that you cannot aggregate the beneficiary’s income over several years to determine the 125% per year, but must determine year-by-year whether the individual’s “annual income” under 8 USC §1183a(a)(1)(A) met the 125% poverty threshold. Shumye v. Felleke, 555 F.Supp.2d 1020, 1024–25 (N.D. Cal. 2008) [must separately analyze each calendar year during which the affidavit was enforceable, rather than looking at former wife’s aggregate income over the entire multi-year period]. Another court has found that when measuring whether an immigrant meets the 125% poverty threshold the court must disregard the income of anyone else living in the household who is not a sponsored immigrant. Erler v. Erler, 824 F.3d 1173, 1177-81 (9th Cir. 2016) [sponsor’s obligation is to provide immigrant support at 125% income and he could not count the income of the immigrant’s son who was living with the immigrant after divorce]. Beneficiary’s time out of the U.S. does not categorically prevent recovery from the petitioner. Villars v. Villars, 336 P.3d 701, 712 (Ala. 2014) [physical location abroad does not preclude receipt of support but assistance from family members while abroad would count as an offset]. Another court held that the beneficiary’s assets cannot be treated as income. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016). But see Dahhane v. Stanton, No. 15-CV-1229 (PJS/BRT), 2016 WL 4257536 (D. Minn. Aug. 12, 2016) [money the beneficiary brought from his home country counted as income offsetting the petitioner’s obligations as did child support payments].
(f) Defenses—Defenses to enforcement of the affidavit in regard to damages include mitigation and set off. See Cyrousi v. Kashyap, 386 F.Supp.3d 1278, 1283-89 (C.D. Cal. 2019) [a thorough discussion of affirmative defenses, defenses based upon terminating events such as working 40 quarters and abandoning residency, and set-offs such as spouse’s payment for food, clothing and shelter and support from current spouse]; Dahhane v. Stanton, No. 15-CV-1229 (PJS/BRT), 2016 WL 4257536 (D. Minn. Aug. 12, 2016) [financial payment, whether as a gift or otherwise, may be counted against the sponsor’s support obligation]; Shumye v. Felleke, 555 F.Supp.2d 1020, 1025–27 (N.D. Cal. 2008) [student grants and housing subsidies are set-offs but student loans and divorce settlement over community property are not]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) at *7 [mitigation and set off can be deducted from amount owed]; Cheshire v. Cheshire, 2006 WL 1208010, *6, No. 3:05-cv-00453-TJC-MCR (M.D. Fla. May 4, 2006) But see Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) [spouse has no legal obligation to mitigate damages]; Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016) [no duty to mitigate]; Li Liu v. Kell, 299 F.Supp.3d 1128, 1133-34 (W.D. Wash. 2017) [failure to mitigate and waiver are not defenses to enforcement of I-864 obligations]; Dorsaneo v. Dorsaneo, 261 F.Supp.3d 1052 (N.D. Cal. 2017) [neither estoppel nor fraud in the inducement are defenses]; Wenfang Liu v. Mund, 748 F.Supp.2d 958, 963 (W.D. Wis. 2010) [validity of marriage should be litigated in state court not in I-864 enforcement proceeding]; Younis v. Farooqi, 597 F.Supp.2d 552 (D. Md. 2009) [child support is not a set-off but beneficiary had obligation to make reasonable efforts to find employment to mitigate damages].
(12) Criminal Issues—U.S. v. Wu, 419 F.3d 142 (2d Cir. 2005) [where I-864 contained false statements that were not material, government can still convict by showing that I-864 was part of the larger process of falsely petitioning, though the use of an I 130 petition, for relatives].
|p. 97 (Ch. 3, ¶ III.B.)||Admissibility
Insert the following section after paragraph 1:
2. Health Insurance Required for Immigrants—By Presidential Proclamation an immigrant (with certain exceptions) is barred from entry unless he or she is “covered by approved health insurance” within 30 days of entry into the United States or “possesses the financial resources to pay for reasonably foreseeable medical costs.” Presidential Proclamation 9945 (Oct 4, 2019), Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans, 84 FR 53991-94 (Oct. 9, 2019).
2.1. An approved health insurance plan is defined as: (1) an employer-sponsored plan; (2) an unsubsidized health plan offered in the individual market with a State; (3) a short-term limited duration health policy effective for a minimum of 364 days—or until the beginning of planned, extended travel outside the US; (4) a catastrophic plan; (5) a family member’s plan; (6) a medical plan under 10 USC Chap. 55 including coverage under the TRICARE program; (7) a visitor health insurance plan that provides coverage for medical care for a minimum of 364 days—or until the beginning of planned, extended travel outside the US; (8) a medical plan under the Medicare program; or (9) any other health plan that provides adequate coverage for medical care determined by the Sec. of HHS. It does not include Medicaid for persons over the age of 18.
2.2. Person Not Subject to Insurance Requirement: (1) IV holders before Nov. 3, 2019; (2) Afghan or Iraqi IV holders and their spouse and children under the SI or SQ classifications; (3) children of USC (including adopted children) who are seeking to enter under IR-2, IR-3, IR-4, IH-3 or IH-4; (4) person seeking to enter under IR-5 (parent of USC) provided that the person’s sponsor can demonstrate the his or her healthcare will not impose a substantial burden on the US healthcare system; (5) returning residents under SB-1; (6) person under the age of 18 unless accompanying a parent who is immigrating; (7) person whose entry would further important law enforcement objectives as determined by the Sec. of State based on the recommendation of the AG; or (8) any person whose entry would be in the national interest as determined by the Sec. of State on a case-by-case basis.
2.3. Priority Removal: A person seeking to circumvent the provision through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by DHS.
|p. 138 (Ch. 3, ¶ III.E.2.d.)||Inadmissibility
Three– and Ten-Year Bar
Replace paragraph 2.d. with the following:
2.d. Counting the 3/10 Years—Once a person has triggered the 3/10 year bar, the 3/10 years are a permanent bar upon the person’s departure even if he or she is paroled back into the U.S. or lawfully admitted on a visa with a INA §212(d)(3)(A) waiver, because the waiver only temporarily waives the 3/10 year bar. However, because a parole does not trigger inadmissibility, the 3/10 years needed to “cure” the bar also continue to run when the person returns and remains on parole in the U.S. for 3/10 years. AFM at 40.9.2(a)(4)(E). Thus, a person who is subject to the 3-year bar and returns on a parole and remains for three years on parole, would “cure” the 3-year bar. Similarly, a person who triggers the 3/10 year bar as a B-2 overstay and returns to his or her country and obtains, for example, an E-2 visa with a §212(d)(3)(A) waiver may, upon return to the U.S., “cure” the ground of inadmissibility after remaining in the U.S. for 3/10 years. Letter, Divine, GC USCIS to Berry (July 14, 2006), AILA Doc. No. 08082930 and Letter, Melmed, GC, USCIS to Horne (Jan. 26, 2009), AILA Doc. No. 09012874. But post-Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [travelling on advance parole does not constitute a departure triggering the 3/10 year bar] there may be some question as to whether a person returning on an advance parole and remaining in the U.S. after advance parole for 3/10 years would be eligible for AOS or otherwise cure the 3/10 year bar. LegalNet apparently takes the position that being paroled on an advance parole does not allow a person to restart counting the 3 (or 10) years, because post-Arrabally & Yerrabelly returning on advance parole means the person never left. But see Matter of ___, St. Paul, Minn. (AAO Oct. 26, 2012), AILA Doc. No. 12102242 [denial of AOS reversed where person reentered on advance parole and therefore eligible to adjust]. However, if the person reenters EWI and remains in the U.S. for three years, her EWI status in the U.S. does not “cure” the 3/10 year bar and she is unauthorized and barred even after the 3 years. But see Matter of Cruz, A087 241 021 (BIA Apr. 9, 2014) (unpublished). Notwithstanding the triggering of the 3/10 year bar, an applicant may make an argument that simply remaining in the U.S. for 3/10 years would satisfy the 3/10 year bar, because unlike sections such as INA §212(a)(9)(A), (C) there is no language that suggests departure from the U.S. is required to satisfy the 3/10 years.
|p. 153 (Ch. 3, ¶ III.E.3.)||Inadmissibility
Add the following after paragraph 3.e.:
3.f. Waiver Application Must Be Made for Permanent or Temporary Entry—Unlike INA §212(a)(9)(B), both DOS and USCIS read INA §212(a)(9)(C) as a permanent bar to reentry to the U.S. and read the exception, although ambiguous, as always requiring a waiver. INA §212(a)(9)(C)(ii). See e.g. USCIS, Instructions to Form I-212 at pp.1-2; 9 FAM 302.11-4(D). The practical effect is that whenever someone with a 212(a)(9)(C)(i)(I) or (II) bar is outside of the U.S. for 10 years or more, they must still request a waiver to return. A INA §212(d)(3)(A) waiver for an NIV is available only where the person is inadmissible under INA §212(a)(9)(C)(i)(I) [reenters/attempts reentry EWI after one year of unlawful presence] and only if the consular officer seeks relief by submitting the waiver request [ARIS Waiver Request Form through the Admissibility Review Information Service (ARIS)]. 9 FAM 302.11-4(D)(2)(c). This waiver may occur within or outside the 10 years. An applicant seeking to waive permanently (9)(C)(i)(I) or (9)(C)(i)(II) [reentry/attempt EWI after deportation] must file and obtain approval of an I-212 waiver. 9 FAM 302.11-4(D)(2).
