Waiver of inadmissibility (United States)

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Waiver of inadmissibility under the Immigration and Nationality Act (INA) of the United States is a federal relief available to certain removable aliens.[1][2] Waiver of inadmissibility is used for those who are applying for US immigrant visas or adjustment of status. One cannot file a stand-alone waiver: an underlying application for adjustment of status or immigrant visas must be pending. Not all grounds of inadmissibility can be waived. For example, the INA does not provide a waiver for those who are convicted of crimes related to controlled substances, with the exception of possession of 30g of marijuana or less. Importantly, a person who would like to file for a waiver must have qualifying relatives who are US citizens or permanent residents, otherwise, a person cannot file for the waiver.[3] It statutorily links cancellation of removal, which is another form of relief under the INA that operates parallel to waiver of inadmissibility. As such, an alien in removal proceedings needs only satisfy the requirements of one of them to be effectively saved from removal from the United States.[4]

Every refugee that is seeking admission to the United States or one who has been lawfully admitted as an "immigrant" under the INA is eligible for a waiver of inadmissibility,[5][6][7] even if he or she has been convicted of an aggravated felony or a particularly serious crime.[2][8][9] But such criminal aliens previously admitted to the United States under Form I-130 cannot apply for such relief.[2]

Any person inadmissible to the United States may request a waiver of inadmissibility by filing Form I-601 ("Application for Waiver of Grounds of Inadmissibility").[10] Similar to applying for a U.S. visa, there are no numerical or geographical limitations. Others may request waiver of inadmissibility at any time during their removal proceedings,[11][12] even from outside the United States after their removal.[13][14] Any decision regarding this federal relief may be reviewed by the Board of Immigration Appeals (BIA) or any U.S. court of appeals.[15]

Background[edit]

Sample of a permanent resident card (green card), which lawfully permits its holder to live and work in the United States similar to that of all other Americans.

According to the INA, "[t]he term 'alien' means any person not a citizen or national of the United States."[16][17] Those referred to as "inadmissible aliens" and "deportable aliens" form a single group,[1] which encompasses the INA violators among the 75 million foreign nationals who are admitted each year as visitors or guests,[18][19] the 12 million or so illegal aliens,[20] and the INA violators among the hundreds of thousands of foreign nationals who reside in the United States under the temporary protected status (TPS).[21][22][7]

"Only 'aliens' are subject to removal under the INA."[23] A lawful permanent resident (LPR) can either be an "alien" or a "national of the United States" (American),[24][25][26][27][28][29][30][31][32][33] which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder (legal immigrant).[6][4]

Legal immigrants in the United States enjoy the same statutory and constitutional protections as citizens by birth,[34] especially those that were lawfully admitted as stateless refugees.[6][2][8][5][9] The reason for this is that they had escaped from totalitarianism, genocide, torture and/or persecution, and have absolutely no safe country of permanent residence other than the United States.[35][36] Removing such protected people from the United States violates the United Nations Convention against Torture (CAT) and other laws,[37][38][39][40][41][42][34] especially if they qualify as Americans or have physically and continuously resided in the United States for at least 10 years without committing (in those years) any offense that triggers removability under the INA.[43]

Before the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),[44] U.S. President Bill Clinton had issued a presidential directive in which he expressly warned the Attorney General and others by stating the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General... and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment....[34]

Waiver of inadmissibility for refugees and other immigrants[edit]

An alien may be inadmissible to the United States for a variety of reasons, which are all detailed under section 1182(a)(1)—(10).[45] In 1980, Congress and the Carter administration enacted the Refugee Act, which authorized up to 50,000 international refugees to be firmly resettled in the United States each year.[5][46] Sections 1157(c)(3) and 1159(c) provide a special waiver of inadmissibility to refugees only,[5] even if they have been convicted of aggravated felonies or particularly serious crimes.[8][2][47][4] Such immigrants are exempt from concurrently filing an adjustment of status application under 8 U.S.C. § 1255(a), which is plainly for nonimmigrants only.[6][5]

