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IMMIGRATION GUIDE: WAIVER OF DEPORTATION

IMMIGRATION GUIDE: WAIVER OF DEPORTATION

NOTICE OF DEPORTATION- CAN I WAIVE DEPORTATION? HOW TO GUIDE


1.      WHO CAN USE THIS WAIVER?

 Many immigrants living in the U.S. are in fear of getting arrested by U.S. Immigration and Customs Enforcement (ICE), then placed into removal (deportation) proceedings. While this is not a real concern for most law-abiding non-immigrants, ICE has been aggressive in its enforcement actions and a lot of innocent law-abiding non-immigrant have found themselves in ICE custody.

The Section 237(a)(1)(H) waiver is specific to “non-citizens with a qualifying family member who meet certain other requirements” as well as to VAWA self-petitioners.

More specifically, the first class, non-citizens with a qualifying family member who meet certain other requirements, consists of a non-citizen who:

1.      Has a qualifying family member (a spouse, parent, son, or daughter who is a U.S. Citizen or lawful permanent resident) No hardship to the relative or applicant has to be demonstrated.

2.      Was in possession of an immigrant visa or equivalent document at the time of admission. In other words, a visa or equivalent document with which the applicant gained admission, even when it was procured by fraud or misrepresentation; and

3.      Was otherwise admissible at the time of admission.

VAWA self-petitioners, which are defined under INA Section 101(a)(51), have no additional specific limitations on the eligibility requirements. The VAWA self-petitioner only has to show that they were admitted to the United States and that the admission involved fraud or misrepresentation, regardless of it being willful or innocent. VAWA self-petitioners do not need a qualifying relative.


2.      WHAT IS A WAIVER OF DEPORTATION?

The Section 237(a)(1)(H) waiver, (hereinafter “Waiver of Deportation) is a humanitarian waiver created by Congress for certain deportable lawful permanent residents with a qualifying relative. It is a form of relief from removal (deportation). It provides a discretionary waiver for certain misrepresentations and fraud at the time of admission. If an applicant is eligible, this misrepresentations and fraud at the time of admission. If an applicant is eligible, this waiver provides a significant relief from removal which results in termination of proceedings. The full statutory waiver provision reads as follows.

“Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of alien within the United States on the ground that they were inadmissible at the time of admission as aliens described in Section 1182(a)(6)(C)(I) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D) who—"

1.(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was other admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a0 of this title which were a direct result of that fraud or misrepresentation. OR

1.      Is a VAWA self- petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”

NOTE: MARRIAGES AFTER ICE ARREST-

Marriages conceived after the Immigrant has been in ICE custody have a high presumption of fraud. i.e., The marriage to a U.S. Citizen or Law permanent resident should be a “Bona fide” marriage. The marriage must not be a fraud or entered for the purpose of obtaining an immigration benefit. There is usually a higher level of scrutiny for marriages entered under these circumstances.

Marriage to a U.S. Citizen or Lawful permanent resident is an option after an ICE arrest is an option non the less. The qualifying relative would have to file a form I-130 on behalf of the arrested immigrant and the Petition would have to be granted by USCIS for the nonimmigrant to qualify for a “waiver of deportation”. It is difficult to navigate the court proceedings as a result, you should retain a good Immigration. The Petition for Immigrant relative (I-130) must be supported by documents showing an intention to form a life together (such as joint bank statements, Life and Auto insurance policies and lease agreements and more), and applicants already in the U.S. will have to pass an interview in which the couple will be questioned by an immigration officer.

The immigrant in Removal/Deportation proceedings would have to clear this hurdle outside the court proceedings, by submitting a Form I-130 with attached documentation of a bona fide marriage to USCIS and wait for its response.

With any luck, that response will come before your next scheduled hearing.

NOTE 2: A NON-CITIZEN WHO ENTERED THE U.S. ILLEGALLY CANNOT ADJUST STATUS IN IMMIGRATION COURT PROCEEDINGS-

To obtain a green card while in the U.S., the non-citizen must qualify to use a procedure known as “adjustment of status”. Everyone who does not qualify for this must apply for their green card at a U.S. consulate in their home country.

People who entered the U.S. legally and married a U.S. citizen can adjust their status here, while those who entered unlawfully (for example, by crossing the border away from a checkpoint area), cannot and must use consular processing in their home country. That is true for ordinary applicants, and it is true in immigration court proceedings.

If the non-citizen entered on a visa or by other lawful means, the immigration court judge has the power (after the I-130 has been approved by USCIS) to either grant adjustment of status or to terminate removal proceedings for consular processing.

As mentioned above, this is complex territory and we have only given general overview- see an immigration attorney for an in-depth analysis or your options and discussion of strategy.



