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Immigration Quicksand: A finding of Willful Misrepresentation for Some Non-Immigrants Who Decide to Immigrate Too Quickly

Many immigrants enter the United States as non-immigrants – as tourists on a B2 visa, through the Visa Waiver Program, as students, etc. Often, those “non-immigrants” will meet an U.S. citizen, fall in love, and decide to get married. Sometimes the non-immigrant has a long history with their new spouse, but didn’t decide to get married until shortly after entering the country on their non-immigrant visa. In other cases, a student may move to the U.S. for the purpose of continuing their education but due to changes in their financial situation, they may decide to look for employment instead, thereby violating the terms of their student visa.

U.S. immigration law draws a distinction between “non-immigrant intent,” which is the intention to remain in the U.S. temporarily before returning to the foreigner’s permanent residence, and “immigrant intent,” or the intention to reside in the U.S. permanently.  Many non-immigrant visa are only provided to those who swear to or can demonstrate non-immigrant intent.

Previously, the government applied what is known as a “30/60 day rule”: when a non-immigrant entered the country with a non-immigrant visa and within 30 days took steps that were not in line with their non-immigrant status, a presumption was drawn that the non-immigrant misrepresented their intention upon entry.  If, however, the steps were taken between 30 and 60 days after arrival, there was no such presumption.

If, for example, an exchange student came to the U.S. for the purpose of spending a semester at a U.S. university, but married a U.S. citizen just two weeks after arrival and then applied for lawful permanent residency (a “green card”), the government would presume that the student’s true reason for entering the country was to get married and adjust status.  Applying the 30/60 day rule, the government might determine that thee student had made a material misrepresentation by entering the country for the stated purpose of studying but with the actual purpose of applying for lawful permanent residency.  The government would then ask the student to either rebut that presumption with evidence to the contrary or they would require a waiver of the student’s misrepresentation, assuming they were eligible for such waiver.

Unfortunately, on September 1, 2017, the Department of Status (DOS) updated it’s manual to eliminate the “30-60 day rule.”  Instead, the Department of State is now applying a “90 day rule.”  The Department’s manual now states that if a non-immigrant “violate or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry” the Department of State may presume that the person’s previous representations regarding their nonimmigrant intent, either at the time of application or at the time of entry, were willful misrepresentations.  (See 9 FAM 302.9-4(B)(3)).  A finding of willful misrepresentation can result in the revocation of a visa, or in a finding of inadmissibility to the United States as an immigrant.  In some circumstances, such a finding could result in lifetime inadmissibility to the United States.

The good news is that the United States Citizenship & Immigration Services (DOS) Policy Manual has not yet been updated to reflect this change. Additionally, two decades-old cases issued by the Board of Immigration Appeals state that even a finding of “preconceived intent” to immigrant is, by itself, outweighed by a citizen’s interest in their immediate relative’s application being granted. Some immigrants will have the option of departing the United States and applying for an immigrant visa from a U.S. consulate in their home country in order to avoid a presumption of immigrant intent and a determination of inadmissibility on misrepresentation grounds.

This change highlights the fact that immigration policy can change much more quickly than the law, and many immigrants will struggle to keep up with policy changes without the help of a competent immigration attorney.  Given the shifts described above, it would be wise for any non-immigrant who has taken steps toward U.S. residency within 90 days of their arrival to speak to a U.S. immigration attorney.

Expansion of the Provisional Unlawful Presence Waiver

Today, July 29, 2016, the Department of Homeland Security (DHS) will publish in the Federal Register a final rule expanding eligibility for the provisional unlawful presence waiver, filed on Form I-601A.  The new rule will take effect on August 29, 2016.

Since its launch in March 2013, many immigrants have utilized this waiver to minimize the time that they are separated from friends, family, work, and their community because they are able to apply for the waiver and receive approval before traveling abroad for consular processing.  For certain applications, the process that often results in many months of separation now can be completed in less than two weeks.  Additionally, because the waiver is discretionary, immigrants benefit from the knowledge that DHS has determined that they warrant a positive exercise of discretion before they leave the country, making their journey and application process far less risky.

Until the passage of this new rule, however, the provisional waiver was only available to immigrants who were the spouses, children, and parents of certain U.S. citizens, otherwise known as “immediate relatives.”  The waiver was further limited because the applicant had to prove that a U.S. citizen spouse or parent would experience extreme hardship upon denial of the immigrant’s admission to the United States; in other words, hardship to a spouse or parent who was a lawful permanent resident (“LPR” or “green card” holder) was not taken into consideration.

Beginning August 29, 2016, the rule will be expanded to include all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.  The expanded group of individuals includes the beneficiaries of family-sponsored and employment-based immigrant visa petitions, and Diversity Visa selectees, so long as they have a qualifying relative under the statute for purposes of the extreme hardship determination (a U.S. citizen or LPR spouse or parent).  Some additional changes were made to the regulation, including the elimination of a denial based on a “reason to believe” that another ground of inadmissibility exists.

DHS comments associated with the publishing of the final rule make it clear that this expansion is a benefit to the entire nation: it encourages the efficient use of government resources by streamlining a process that has previously been fraught with problems, it encourages eligible immigrant visa applicants to proceed forward with their visa processing and therefore integrate more quickly and fully into their U.S. community, and, most importantly, it minimizes the time that U.S. citizens and lawful permanent residents are separated from their loved ones.  DHS estimates that approximately 100,000 individuals will become eligible under the new rule during the rule’s 10-year period of analysis.  The expansion is a welcome addition to our immigration system, and comes at a time when change is desperately needed.

