All posts by Philip Levin

One Has “Previously Been Admitted” To The U.S. “As An Alien Lawfully Admitted For Permanent Residence” Under INA § 212(H) If He Or She Was Inspected, Admitted And Physically Entered The Country As A Lawful Permanent Resident At Any Time In The Past, Even If Such Admission Was Not The Person’s Most Recent Acquisition Of Permanent Resident Status.

On October 3, 2017, the Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent held by the Immigration Judge (IJ) to be ineligible for a waiver of inadmissibility under INA § 212(h) and ordered removed.  Respondent had been admitted to the U.S. as a lawful permanent resident (LPR), subsequently convicted of conspiracy to operate an illegal gambling business in violation of federal law, placed into removal proceedings as an aggravated felon, then granted adjustment of status (AOS) by the IJ.  Five and a-half years later, he was convicted of conspiracy to commit extortion (another federal crime), placed back into proceedings, which went up to and were remanded by the BIA, after which DHS lodged the additional charge of having been convicted of conspiracy to commit an aggravated felony theft offense per INA §§ 101(a)(43)(J) and (U).  The IJ found respondent ineligible for a § 212(h) waiver, filed as part of his second AOS application, holding he had “previously been admitted to the United States as an alien lawfully admitted for permanent residence” at his very first admission and subsequently convicted of an aggravated felony.  Respondent argued that the word “previously” in § 212(h) referred only to the most recent time he obtained LPR status.

The BIA initially cited to Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) which considered “the ordinary, common meaning” of “previously” in the statute and held that it did not refer to the most recent action, “but to action that has taken place sometime in the indefinite past.”  Applying the Second Circuit’s analysis, the Board concluded that respondent is not eligible for the waiver as he first entered the country as a LPR after inspection and admission following consular processing abroad and was then convicted of aggravated felonies.  He therefore qualified as one who has “previously been admitted” to the U.S. “as an alien lawfully admitted for permanent residence” and subsequently “convicted of an aggravated felony” under INA § 212(h).  His AOS in court, held the BIA, did not preclude this finding of ineligibility.  The appeal was dismissed.  Matter of Vella, 27 I&N Dec. 138 (BIA 2017).

One Seeking To Qualify For The Inadmissibility Exception To INA § 212(A)(6)(A)(ii) Must Satisfy All 3 Subclauses Of That Section, Including The Requirement That He Or She Be A “VAWA Self-Petitioner.”

On October 6, 2017, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings in the case of a woman charged under INA § 212(A)(6)(A)(i) as one removable for being present in the U.S. without admission or parole. The IJ had terminated proceedings, holding respondent qualified for the exception to this ground per INA § (a)(6)(A)(ii), which is granted to one who I) is a VAWA self-petitioner; II) a) has been battered or subjected to extreme cruelty by a spouse or parent or member of the spouse’s or parent’s family residing in the applicant’s household and the spouse or parent consented to the battery or cruelty or b) whose child has been battered or subjected to extreme cruelty by a spouse or parent of the applicant (without the applicant’s active participation) or by a member of the spouse’s or parent’s family residing in the applicant’s household when the spouse or parent consented to the battery or cruelty and the applicant did not actively participate in it, and III) there was a substantial connection between the battery or cruelty and the applicant’s unlawful entry into the U.S. The BIA ultimately phrased the issue as whether one who seeks to qualify for the inadmissibility exception of § (A)(6)(A)(ii) must satisfy all 3 subclauses, including the requirement that he or she be a VAWA self-petitioner.

As explained by the Board, the IJ had concluded that the section’s language indicated that Congress only intended applicants to satisfy either subclauses I) or III) or subclauses II) and III), and held that even though respondent is not a VAWA self-petitioner, she had suffered extended domestic abuse by her husband in Guatemala and was entitled to the exception. DHS disagreed and argued respondent is not so qualified.