Section 1157 explicitly states the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.[48][17][12]

Section 1159 states the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) ... shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.[49][17][12]

The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."[26] Those admitted as refugees under section 1157 may also apply for a waiver of inadmissibility under section 1182(h),[2] but doing such is totally optional and not required by any law.[50]

Reasons for aliens to become inadmissible to the United States[edit]

Health related grounds[edit]

Criminal grounds[edit]

  • Convicted in any country or place on Earth of any aggravated felony "for which the term of imprisonment was completed within the previous 15 years."[54][2]
  • Convicted by any court of law on Earth of a "crime involving moral turpitude" (other than a purely political offense) for which imprisonment of one year or longer may be imposed under law.[55][52]
  • Convicted of a controlled substance violation in any country or place on Earth.[55][52]
  • Convicted of two or more crimes involving moral turpitude in any country or place on Earth.[55][52]
  • Convicted of prostitution and commercialized vice in any country or place on Earth.
  • Convicted of a serious criminal activity for which immunity from prosecution has been received in any country or place on Earth.

Security and related grounds[edit]

Aliens inadmissible under section 212(a)(3)(B) of the INA have

  • been involved in a current or past terrorist group
  • contributed finances to a current or past terrorist group
  • relatives whom are or have been involved in a current or past terrorist group
  • provided medical assistance to a past or current terrorist group
  • been child soldiers, sex slaves, or trafficked persons forced to contribute to a current or past terrorist group
  • been forced to aid a past or current terrorist group

Illegal entrants and immigration violators[edit]

There are several circumstances under which illegal entrants and immigration violators may apply for a Waiver of Inadmissibility:

  • Aliens who enter the United States without being admitted or paroled at a port of entry (EWI - Entry Without Inspection) or who overstay a valid visa begin to accrue unlawful presence after the illegal entry, or the period of authorized stay expires.[56]
  • Aliens who knowingly or willfully made misrepresentations or committed fraud in order to obtain an immigration benefit or benefit under the INA, may apply for a waiver of inadmissibility on Form I-601.[57]
  • Aliens previously deported or given expedited removal must also file Form I-212, Application for Permission to Reapply for Admission (if eligible).[58]
  • Aliens unlawfully present in the United States for an aggregate period of one (1) year who have exited the United States and re-entered without inspection (EWI) are not eligible to file Form I-601 to waive their unlawful presence.[59]

Miscellaneous grounds[edit]

  • practicing polygamists
  • guardians accompanying helpless aliens
  • International child abductors and relatives supporting abductors
  • Former U.S. citizens found by the Attorney General to have renounced citizenship for the purpose of avoiding taxation (the currently-unenforced Reed Amendment)[60][61]

Requirements for approval of waiver of inadmissibility[edit]

Unlawful presence (3/10 year bar)[edit]

  • If the applicant is inadmissible because he or she has been unlawfully present in the United States for more than 180 days (3-year bar) or one year (10-year bar), they may apply for a waiver of inadmissibility.[52]
  • It is important to note that an applicant MAY NOT BE ELIGIBLE to apply for waiver of inadmissibility if he or she was unlawfully present in the United States for more than one year, left the United States, then returned without being admitted or paroled (EWI).[62]
  • The applicant must establish that his or her U.S. citizen or legal permanent resident spouse, parent, or the K visa petitioner would suffer extreme hardship if the application were denied.[52]
  • There are special instructions for TPS and VAWA self-petitioners applying for a waiver of this ground of inadmissibility.[52]

Criminal grounds[edit]