|p. 223 (Ch. 3, ¶ IV.D)||Expedited removal||
Replace paragraphs 1 and 1.a. with the following:
1. Generally—Under IIRIRA, Congress mandated (beginning Apr. 1, 1997) a procedure for expedited removal of persons deemed inadmissible at the border under INA §212(a)(6)(C) (material misrepresentation) and INA §212(a)(7) (lack of IV or NIV documents). 8 CFR §§235.3(b), 1235.3(b). The expedited-removal regulations have been upheld. AILA v. Reno, 199 F.3d 1352, 1356–57 (D.C. Cir. 2000) [finding that AILA lacked third-party standing and that district court’s dismissal of individual plaintiffs for failure to state cause of action was correct]. Expedited removal may also apply to persons not admitted or paroled who are unable to prove they have been in the U.S. continuously for 2 or more years. INA §235(b)(1)(A)(iii)(I)–(II). On July 23, 2019, USCIS expanded expedited removal to apply in the following two situations. First, it applies to anyone who: (i) did not arrive by sea; (ii) was admitted or paroled; (iii) is stopped by an immigration office more than 100 miles from a US international land border; and (iv) cannot prove he or she has been continuously physically present in the U.S. for more than two years immediately prior to the date his or her inadmissibility is determined. Second, it applies to anyone who: (i) did not arrive by sea; (ii) was not admitted or paroled; (iii) is stopped by an immigration officer within 100 miles of the border; and (iv) has been continuously physically present in the US for 14 days (but less than two years) immediately prior to the date his or her inadmissibility is determined. 84 FR 35409-14 (July 23, 2019). Prior expansion focused on the 100-mile limit in the Southern Border, Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004), but it was subsequently expanded to all borders, including the Northern Border. Press Release, DHS (Jan. 30, 2006), AILA Doc. No. 06013018; Memo, Mead, Ex. Assoc. Director, ICE, Strategic Use of Expedited Removal Authority (Apr. 5, 2011), AILA Doc. No. 14101447. Persons who arrive in the U.S. by sea (except if they come from a country in the Western Hemisphere for which we no longer have full diplomatic relations, formerly Cuba) will also be subject to expedited removal, unless they were in the U.S. for two years prior to the determination of inadmissibility. 67 FR 68924–26 (Nov. 13, 2002). Cubans are no longer exempt from expedited removal. 82 FR 4902 (Jan. 17, 2017). Persons paroled prior to Apr. 1, 1997, will not be put in expedited removal proceedings. Also, persons reentering the U.S. on advance parole, although arriving aliens, may not be subject to expedited removal. 8 CFR §§1.2, 1001.1(q). Memo, Perryman, Exec. Assoc. Comm. INS, 501 12.1-P (June 30, 1997), reprinted in 74 No. 31 Interpreter Releases 1247, 1258–59 (Aug. 18, 1997). See also Bona v. Gonzales, 425 F.3d 663, 667–68 (9th Cir. 2005) [person granted advance parole not considered an arriving alien for purposes of expedited removal]; American-Arab Anti-Discrimination Comm. v. Ashcroft, 272 F.Supp.2d 650 (E.D. Mich. 2003) [where ICE placed person who was paroled on a fraudulent I 512 into expedited removal proceedings, the court found that persons paroled into U.S. are not “arriving aliens”]. If a person subject to inspection is not inadmissible under one of the two designated sections, he or she would be subject to a removal proceeding under INA §240 for persons who are inadmissible (unless suspected of being a terrorist, in which case INA §235(c) would apply). A record of the proceedings, including the facts of the case and the statements made by the applicant for admission, should be created on Form I 867AB. 8 CFR §§235.3(b)(2)(i), 1235.3(b)(2)(i).
1.a. The categories included in the view of USCIS, Memo, Lafferty, Chief, Asylum Division, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determination, HQRAIO 120/9.15b (Feb. 13, 2017), AILA Doc. No. 17022434, 17022435 and updated Lesson Plan, Lesson Plan Overview, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determinations (Apr. 30, 2019), AILA Doc. No. 19050602, 84 FR 35409-14 (July 23, 2019), are:
|p. 355 (Ch. 3, ¶ VI.A.12)||Full faith and creditPickeringConvictionSentenceVacatur||
Replace paragraph 12 with the following:
Vacating a Sentence—A vacatur, modification, or clarification of a sentence will only be considered for immigration purposes if it was vacated, modified or clarified under the Pickering standard for a procedural or substantive reason. Matter of Thomas & Matter of Thompson, 27 I&N Dec. 674 (AG 2019) [overruling Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005) (where sentence was modified nunc pro tunc expressly to avoid deportation); Matter of Song, 23 I&N Dec. 173 (BIA 2001) (same); Matter of Estrada, 26 I&N Dec. 749 (BIA 2016) (where sentence clarified IJ considers state characteristic) and holding that only the Pickering standard will apply to changes in sentences for immigration purposes]; U.S. v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013) [court deemed defendant’s conviction an aggravated felony after characterizing the sentence as 12 months of confinement despite state court judge issuing a clarification order that the sentence was for 12 months’ probation, not confinement]. See also Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018) [an amendment to Cal. Penal Code §18.5 that retroactively lowered the maximum possible sentence of certain offenses from 365 days to 364 days did not disturb the IJ’s finding that at the time of his removal proceeding respondent was ineligible for cancellation as his CIMT conviction at the time was for a sentence for which “one year or longer may be imposed”].
|p. 488-90 (Ch. 3, ¶ X.N)||Unaccompanied minors
Replace paragraph 8 with the following:
8. Detention of Children and Families—The detention of minors, whether accompanied by their parents or considered unaccompanied minors (called “unaccompanied alien children” or UACs) has been an issue of sustained litigation over many years.
8.a. UACs—In accordance with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), 8 USC §1232 and 6 USC §279 CBP and ICE must promptly determine if a child meets the definition of an “unaccompanied alien child” (UAC) and if so transfer him or her to the custody of ORR within 72 hours absent exceptional circumstances. Memo, Kelly, Sec. DHS, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), ¶I, p.10, AILA Doc. No. 17021831. The Trafficking Victims Protection and Reauthorization Act, P.L. No. 110-457 (Dec. 23, 2008), 8 USC §1232(b)(1) requires that HHS and its sub-agency Office of Refugee Resettlement maintain the care and custody of unaccompanied alien children including their detention and release. A UAC is defined as an individual who has no legal status, has not attained the age of 18, and has no parent or legal guardian in the US or no parent or legal guardian is available to provide care and physical custody. 45 CFR §410.101. The determination of UAC is made at “the time of encounter or apprehension and prior to the detention or release” of the person. 8 CFR 236.3(d); 84 FR at 44426-27. Custody of a child by ORR does not per se violate the INA or the Homeland Security Act and ORR/HHS may refuse to release a child even to a parent’s custody if they determine the parent is unable to care for the physical and mental well-being of the child. They may therefore continue to treat the child as an unaccompanied minor. D.B., as Next Friend of R.M.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) [parent lacked a substantive due process claim or statutory claim for the release of her son, but she does have a procedural due process right under Mathews to obtain a hearing for his release]; Beltran v. Cardall, 222 F.Supp.3d 476, 481-89 (E.D. Va. 2016) [finding on remand that procedural due process requires the government has the burden to initiate proceedings if it seeks to withhold a child from a parent and ORR owes the parent “some form of adversarial process and could not simply require the [parent] to change the agency’s mind]; Santos v. Smith, 260 F.Supp.3d 598, 604-16 (W.D. Va. 2017) [due process rights of the minor in ORR custody for over two years were violated and court ordered immediate release to his mother as a remedy]. See also L.V.M. v. Lloyd, 318 F.Supp.3d 601 (S.D.N.Y. 2018) [court certified class and entered order enjoining a new policy requiring the ORR director’s personal review and approval before a UAC may be released]. DHS has now issued regulations regarding the release and detentions of UACs and ORR and a UACs burden of proof in custody. Under regulations issued by DHS to end the Flores Settlement Agreement, 84 FR 44392-44535 (Aug. 23, 2019) DHS asserts that in a hearing to challenge a determination regarding custody/placement (whether a UAC should be released to a parent, legal guardian or placed in a non-secure facility), that HHS bears the initial burden of production to support its determination that the UAC would pose a risk of danger or flight risk if discharged from HHS care and custody. Once meeting the burden of production the “burden of persuasion” then shifts to the UAC to determine that he or she, by a preponderance of the evidence, will not be a danger or flight risk. 45 CFR §410.810(b). A hearing officer’s decision may be appealed to the Assistant Sec. of Administration for Children and Families within 30 days of the hearing officer’s decision and it is governed by the clear error standard. § 410.810(e); 84 FR at 44476-84.
8.b. Flores Litigation—In Reno v. Flores, 507 U.S. 292 (1993) the S.Ct. found that children in detention do have due process rights but the Court rejected a facial challenge on substantive and procedural due process, equal protection and statutory grounds to the government’s regulation. In response to the Flores litigation, a settlement agreement was entered into by the government and the Service established more liberal guidelines for the release of unaccompanied minors. Memo, McNary (Dec. 13, 1991), reprinted in 69 No. 6 Interpreter Releases, 189, 205 (Feb. 10, 1992). Under the settlement no unaccompanied minor may be held in a detention facility for more than 72 hours unless s/he is: (1) charged or convicted of a criminal offense other than EWI; (2) adjudicated a delinquent or subject to pending delinquency proceedings; (3) engaged in violent or extremely disruptive conduct; (4) escaped from another facility; (5) an unrepresented Salvadoran under Orantes; or (6) there are other extraordinary or compelling reasons. The Flores decision also sets the minimum standards for detention, housing and release of noncitizen juveniles who are detained that includes a general policy favoring release. In Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) the court held that the 1997 Flores settlement which created “a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards” unambiguously applies to accompanied as well as unaccompanied minors, but it creates no affirmative right for the accompanying adult to be released. The standard for the release of adults is governed by the usual standard articulated In re Guerra, 24 I&N Dec. 37, 38 (BIA 2006) [non–criminal alien bears the burden of establishing “that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight”]. However, the Court found that the current detention and release policies for children in response to the surge of Central Americans attempting to enter the U.S. in 2014 “do not comply with the Settlement.” On Jan. 20, 2017, the district court enforced the original settlement finding that the government was violating paragraph 24A of the agreement by denying unaccompanied immigrant minors the right to a bond hearing. Flores v. Lynch, CV 85-4544 DMG (AGRx), AILA Doc. No. 14111359. In Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) the Ninth Circuit upheld the validity of paragraph 24A of the settlement requiring bond hearings for unaccompanied minors notwithstanding changes in statutory law (Homeland Security Act and the 2008 TVPRA) that the government claimed terminated that right. The district court has also enforced other aspects of the original Flores agreement including the appointment of a Juvenile Coordinator designated by defendants to report periodically to the court regarding enforcing aspects of the agreement that the court found the defendants failed to comply with. Flores v. Sessions, No. CV 8504544 DMG (AGRx) (C.D. Cal. June 27, 2017), AILA Doc. No. 14111359 [finding that defendants failed to comply with paragraph 12A of the agreement in the Rio Grande Sector of CBP in regard to providing children adequate food, clean drinking water, sanitary conditions, temperature control in what many call the hieleras (iceboxes), and sleeping conditions as well as other provisions and directing defendants to pick a Juvenile Coordinator pursuant to paragraph 24A of the agreement]. On Aug. 23, 2019 DHS issued regulations governing the detention of UACs and other minors in light of the provision of the Flores Settlement Agreement that called for the termination of the agreement in 45 days following the defendants’ publication of final regulations implementing the settlement agreement. See 84 FR 44392, 44398-403 [discussing history of Flores litigation].