The decision’s initial analysis focused on the statutory language of 212 § (A)(6)(A)(ii), with the BIA noting that it first looks to the statute’s plain meaning so as to give effect to that meaning when possible; the most natural reading, held the opinion, is that respondent must satisfy subclauses I), II), and III), but subclause III) may be satisfied 2 different ways. However, as III) refer to the first 2 subclauses in the disjunctive, the Board found that the language is ambiguous and the legislative history must be considered.

In parsing the legislative history, the BIA looked to the Immigration Marriage Act Fraud Amendments of 1986, when marriage fraud concerns prompted Congress to create the 2-year conditional residence period which must pass before lawful permanent resident status can be granted to a noncitizen spouse. Because, noted the decision, a U.S. citizen or LPR spouse’s consent and cooperation are required to file a joint petition to remove conditional status, the citizen or LPR gained “considerable leverage over their foreign national spouse.” This, stated the Board, created a situation in which abused foreign national spouses were reluctant to leave the U.S. citizen/LPR spouse “for fear of losing their potential to adjust their status.” In turn, Congress created the battered spouse waiver of the joint petition requirement in 1990, codified at INA § 216(c)(4)(C); its purpose found the BIA , was to ensure that no foreign spouse or child gets trapped in an abusive relationship by the threat of losing legal status.

Next, in its analysis of § 212(a)(6)(A)(ii)’s scope, the opinion found that the most reasonable reading of the section is that an applicant must satisfy all 3 subclauses, as subclause II) reflects a desire by Congress to expand protections to cover abuse not only by U.S. citizen and LPR spouses and parents but also by members of the household where the abuser acts at the direction of the citizen/LPR, e.g., coverage is extended against those who possess “immigration leverage” over a foreign national spouse. While respondent claimed that this interpretation rendered subclause II) superfluous, the Board did not find that argument persuasive, holding that while subclauses I) and II) overlap, there are important differences between them and such overlap reflects Congress’ desire to ensure there is no gap in coverage for those abused by, or with the consent of, a U.S. citizen or LPR spouse or parent. On the other hand, noted the BIA, the IJ’s interpretation would vastly expand the section’s reach by effectively removing the requirement of a U.S. citizen or LPR abuser as it would “apply to any domestic abuse situation in the world” as illustrated by respondent’s complaint of abuse by her spouse in Guatemala. This, found the Board, was not why Congress created such a broad exception to inadmissibility. Furthermore, requiring the satisfaction of only subclauses II) and III) would alleviate respondent’s removability but would leave her with no legal status in the U.S., another result that could not have been intended by Congress. Thus, the more reasonable approach is that all 3 subclauses must be satisfied to qualify for the exception found at INA § 212(a)(6)(A)(ii). The appeal was sustained, proceedings reinstated, and the record remanded to the IJ. Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017).

When A Petitioner Seeking To Prove A Family Relationship Files A Birth Certificate That Was Not Registered Contemporaneously With The Birth In Question, USCIS Must Consider The Certificate And All Evidence Of Record Including The Circumstances Of The Case, To Determine Whether The Claimed Relationship Has Been Proven By A Preponderance Of The Evidence.

On September 20, 2017, the Board of Immigration Appeals (BIA or Board), ruled on the appeal of a denied Form I-130, Petition for Alien Relative in a situation where the Service Center Director held that the Beneficiary’s Pakistani birth certificate, registered 2 years after his birth, did not sufficiently prove his parentage and thus could not establish he was the Petitioner’s brother. The Director found that Petitioner had not submitted sufficient secondary evidence to support the delayed registered birth certificate.

Initially, in analyzing the application of the preponderance of the evidence standard, the BIA quoted Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) for the long-held administrative commandment that “when something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.” Thus, in discussing the necessary primary evidence to be filed to prove a family relationship in visa petition proceedings, the Board noted that – in the instant case – such evidence includes birth certificates showing a common parent, citing to 8 C.F.R § 204.2(g)(2)(i).

