Form I-192, Application for Advanced Permission to Enter As Nonimmigrant Approved

Application Type: I-192

Adjudication Time: 183 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry, Buffalo, New York)

Grounds of Inadmissibility: INA 212(a)(9)(B)(i)(II) – Period of Unlawful Presence in the U.S.

Purpose of Entry into U.S.: (B-1/B-2) Business & Pleasure Visits – Visit with family and family vacations.

SRW Strategy: Evidence of Rehabilitation (no immigration issues since her departure from the United States in 2007; 18 years since the commission of acts forming the basis of her inadmissibility); Establish strong ties to Canada

Approval Period: One (1) Year

Inadmissibility Based on Admissions of Criminal Conduct – INA§212(a)(2)(A)(i)

It is well settled and understood that a criminal conviction may form the basis of determining an individual inadmissible to the United States under the Immigration and Nationality Act (“Act”). In particular, INA § 212(a)(2)(A)(i) provides that arriving aliens are inadmissible to the U.S. if they have been convicted of: (I) a crime involving moral turpitude, or an attempt or conspiracy to commit such a crime or (II) a violation of a controlled substance offense of any State, the United States, or a foreign country.

It is surprising, however, that under INA § 212(a)(2)(A)(i), an individual can also be rendered inadmissible for merely admitting to criminal activity even though they may never have been convicted in a court of law for those offenses. Specifically, except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of - (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 USC 802)), is inadmissible.

On its face, the statute indicates that a factual admission of criminal activity by an individual is sufficient to support a criminal charge of inadmissibility. However, ascertaining whether or not an individual has “admitted to committing acts that constitute the essential elements” of such crimes (moral turpitude or a controlled substance offense) is far more complicated.

Fortunately, the Board of Immigration Appeals (“BIA”) has issued case law dictating certain requirements that an “admission” must meet to effectively support a charge of inadmissibility under INA § 212(a)(2)(A)(i). The BIA explained that these rules were not based on any specific statutory requirement but have evolved in an effort to insure a fair hearing and to preclude a later claim of unwitting entrapment. Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by, Matter of E-V-, 5 I&N Dec 194 (BIA 1953). While a majority of these rules have been defined involving crimes involving moral turpitude, they also apply equally to cases involving controlled substance offenses. Pazcoguin v. Radcliff, 292 F.3d 1209 (9th Cir 2002).

In 1957, the BIA issued a landmark precedent decision in which it set forth the following three-part test for determining the legal sufficiency of an “admission” under INA:

1. The admitted conduct must constitute the essential elements of the crime in the jurisdiction where it occurred;

2. The applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and

3. The admission must be voluntary.

Matter of K, 7 I&N Dec. 594. Unless each of these three (3) elements are met, any “admission” made to a U.S. immigration officer cannot form the basis of a charge of inadmissibility. Additionally, the BIA held that in order for an admission to be valid for INA § 212(a)(2)(A)(i) purposes, it must be unequivocal and complete. Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

In response to the BIA’s precedent decisions, requirements have been developed for immigration officers to adhere to while obtaining admissions. For example, the Department of State in the FAM issued procedural requirements consular officers must follow when eliciting admissions to a previous criminal offense that mirror the requirements established by these decisions. Specifically, 9 FAM 40.21(a) N5.1 requires officers to:

1. Give the applicant a full explanation of the purpose of questioning;

2. The crime the applicant has admitted to must appear to constitute moral turpitude based on the statute and the applicant’s statements;

3. Before commencing questioning, the applicant must be provided an adequate definition of the crime, including all essential elements in terms that the individual understands, making certain the definition conforms to the law of the jurisdiction where the offense is alleged to have been committed;

4. The applicant must admit to all factual elements constituting the crime; and

5. The applicant’s admission must be explicit, unequivocal and unqualified.

Individuals deemed inadmissible under INA § 212(a)(2)(A)(i) based on an “admission” will forever require a nonimmigrant waiver to enter the U.S. This is a serious consequence and as such, we encourage foreign nationals who have been charged with inadmissibility based on an “admission” to a U.S. immigration officer, who never appeared before a judge or was convicted in a court of law, to consider having their situation reviewed to determine whether all the requirements of an “admission” were properly met. If you were found inadmissible under INA § 212(a)(2)(A)(i), contact our office to have us evaluate whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to enter the U.S.