8.c. Family Detention Standards— ICE also detains minors who enter with family members and who are, therefore, not UACs in family detention centers. In early January 2008, ICE issued family detention standards that it posted on its website (www.ice.gov/detention-standards/family-residential). Legal Access and Visitation Standards were established in SOPs by ICE in 2015. SOPs, ICE, No. 11302, Legal Access and Legal Visitation SOPs for ICE Family Residential Center (Oct. 30, 2015), AILA Doc. No. 15112461. Roth, I.G. Report, DHS to Johnson, Sec. DHS Oversight of Unaccompanied Alien Children (July 30, 2014) [noting need to follow Reno v. Flores settlement agreement for unaccompanied minor children], AILA Doc. No. 14073144. R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) [preliminary injunctive relief granted to class of mothers with minor children from Honduras, Guatemala and El Salvador who established credible fear but were kept in detention while asylum claims were being processed because of ICE’s invocation of “general deterrence” as the reason for detention]; Aracely, R. v. Nielsen, 319 F.Supp.3d 110, 145-58 (D.D.C. 2018) [same; government may not consider general deterrence policy in deciding parole regarding “arriving aliens” at ports of entry seeking asylum where original Morton memo on parole established factors that did not include general deterrence]; Statement, Johnson, DHS Sec., Statement by Secretary Jeh C. Johnson on Family Residential Centers (June 24, 2015), AILA Doc. No. 15062431 [reviewing for release all families in detention more than 90 days; ending the use of general deterrence as a factor]. It regulations now provide for detention of families as a group. 8 CFR §236.3(h); 84 FR at 44433-34.
8.d. DHS Regulations—84 FR 44392-535 (Aug. 23, 2019); 8 CFR §§212.5(b)(3); 236.3; 45 Part 410 (ORR regulations). Prior to the issuance of DHS regulations on Aug. 23, 2019 ICE policy regarding apprehension and detention of children was reflected in ICE manual at: ICE, Enforcement and Removal Operations, Juvenile and Family Residential Management Unit, Field Office Juvenile Coordinator Handbook (Sept. 2017), AILA Doc. No. 18042630 [manual regarding “processing, transporting, managing and removing minors” including obtaining so-called voluntary withdrawals (p.20) at the border]. For EOIR’s position see Memo, Maggard, Chief IJ (Acting), Revised Docketing Practices Relating to Certain EOIR Priority Cases (Feb. 3, 2016), AILA Doc. No. 16020406; Memo, O’Leary, Chief IJ, EOIR, Docketing Practices Relating to Unaccompanied Children Cases and Adults with Children Released on Alternatives to Detention in Light of New Priorities (Mar. 24, 2015), AILA Doc. No. 15032702. The Aug. 2019 regulations address minors and UACs who are detained. Minors, as distinct from UACs, are now defined as persons who have not reached the age of 18 and have not been emancipated in an appropriate state judicial proceedings or are not incarcerated because they were tried as adults. 8 CFR §236.3(b). Unaccompanied alien children (UACs) are children who have no lawful immigration status in the US and who have not attained the age of 18 and they have no parent or legal guardian present in the US or no parent or legal guardian available to provide care and physical custody. Id; 45 CFR §410.101. The determination of UAC is made at “the time of encounter or apprehension and prior to the detention or release” of the person. 8 CFR 236.3(d); 84 FR at 44426-27.
(1) Detained Children Subject to Expedited Removal—In contrast to court decisions and the Flores settlement, DHS believes that minors subject to expedited removal will be detained without bond, although they may be paroled. 8 CFR §212.5(b)(2), 84 FR at 44393 [“the provisions in §235.3(b) ... apply to all ... aliens, including minors in DHS custody, and not just adults”]; 84 FR at 44397 [“minors who are in expedited removal proceedings whose credible-fear determination is still pending or who lack a credible fear and are awaiting removal are more likely to be held until removal can be effectuated. Furthermore, minors who have been found to have a credible fear and who are otherwise in INA section 240 proceedings, and who pose a flight risk or danger if released, are more likely to be held until the end of their removal proceedings…”]. The regulations treat minors, who are not UACs, the same as adults and allow parole only under a medical emergency or for a law enforcement purpose. 8 CFR §236.3(j)(2). However, where a minor who is not a UAC, like an adult, appears to have a credible fear and is placed in a 240 proceeding, the parole standard is “urgent humanitarian reasons” or “significant public benefit.” 8 CFR §212.5(b). Although the regulations seem to provide a liberal standard for parole, 8 CFR §236.3(j)(4) [the parole of minors “will generally serve an urgent humanitarian reason warranting release on parole if DHS determines that detention is not required to secure the minor’s timely appearance before DHS or the immigration court, or to ensure the minor’s safety and well-being or the safety of others”] and ICE officers can consider a broader array of family members other than parents and legal guardians in granting release, 8 CFR §236.3(j)(5)(i), 84 FR at 44443-45 [brother, sister, aunt uncle or grandparent], the ICE officer will consider “aggregate and historical data, officer experience, statistical information or any other probative information” in making a parole determination which is in his or her “unreviewable discretion.” This appears to reverse such cases as R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) which enjoined the government from using general deterrence as a basis for detention. It is also troubling in light of the commentary to the final rules which claim a 43% failure to appear rate for families in detention, 84 FR at 44405, and presumably could be used as part of the “aggregate and historical data” in determining parole. There is also no review before an IJ unless the minor is in a 240 proceeding. 8 CFR 236.3(m).
(2) Minors in Secure Facilities—Minors who are not UACs may be placed in a secure (as distinct from the usual non-secure) facility such as a county juvenile detention facility or a secure DHS or contracted facility if the FOD or ICE supervisory or management personnel have probable cause to believe the minor: (1) has been charged with a crime or is charged or adjudicated delinquent that fits a pattern or practice of criminal activity or involves violence against a person or the use or carrying of a weapon; (2) has committed or made credible threats to commit violent or malicious acts while in federal or state custody or in the presence of an immigration officer; (3) has engaged in unacceptably disruptive conduct while in a licensed facility; (4) is determined to be an escape risk under 8 CFR §236.3(b)(6); or (5) must be held in a secure facility for his own safety. 8 CFR §236.3(i)(1); 84 FR at 44434-37.
(3) Minors in Non-Secure Licensed Facilities—If not placed in a secure facility minors in a family or other non-secure facility, are entitled to: (i) proper physical care; (ii) appropriate routine medical, mental health and dental care, family planning services, emergency health care services including medical examination within 48 hours of admission excluding weekends and holidays, appropriate immunizations, administration of prescribed medication and special diets, and appropriate mental health interventions when necessary; (iii) individualized needs assessment; (iv) educational services appropriate to the minor in a structured classroom setting; (v) appropriate reading materials in languages other than English for leisure reading; (vi) recreation and leisure time plan; (vii) at least one individual counseling or mental health session per week; (viii) group counseling sessions at least twice a week; (ix) orientation upon admission; (x) access to religious services of the minor’s choice; (xi) visitation and contact with family members (regardless of their immigration status); (xii) reasonable right to privacy; (xiii) communication with adult relatives regarding legal issues when necessary; (xiv) legal services information; (xv) attorney-client visits. 8 CFR §236.3(i)(4); 84 FR at 44437-43. However, a minor who is not a UAC and is accompanied by a parent or legal guardian in detention may be placed in a facility that is not licensed by the state if the licensing process is unavailable in the state, county or municipality of the ICE detention facility. Instead, DHS “shall employ an entity outside of DHS that has relevant audit experience to ensure compliance with the family residential standards established by ICE” and shall conduct such audits at the opening of the facility and on a regular on-going basis thereafter. 8 CFR §236.3(b)(9).
(4) Release of Minors Who Are Not UACs in 240 Proceedings—DHS may decide to release minors who are in 240 proceedings but are not UACs either through parole under INA §212(d)(5) or INA §236(a). DHS may release a minor to a parent or legal guardian or to an adult relative (brother, sister, aunt, uncle, or grandparent) in its “unreviewable discretion.” 8 CFR §236.3(j)(5). If they are not in expedited removal and they are in a 240 proceeding, they are entitled to a bond hearing. 8 CFR 236.3(m); 45 CFR §410.810; 84 FR at 44446-48
(5) Transferring Minors—A minor or UAC who is represented will not be transferred from one ICE placement to another or from ICE to ORR until notice is provided to counsel except in unusual and compelling circumstances such as where the safety of the minor or UAC or others is threatened or the minor or UAC is an escape-risk or where counsel waived notice. Even in such circumstances counsel must be notified within 24 hours following transfer. 8 CFR§236.3(k)(2); 84 FR at 44427-29, 44445-46, 44471-72
(6) Placing UACs in Secure Facilities—45 CFR §410.203. A UAC may be placed in a secure facility for the same reasons as any minor except the regulations did not include an escape risk because under the TVPRA a UAC cannot be placed in a secure facility absent a determination that the child poses a danger to self or others or has ben charged with having committed a criminal offense. 8 USC 1232(c)(2)(A); 84 FR at 4447-40. While a UAC may not be placed in a secure facility if he or she is simply an escape risk, he may be transferred to another ORR facility. 84 FR at 44460. And a UAC will not be placed in a secure facility if there is a less restrictive alternative. 45 CFR §410.205.