Historically, noted the opinion, the BIA has been reluctant to accord delayed birth certificates the same weight as those issued at the time of birth on the theory that delayed certificates are less reliable, i.e., that there is a greater opportunity for fraud. Moreover, the Board has previously held that delayed certificates are generally not conclusive evidence and must be evaluated in light of the other evidence of record and “the circumstances of the case”, stating that it has consistently considered the entire record to determine whether there is sufficient evidence of the claimed relationship. Here, the BIA concluded that, in evaluating whether a birth certificate is “delayed” and thus raises fraud concerns, USCIS must consider all record evidence and the circumstances of the case to determine whether sufficient reliable, persuasive evidence has been filed.

Next, in discussing other acceptable evidence, the Board again cited the regulations (8 C.F.R § 103.2(b)(2)) for the proposition that when an adjudicator determines a birth certificate is “not sufficiently reliable to meet the preponderance of the evidence standard” in light of all the circumstances, he or she should require and consider secondary evidence. Such evidence must be evaluated for authenticity and credibility and a Request for Evidence (RFE), providing detailed guidance regarding acceptable secondary forms of evidence, should be issued if it is not initially submitted. Most persuasive is secondary evidence that was created contemporaneously with the birth.

In the instant case, concluded the opinion, the Petitioner filed the I-130 fifty-two years after the Beneficiary’s birth was registered; unlike situations where the birth is registered right before the petition is filed, here the risk of fraud is greatly reduced. Additionally, noted the BIA, the Director had not considered the U.S. Department of State Foreign Affairs Manual (FAM) comments concerning Pakistani birth certificates: The FAM states that certificates for those born before 1947 are often unavailable and even today are not uniformly kept, particularly in rural areas. As such, the case was remanded to the Director to apply the Board’s framework; if USCIS determines that the birth certificate alone is not sufficiently reliable, it must consider whether, in combination with the secondary evidence submitted, it is sufficient to meet the preponderance of the evidence standard. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017).

BIA Holds A Misrepresentation Is Material Per INA § 212(a)(6)(C)(i) If It Tends To Shut Off A Line Of Inquiry Relevant To Admissibility And Would Predictably Have Disclosed Other Facts Relevant To The Applicant’s Eligibility For A Visa, Other Documentation, Or Admission To The U.S. Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995) Not Followed. Therefore, In Determining Whether One Assisted Or Otherwise Participated In Extrajudicial Killing, An Adjudicator Should Consider 1)The Nexus Between The Applicant’s Role, Acts, Or Inaction And The Killing And 2) His Or Her Prior Or Contemporaneous Knowledge Of The Killing. Miranda Alvarado v. Gonzalez, 449 F.3rd 915 (9th Cir. 2006) Not Followed.

On September 14, 2017 the Board of Immigration Appeals (BIA or Board), in another extremely lengthy opinion, ruled on the appeal of a native of Bosnia-Herzegovina who had been found removable by the Immigration Judge (IJ) both for willful misrepresentation of a material fact under INA § 212(a)(6)(C)(i) for failing to disclose on his refugee application that he was a Special Police officer and Squad/Platoon commander during the Bosnian War and for participating in the extrajudicial killing of Bosnian Muslims, a separate ground under INA § 212(a)(3)(E)(iii)(II).  Initially, the BIA affirmed the IJ’s ruling and remanded the record to allow the respondent to apply for deferral of removal but respondent refused to do so and the IJ certified the case to the Board, which then dismissed the appeal.  Respondent was subsequently removed, but on remand, the Ninth Circuit of Appeals asked for clarification of the BIA’s analysis in finding 1) that respondent’s failure to disclose his service as Serbian Special Police officer on his refugee application was a material misrepresentation and 2) that he assisted in the extrajudicial killing of Bosnian civilians, per Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).  In the instant decision, the BIA reaffirmed its earlier ruling, clarifying its standard for determining if one has “assisted, or otherwise participated in the commission of … any extrajudicial killing.”

