Thoughts Following the 11th
Annual FBA Immigration Seminar:
The I-601(a) Waiver, DUIs, Tattoos, DACA
and Arrabally and Yerrabelly, and My-a-Belly
May 2014
Earlier
this month, May 16-17, 2014, the Federal Bar Association hosted the 11th
Annual Immigration Law Seminar in Memphis, Tennessee. The Seminar kicked off
with a presentation rejoicing of the (partial) death of DOMA and the good news
this brought for same-sex couples seeking immigration benefits. It closed with
a celebratory beverage on Beale Street for most attendees. I opted for a
celebratory catfish dinner at a local creole restaurant with some old friends,
but have no doubt Beale Street would have been a fabulous option as well.
The
general mood throughout the seminar was a mixture of hope—many practicing
attorneys are still optimistic that comprehensive immigration reform is
coming—and the sort of nervous energy that only trying to absorb enough
information to make your head spin will create. Personally, I found the dense
nature of the information being presented to be daunting and invigorating at
the same time. As a new attorney, nothing is more encouraging than reviewing
skills that are old hat, and as exciting as realizing how much more there is to
learn when you are confident that it can be learned.
The
relatively new I-601(a) waiver took center stage for one of the presentations I
attended and will be discussed in depth in this post. Issues regarding DUIs
(citations for driving under the influence) and tattoos popped up in multiple
presentations in a variety of contexts and will also be discussed. This post
will end with a discussion of the potentially positive consequences of the
recent Arrabally and Yerrabelly decision for DACA (Deferred Action for
Childhood Arrivals) recipients who have received Advance Parole. As for the
reference in the title to My-a-Belly, suffice it to say My-a-Belly enjoyed some
tasty Memphis barbeque at the Memphis in May barbeque festival on the river…no
event in Memphis would be complete without it!
The
601(a) waiver is designed to help individuals who apply for immigrant visas
through a qualifying relative, but would be barred from re-entering the US
following their visa interview abroad. Unfortunately, prior to this waiver,
individuals who would otherwise be eligible for a green card were not obtaining
these benefits for fear they would leave the country to complete the process
and then be found inadmissible based on their prior unlawful presence. This
waiver allows the individual to prove that disallowing them from re-entering
would cause extreme hardship to their U.S. relative(s) and grants them a waiver
that cures the inadmissibility prior to their departure from the U.S. This
removes the uncertainty of applying for a waiver after leaving the country from
the equation.
When
this waiver was introduced immigration attorneys rejoiced—this cured a catch 22
too many clients faced! However, the high expectations for this waiver were
thwarted by USCIS’s aggressive approach to the adjudication of these waivers.
Attorneys at the Seminar estimated the denial rate was as high as 40%--half of
which was based on USCIS’s belief there might be other grounds of
inadmissibility—i.e. a criminal basis. In fact, nearly all waiver applications
that included a DUI were denied on the ‘reason to believe there are other
grounds of inadmissibility’ exception and most applications were subjected to
boilerplate Requests for Evidence that delayed the process by requesting
evidence already submitted. Fortunately, USCIS has decided to re-review
previous denial sua sponte and has
become more generous with approvals over the last month or so, but this waiver
still has not lived up to the expectations many attorneys had at its inception.
As
mentioned, USCIS treated DUIs much more harshly in the 601(a) waiver context
than anticipated, but it appears that this is part of a growing trend. In fact,
many attorneys at the seminar reported that although DUIs are not considered a
crime involving moral turpitude, and generally are not a ground for
inadmissibility alone, they are increasingly used as a medical ground for
inadmissibility. Individuals who have had a recent DUI may be requested to
attend a psychological screening (especially if the process is in Juarez,
Mexico), and some have even been required to attend Alcoholics Anonymous on the
assumption that having even a single DUI may be indicative of alcoholism or
other mental illness.
Tattoos,
often discovered in medical examinations, are also receiving a heightened level
of scrutiny. There is a general assumption that tattoos indicate gang
affiliations. Therefore, ask your clients about their body art, what it means,
and why they have it so that they can be prepared to answer questions
associated to these issues at their interviews. In extreme circumstances, be
prepared to hire an expert to provide evidence that a tattoo is not
gang-related.
Not all
of the reports from the Seminar were negative—one recent case, Arrabelly and
Yerrabelly, provides a potential benefit for DACA recipients and others who
receive Advance Parole. In the Arrabelly case, a couple seeking benefits
received Advance Parole to visit their aging parents and left the country.
Unfortunately, they had overstayed their visas and accrued more than one year
of unlawful presence, triggering the ten year bar which disallows re-entry.
Following an order of removal and an appeal, the BIA held that leaving the U.S.
under Advance Parole did not effect a ‘departure’ under the Immigration and
Nationality Act that would result in inadmissibility based on their prior,
unlawful presence.
By logical extension, this may
apply to DACA recipients who travel abroad on Advance Parole and re-enter with
inspection—effectively curing problems created by a prior entry without
inspection. In response to this notion USCIS has tightened up approvals of
Advanced Parole for DACA recipients and it is expected that a future Memorandum
interpreting Arrabelly will limit the case to its facts. But, for the
moment DACA recipients lucky to receive Advance Parole may want to consider
adjusting status, if possible, to avoid the issues any prior entry without
inspection will inevitably create.
This year’s Seminar certainly left
my colleagues and I with a lot to consider. We have clients who received DACA for
whom we are anxious to try to adjust status, and may have future clients with
DUIs or tattoos who will benefit from the information gathered at the Seminar
related to these issues. I am looking forward to next year’s Seminar and
learning more about these complex issues as my practice, and Hunter Smith and
Davis’s practice grows in general.