(7) Releasing UACs—45 CFR §410.301. The order of preference in releasing a UAC is: (i) a parent; (ii) a legal guardian; (iii) an adult relative (brother, sister, aunt, uncle or grandparent); (iv) an adult or entity designated by the parent or legal guardian as capable and willing to care for the UAC in a declaration signed under penalty of perjury or such other document satisfactory to ORR; (v) a licensed program willing to accept legal custody; or (vi) an adult or entity in the discretion of ORR when it appears there is no other likely alternative to long terms custody and family reunification does not appear to be a reasonable possibility. 84 FR at 44463.
(8) Rearrest of Unaccompanied Minor—An unaccompanied minor who is rearrested by ICE after release to a sponsor because of changed circumstances, such as membership in a violent gang, also has a due process right to a prompt hearing before an IJ in which the government’s claim of changed circumstances is put to the test. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018) [affirming preliminary injunction of a class of unaccompanied minors who are rearrested; Unaccompanied minors are entitled to a due process hearing before an IJ within 7 days of detention to determine whether there were changed circumstances warranting ICE’s re-arrest]; 8 CFR §236.3(n)(3); 84 FR at 44448-49.
8.e. Separating Children from Their Parents—The government’s policy of separating children from their parents at the border for ulterior law enforcement purposes in an manner antithetical to child welfare values and in the context of fleeing persecution raises serious substantive due process concerns because it interferes in the constitutional right of family integrity. Ms. L v. US ICE, 302 F.Supp.3d 1149, 1162-67 (S.D. Cal 2018) [denying government’s motion to dismiss]. See also M.M.M. on Behalf of his Minor Child J.M.A. v. Sessions, 347 F.Supp.3d 526 (S.D. Cal. 2018) [injunctive relief granted to children to prevent their parents deportation until it could be determined whether parents voluntarily waived the children’s right to asylum where children were forcibly separated from the parents shortly after crossing into the US]; J.S.R. By And Through J.S.G. v. Sessions, 330 F.Supp.3d 731, 741-43 (D. Conn. 2018) [children separated from the parents after crossing the border without notice or an opportunity for a hearing to determine the parent is unfit or a danger to the child violated the children’s due process rights and caused them irreparable harm]; M.G.U. v. Nielsen, 325 F.Supp.3d 111, 118-21 (D.D.C. 2018) [injunction requiring reunification of children separated from parents at the border because parents “have a fundamental liberty interest in family integrity…”]; De Nolasco v. USCIS, 319 F.Supp.3d 491 (D.D.C. 2018) [forced separation under “zero tolerance” policy of Guatemalan families fleeing gang violence “substantially and directly violated family integrity” in violation of substantive due process and government ordered to reunited mothers and children]; W.S.R. v. Sessions, 318 F.Supp.3d 1116 (N.D. Ill. 2018) [mandatory injunction requiring that the government reunite the two minor plaintiffs with their fathers after forcibly separating them because such separation is a violation of substantive due process; enjoined the removal of the fathers but declined to require the release of the fathers]. In response to the public’s disgust at the separation policy, the President signed yet another Executive Order stating that “where appropriate and consistent with law and available resources” the government will keep the parents in detention with the children. Executive Order 13841, Affording Congress an Opportunity to Address Family Separation (June 22, 2018) at Sec. 1, 83 FR 29438 (June 25, 2018). But see Reyna As Next Friend of J.F.G v. Hott, 921 F.3d 204, 210-11 (4th Cir. 2019) [no substantive due process right to family unity preventing transfer of parents away from their children]
8.f. Withdrawal of Application at the Border—ICE, recognizing that unaccompanied minor children at the border have special rights which require them to be given removal hearings, is now seeking to get the children to withdraw their applications at the border and return to Mexico. Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶D, AILA Doc. No. 17070730. However, the parent must be notified and be afforded an opportunity to present his or her views before a merits determination is made where there is a potential for terminating the parent-child relationship or the child’s assertion of rights are adverse to the parents. 8 CFR §236.3(l).
8.g. DNA Testing at the Border—DHS has begun a DNA pilot program at the border at El Paso and the Rio Grande Valley to determine whether children seeking to enter the US are related to the persons bringing them to the US or are subject to child trafficking.
8.h. Termination of Pregnancy—Court entered preliminary injunction where ORR policies regarding pregnant unaccompanied minors: (1) deprived them of comprehensive and unbiased options counseling; (2) denied them the power to decide for themselves whether to involve their parents in their pregnancy decision; and (3) stripped them of their right to make autonomous decisions about whether to become a parent. Garza v. Hargan, 304 F.Supp.3d 145 (D.D.C. 2018) (D.D.C. 2018)¬¬ [certified class of pregnant minors in ORR custody subject to onerous policies and procedures regarding termination of their pregnancy granted preliminary injunction]. This case was vacated by the Supreme Court under Munsingwear in light of the unaccompanied minor’s termination of pregnancy. Azar v. Garza, 584 U.S. ___(2018)
8.i. Determining When a Person is a Minor—PL 110-457 §235(b)(4) (Dec. 23, 2008) instructed HHS to devise age determination procedures for minors in custody. Section 235 of the TVPRA enacted Dec. 23, 2008 provides substantial protection and more generous release standards for unaccompanied minors in immigration custody. To determine the appropriate age when an issue has arisen, DHS officials and a Federal Field Specialist from HHS shall consider the following: (i) birth certificate in consultation with the embassy of the home country to verify the certificate; (ii) other objective documents such as baptismal certificates, school records, medical records; (iii) statement provided by the minor regarding his age or birth date; (iv) statements from parents if they can be contacted; (v) statements from others apprehended with the minor; (vi) sworn affidavits from parents or other relatives; (vii) biometric age determinations such as bone density examination or dental forensics; (viii) record systems checks; (ix) forensic dental examination, radiographs and bone density tests as “a last resort.” If the forensic examination results are ambiguous, debatable or borderline “results will be resolved in favor of finding the alien a minor.” Administration for Children and Families, HHS Office of Refugee Resettlement, Division of Unaccompanied Children’s Services, Program Instruction (Mar. 23, 2009), AILA Doc. No. 09041364. But see Legal Opinion, King, GC, EOIR, EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA (Sept. 19, 2017), AILA Doc. No. 17100201 [opining that IJs are not bound by DHS’s determination regarding whether a respondent is a UAC and claiming that IJs may resolve any dispute about UAC status during the course of removal proceedings when it bears on the UACs eligibility for relief including the initial jurisdiction over asylum]. See also 8 CFR §236.3(c), 45 CFR §410.700, 84 FR at 44424-26 [determination based upon a “reasonable person” standard and the “totality of the circumstances”]; 84 FR at 44472-74 [totality of the circumstances as criteria].
8.j. Sexual Harassment—HHS has also set forth standards to prevent, detect and respond to sexual abuse and sexual harassment involving unaccompanied minor children in the care of ORR. 79 FR 77768-800 (Dec. 24, 2014); 45 CFR pt. 411.
8.k. Family Case Management Program—ICE previously established a Family Case Management Program as an alternative to detention that uses qualified case managers to promote participation in the hearing and removal process. Fact Sheet, ICE, Stakeholder Referrals to the ICE/ERO Family Case Management Program (Jan. 2016), AILA Doc. No. 16011104. This program has been eliminated under the current administration. ICE Ends Alternative Detention Program, Citing Few Removals, Law 360 (June 9, 2017).
|p. 540 (Ch. 3, ¶ X.T.5.g)||Continuance||
Replace the second sentence of paragraph 5.g.(1) with:
In Matter of L A B R , 27 I&N Dec. 405 (AG 2018), the AG elaborated on the “good cause” standard, holding that the IJ should consider primarily: (1) the likelihood that the noncitizen will receive collateral relief and (2) whether the relief will materially affect the outcome of the removal proceeding. The IJ should also consider (i) whether the noncitizen has exercised reasonable diligence in pursuing the relief; (ii) DHS’s position on the motion; (iii) the length of the requested continuance; (iv) the procedural history of the case; and (v) concerns of administrative efficiency. Matter of L-A-B-R- at 413-17 [giving as examples lacking “good cause” a request for a continuance to seek an I-601A waiver or to await the outcome of a collateral attack of a criminal conviction]. The courts have taken a broader view.
