I601 Legal Research Links

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Link on USCIS Cite on how the "document" an approved waiver

Documenting the Decision

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Waiver of CRIMINAL GROUNDS 212(h)

http://bccvisalaw.com/forms/Criminal%20Waiver.pdf

Matter of Menedez

Edited December 4, 2010 by brokenfamily

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http://www.tunitskylaw.com/I-601_Waivers.html

Who is the qualifying relative? *for I601

That depends on why the foreign national is inadmissible!

IF the ground of inadmissibility is for prior unlawful presence or misprepresentation, THEN the qualifying relative is a US Citizen

or Lawful Permanent Resident spouse or parent.

IF the ground of inadmissibility is for prior criminal history, THEN the qualifying relative is a US citizen or lawful permanent resident spouse, parent, or child.

BUT REMEMBER FIANCÉES/FIANCÉS! A US Citizen fiancée/fiancé is a qualifying relative too! (See 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

Edited December 8, 2010 by brokenfamily

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Discussion of Non-Immigrant Waivers

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Northern Mariana Islands Waiver Issues

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Interesting article on Hardship Standards in different waiver contexts

http://www.ilw.com/articles/2007,0906-hake.shtm

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Here are additional authorities for the cardinal rule that one must prove that the hardships are beyond the normal:[x]

“The uprooting of family, the separation from friends, and other normal processes of readjustment to one’s home country after having spent a number of years in the United States are not considered extreme, but represent the type of inconvenience and hardship experienced by the families of most aliens in the respondent’s circumstances.” Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994) (citing Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978)).

“[W]ere the children to remain in the United States with their mother, there was no evidence that the hardships they would suffer would be more than the normal hardships expected due to separation from a family member.” Onasanya v. INS, No. 95-2943, slip op. at 7 (4th Cir. Mar. 31, 1997) (citing Chiaramonte v. INS, 626 F.2d 1093, 1101 (2d Cir. 1980)).

“Regarding her friendships, the IJ found that they fell within the general rule that the severance of normal friendships does not rise to the level of extreme hardship.” Parchamento v. INS, No. 95-70491, slip op. at 6 (9th Cir. Jan. 24, 1997) (citing Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994).

“‘Extreme hardship’ will not be found without a showing of significant actual or potential injury, in the sense that the petitioner will suffer hardship ‘substantially different from and more severe than that suffered by the ordinary alien who is deported.’” Kuciemba v. INS, No. 95-3454, slip op. at 5-6 (citing Palmer v. INS, 4 F.3d 482, 487 (7th Cir. 1993)).

“The Salamedas, who have advanced degrees, are more able to make a transition than most. They have children accustomed to the United States, but that is normal rather than extreme. Normal and extreme are legal antipodes. Unless the word ‘extreme’ has lost all meaning, this is a routine case. The BIA is entitled to be hard-nosed, to take ‘extreme’ literally.” Salameda v. INS, 70 F.3d 447, 453 (7th Cir. 1995) (Easterbrook, C.J., dissenting). This quotation from a dissenting judge accompanies an important decision in a case litigated by AILA member Royal F. Berg of Chicago. The majority opinion was written by famous judge Richard Posner. The decision vacated an order denying the Salamedas’s application for suspension of deportation, finding that the BIA had disregarded the couple’s community assistance and suggesting that the BIA also consider hardship to the couple’s noncitizen child.

“The BIA denied the motion, concluding that Brice had failed to demonstrate a prima facie case of extreme hardship because he had not established that he would either suffer any more than an average deportee or that the new government would revert to repression.” Brice v. INS, 806 F.2d 415, 418-19 (2d Cir. 1986).

“Exceptional hardship contemplates more than normal personal hardship.” Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964) (citing “Report No. 721 of the House of Representatives, dated July 17, 1961, prepared by Subcommittee No. 1 of the Committee on the Judiciary on the ‘Immigration Aspects of the International Education Exchange Program’”).

“Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad.” Keh Tong Chen v. Attorney General, 546 F. Supp. 1060, 1063 (D.D.C. 1982) (citing Mendez v. Major, 340 F.2d 128, 132 (8th Cir. 1965); Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964)). This is the most important J-1 hardship waiver opinion. Anyone who practices in this area should study it carefully, especially because this is the case most often cited by the USCIS in Form I-612 denial decisions and they always cite it incorrectly. In fact, this case strongly favors the applicant in almost every context. The court granted summary judgment for the plaintiff on the ground that the USCIS failure to demonstrate explicit consideration of evidence in the record regarding the child’s hardship claim was arbitrary and capricious. Moreover, the decision holds that where an applicant’s spouse and children are U.S. citizens, exceptional hardship may be found based solely on the consequences of the spouse and children remaining in the United States. The decision strongly disparages the USCIS’s conventional “two-step” analysis in these cases.

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The following case is a J waiver case, but it has value in reading due to the shooting down of arguments in the appeal that were previously

given to the AAO by the applicant and his attorney in the original brief. In other words, carefully prepare your waiver so that you do not get blindsided by this kind of stuff if you have to re-file or appeal.

Appeal Case Denied

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http://bibdebb.blogspot.com/2010/12/aao-i-601-victory.html

AAO I-601 Victory

Russell Abrutyn writes: "The AAO reversed the denial of an I-601 waiver application, finding that the applicant established the requisite extreme hardship to his parents and that he merited a favorable exercise of discretion notwithstanding the questionable circumstances surrounding his entry into the U.S. Too bad it took nearly 3 years for the appeal to be decided. The applicant was represented by Marshal Hyman, Russell Abrutyn, and Mayra Rodriguez."

Russell R. Abrutyn

Marshal E. Hyman & Associates

(248) 643-0642, ext. 15

(248) 643-0798 Fax

rabrutyn@marshalhyman.com

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Administrative Appeals Processing Times.. I601 included.. moral of the story. REFILE don't appeal

AAO Processing Times

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This is a link to a recent AAO decision (appeal) on a denied waiver application involving CIMT. Lots of case citations and history of Waiver decisions discussed by the AAO in this decision.

Recent WAIVER APPEAL at AAO

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AILA practice Advisory

http://www.aila.org/content/default.aspx?bc=1016|6715|20852|28165|30095

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This is a good link that lists all precedent decisions in cancellation of removal cases that involve meeting or not meeting the Extreme Hardship standard. While COR (cancellation of removal) is not the same procedure as the I601 Waiver , the standard of Extreme Hardship in I601 scenario is not well developed in case law. Therefore it is instructive to read the decisions while briefly summarized to get a feel for the history of the standard and how its been applied. The cases are listed so you can do further research as well.

Matter of IGE Interim decision

Hint page to "next document" for list of cases... its continued on the next page..

Edited March 30, 2011 by brokenfamily