Initially, in its analysis, the Board noted that the first question was whether respondent’s omission from his refugee application that he had been a Special Police Officer was a “material” misrepresentation.  Referencing the Ninth Circuit’s opinion in Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995), which defined the materiality of a misrepresentation via two inquiries: 1) whether the concealments have a natural tendency to influence the Government’s decision regarding a respondent’s admission and 2) whether there is sufficient evidence to raise a fair interference that a statutorily disqualifying fact actually existed, the Board upheld the DHS appellate argument that it need not apply the 2nd part of the Forbes test because the term “material” in the Act is ambiguous and, per the tenets of deference set forth in the U.S. Supreme Court cases “Chevron” and “Brand X”,  the BIA may exercise its authority to explain its own construction of the term.  Thus, the Board declined to adopt or apply the Forbes “fair inference” test in questions of admissibility under INA § 212(a)(6)(C)(i), as other circuits differ on whether this part of the test applies to the materiality of a misrepresentation.  Instead, it held that the most reasonable reading is that the “fair reference” test applies to whether one procured an immigration benefit by his misrepresentation, not to whether the misrepresentation is “material”; it therefore adopted the “natural tendency” test as the general standard for determining the materiality of a misrepresentation.  Specifically, held the BIA, it will consider whether the misrepresentation tends to shut off a line of inquiry relevant to admissibility and that would predictably have disclosed other facts relevant to eligibility for a visa, other documentation, or admission to the U.S.

The Board also reaffirmed its conclusion in Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980) that after DHS meets its burden of proof, the burden shifts to the respondent “to establish that no proper determination of inadmissibility could have been made.”

Next, as to the materiality of respondent’s misrepresentation, the BIA found that the IJ had properly determined that respondent’s service in the Special Police would have a “natural tendency” to influence the asylum officer’s decision on the refugee application, e.g., was an omission that shut off a relevant line of inquiry.  Further, respondent produced no evidence rebutting DHS’s showing of materiality and thus could not establish he would have been admissible had the true facts been disclosed; the Board therefore held that respondent “willfully made a material misrepresentation.”

The BIA then dissected the impact of Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) on determining whether one has “assisted” in persecution under the persecutor bar to political asylum, noting that the case holds that in evaluating potentially persecutorial conduct, it is necessary to examine the relation of one’s acts to the persecution itself, including whether one acted in self-defense, how long the actor was involved, and what threats were used to compel assistance.  However, concluded the Board, the phrase “assisted, or otherwise participated in” is ambiguous and under the Chevron and Brand X standards of deference, the BIA need not follow the Miranda Alvarado definition.

Constructing its own standard, the Board began by adopting the “generally accepted premise” that there is a continuum of conduct against which one’s actions must be evaluated to determine whether he assisted or otherwise participated in extrajudicial killing.  Citing to the Attorney General’s decision in Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), the BIA noted that to “assist” means to “give support or aid: help”, while “to participate” means “to take part in something (as an enterprise or activity)”; that these terms are to be given “broad application”; and, an adjudicator must look at the totality of the relevant conduct to determine whether the persecutor bar applies, i.e., whether respondent’s role was material or integral to the killing.  Further, held the BIA, while mere acquiescence or membership in an organization is insufficient, the evidence need not show that an alleged persecutor “had specific actual knowledge that his actions assisted in a particular act” of extrajudicial killing.  Rather, the accused must have had sufficient knowledge that his actions might assist in such persecution to make such actions culpable.

Because here, the respondent admitted that about 200 men were left with him and his unit before they were loaded onto buses, the IJ found that there is sufficient nexus between his actions and their killings, i.e., the respondent “assisted” in loading them onto the buses having the requisite scienter (prior or contemporaneous knowledge) that the men were being transported to their deaths.  As the Board found no clear error in this determination, the IJ’s decision was reaffirmed and the appeal dismissed.  Matter of D-R-, 25 I&N Dec. 105 (BIA 2017).  

Deportations and Voluntary Departures

Do you ever advise people to go with a voluntary removal?

Yes. If the person has the ability to return to the U.S. through sponsorship it is often better to proceed with voluntary departure. By departing voluntarily, the noncitizen may be able to come back after a shorter period of time.

It is generally agreed by most experienced immigration attorneys to consider voluntary departure first especially if the attorney believes the application for relief is not as strong. Once the individual calendar hearing is held there is a chance the Immigration Judge will simply order the person deported or removed rather than permitting voluntary departure.