|p. 541 (Ch. 3, ¶ X.T.5.h)||Removal proceedings
Replace the Apparent Eligibility paragraph in 5.h with:
Apparent Eligibility—Pursuant to 8 CFR §1240.11(a) the IJ must notify the respondent of “all benefits enumerated in this chapter,” Matter of Cordova, 22 I&N Dec. 966, 970 n.4 (BIA 1999), including all relief available, particularly cancellation, adjustment and registry, if the respondent has “apparent eligibility” for such relief. 8 CFR §1240.11(a)(2). Unlike the previous regulation, this requires advising the applicant of both forms of VD. Cordova, supra. However, it may not extend to potential eligibility if there are certain facts, not disclosed to the IJ, for which the IJ could not have reasonably known. U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform applicant that he could have married his undisclosed fiancée or that his parents could naturalize thus making him eligible to AOS does not violate the regulation]. But a “failure to advise can be excused only when the petitioner’s eligibility for relief is not ‘plausible…’ and it is not the province of the IJ to determine the petitioner’s entitlement to the relief. C.J.L.G. v. Barr, __F.3d__,___(pp.12-14), 2019 WL 1967943 (9th Cir. 2019) (en banc) [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and failure to advise is only excusable where relief is not plausible]. “Apparent eligibility” arises “where the record fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must advise the alien of the possibility and give him the opportunity to develop the issue.” Asani v. INS, 154 F.3d 719, 727–28 (7th Cir. 1998) [IJ failed to advise as to suspension]. The IJ should also grant a continuance to allow the applicant to apply. C.J.L.G. v. Barr, __F.3d__,__(pp.16-17), 2019 WL 1967943 (9th Cir. 2019) (en banc), [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and should have granted continuance to allow him to apply]. In Matter of C B , 25 I&N Dec. 888 (BIA 2012), the BIA reversed the IJ for: (1) failing to advise the applicant of asylum/withholding and CAT after the respondent expressed a fear of returning to Guatemala; and (2) failing to notify respondent of post-completion VD after the respondent said he wanted to appeal his case and therefore was no longer eligible for the prehearing VD granted to him. See also Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [K-3 eligible for an INA §212(d)(3)(A) waiver and IJ erred in not advising her of the right to apply]; Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) [reversing deportation order where respondent apparently eligible for §212(h) relief]; Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) [test applied to former §243(h)]; U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [IJ’s failure to advise of apparent eligibility for INA §212(h) resulted in reversal of guilty plea for re-entering]; U.S. v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) [permitting withdrawal of plea before sentencing where defendant argued that intervening St. Cyr decision was basis to dismiss indictment for illegal reentry because IJ failed to inform him of INA §212(c) relief even though he informed him of cancellation but only if he did not commit aggravated felony]; U.S. v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998) [failure to inform person married to USC of 212(h) waiver “taints” hearing, although not prejudicial in this case]; U.S. v. Maldonado, 33 F.Supp.3d 1178, 1185-90 (S.D. Cal. 2014) [granting motion to dismiss indictment for unlawful reentry because defendant, under “apparently eligibility” doctrine was never informed of his right to apply for suspension of deportation]; U.S. v. Andrade-Partida, 110 F.Supp.2d 1260 (N.D. Cal. 2000) [respondent never advised of INA §212(c) relief]; Matter of Cordova, supra [reversing final order where IJ improperly told applicant he was ineligible for VD because he lacked good moral character]; Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999) [respondent inadmissible as public charge had the right to be informed by IJ of a waiver under §213]. But see Matter of R S H , 23 I&N Dec. 629, 644 (BIA 2003) [failure of IJ to advise respondents as to prehearing VD was not prejudicial because respondents provided no reason to believe they would have waived their rights to other relief]; U.S. v. Rodriguez-Aparicio, 888 F.3d 189, 196 (5th Cir. 2018) [despite “apparent eligibility” test there is no prejudice in context of dismissal of criminal indictment where IJ fails to inform applicant of relief because there is no property or liberty interest in discretionary relief and therefore denial did not rise to level of fundamental unfairness]; Alva-Arellano v. Lynch, 811 F.3d 1064 (8th Cir. 2016) [where respondent did not express fear and did not present any documents, IJ had no obligation to inform respondent about asylum and refusal to reopen was warranted]; U.S. v. Valdez-Novoa, 780 F.3d 906, 912-21 (9th Cir. 2015) [defendant not prejudiced under “apparent eligibility” doctrine where he was ineligible for VD because he was convicted of an aggravated felony and therefore ineligible for VD]; U.S. v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc) [where applicant was not eligible for INA §212(c) relief at the time of his deportation proceeding and would not be eligible for 8 months and a change in the law, the IJ did not err under “apparent eligibility” in failing to inform him]; Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. 2008) [no due process violation to fail to inform respondent of asylum, withholding and CAT where there was no plausible basis for such an application]; Mema v. Gonzales, 474 F.3d 412, 420–21 (7th Cir. 2007) [no due process violation for failing to inform respondent under §1240.11(a)(2) of his right to withdraw his application for admission where there is no showing of prejudice]; Bejko v. Gonzales, 468 F.3d 482, 487–88 (7th Cir. 2006) [same]; Bonhometre v. Gonzales, 414 F.3d 442, 448–50 (3d Cir. 2005) [no due process violation for failure to inform respondent of INA §§212(c), 212(h) and CAT because respondent was not eligible for §212(c)/212(h), and no evidence was presented regarding CAT claim]; U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004) (en banc) [no constitutional right to be informed of discretionary relief that might be available such as INA §212(c)]; U.S. v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) [failure to inform defendant of §212(c) relief does not rise to the level of fundamental unfairness and does not affect the conviction because there is no liberty or property interest in §212(c) relief].
|p. 650 (Ch. 3, ¶ X.T.7.w.)||Removal proceedings
Add to the end of subparagraph (3):
Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];
|p. 754 (Ch. 4, ¶ III.A.6.d.(1))||Asylum
Particular social group
Replace the first full paragraph, discussing social group based on family, with the following:
Matter of L-E-A Standard Regarding Families and Nexus—The AG, reversing the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594. The AG left intact, however, the former opinion’s stringent reading of “nexus,” finding no nexus simply because a family member was persecuted due to being the son of man a cartel was interested in having sell its drugs. Under the facts in Matter of L-E-A, the court first rejected the claim where drug cartel members wished to use the father’s store to sell drugs and they threatened his son because “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental.” But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [the family relationship was one central reason for the threats against the wife and children of the deceased where the husband’s former employer, connected to criminal activity, feared the wife would go to the police]. The one central reason requirement only applies to asylum post-REAL ID and not to withholding or CAT. Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason].
|p.836 (Ch. 4, ¶ VIII.N)||TPS||
Add to the paragraph concerning TPS for nationals of Somalia:
TPS was again extended for nationals of Somalia, until Mar. 17, 2020. For registration periods and employment authorization, see 83 FR 43695-700 (Aug. 27, 2018).
|p.838 (Ch. 4, ¶ VIII.T)||TPS||
Add to the paragraph concerning TPS for nationals of Yemen:
TPS was again extended for nationals of Yemen, until Mar. 3, 2020. For registration periods and employment authorization, see 82 FR 40307-13 (Aug. 14, 2018).
|p. 939 (Ch. 4, ¶ XII.B.2.h.(1)(c))||Asylum
Particular social group
Replace subparagraph (c) with:
AG Opinion in Matter of L-E-A- Undermining Family as a Social Group— The AG, reversing in part the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question.”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id. at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594.
Former L-E-A- Opinion on Nexus—The BIA determined in the first Matter of L-E-A- decision, 27 I&N Dec. 40 (BIA 2017), that when it came to a social group claim based upon family, “the respondent must demonstrate that the family relationship is a least one central reason for the claimed harm” and that there must be a “nexus” between the threatened harm and the family. The AG left this narrow reading of nexus in place and affirmed the decision of the Board in that respect. Matter of L E A , 27 I&N Dec. 40 (BIA 2017), aff’d as to nexus finding only, Matter of L-E-A-, 27 I&N Dec. 581, 596-97 (AG 2019) [finding no nexus simply because a particular social group of family members exists and the family members experience harm where drug cartel members wished to use the father’s store to sell drugs and they threatened his son; “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental”]. See also Sosa-Perez v. Sessions, 884 F.3d 74 (1st Cir. 2018) [asylum and withholding denied where, despite repeated acts of violence against various family members over three decades, the precipitating 2013 incident was insufficient to demonstrate persecution due to kinship because applicant could not show nexus, that the attack was due to her family status]; Ruiz-Escobar v. Sessions, 881 F.3d 252 (1st Cir. 2018) [same as Sosa-Perez in that despite allegation that he had been persecuted based upon family membership in Honduras, respondent stated he had no idea who attacked him and offered no factual basis for the reasons for family members deaths]; Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) [extortion and assault by gang member against mother cannot be imputed to daughter and verbal threat to take it out on El Salvadoran daughter was insufficient]; Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016) [extortionate threats by members of Mara 18 in Guatemala against brothers was not because of family membership but as prosperous businessmen]; Giraldo-Padron v. Lynch, 846 F.3d 21, 25 (1st Cir. 2016) [applicant for reopening due to changed circumstances in Colombia failed to provide nexus evidence, other than her own speculation, that she would be harmed due to her membership in a family involved in narco-trafficking]; Marin-Portillo v. Lynch, 834 F.3d 99, 101-02 (1st Cir. 2016) [fear that police officer who killed respondent’s father would retaliate against him in anticipation of counter-retaliation is based upon personal motive and not on family as a group]. But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- decision by BIA did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family who fought MS-13; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) [one central reason was applicant’s familial relationship to father who was threatened and extorted b MS-13]; Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [reversed BIA denial based upon family relationship where the family relationship was one central reason for the threats against the wife and children of the deceased because the husband’s former employer, connected to criminal activity, feared the wife would go to the police].