Erroneous Finding Of Inadmissibility Under INA §212(a)(2)(A)(i)(II) Vacated By CBP – Paying Fine At Customs NOT An Admission To A Controlled Substance Violation

Recently, we assisted our Client, a Canadian citizen, in vacating an erroneous determination regarding his inadmissibility under INA §212(a)(2)(A)(i)(II) [Controlled Substance Violation] and subsequently obtaining admission in B-2 status, without requiring a non-immigrant waiver under INA §212(d)(3) [Form I-192].

In November 2013, our Client attempted to enter the U.S. through the Peace Bridge Port of Entry (POE) in Buffalo, NY to attend a Buffalo Bills game. During his encounter with U.S. Customs & Border Protection (CBP), our Client was alleged to have drugs (less than a gram of marijuana) in his vehicle. As a result, CBP Officers imposed a $500 monetary Customs fine. Upon payment and processing, our Client was escorted back to Canada. CBP exercised discretion and chose not to seek to have our Client criminally prosecuted for a possession offense.

The following Saturday, our Client attempted to enter the U.S. at the Chicago Midway Airport but was denied entry by CBP, advised that he was inadmissible under INA §212(a)(2)(A)(i)(II) as a result of the incident the week before and that he would forever require a non-immigrant waiver in the future to re-enter the U.S. Shortly thereafter, our Client scheduled a consultation with our office to prepare his non-immigrant waiver application.

After an extended consultation with the Client and a thorough review of the facts and his documents, we concluded that CBP Chicago officials had made an incorrect determination regarding his admissibility under INA §212(a)(2)(A)(i)(II). Specifically, CBP at Chicago Midway erroneously concluded that our Client’s payment of a monetary fine was the equivalent of him making an admission to the essential elements of a controlled substance violation. However, our Client did not make any admission that would be legally sufficient to find him inadmissible under INA §212(a)(2)(A)(i)(II) and the mere payment of the monetary fine was not the legal equivalent of an admission.

In fact, the payment of such monetary fines was addressed in a 1995 legal opinion, provided by the General Counsel of the legacy Immigration and Naturalization Service (INS), which clearly and unequivocally stated that, “[a]n alien who agrees to pay the penalty does not by doing so admit having committed acts which constitute the essential elements of a controlled substance violation” under INA § 212(a)(2)(A)(i)(II).

As such, we recommended filing a detailed submission with CBP to request that CBP correct our Client’s records and vacate the finding of inadmissibility under INA § 212(a)(2)(A)(i)(II) since such finding had been made erroneously and was not supported by applicable law or guidance.

With our Client’s consent, we submitted a detailed legal brief, together with supporting documentation, to CBP requesting they vacate the erroneous finding of inadmissibility. After reviewing our submission, CBP Officers concurred with our legal analysis. We later accompanied our Client to the Port of Entry and after inspection and admission, our Client was admitted to the U.S. as a visitor (B-2) - without the need for a non-immigrant waiver.

This resolution was vital for our Client since it cleared up many prospective immigration barriers to the U.S. for him. Had the inadmissibility finding remained, our Client would have required a non-immigrant waiver for the rest of his life – and would therefore need to continuously file non-immigrant waivers, pay applicable fees, and be subject to secondary screening. With the finding of inadmissibility vacated, our Client can continue his unfettered ability to enter the U.S. as a business visitor (B-1) or visitor for pleasure (B-2), or in the future, choose to immigrate to the U.S. if he would like.

Guiding Mexican National from Removal Proceedings to Immigrant Visa (Removal Proceedings -> I-130 -> Voluntary Departure -> Immigrant Visa Processing -> I-601)

Our client, a Mexican national, was just recently approved by USCIS for a I-601 waiver based on hardship to his USC spouse. Our client is now awaiting the issuance of his immigrant visa through the U.S. Consulate in Ciudad Juarez, Mexico and upon issuance, will be able to return to the U.S. as a permanent resident and be able to support his family and be a productive member of society.