 Is there ever an instance where a person facing deportation will go against your best advice and fight it?

Generally, people listen to our advice. I suppose there might be people who will disagree with us and talk with another lawyer. I certainly have had individuals say they want to make an attempt to fight it.

People listen to our advice and we educate them by advising what is happening, and what could happen, so that they will go into the process knowing all of the likely outcomes.

The Deportation Process

The deportation process is initiated generally by the Department of Homeland Security featuring what used to be called an “Order to Show Cause”, but it is now called a Notice to Appear (NTA). The NTA will state that the person is required to appear in Immigration Court and why he or she is being alleged to be deportable.

In the NTA, it lists the allegations on which the deportation is based upon. For example, it may say that you are from a certain country, that you entered the U.S. on this date under this status, subsequently on this date you are convicted of a certain crime, etc. The NTA will also provide the statutory grounds of removal or inadmissibility. The NTA is served generally in person on the foreign national. But it can also be served by mail.

What are the consequences of being deported?

Once successfully deported, you will now be required to leave the U.S. within a certain time frame.

Even if you are otherwise eligible to come back to the U.S. in a different manner, if you do not comply with the requirements of your deportation, you may be barred from future immigration applications.

The main consequence of being deported by an Immigration Judge is that after you have left the U.S., you are required to remain outside the U.S. for 10 years. Of course, it depends on how you are deported. Deportation can occur at the border, through what is called expedited removal, or at an Immigration Court. If you are deported by “expedited removal”, you may not be allowed to return for 5 years. But depending on the circumstances of your deportation, an expedited removal can be increased to a 20 year bar.

This is why an experienced immigration lawyer will strategize with the client and educate him or her on the consequences of deportation. Often, it is better to find a different application of relief rather than going through the actual deportation process. For example, if you do not have a great case, it may be in your interest to request Voluntary Removal or Voluntary Departure, which requires you to still leave the U.S. but not under a “deportation” order.


The difference between voluntary departing the U.S. and a deportation order sometimes rests on whether you can successfully petition the U.S. for permission to reenter the U.S. through the I-212 process. But this is only one form of “waiver” needed. Many persons who are deported or seek voluntary departure may still need to deal with the unlawful presence bar, which requires an extreme hardship application waiver, or other issues.


The deportation court process


The first hearing is often called a “preliminary court hearing” or “master calendar hearings”. Sometimes there may be a bond hearing that occurs first or after the master calendar hearing if the person is being detained. After the master calendar hearing, then a case goes to a trial. This “trial” is called a “regular calendar” or “individual calendar” hearing, where there is an actual adjudication of an application for relief or a finding that somebody is removable.


Can you appeal a removal order?


Yes, removal orders can be appealed initially. The person can make the motion to reopen or reconsider their removal order to the immigration judge. If that is unsuccessful, she or he can file an appeal or motion to the Board Immigration Appeals (BIA) which is located in Falls Church, Virginia. If the removal order is upheld by the BIA, the noncitizen may seek a petition for review at a U.S. Court of Appeal. For example, San Francisco is under the jurisdiction of the 9th Circuit Court of Appeals.


What might get a person deported from the U.S.?

It depends whether you are an immigrant or a non-immigrant. U.S. citizens cannot be deported. If you are an immigrant and you have a green card, you can be deported for certain criminal convictions – crimes that are referred to as aggravated felonies. Aggravated Felonies are often violent crimes against a person, like assault with a deadly weapon. Many crimes which carry a conviction of a year or more can become an aggravated felony. Even if your crime was not aggravated, it may still be considered a Crime of Moral Turpitude. Knowing how the crime is classified or how you may be allowed to plead in your criminal case requires an experienced attorney because conviction of a crime is a major source of people being deported.

Other reasons for deportation include people who violated their immigration status in some way, someone who works illegally, or someone who overstays a visa.

Similarly, someone who enters the U.S. illegally, that is without inspection and permission, can be deported or removed.