  • The applicant may apply for a waiver of inadmissibility if he or she has been convicted of any "aggravated felony" in any country or place on Earth "for which the term of imprisonment was completed within the previous 15 years."[54][2][8]
  • The applicant may apply for a waiver of inadmissibility if he or she has been found to be inadmissible for being:
    • (1) convicted in any country or place on Earth of a crime involving moral turpitude (other than a purely political offense) for which imprisonment of one year or longer may be imposed under law;[55]
    • (2) convicted of a controlled substance violation in any country or place on Earth;
    • (3) convicted of two or more crimes involving moral turpitude in any country or place on Earth;
    • (4) convicted of prostitution in any country or place on Earth;
    • (5) convicted of unlawful commercialized vice whether or not related to prostitution; or
    • (6) an alien involved in serious criminal activity, who has asserted immunity from prosecution.[52]
  • The applicant must establish that he or she is inadmissible only because of participation in prostitution (including having procured others for prostitution or having received the proceeds of prostitution), but has been rehabilitated and his or her admission will not be contrary to the national welfare, safety or security of the United States;[52] OR
  • At least 15 years have passed since the activity or event that made the applicant inadmissible, they have been rehabilitated and that their admission to the United States (or issuance of the immigrant visa) will not be contrary to the national welfare, safety or security of the United States;[52] OR
  • The applicant's qualifying U.S. citizen or legal permanent resident spouse, son, daughter, parent or K visa petitioner would experience extreme hardship if the applicant were denied admission; OR
  • The applicant is an approved VAWA (Violence Against Women Act) self-petitioner.
  • The U.S. Attorney General will not favorably exercise discretion for a waiver to consent to the reapplication to the United States (or adjustment of status) in cases involving violent or dangerous crimes except in extraordinary circumstances or cases where the applicant clearly demonstrates that denial of the application would result in "exceptional and extremely unusual hardship."[63]

Fraud or misrepresentation[edit]

  • If the applicant is inadmissible because he or she has sought to procure an immigration benefit by fraud or misrepresenting a material fact [INA Section 212(a)(6)(C)(i)], they may apply for a waiver of inadmissibility.[52]
  • The applicant must demonstrate that his or her qualifying U.S. citizen or legal permanent resident spouse, parent or the K visa petitioner would experience extreme hardship if the applicant were denied admission or the applicant is a VAWA self-petitioner and the applicant, their U.S. citizen or legal permanent resident parent or child would experience extreme hardship if the applicant were denied admission to the U.S.[52]

Health related grounds of inadmissibility[edit]

  • An applicant's petition may be approved if he or she is the spouse, parent, unmarried son or daughter, or the minor unmarried lawfully adopted child of a U.S. citizen or legal permanent resident, or of an alien who has been issued an immigrant visa, or the fiancé(e) of a U.S. citizen or the fiancé(e)'s child; or if they are a VAWA self-petitioner.[52]
  • Please note that there are additional application requirements for individuals who are inadmissible due to diagnosis with Class A Tuberculosis, HIV, or a "Physical or Mental Disorder and Associated Harmful Behavior".[52][64]
  • A blanket waiver of required vaccinations can be given by the civil surgeon for vaccinations that are not medically appropriate at the time of examination. Applicants with religious or moral objections to all vaccinations may submit proof and apply for a waiver.

Immigrant membership in a totalitarian party[edit]

  • If the applicant is inadmissible because he or she was a member of, or affiliated with, the Communist or any other totalitarian party, they may apply for a waiver of inadmissibility.[52][65]
  • A waiver may be granted for humanitarian purposes, to assure family unity, or when it is in the public interest if the applicant is the parent, spouse, son, daughter, brother or sister of a U.S. citizen, or a spouse, son or daughter of a lawful permanent resident, or the fiancé(e) of a U.S. citizen.[52] The applicant must also not be deemed a threat to the security of the United States.[52]

Alien smuggling[edit]

  • If the applicant is inadmissible because he or she has engaged in alien smuggling,[66] they may apply for a Waiver of Ground of Inadmissibility on Form I-601 ONLY IF they have encouraged, induced, assisted, abetted or aided an individual who at the time of the action was their spouse, parent, son or daughter (and no other individual) to enter the United States in violation of the law.[52]
  • Also, the applicant must be either: (1) a legal permanent resident who temporarily proceeded abroad, not under an order of removal, and who is otherwise admissible to the U.S. as a returning resident; or (2) seeking admission or adjustment of status as an immediate relative, a first, second or third preference immigrant, or as the fiancé(e) (or his or her children) of a U.S. citizen.[52]
  • A waiver under this section may be granted for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest.