As background, our client had entered the US in the 1990’s without authorization and had been in the U.S. since then. A few years ago, he was encountered by U.S. Border Patrol and subsequently placed into removal proceedings. At that time, he was already in a relationship with his USC spouse and the couple decided to move ahead their plans and go ahead and get married so that our client would have a legal avenue to pursue permanent resident status. After the couple was married, we helped them file a Form I-130 petition with USCIS, together with a request for a bonafide marriage exemption under INA §245(e)(3). (As background, generally, if a foreign national gets married after removal proceedings have been initiated and is seeking immediate relative status based on that marriage, they must demonstrate by clear and convincing evidence – a notably higher standard - that the marriage is a bonafide marriage and one that was not entered in to for the purpose of evading immigration laws.)

After the I-130 was approved, our firm requested that our client be granted Voluntary Departure from the Immigration Court in Buffalo, New York. In support of our request, we established that our client was an individual of good moral character, that he was deserving of the court’s discretion, was statutorily eligible for such relief, etc. (Our client was not eligible to adjust his status from within the U.S. since he last entered the U.S. unlawfully and was required to complete Immigrant Visa Processing.)

Our client timely departed the U.S. prior to his Voluntary Departure date and subsequently attended his immigrant visa interview at the U.S. Consulate in Ciudad Juarez. During his interview, as expected, he was denied an immigrant visa since he was inadmissible under INA §212(a)(9)(B)(i)(II) [10 Yr Unlawful Presence Bar] and required an immigrant waiver under INA §212(a)(9)(B)(v) to waive his inadmissibility. Our client had triggered the Unlawful Presence Bar when he departed the U.S. for his immigrant visa interview (unfortunately, our client was unable to take advantage of the Provisional Hardship Waiver [Form I-601A] implemented by USCIS in March 2013 since he was required to depart the U.S. prior to that date pursuant to his Voluntary Departure Order).

Following his interview, we filed his immigrant waiver application (Form I-601) with USCIS. In support of the I-601, our firm prepared a detailed legal brief outlining our client’s illegal entry into the US, how he met his USC wife, when they were married and his immigration history; we also discussed the USC wife’s (qualifying relative) background - we explained her childhood, catalyst events in her childhood that led to her declining mental health issues and her depression and how her health had substantially improved as a result of our client’s emotional support and love. We were able to document her medical diagnosis of Chronic Major Depressive Order, Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia and were able to establish how her declining mental health was directly tied to our client’s immigration situation. We also explained her family ties in the U.S. which would prevent her from accompanying our client abroad to Mexico - she had children from a previous marriage, some of which are adults and some are minors. Her minor children are on SSI due to learning disabilities and there are current court orders that were granted to the child’s biological father placing geographical restrictions on the mother.

Thus, on the legal brief we prepared, we detailed and established the hardships that the USC spouse would face if she were to accompany our client to Mexico and then the extreme hardship she would face if she was to remain in the U.S. without him. We explained how she would be unable to receive the essential mental healthcare and physical healthcare that she required in Mexico, that she would lose her sole source of income which is SSI and healthcare benefits that she is able to receive in the US, and her inability to relocate her minor children because of the current custody visitation order with their biological father. We also explained how the USC spouse and her children would not have the legal ability to reside in Mexico and that there were various financial support documentation that they would be likely unable to provide to obtain such permission. We went on to discuss why she could not remain in the U.S. without her husband and how her mental health had already been declining given our clients immigration situation, and how prone she was to further deterioration given her documented history of depression. We also explained that her older daughter’s life was essentially being placed on hold given that her daughter was now responsible for doing a lot of the translations for the family, driving the family around to various doctor’s appointments and school related issues and generally helping out with the family, which was causing the USC spouse further emotional distress.

We are very happy this I-601 was approved, without an RFE, from USCIS within normal processing times and that our client is now going to be reunited with his family in the near future once his immigrant visa is issued by the U.S. Consulate in Ciudad Juarez.