|p. 1025 (Ch. 5, ¶ III.S.5)||RFE
Paragraph 5 should read as follows:
1. Request for Evidence (RFEs) & Notice of Intent to Deny (NOIDs)
8 CFR §103.2(b)(8); AFM at §§10.1(c), 10.5(a)(2), 10.5(b)(4), 11.1(m), 25.2(d)(3), 38.1(e); USCIS Policy Memo, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), AILA Doc. No. 18071377; USCIS, Adjudicating I 601 Waivers (Aug. 2015) at 17-50, AILA Doc. No. 15082741a [RFE table for waivers]
“In response to an RFE or a NOID, applicants, petitioners, or requestors must submit all of the requested materials together at one time, along with the original RFE or NOID. If only some of the requested evidence is submitted, USCIS will consider this to be a request for a decision on the record. See 8 CFR §103.2(b)(11). Additionally, failure to submit requested evidence which precludes a material line of inquiry will be grounds for denying the request. See 8 CFR §103.2(b)(14).” Policy Memorandum, USCIS, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), at 4, AILA Doc. No. 18071377. The regulations do not require adjudicators to issue RFEs or NOIDs before denying an application, 8 CFR §103.2(b)(8), and USCIS has now rescinded its June 3, 2013 policy memo, which provided that an RFE or NOID would issue unless there was “no possibility” that the deficiency could be cured by submission of additional information. PM-602-0163 at 2. An RFE or NOID need not be issued where there is a statutory basis for denial because the applicant, for example, does not have a qualifying relative needed for a waiver or family-based petition. AFM 10.5(a)(2); 72 FR 19100, 19103 (Apr. 17, 2007). Similarly, USCIS may issue a denial without an RFE or NOID where the filed application/petition lacks initial qualifying evidence such as a waiver application with little or no supporting evidence or where a document is required such as an I-864 affidavit in a family-based petition. AFM 10.5(a)(2). The applicant/petitioner does not have to establish eligibility beyond a reasonable doubt as the standard is only preponderance of the evidence. Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/2 (Feb. 16, 2005), AILA Doc. No. 05021810 (rescinding May 4, 2004 memo) [“Adjudicators too often issue an RFE for additional types of evidence that could tend to eliminate all doubt and all possibility for fraud”]. An officer may issue a follow-up RFE if the previous RFE “opens up new lines of inquiry.” However, an RFE “should ask for all the additional evidence the officer anticipates having to request.” AFM at 10.5(a)(2). RFEs should not be issued because there is suspected fraud, but instead should be referred to FDNS. Memo, Ohata, Director SC Operations, Guidance on the Limitations of Denials Based on Requests for Evidence Standards, (Jan. 6, 2005), AILA Doc. No. 11051265. When submitting a response to an RFE the applicant must demonstrate the evidence establishes eligibility at the time of originally filing. 8 CFR §103.2(b)(12). An RFE should only be issued where a specific piece of information is missing; the request should not be a “broad brush” request. It is not normally appropriate for officers to “dump” the entire RFE template and send it to the applicant. Memo, Yates (Feb. 16, 2005), supra. The time period to respond to an RFE is “flexible” depending upon the subject matter and should be 30 days to respond to an RFE for an I 539 or I 601A (provisional waiver), and may be less, but never more, than 12 weeks for all other applications. 8 CFR §103.2(b)(8)(iv); Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and AFM Appendix 10-9; USCIS Policy Memo, PM-602-0081, Standard Timeframe for Applicant to Respond to RFE for Evidence Issued in Relation to a Request for a Provisional Unlawful Presence Waiver, Form I 601A, (Mar. 1, 2013), AILA Doc. No. 13031842. If service is by mail there is always an additional three days to respond. 8 CFR §103.8(b). If by mail to a foreign country, USCIS will give an additional 14 days for RFE/NOID response. AFM 10.5(b)(3), App. 10-9. To question an RFE contact email@example.com
A NOID is appropriate where a statute or regulation requires it: Memo, Yates (Feb. 16, 2005), supra VAWA petitions (8 CFR §§204.2(c)(3)(ii) and (e)(3)(ii)), AOS involving certain physicians (8 CFR §245.18(i)) and certain legalization applications (8 CFR §245a.20(a)(2))]. A NOID is also required when derogatory or other information is uncovered by the government or internally obtained from a government source that is unknown to the individual 8 CFR §103.2(b)(16). However, if the information is classified the officer may decide not to disclose it. 8 CFR §103.2(b)(16)(ii) and (iv); PM 602-0163 at 4 n.4. A NOID, even one based upon a claim of fraud, may be overcome. Matter of ___ (AAO NSC Nov. 8, 2012), reported in 18 Bender’s Immigr. Bull. 385, 421 (Apr. 15, 2013) [petitioner overcame NOID where beneficiary relied on employment experience from former employer convicted of fraud]. An applicant only has 30 days to respond to a NOID. Memo, Yates (Feb. 16, 2005), supra. However, an officer may reduce the time periods only after concurrence of a supervisor. Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and Appendix 10-9. There is an additional three days if the RFE or NOID is mailed. 8 CFR §103.5a(b). Weekends and holidays are counted but if the final day falls on a weekend or holiday “the period shall run until the end of the next day which is not a Saturday, Sunday or a legal holiday.” 8 CFR §1.2 [definition of “day”]. An RFE/NOID may also direct an applicant to appear for biometrics capture. If the applicant fails to appear for biometrics or other required in-person process, the application or petition “shall be considered abandoned and denied” unless by the appointment date USCIS receives a change of address or rescheduling request that the agency concludes warrants the failure to appear. 8 CFR §103.2(b)(13)(ii).
|p. 1064 (Ch. 5, ¶ VI.D.11)||F-1
Add to the end of paragraph 11:
Distinguishing Out-of-Status from Termination—In Jie Fang v. Director, USCIS, 935 F.3d 172, 176 & n.22 (3d Cir. 2019) the Third Circuit raised a distinction often overlooked in the regulations. While a student may be out-of-status for engaging in certain conduct, the only basis to terminate student status is found at 8 CFR §214.1(d). In Jie Fang ICE terminated hundreds of student’s status without authorization and inconsistent with 214.1(d) because of their claim that they committed fraud by being enrolled in an ICE created fraudulent university. But 214.1(d) only allows termination in highly limited circumstances and would have required ICE to publish a notification in the Federal Register that termination was due to “national security, diplomatic or public safety reasons.” Jie Fang, 935 F.3d at 176 & n.22.
|p. 1116 (Ch. 5, ¶ VII.C.7.e.3)||H-4
Extension of Status
Paragraph (3) should read as follows:
Extensions for Spouse/Children—The regulatory language at 8 CFR §214.2(h)(13)(iii)(D)(9) and 8 CFR §214.2(h)(13)(E)(6) and the regulatory history at 81 FR at 82452 appear to state that no extensions beyond the 6-year period will be given to anyone but a principal beneficiary. However, these regulations and regulatory history are addressing the unique problem of a spouse who also has H-1B status (not H-4 dependent status) and seeks to use the extensions under 104(c) and 106(a) granted to his or her spouse as a basis for his or her extension. Thus, an H-1B spouse may not rely on his or her spouse’s 104(c) or 106(a) extension, as he or she must obtain his or her own extension. These regulations and regulatory history are not addressing whether an H-4 dependent spouse/child may obtain an extension beyond the six year period. It is clear from 8 CFR §214.2(h)(9)(iv) that H-4 dependent spouses and children may be granted extensions beyond the 6-year period [“for the same period of admission or extension as the principal spouse or parent”]. Also denying an extension under 106(a) appears clearly contrary to 8 CFR §214.2(h)(9)(iv) which grants employment authorization to those spouses extended through 106(a) or (b). See 8 CFR §214.2(h)(9)(iv) [A spouse of an H-1 who has an H-4 may apply for work authorization if the H-1B has had his or her status extended under 106(a), (b) of AC21 or already has an approved I 140 petition]. It is also clear from USCIS memos that an H-1B who has reached the 6-year maximum may C/S to H-4 and remain in the U.S. based on the principal’s status. Memo, Yates, Acting Assoc. Director, USCIS, HQBCIA 70/6.2.8-P (Apr. 24, 2003) at B, AILA Doc. No. 03050145; Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005) at p.10, AILA Doc. No. 05051810. An H-4 or L-2 may change to H-1B or L-1, because the time spent in H-4 or L-2 is not counted toward the 6-years for H-1Bs, or 5/7 years for L-1s. Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS, HQPRD 70/6.2.8, 70/6.2.12, AD 06-29 (Dec. 5, 2006), AILA Doc. No. 06122063; AFM §31.2(d)(2). An H-4 is also free to change to H-2 and H-3 categories and the time spent as an H-4 will not count against the maximum allowable period for H-2 and H-3 as well as H-1B. Policy Memo (Interim), USCIS, PM-602-0092, Additional Guidance on Determining Periods of Admission for [H-4], (Nov. 11, 2013), AILA Doc. No. 13111801; AFM 31.2(d)(2). See in this section ¶ 8.b (p.1117), infra.
|p. 1178 (Ch. 5, ¶ VII.K.11.j.(3))||H-2B
Replace paragraph (3) with the following:
(3) Employer Recruitment [20 CFR §§655.40 to .48; 84 FR 62431-447 (Nov. 15, 2019)]
(a) Advertisements [20 CFR §655.42]
i) As a result of recent final regulations, 84 FR 62431, the employer is no longer required to advertise in newspapers. Instead “DOL will carry out the electronic advertising itself by posting H-2B job opportunities on SeasonalJobs.dol.gov, an improved and expanded version of the electronic job registry that DOL is required to maintain under...20 CFR §655.34.” Once a CO has accepted an employer’s H-2B application for further processing, “DOL posts a brief description of the employer’s job opportunity on SeasonalJobs.dol.gov that includes a link to a full copy of the employer’s job order.” 84 at 62438. DOL will make the ads available in multiple languages by allowing language translation services to access it and will also make a standard set of job data available to third-party job search websites. The CO, however, is not foreclosed from requiring additional advertising in appropriate circumstances. 20 CFR §655.46; 84 FR at 62441-42.
|p. 1200 (Ch. 5, ¶ VII.N.2.d)||L-1||
Add to paragraph 2.d.:
Clarifying Policy Memorandum—On Nov. 15, 2018, USCIS issued a clarifying policy memorandum on several issues regarding the one-year-abroad provision. USCIS Policy Memo, PM-602-0167, AILA Doc. No. 18112933; AFM 32.3. The memo sets forth several principles: (1) the one year abroad is measured from the time of filing the L-1 petition, not admission, so that an applicant must have one year of the prior three years abroad prior to filing an L-1 petition; (2) periods of employment in the U.S. even for the petitioning organization do not satisfying the one-year-abroad requirement, nor can any time spent in the U.S. in any capacity; (3) brief trips into the U.S. on other visas such as a B-1 or B-2 do not interrupt the one-year period but are not counted toward it; for example, a person who spends 60 days in the U.S. over a year period would not accrue the one year until after one year and 60 days were reached, but each entry does not interrupt the one-year period requiring the applicant to start the one year anew; (4) lawfully working for the qualifying organization in the U.S. in another capacity such as an E-2 or H-1B does not count in computing the three-year period; for example, if a beneficiary worked in the U.S. in H-1B status for the qualifying organization from Jan. 2, 2017 to Jan. 2, 2018 and then the petitioner filed for L-1 for the employee, the pertinent three-year period would be Jan 1, 2014 to Jan. 1, 2017, thus not counting the year in H-1B status; (5) periods in the U.S. as an L-2, or F-1 (including OPT), or not being employed or being employed with another unrelated company do count in computing the three years and therefore do not result in an adjustment for the three years as does employment in the U.S. for the qualifying organization; (6) if a beneficiary takes more than a two-year break in employment from the qualifying employer, he or she must initiate another full one year of employment with the qualifying entity and does not get “credit” for any time period previously employed; (7) any e/s of L-1 or c/s to L-1B or L-1A requires that the beneficiary prove he or she initially met the one-year requirement.
|p. 1232-33 (Ch. 5, ¶ VII.S.)||I visa||
Replace paragraph S. with the following:
S. I Visas for Representatives of the Media [INA §101(a)(15)(I), 8 USC §1101(a)(15)(I)]; 2 USCIS-PM, Pt. K; 9 FAM 402.11; 52 FR 42605
1.1. Bona fide representative of foreign press, radio, TV, cable, print, film or other foreign information media, including electronic media platforms
(1) Includes primary employees of foreign information media engaged in filming news events or documentaries, and employees of independent production companies if the employees either: (a) hold a credential issued by a professional journalistic association; or (b) if no credential is available because the sending country has no credentialing authority or the authority does not offer credentialing to the class of media representatives to which the employees belong must satisfy the definition of representative of foreign media. 9 FAM 402.11-3 (a) [bona fide representative], (b) [journalists, researchers, producers, presenters and other on-air personnel, and aliens whose activities provide essential support, e.g. medical film crews, video tape editors].