Procedures[edit]

Applicants may download Form I-601 ("Application for Waiver of Grounds of Inadmissibility") from the USCIS website.[10] Depending on whether an applicant is applying for an immigrant visa or adjustment of status, Form I-601 may be filed at the consular office, USCIS office, or in the immigration court considering the immigrant visa or adjustment of status application.[10] It may also be filed with the BIA.[67] The filing fee for Form I-601 is currently $930. A person who has been removed from the United States at any time in the past may use Form I-212 ("Application for Permission to Reapply for Admission into the United States After Deportation or Removal").[13]

See also[edit]

References[edit]

This article is based on latest statutory and published case law.

  1. ^ a b "Barton v. Barr, 140 S. Ct. 1442 (2020)". U.S. Supreme Court. Harvard Law School. April 23, 2020. p. 1446. The umbrella statutory term for being inadmissible or deportable is 'removable.'
  2. ^ a b c d e f g h "Matter of N-V-G-, 28 I&N Dec. 380". Board of Immigration Appeals. U.S. Dept. of Justice. September 17, 2021. A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not 'previously been admitted to the United States as an alien lawfully admitted for permanent residence' under that provision.
    • "Matter of J-H-J-, 26 I&N Dec. 563" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 12, 2015. An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.
    • "Matter of Michel, 21 I&N Dec. 1101" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 30, 1998. An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.
    • "Matter of Pineda, 21 I&N Dec. 1017" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. August 26, 1997.
    • "Matter of Yeung, 21 I&N Dec. 610" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. November 27, 1996.
    • "Matter of Mendez, 21 I&N Dec. 296" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 12, 1996.
      • "De Leon v. Lynch, 808 F.3d 1224". Tenth Circuit. Harvard Law School. December 22, 2015. p. 1232. Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J-H-J- he is correct.
      • "Zamora v. Attorney General, 633 F. App'x 570". Third Circuit. Harvard Law School. December 11, 2015. p. 573.
  3. ^ Shautsova, Alena. "Understanding Immigration Waivers". www.shautsova.com. Retrieved 2021-11-26.
  4. ^ a b c 8 U.S.C. § 1101(a)(13)(C)(v) ("An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien... has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a)....")
    • "Sambare v. Attorney General, 925 F.3d 124". Third Circuit. Harvard Law School. May 28, 2019. p. 126. In 2006, Sambare was admitted to the United States as a lawful permanent resident. In the years following his admission to the United States, Sambare was convicted of various crimes, including credit card theft and forgery.... In October 2013, however, an Immigration Court granted Sambare's application for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) and thus restored his status as a lawful permanent resident.
    • "Salmoran v. Attorney General, 909 F.3d 73". Third Circuit. Harvard Law School. November 26, 2018. p. 75. Accordingly, while Salmoran is removable, he may still file an application for cancellation of removal.
  5. ^ a b c d e "Romanishyn v. Attorney General, 455 F.3d 175". Third Circuit. Harvard Law School. July 20, 2006. p. 185. That the INA addresses termination of refugee status in only one provision—8 U.S.C. § 1157(c)(4)—might suggest, as Mr. Romanishyn argues, that refugee status persists indefinitely unless it is terminated pursuant to that provision. (emphasis added)
    • "Reznik v. U.S. Department of Justice, INS, 901 F. Supp. 188". U.S. District Court for the Eastern District of Pennsylvania. Harvard Law School. March 28, 1995. p. 193. Congress granted the President and Attorney General wide discretion in determining the admission of refugees to the United States.
      • "Matter of B-R-, 26 I&N Dec. 119" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 3, 2013. p. 120 n.2. Section 101(a)(42) of the Act provides in pertinent part: The term 'refugee' means (A) any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .
  6. ^ a b c d