Will DAPA Be Obama’s Departing Legacy?

In mid-January of this year, the U.S. Supreme Court announced that it had granted cert to in United States v. Texas, meaning that it would consider the legal challenges, originally lodged by the state of Texas and many others, to President Obama’s November 2014 Executive Actions, including the Deferred Action for Parents of Americans (“DAPA”) which would provide work authorization and protection from deportation to about 5 million undocumented immigrants.  The specific issues in that case are (1) if a state has a right to sue the federal government if they are voluntarily providing a subsidy to aliens who would benefit from the deferred action program; (2) if the guidance in Obama’s Executive Action provisions are lawful; (3) if that guidance was subject to notice-and-comment procedures; and (4) if that guidance violates the Take Care clause of the US Constitution (Article II, Section 3).  The fourth issue was added by the Supreme Court itself, suggesting the likelihood of a broad and detailed decision affecting far more than immigration law and reaching out into presidential power generally. A decision will likely be issued by the end of June 2016.

If the Supreme Court decides against Texas Attorney General Ken Paxton and his coalition of 26 states, the Executive Actions could very well be carried out before the end of the year, and any new president will be forced to honor the policies as they stand when he or she comes into office (whether future changes can be made is a different matter, however). Indeed, the White House has stated publically that they intend to begin enrolling immigrants as soon as possible, and immigrants are likely to make haste in submitting their applications, given the political volatility of the program. Democratic presidential candidates have stated their intention to continue with the program while GOP candidates, predictably, have not.

The outcome of the case has undoubtedly been affected by Justice Antonin Scalia’s sudden passing on February 13, 2016.  The conservative judge was almost certain to come down on the side of Attorney General Paxton.  While his missing vote is helpful to the immigrant cause, his absence could result in an equally divided court. A 4-4 tie verdict from the Supreme Court results in an automatic affirmation of the lower court’s ruling.  In this case, the lower court favored the state challenge by a 2-1 split.  While there may be an additional recourse in under those circumstances – a formal request for a re-hearing after a 9th justice has been appointed – the political machinations surrounding a quickly approaching presidential election are certain to slow down or halt any Supreme Court appointments, and any hope for DAPA as President Obama intended it become speculative at best.  Indeed, a week ago Senate Republicans have sworn that they will not hold any confirmation hearings for a Supreme Court nominee selected by President Obama.  Of course, if five Supreme Court justices decide in the President’s favor and issue a positive decision this June, the DAPA program could likely become Obama’s departing legacy – and one of which he should be very proud.

Ignoring Alternatives & Increasing Detention of Families

Although the number of families being detained on the U.S.-Mexico border has dropped, the government is moving forward with plans to increase its capacity to detain families, with plans to open a new facility to house 2,400 women and children in Dilley, Texas, next month. Many of the women and children who would be housed in this facility are fleeing domestic abuse or gang violence. While Immigration and Customs Enforcement has the option of releasing individuals on bond or providing an ankle monitor, detention is clearly the preferred solution. Detention is not only an expense that falls on the shoulders of tax-payers; it also exposes detainees to the risk of sexual abuse. In fact, a complaint from earlier this month alleges recent sexual abuse in the Karnes City, Texas, facility, and other centers were previously closed after numerous allegations of abuse. Meanwhile, an alternative program from 2004 known as ISAP (Intensive Supervision Appearance Program) has proven to be widely successful, with 93% of participants showing up to their scheduled hearings on their own accord.

Bond determinations are made based on an assessment of an immigrant’s potential danger to the community and the risk that they will not attend their removal proceedings, but instead going into hiding. In many of these cases, women and children have come to this country seeking protection and have turned themselves in at the border. They have very few resources. The chance that they will post a bond and not attend future court hearings is highly unlikely. A denial of bond, or a very high bond, should be reserved for individuals with a criminal history who have already proven that they pose a danger to society, or that they are likely to not show up for a scheduled hearing.

Expense and risk are not the only issues that cause concern to many; detention in these remote facilities means less access to paid or pro bono legal services. Although detainees at the Artesia center are provided a list of pro bono services, the services listed are hours away and the detainees often have no means of contacting them. If they elect to hire private counsel, they will have to look elsewhere as well, as the nearest immigration attorney is approximately an hour away from the facility. Volunteer attorneys who have traveled to Artesia to offer pro bono services note that there is not even a business center in the town of Artesia where an attorney can make photocopies or send faxes.

In response to the proposed development of the Dilley facility, several prominent Democratic senators recently wrote a letter to the Secretary of Homeland Security. In that letter, found at http://www.leahy.senate.gov/download/101614-to-johnson-re-dilley-detention-center, the senators wrote:

“The administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space. Concerns over flight risk can be ameliorated through Alternatives to Detention (ATD), which help ensure the appearance of asylum seekers in immigration proceedings and are more cost effective.”

From the outside, it certainly seems that inexpensive and humane alternatives are low on the administration’s priority list, and one can’t help but wonder why – or wonder what priorities are more important. Several Democratic senators, at least, are left wondering.

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