(2) Television and other production crews may be included if: (i) the employee holds a credential issued by a professional journalist association; (ii) the film or video will be used by foreign based media company to disseminate information or for news; and (iii) the film or video will not be used primarily for advertising, marketing or commercial entertainment. 2 USCIS-PM, Pt. K, Ch. 2; 9 FAM 402.11-3(b),(d), -12 (film/video work).
(3) Freelance media workers as long as they have professional journalistic credentials and a valid contract. 9 FAM 402.11-11.
(4) Bloggers and others involved in social media platforms who are representing organizations engaged in the regular dissemination of journalistic information through online media, but not “personal” blogging. 9 FAM 402.11-10(a)-(b).
(5) Representatives of tourist bureau (controlled, operated or subsidized in whole or part by foreign government) who engage primarily in disseminating factual tourist information about the country. Foreign government trade promotional missions do not qualify. 9 FAM 402.11-13.
(6) Employees of organizations disseminating technical industrial information. 9 FAM 402.11(c).
(7) Foreign media representatives covering various UN-related events and not otherwise eligible for an A or G visa. 9 FAM 402.11-14.
(8) Does not include:
(a) Film production/distribution unless film is informational or educational. Entertainment such as reality tv shows or personal content is not included 9 FAM 402.11-3(d).
(b) Camera crew and other workers producing for commercial entertainment/advertising purposes. Must obtain O-1/O-2 even if no U.S. remuneration and film solely for foreign distribution. 2 USCIS-PM, Pt. K, Ch. 3 ¶A; 9 FAM 402.11-3(d). Because the lines are often blurred between information and entertainment in matters, for example, concerning biographies, USCIS should consider the intended use of the documentary filmmaking or news gathering, and the timeliness of the project relative to the subject event. The officer should also consider the type of organization that employs he applicant and the proposed foreign distribution. 2 USCIS-PM, Pt. K, Ch. 3 ¶¶B–C.
(c) Persons associated with journalistic activities but not directly involved in the gathering, production or dissemination of journalistic information, such as proofreaders. 9 FAM 402.11-3(c).
(9) Foreign Office Abroad is a Requirement—In order to qualify for an I visa there must be a home office abroad. 9 FAM.11-6. If the home office ceases to function or greatly limits its operations after the applicant is in the US, the applicant would not qualify for the I visa. Id. But a foreign press includes a foreign press owned by U.S. shareholders if staffed in large part by non-Americans to collect information for foreign audience. Letter, Odom, Deputy Chief, Visa Services, V-101(a)(15)(i) (Jan. 9, 1986). I visa holder may be employed by a U.S. branch office or U.S. subsidiary of the foreign company provided his or her activities are conducted principally for the benefit of the foreign-based media. Letter, Odom, Chief, Advisory Opinions Division, DOS (Nov. 27, 1995), reprinted in 72 No. 47 Interpreter Releases 1654, 1675 (Dec. 11, 1995).
1.2. Must be entering solely to engage in vocation.
1.3. No foreign residence requirement. 9 FAM 402.11-5. Must be coming temporarily to engage in their vocation. 9 FAM 402.11-3(a)(2), but it may include “long-term assignments, such as serving as the Washington bureau chief for their organization.” 9 FAM 402.11-4.
1.4. “Home office” must be in foreign country. (So, e.g., foreign correspondent for N.Y. Times needs L/H visa.). 9 FAM 402.11-3(a)(2).
2. Overstays—Not subject to INA §222(g) unless there is finding of unauthorized stay by IJ or USCIS because I visa holders are given D/S upon entry. Cable, DOS (99-State-105097) (June 7, 1999), reprinted in 76 No. 24 Interpreter Releases 977–80 (June 28, 1999).
3. Conditions of Entry—Reciprocity between U.S. and home country of the media organization. 22 CFR §41.52(a); former O.I. §214.2(i); AFM 34.4(a). Cannot enter on a B or VWP to perform I functions. Cable, DOS, 03-State-155061 (June 6, 2003), AILA Doc. No. 03070111.
5. Employment of spouse/children—Spouses and children eligible for I-visa, 9 FAM 402.11-8, but they are not authorized to work. 8 CFR §§274a.12(b)(10). But dependents can study in the U.S. without c/s to F-1. 2 USCIS-PM, Pt. K, Ch. 4.
|p. 1312 (Ch. 6, ¶ VII.D.1.b.(3))||I-751 interview waiver||
Add the following to paragraph 1.b.(3) on interview:
Waiving Interviews—USCIS has issued guidance on waiving an interview for an I-751 petition. USCIS Policy Memo, PM-602-0168, Revised Interview Waiver Guidance for Form I-751 (Nov. 30, 2018), AILA Doc. No. 18121001 [interview may be waived if: (i) there is sufficient evidence of the bona fides of the marriage; (ii) the principal petitioner was previously interviewed; (iii) there is no indication of fraud or misrepresentation in the I-751 or supporting documents; and (iv) there are no complex facts or issues requiring an interview]. The waiver-of-interview policy applies to joint petitions and to petitions waiving the joint requirement. AFM 25.1(g).
|p. 1340 (Ch. 6, ¶ VII.D.4.f)||Follow-to-join
Paragraph 4.f should read as follows:
4.f. Same Preference Category—An accompanying or following-to-join beneficiary will be given the same preference category as his or her spouse or parent. INA §§203(d) [8 USC §1153(d)], 9 FAM 503.4-2(C).
|p. 1457 (Ch. 7, ¶ V.I)||Special immigrant juvenile (SIJ)||
Replace paragraph 1.a. with the following:
SIJ status is a status available within the U.S. for youth who require family-law protection. The statute creates an unusual hybrid approach to protecting youth, requiring both state law adjudication and later federal USCIS recognition of the state determination as part of the process to obtain LPR status. The law of the state where the child is a resident is paramount, including procedures for guardianship, custody, third-party custody and adoption. The state juvenile courts must rely on state law and procedure and not look to the provisions of the INA to determine abuse, neglect or abandonment. 6 USCIS-PM, Pt. J, Ch. 1 ¶A at n.1. However, USCIS maintains the position in published adopted opinions that whether a state court order establishes eligibility for SIJ classification is a question of federal law solely within USCIS’s jurisdiction. Matter of D-Y-S-C-, Adopted Decision, 2019-02 (AAO Oct. 11, 2019); Matter of A-O-C, Adopted Decision, 2019-03 (AAO Oct. 11, 2019); Matter of E-A-L-O-, Adopted Decision, 2019-04 (AAO Oct. 11, 2019). In making that determination, USCIS will determine whether the applicant is unmarried, under 21 years of age, has been subject to a state juvenile court order determining that they cannot reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar basis under state law, that they have been declared dependent upon a juvenile court or the court placed them in the custody of a state agency or department or an individual or entity appointed by the court, and that it would not be in the child’s best interest to be returned to their or their parent’s previous country of nationality or last habitual residence. Matter of A-O-C- at 2. In making these determinations USCIS must decide whether: (1) the court had competent jurisdiction to make judicial determinations about dependency and/or custody and care of a juvenile under state law; (2) under state law the child was a juvenile or minor; (3) the record contained evidence of a judicial determination that the juvenile was subject to parental maltreatment under state law; (4) the dependency declaration was made in accordance with state law; (5) the juvenile sought the requisite determination in order to gain relief from parental abuse, neglect, abandonment or a similar basis under state law and not primarily to obtain an immigration benefit; (6) reunification with one or both parents was not viable; (7) there was a reasonable factual basis for each requisite SIJ element by reviewing the juvenile court orders, the underlying petition for dependency or custody, other supporting documents submitted in the juvenile court, transcripts or other records of judicial or administrative proceedings if available, or affidavits or records attesting to the evidence presented to the juvenile court and consistent with its determinations; and (8) the applicant met the burden of establishing these facts by a preponderance of the evidence. See e.g. Matter of E-A-L-O denying SIJ status because the state court decree did not contain a declaration of dependency or custodial placement, it lacked a qualifying parental reunification determination, and the primary motive in seeking the juvenile order was to obtain an immigration benefit.
|pp. 1487–88 (Ch. 7, ¶ VI.K.6)||EB-5 conditional resident
Adjustment of status
In the EB-5 community there has been a good deal of confusion regarding whether a conditional resident (CR) may readjust another way. In particular, some readers were mistakenly under the belief that you could adjust from one approved I-526 to the next, even if you were already a CR, as a result of a now-removed section of the AFM 22.4(c). This rewrite of paragraph K.6 clarifies the issue:
Adjustment of Status to LPR from CR Obtained through Different Immigrant Category or through Different I-526 Approval—USCIS regulation at 8 CFR §245.1(c)(5) would prohibit those in investor-based (or family-based) CR status from obtaining LPR status through a second AOS directly from that CR status if the second AOS application is based upon a second immigrant petition (e.g., a CR investor marries a USC and seeks to AOS on that basis, or an investor CR seeks to AOS based upon a second I-526 petition). However, applicable law for marriage-based CR status allows AOS through a separate marriage upon withdrawal of CR status. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) [marriage to new USC]. It may be possible therefore to withdraw CR status and file a new AOS application if the second AOS is based upon an immediate relative. The issue is more complex when seeking AOS based upon an employment category (including a second approved I-526) given the bars to AOS under INA §245(c)(2) and INA §245(c)(7) permitting employment-based AOS only from an NIV status. One way to avoid all of these obstacles is simply to obtain an I-407 abroad and file for an immigrant visa through consular processing.