    • 8 U.S.C. § 1101(a)(15) ("The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens....")
    • 8 U.S.C. § 1101(a)(27) ("The term 'special immigrant' means—(A) an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad....")
    • 8 U.S.C. § 1159(a)(2) ("Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) ... as an immigrant under this chapter....") (emphasis added)
  7. ^ a b "Posos-Sanchez v. Garland, 3 F.4th 1176". Ninth Circuit. Casetext.com. July 7, 2021. p. 1182-83. The INA generally defines the words 'admission' and 'admitted' as 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'
    • "Matter of D-K-, 25 I&N Dec. 761" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 12, 2012. p. 766. With regard to refugees, the language of both the Act and the regulations states that they are 'admitted' to the United States.
  8. ^ a b c d
    • "Matter of C-A-S-D-, 27 I&N Dec. 692". Board of Immigration Appeals. U.S. Dept. of Justice. November 1, 2019. p. 694. Section 209(c) of the Act provides that the Attorney General may waive certain criminal grounds of inadmissibility under section 212(a) of the Act 'with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.'
    • "Matter of H-N-, 22 I&N Dec. 1039" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. October 13, 1999. p. 1040. Pursuant to section 209 of the Act, an alien admitted into the United States as a refugee under section 207 of the Act, 8 U.S.C. § 1157 (1994 & Supp. II 1996), may have his or her status adjusted to that of a lawful permanent resident. In making such a determination, it is clear from the statute that the Attorney General has the power to grant a waiver of inadmissibility to an alien who may be inadmissible. (emphases added)
      • "City of Cleburne v. Cleburne Living Center, Inc., 740 F.3d 379 (1985)". U.S. Supreme Court. Harvard Law School. July 1, 1985. p. 439. The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.
  9. ^ a b "Board of Immigration Appeals". U.S. Dept. of Justice. September 14, 2021. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.
    • 8 CFR 1003.1(g)(1) ("Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board and decisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.")
    • "Matter of Douglas, 26 I&N Dec. 197" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. October 17, 2013. p. 199. The [Supreme] Court has also emphasized that the Chevron principle of deference must be applied to an agency's interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction is the better one, provided that the agency's interpretation is reasonable.
  10. ^ a b c 8 CFR 212.7(a)(1)
  11. ^ 8 C.F.R. 1003.2 ("(a) General. The Board may at any time reopen or reconsider a case in which it has rendered a decision on its own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service.... The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:...
    (v) For which a three-member panel of the Board agrees that reopening is warranted when the following circumstances are present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (c)(3): (A) A material change in fact or law underlying a removability ground or grounds specified in section 212 or 237 of the Act that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and (B) The movant exercised diligence in pursuing the motion to reopen;
    (vi) Filed based on specific allegations, supported by evidence, that the respondent is a United States citizen or national....") (emphasis added)
  12. ^ a b c "Alabama v. Bozeman, 533 U.S. 146 (2001)". U.S. Supreme Court. Harvard Law School. June 11, 2001. p. 153. The word 'shall' is ordinarily the language of command. (internal quotation marks omitted)
  13. ^ a b 8 CFR 212.2(a)
  14. ^
  15. ^ 8 U.S.C. § 1252(a)(1) ("Judicial review ... is governed only by chapter 158 of title 28, except as provided in subsection (b)....") (emphasis added); 28 U.S.C. § 2344 ("The petition shall contain a concise statement of—(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.") (emphasis added)
    • "Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020)". U.S. Supreme Court. Harvard Law School. March 23, 2020. p. 1072. The statutory history and precedent, as well as the legislative history, thus support the conclusion that the statutory term 'questions of law' includes the application of a legal standard to established facts.