Does every applicant who gets chosen in the lottery automatically get a visa?

No. Just because you are chosen in the lottery doesn’t automatically mean you are going to get a green card or immigration to the U.S. In addition to all of the admissibility issues we cover in other blog posts, the person must still wait in line for their number to be picked. Every region only has so many visas to give. As the fiscal year continues, the Embassy calculates the number of DV applicants. If your number is not reached within the Fiscal year, you are not permitted to apply for the Immigrant Visa.

How much can a lawyer do to help someone in the lottery process?

Because it is such an easy online process, most people are able to handle the registration process on their own. It is only after they are selected that the attorney gets involved, especially for individuals or students who are already here in the U.S. Sometimes speed if of the essence when dealing with the DV Lottery process, especially because it is supposed to take place within the fiscal year the person is chosen.

If they are going through the process in their home country at the embassy, they can still hire an experienced immigration attorney like you to help them through the process?

Absolutely. It is not uncommon for individuals to hire an attorney in the U.S. to help them in the process. This is the way it has been for many years.



What is the immigration lottery?

Over the years, there has been various immigration legislation passed in an attempt to broaden the range of countries that send immigrants to the U.S. As part of that effort, the immigration lottery is intended to diversify the whole country and the nationalities of the people immigrating to the U.S.

The immigration lottery, which is also known as the “diversity lottery program” or DV lottery”, after several generations, was finally revised as a method to choose those countries that are considered under-represented in the nationalities of people emigrating to the U.S.

There are a lot of reasons for the number of visas in the lottery going to various regions of the globe. Based on different considerations, some countries get into the lottery and some do not, but the overall purpose was to diversify the nationality of immigrants coming to the U.S.

How does the U.S. determine which countries get to participate and which countries don’t?

Normally, the U.S. government looks at the amount of immigration from the various countries in the last 5 years. Since the law’s goal is to diversify the immigration population in the U.S., they look at the past 5 years of immigration patterns from each country to determine which countries have the highest number of immigrants coming into the U.S. For each DV lottery, the government publishes a list of which countries are allowed to apply for the lottery through an online registration program. This list is derived from the information discerned through the volume of immigration.   

How many countries can participate in the lottery?

Each year, the number of countries and which countries may participate is updated. Of course, there are several countries that are consistently not included. For example, China, the Philippines, Mexico and India are backlogged through the sponsored immigrant visa process. This means they have a high volume of people immigrating to the U.S. These countries are usually not included in the DV Lottery. Otherwise, most countries can apply but again it depends upon the number of immigrants who have been coming from the particular countries for the last five years. For example, natives from Bangladesh, Canada, and Brazil are also not allowed to register for the lottery because they have high levels of immigration coming into the U.S.


Is the lottery conducted annually?


Yes. It is an annual process.


Is there anything that a prospective immigrant can do to increase their changes through the lottery program to get selected?


No. It is purely random.


Can anyone from a country that isn’t excluded apply to be in the lottery?


No. The DV Lottery still has additional requirements. For example, the DV Lottery for Fiscal Year 2019 still maintains a requirement that the application have completed the equivalent of a U.S. high school education or have worked in a qualifying job for two of the last 5 years. The list of qualifying jobs may also change from year to year.


Additionally, as with any other visa, the applicant must be of good moral character and satisfy other visa requirements. The only difference in the lottery program visa process is that the person does not have to be sponsored by anyone in the U.S.

How much discretion does the immigration officer have when conducting a marriage visa interview?

In marriage visa interviews, the government tries to have them conducted in a uniform manner. With that said, most experienced examiners naturally use their own experience and knowledge to guide the interview process. Immigration officers performing these interviews have considerable training and specific requirements. They know what needs to be seen on certain documents and certain information needs to be given during the interview. Generally, the USCIS does a very good job of determining whether a marriage is bona fide.


There is some discretion given to the officers to collect all of the facts and then making their decisions. Overall, they are well trained in doing it in a consistent manner. But if an officer believes a case is deniable, they must usually seek confirmation by presenting the facts to a superior examiner.