|p. 1562 (Ch. 7, ¶ IX.M)||PERM
Replace paragraph M with:
Withdrawal—An employer may withdraw a certified PERM LC at any time and may do so through the Permanent Online system, by email or mail. ETA, FAQs, Round 14: Withdrawals, Requests for Redetermination or BALCA Review and Pay Differentials (May 13, 2019), AILA Doc. No. 19051541. An employer making a written request by mail must send it to the Atlanta National Processing Center. Id. at Q.2. If by email it should be sent to PLC.Atlanta@dol.gov. All requests by mail or email should include the case number, employer’s name and FEIN number, foreign worker’s name and the name and title of the person requesting withdrawal. A pending PERM LC application may also be withdrawn through the Permanent Online System, or if filed by mail or unable to withdraw electronically, through email or by letter. Id. at 1. DOL is not obligated to accepted the withdrawal of a pending application and if the application is withdrawn after an audit letter is received, the employer must still comply with the audit. Id. at 2. A new application may not be filed after withdrawal until the PERM system shows the status changed from “in process” to “withdrawn” or “denied” or until the employer receives confirmation by mail or e-mail. Id. at 3.
|p. 1570 (Ch. 7, ¶ IX.N.2.b.10)||PERM
Paragraph (10) should read as follows:
Part-Time Employment—Boodell & Domanskis, LLC, 2012-PER-1275 (May 11, 2016) [CO denial reversed where employer demonstrated he had listed the position as a one year of full or part-time experience and prospective employee had part-time experience]; I Grand Express, 2014-PER-783 (Jan. 26, 2018) [CO ultimately counted part time work toward 24 months experience in Head Graphic Designer position where employer argued that in graphic design employees often work as freelancers or contractors and therefore working 25 hours per week may be considered full time].
|p. 1672 (Ch. 8, ¶ II)||Good moral character
Add after paragraph A:
Attorney General Created GMC Criteria—In Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019), the AG created his own criteria for good moral character and determined that a person seeking cancellation of removal as a non-LPR is not a person of GMC if he has two DUI convictions during the 10-year period. Although the AG described it as a rebuttable presumption and there may be some “aberration” that would explain two or more DUIs, he held that rehabilitative efforts during the 10-year period does not affect the presumption because the person needed to have GMC throughout the 10 years. He also suggested to IJs that in light of the two DUIs the person may lack GMC as a “habitual drunkard,” 27 I&N Dec. at 270 n.2, and, in any event, the IJ could deny the case as a matter of discretion putting aside the GMC issue. Id. at 270-71.
|p. 1702 (Ch. 8)||Continued presence
Insert new section XIII:
XIII. CONTINUED PRESENCE
A. Generally—TVPA §107(c)(3), 22 USC §7105(c)(3). Continued Presence (CP) is a temporary immigration status provided to individuals identified by law enforcement as victims of human trafficking, which is broadly defined to include both sex trafficking and labor trafficking. CP allows victims of human trafficking to remain in the US temporarily during the ongoing investigation into the crimes committed against them.
B. Procedures—Federal law enforcement officials primarily from ICE, the FBI, and federal prosecutors at the US Attorney’s Offices are authorized to submit CP applications. They may also submit applications on behalf of state or local law enforcement where the victimization meets the federal definition of trafficking under 22 USC §7102. Applications should be submitted “immediately upon identification of a victim of human trafficking.” DHS Website, Continued Presence Pamphlet. The applications should be submitted whether or not the victim has cooperated and even if the victim has not suffered a violent form of human trafficking. Id. The application may be approved even with an uncorroborated victim statement. Id. CP is not dependent upon a case being accepted for prosecution or even human trafficking charges being brought. Id. CP is granted in one-year increments and may be renewed in one-year increments. All applications are submitted to ICE Law Enforcement Parole Branch (LEPB), which has the sole authority to approve or deny CP applications. The results are sent to the appropriate federal submitting official and if approved the approval is also sent to HHS and the VSC. HHS thereafter will issue a letter authorizing the victim to receive federal and state benefits. The VSC will issue an I-94 and an EAD. Victims may also be granted authorization to have their family members enter the U.S. to join them. CP may be revoked if it is later determined the person is not a victim or is no longer a potential witness.
|p. 1946-47 (Ch. 10, ¶ V.H.1.b.)||Judicial review
Add to paragraph 1.b.:
Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];
|p. 2163 (Ch. 13, ¶ II.A.3.d)||Naturalization
The first full paragraph on page 2163 (starting on the 7th line) should read as follows:
Reapply After a Break in Residency—If there is a break in residency due to absence, a person may reapply after 4 years and one day. If the person is able to naturalize after 3 years but had a break due to absence, she may reapply after 2 years and one day. 8 CFR §316.5(c)(1)(ii); 12 USCIS-PM, Pt. D, Ch. 3 ¶C.5
|p. 2167 (Ch. 13, ¶ II.A.4.b(2))||Naturalization
Admission of crime
Add to the discussion of admission vs. conviction:
A person who admits the “possession, manufacture or production, or distribution or dispensing of marijuana” even if permitted under state law may lack GMC if the admission constitutes a federal offense. USCIS Policy Alert, PA-2019-02, Controlled Substance-Related Activity and Good Moral Character Determinations (Apr. 19, 2019), AILA Doc. No. 19041930; 12 USCIS-PM, Pt. F, Ch. 5 ¶C 2 [noting that even if the applicant does not admit facts of a marijuana-related offense sufficient under Matter of K, 7 I&N Dec. 594 (BIA 1957) to bar GMC, the applicant “may be unable to meet the burden of proof to show that he or she has not committed such an offense”].
In Pereira v. Sessions, 138 S.Ct. 2105, 2110 (2018), the Supreme Court determined that an NTA that fails to include the time and place of the removal hearing “is not a ‘notice to appear’ under section 1229(a),” and therefore cannot be the basis to trigger the stop-time rule. The Pereira decision has significant implications not only for the stop-time rule but if the NTA did not properly contain the date and time of the hearing and possibly other information required in §239(a), it could affect: (1) when subject-matter jurisdiction vests with the immigration court under 8 CFR §1003.14; Shogunle v. Holder, 366 Fed. Appx. 332 (4th Cir. 2009); (2) the validity of in absentia orders; (3) the ability to seek post conclusion VD; (4) inadmissibility under INA §§212(a)(9)(A), (a)(9)(C); and (5) immigration court jurisdiction for asylum/withholding when NTA is filed pursuant to 8 CFR §§208.2(b), 1208.2(b). See also Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990), for interpretation under previous regulations. Venue lies where NTA filed. 8 CFR §1003.20.
Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018). In the context of a review of the denial of asylum and an INA §237(a)(1)(H) waiver, the court made a number of important legal decisions. First, it determined it had the authority to review the BIA’s denial of a discretionary INA 237(a)(1)(H) waiver despite INA §242(a)(2)(B)(ii) because it was reviewing the BIA’s failure to follow the clearly erroneous rule. Second, it found that the BIA’s decision that Hussam had resettled in a third country could not be supported where the applicant contested it and the government waived the argument by not addressing it on appeal. Third, it held that the BIA erred in denying asylum where it ignored Pula and Kasinga and found that an applicant with a strong asylum claim should be denied on discretionary grounds for failure to disclose a Syrian passport that was fraudulently obtained. Fourth, the court relied on the final paragraph of INA §237(a)(1)(H) and determining that even if AOS was a second entry, granting the waiver for that entry would, on a derivative basis also waive the misrepresentation of the first entry. The court reversed the denial of asylum and INA §237(a)(1)(H) and remanded to the BIA.
|Asylum: Transit Bar||
Third-Country Transit Bar to Asylum—Any applicant who “enters, attempts to enter, or arrives in the United States across the southern land border” is ineligible for asylum in the United States if she transited through a country other than her country of citizenship, nationality or last habitual residence unless she applied for protection from persecution or torture in “at least one country” outside of her own country that she transited through en route to the United States. 8 CFR §§208.13(c)(4); 1208.13(c)(4). The provision applies to persons seeking entry on or after July 14, 2019. Withholding and CAT relief are not barred. Asylum is also not barred if the person: (1) applied in the third country and received a “final judgment denying the alien protection in such country;” (2) is a “victim of a severe form of trafficking” defined in 8 CFR §214.11; or (3) the transit countries were not parties to the UN Convention and Protocol Relating to the Status of Refugees. 8 CFR §§208.13(c)(4)(i)-(iii); 1208.13(c)(4)(i)-(iii). The determination that a person is or is not a victim of trafficking is not binding on subsequent determinations for a T or U visa. 8 CFR §§208.13(c)(5); 1208.13(c)(5). If an applicant is subject to the third-country bar rule, she will receive a negative credible fear determination as to asylum but would be screened under a “reasonable fear” standard for withholding and CAT. 84 FR 33829, 33837-88 (July 16, 2019). If it is determined that she has a “reasonable fear” claim she would be placed in an INA §240 proceeding. 8 CFR §208.30(e)(5)(iii). She would also be able to raise in that proceeding whether she was improperly characterized as having a third-country transit bar. If it is determined by the asylum officer that she did not have a “reasonable fear,” she would still be subject to an IJ review of the denial. 84 FR 33829, 33837-88 (July 16, 2019). But she would have to prove at that hearing before the IJ that she had a “reasonable fear,” not a “credible fear.” 8 CFR §§208.30(e)(5)(iii); 1208.30(g)(ii). Prior to reviewing the negative “reasonable fear” determination by the asylum officer, the IJ will first review whether the applicant is subject to the third-country transit bar. 8 CFR §1003.42(d)(3). See also McHenry, Director, EOIR, PM 19-12 Guidelines Regarding New Regulations Governing Asylum and Protection Claims (July 16, 2019). The third-country transit regulatory bar, however, has been enjoined. East Bay Sanctuary Covenant v. Barr, Case No.19-cv-04073-JST (N.D. Cal. July 24, 2019), AILA Doc. No. 19071800 [finding that Congress set the standards for third-country processing and the rule ignores those requirements; the rule failed to comply with notice and comment, and the decision to promulgate it was arbitrary and capricious].
Cite as AILA Doc. No. 19080202.