  16. ^ 8 U.S.C. § 1101(a)(3) (emphasis added)
  17. ^ a b c "Jennings v. Rodriguez, 138 S. Ct. 830 (2018)". U.S. Supreme Court. Harvard Law School. February 27, 2018. p. 855. The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings. (quotation marks omitted)
  18. ^ "Destination USA: 75 million international guests visited in 2014". share.america.gov. Retrieved 2018-09-30.
  19. ^ "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-09-30.
  20. ^ 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  21. ^ Melissa Etehad, ed. (July 19, 2018). "The Trump administration wants more than 400,000 people to leave the U.S. Here's who they are and why". Chicago Tribune. Retrieved 2021-10-05.
  22. ^ 8 U.S.C. § 1254a(f) ("Benefits and status during period of temporary protected status")
  23. ^ "Fernandez v. Keisler, 502 F.3d 337". Fourth Circuit. Harvard Law School. September 26, 2007. p. 341.
  24. ^ "Estimates of the Lawful Permanent Resident Population in the United States: January 2014" (PDF). James Lee; Bryan Baker. U.S. Dept. of Homeland Security (DHS). June 2017. Retrieved 2018-11-21.
  25. ^ "Child Citizenship Act of 2000 ('CCA'), Pub. L. No. 106-395, 114 Stat. 1631 (2000)" (PDF). United States Congress. October 30, 2000. p. 1633. The amendments made by this title shall take effect 120 days after the date of the enactment of this Act and shall apply to individuals who satisfy the requirements of section 320 or 322 of the Immigration and Nationality Act, as in effect on such effective date. (emphases added)
    • "H.R.1593 - Adoptee Citizenship Act of 2021". U.S. House of Representatives. U.S. Congress. March 3, 2021. Currently, adoptees who were over the age of 18 on February 27, 2001, do not automatically acquire citizenship. (emphasis added)
    • "H.R.2731 - Adoptee Citizenship Act of 2019". U.S. House of Representatives. U.S. Congress. May 14, 2019.
      • "Gomez-Diaz v. Ashcroft, 324 F.3d 913". Seventh Circuit. Harvard Law School. April 7, 2003. p. 915. The Child Citizenship Act of 2000, Pub.L. No. 106-395, 114 Stat. 1631, revised the manner in which children of non-citizens born outside the United States are eligible to become U.S. citizens.
      • "Belleri v. United States, 712 F.3d 543". Eleventh Circuit. Harvard Law School. March 14, 2013. p. 545. A child acquires derivative citizenship by operation of law, not by adjudication.
      • "United States v. Ashurov, 726 F.3d 395". Third Circuit. Harvard Law School. August 12, 2013. p. 398. As the District Court recognized, 'such' means 'of the character, quality, or extent previously indicated or implied.'
      • "United States v. A.M., 927 F.3d 718". Third Circuit. Harvard Law School. June 20, 2019. p. 721.
      • Judge Fernandez, dissenting, ed. (June 22, 2001). "Hughes v. Ashcroft, 255 F.3d 752". Ninth Circuit. Harvard Law School. p. 760. As I see it, the language could be construed to allow coverage of individuals who had reached the age of 18 years before the CCA's effective date.
      • "Khalid v. Sessions, 904 F.3d 129". Second Circuit. Harvard Law School. September 13, 2018. p. 138. [T]he derivative citizenship statute as amended by the CCA promotes 'Congress's remedial purposes' of 'keep[ing] families intact.'
      • "Ahmadi v. Attorney General, 842 F. App'x 777". Third Circuit. Casetext.com. April 7, 2021. p. 778. While Ahmadi argues that, under the Child Citizenship Act of 2000, he has derivative citizenship because his father naturalized after Ahmadi turned eighteen, we have previously held that the Act does not apply retroactively to people who turned eighteen before Congress passed the Act.
        • Ahmadi v. Attorney General, No. 19-2713. Third Circuit. July 9, 2020. Event occurs at 2:20—3:04. Your Honors, this is a case that shocks the conscience. It is about an illegal deportation of a non-violent person from the State of Pennsylvania who was: 1) admitted to this country as an 11-year-old refugee from a totalitarian state pursuant to 8 U.S.C. § 1157(c)(2)(A); 2) became a lawful permanent resident, LPR, of the United States pursuant to § 1159(a)(2); 3) rightfully and successfully became a recipient of the United Nations Convention Against Torture, CAT, relief on September 26, 2000; and 4) was naturalized or admitted as a national of the United States under the Child Citizenship Act, CCA, of 2000.