3.      WHAT FACTORS DO IMMIGRATION JUDGES TAKE INTO CONSIDERATION WHEN REVIEWING A WAIVER OF DEPORTATION?

It is important to keep in mind that, even when an applicant is eligible to apply for the waiver by statute, an immigration judge has the discretion to deny or approve the waiver. An immigration judge “must look at each of the adverse factors, including the alien’s initial fraud, to determine whether, in light of the factors, including the alien’s initial fraud, to determine whether, in light of the factors presented, a waiver of deportability should be granted to maintain the alien’s family unity and strong ties to the United States.” Matter of Tijam 22 I&N Dec. 408, 417 (1998). According to this decision, there are several negative and positive factors that an immigration judge should take into consideration. Negative and positive factors that an immigration judge should take into consideration. Negative factors can include the nature and underlying circumstances of the fraud or misrepresentation involved; if the applicant has a criminal record and, if so, the nature, seriousness, and recency of that record; and any other evidence that deems that applicant of poor moral character. Positive factors considered may include family ties in the United States; residence of a long duration in the United States; employment history; property or business ties; evidence of value and service to the community; as well as other evidence of the alien’s good moral character. Id. at 412, 413. An immigration judge considers all factors, both negative and positive, when exercising discretion.


4.      WHICH GROUNDS OF REMOVAL MAY BE WAIVED?

Section 237(a)(1)(H) is a waiver of deportability and it is specifically for removal charges based on INA section 237(a)(1)(A) (grounds of deportation). It is available to non-citizens who have been admitted and waives deportation grounds of removal. Thus, it does not waive any removal charges founds in INA section 212 (inadmissibility). Mainly, section 237(a)(1)(H) waives three elements:

-Removability based primarily upon the deportability ground.

- Any underlying inadmissibility ground that directly resulted from the fraud or misrepresentation committed at admission.

-Waives the underlying fraud.


5. CAN AN APPLICANT WAIVE ANY FRAUD THAT OCCURRED AFTER INITIAL ENTRY INTO THE UNITED STATES?

In a recent precedent decision by the Board of Immigration Appeals (BIA), it was concluded that yes, the Section 237(a)(1)(H) waiver may also be available for fraud committed during adjustment of status. Therefore, an alien may be granted this waiver for fraud or misrepresentation committed at the time of his or her adjustment of status.


6.      HOW DOES AN APPLICANT APPLY FOR A WAIVER OF DEPORTA?

Since this waiver is for relief from removal, the applicant, while in proceedings, should apply for this waiver with an immigration judge. There are no specific forms to be filed unlike other waivers and, in addition, there is also no filing fee for the Section waiver of deportation.



 CALL US TODAY at 312.363.9661 Or at Bayolaw@gmail.com for a consultation!

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23 Saved
35 Comments
Jacob· Dec 12, 02:10
You read this
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Adebayo· Dec 14, 15:41
Yes.
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SOMA· Dec 12, 02:14
Thanks alot
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1 Like
Adebayo· Dec 14, 15:41
You're welcome!
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Collins S· Dec 12, 02:41
A friend filed asylum after one year. Can he travel on advance parole ???
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Adebayo· Dec 12, 02:59
Risky
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A
Alex· Dec 12, 13:07
Not advisable
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Florence· Dec 18, 04:16
Travel where? If you file for asylum and travel to your own country your case becomes void. I have seen people denied re-entry after traveling to their countries after filing for asylum.
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Collins S· Dec 18, 04:36

Florence how can he travel to his country. That would be so dumb of him. Is another country tho

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Florence· Dec 18, 10:09

Collins S people have done it thinking they would not get caught. Some would fly to a neighboring country then go to their own country by bus etc. I say unless it's absolutely necessary just don't travel until you get your citizenship.

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Akinjare· Dec 12, 05:19
Wow thanks for the info
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Adebayo· Dec 14, 15:42
You're welcome!
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Edward· Dec 12, 08:49
Can one travel after four years on advance parole
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Adebayo· Dec 14, 15:43
I don't understand your question? Follow the instructions on the advance parole.
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Olawole· Dec 12, 13:59
Are you in Chicago?
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Adebayo· Dec 14, 15:44
Yes, we are.
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Dammy· Dec 12, 17:03
Hi
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Adebayo· Dec 14, 15:44
Hello, do you have a question?
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Kingrich· Dec 12, 17:25
Thanks for your support .
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Adebayo· Dec 14, 15:44
You're welcome!
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Umu· Dec 12, 19:06
Hey I'm in Charlotte
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Adebayo· Dec 14, 15:45
Yes, we represent people in all areas of the U.S.
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Ademayowa Folagbade· Dec 13, 03:27
Thanks for the information
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Adebayo· Dec 14, 15:45
You're welcome!
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Kingrich· Dec 13, 12:31
Thanks
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Adebayo· Dec 14, 15:45
You're welcome!
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Umu· Dec 15, 18:15
Ok good to hear how can I reach you
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Kingrich· Dec 16, 17:36
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Kingrich· Dec 16, 17:37
thanks
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Kingrich· Dec 16, 17:37
Sorry for late response, thanks
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Yaw· Dec 23, 19:02
Is there any immigration attorney available I can talk to?
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Adebayo· Dec 24, 05:29
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Kingrich· Dec 28, 11:15
I don’t know one here in Georgia but I know one in New York, Bronx
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Kingrich· Dec 28, 11:15

Kingrich sorry for late response

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Adebayo· Dec 28, 15:25

Kingrich Are you a lawyer? Aren't we getting a bit carried away here. You did not post this guide yet you have assumed the role of moderator. Please stay in your lane. ok?

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