        • "Matter of Fuentes-Martinez, 21 I&N Dec. 893" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. July 24, 2001. p. 896 n.4. A person who claims to have derived United States citizenship by naturalization of a parent may apply to the Attorney General for a certificate, but a certificate is not required.
        • Board Member Rosenberg, dissenting, ed. (July 24, 2001). "Matter of Rodriguez-Tejedor, 23 I&N Dec. 153" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. p. 170-71. Accordingly, in my view, 'as in effect on the effective date' clearly refers to the conditions that 'have been fulfilled' and exist now. No matter whether these conditions were met previously, or what the individual's status was previously, these are the rules that determine the person's citizenship status as of the February 27, 2001, effective date, i.e., now.
  26. ^ a b "Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018)". U.S. Supreme Court. Harvard Law School. February 21, 2018. p. 824. (internal quotation marks and brackets omitted)
    • "Lamie v. United States Trustee, 540 U.S. 526 (2004)". U.S. Supreme Court. Harvard Law School. January 26, 2004. p. 534. It is well established that when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms. (quotation marks omitted)
    • "Robinson v. Shell Oil Co., 519 U.S. 337 (1997)". U.S. Supreme Court. Harvard Law School. February 18, 1997. p. 341. The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
    • "United States v. Menasche, 348 U.S. 528 (1955)". U.S. Supreme Court. Harvard Law School. April 4, 1955. p. 538-39. It is our duty to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section, as the Government's interpretation requires. (citation and quotation marks omitted)
    • "NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)". U.S. Supreme Court. Harvard Law School. April 12, 1937. p. 30. The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.
      • "United States v. Williams, 917 F.3d 195". Third Circuit. Harvard Law School. March 5, 2019. p. 202. A cardinal rule of statutory interpretation is that courts should avoid interpreting a statute in ways that would render certain language superfluous.
      • "In re Kaiser Aluminum Corp., 456 F.3d 328". Third Circuit. Harvard Law School. July 26, 2006. p. 338. A basic tenet of statutory construction is that courts should interpret a law to avoid absurd or bizarre results.
  27. ^ "H.R. Rep. No. 106-852" (PDF). House of Representatives. U.S. Congress. September 14, 2000. p. 13. [I]f the biological child is able to qualify for U.S. citizenship subsequent to birth, the conferral of U.S. citizenship is not retroactive to birth but occurs as of the date he or she fills the statutory qualifications of Section 320, 321, or 322 of the INA.
  28. ^ "Immigration Library: Court Decisions". Greenberg Traurig. January 28, 2002. Although the INS appears to have taken the position that the act is not retroactive, the language of the CCA's and Congress' intent have not yet been universally determined, and there may still be room for individuals to continue arguing in favor of its retroactive application....
  29. ^ "U.S. citizen mistakenly put in deportation proceedings finally returns to America". NBC News. February 4, 2020. Retrieved 2021-10-05.
  30. ^ "Cambodian refugee who advocates say was wrongly deported returns to U.S." NBC News. February 28, 2020. Retrieved 2021-10-05.
  31. ^ "First Cambodian to return after deportation inspires others after gaining U.S. citizenship". NBC News. July 16, 2020. Retrieved 2021-10-05.
  32. ^ Stanton, Ryan (May 11, 2018). "Michigan father of 4 was nearly deported; now he's a U.S. citizen". www.mlive.com. Retrieved 2018-11-21.
  33. ^ Sakuma, Amanda (October 24, 2014). "Lawsuit says ICE attorney forged document to deport immigrant man". MSNBC. Retrieved 2018-11-21.
  34. ^ a b c "Federal Register, Vol. 60, No. 28, Presidential Documents" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. (emphases added)
    • "Zuniga-Perez v. Sessions, 897 F.3d 114". Second Circuit. Harvard Law School. July 25, 2018. p. 122. The Constitution protects both citizens and non-citizens.
    • "Calderon-Rosas v. Attorney General, 957 F.3d 378". Third Circuit. Casetext.com. April 27, 2020. p. 385. The Supreme Court has explained that the Fifth Amendment entitles aliens to due process of law in deportation proceedings... because the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. (citations and quotation marks omitted)
    • "Serrano-Alberto v. Attorney General, 859 F.3d 208". Third Circuit. Harvard Law School. June 12, 2017. p. 213. In other words, petitioners must receive 'a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a 'neutral and impartial arbiter.' (citations omitted)
  35. ^ "Matter of Izatula, 20 I&N Dec. 149" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. February 6, 1990. p. 154. Afghanistan is a totalitarian state under the control of the [People's Democratic Party of Afghanistan], which is kept in power by the Soviet Union.
  36. ^ "Matter of B-, 21 I&N Dec. 66" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 19, 1995. p. 72. We further find, however, that the past persecution suffered by the applicant was so severe that his asylum application should be granted notwithstanding the change of circumstances.
  37. ^ "Article 3". Office of the United Nations High Commissioner for Human Rights. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
  38. ^ "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved 2018-09-27. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution....
  39. ^ "Deprivation of rights under color of law". U.S. Dept. of Justice. May 31, 2021. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials....
  40. ^ "United States v. Lanier, 520 U.S. 259 (1997)". U.S. Supreme Court. Harvard Law School. March 31, 1997. p. 264. Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States.
    • "Hope v. Pelzer, 536 U.S. 730 (2002)". U.S. Supreme Court. Harvard Law School. June 27, 2002. p. 739. Officers sued in a civil action for damages under 42 U. S. C. § 1983 have the same right to fair notice as do defendants charged with the criminal offense defined in 18 U. S. C. §242.
      • "United States v. Acosta, 470 F.3d 132". Second Circuit. Harvard Law School. November 30, 2006. p. 136. Section 241 proscribes conspiracies that seek to 'injure, oppress, threaten, or intimidate any person' in connection with exercising or enjoying constitutional rights.
  41. ^ 18 U.S.C. § 2441 ("War crimes")
  42. ^ "Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)". U.S. Supreme Court. Harvard Law School. February 18, 1963. p. 160. Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences. (citation and internal quotation marks omitted)
    • "Arizona v. United States, 567 U.S. 387 (2012)". U.S. Supreme Court. Harvard Law School. June 25, 2012. p. 395. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
  43. ^ "Saliba v. Attorney General, 828 F.3d 182". Third Circuit. Harvard Law School. July 8, 2016. p. 189. [A]n applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'
  44. ^ "Othi v. Holder, 734 F.3d 259". Fourth Circuit. Harvard Law School. October 29, 2013. p. 265.
  45. ^ 8 U.S.C. § 1182(a) ("Classes of aliens ineligible for visas or admission").
  46. ^ "Hanna v. Holder, 740 F.3d 379". Sixth Circuit. Harvard Law School. January 17, 2014. p. 393.
  47. ^ "Khan v. Johnson, 160 F. Supp. 3d 1199". U.S. District Court for the Central District of California. Harvard Law School. February 1, 2016. p. 1201-02.
  48. ^ 8 U.S.C. § 1157(c)(3) (emphasis added)
  49. ^ 8 U.S.C. § 1159(c) (emphases added)
  50. ^ 8 U.S.C. § 1181(c) ("The provisions of subsection (a) shall not apply to an alien whom the Attorney General admits to the United States under section 1157 of this title.")
    • "Vartelas v. Holder, 566 U.S. 257 (2012)". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 263. An alien seeking 'admission' to the United States is subject to various requirements, see, e.g., § 1181(a), and cannot gain entry if she is deemed 'inadmissible' on any of the numerous grounds set out in the immigration statutes, see § 1182.
  51. ^ 42 CFR 34.2(b)
  52. ^ a b c d e f g h i j k l m n o p q r s http://www.uscis.gov/files/form/i-601instr.pdf
  53. ^ INA section 212(a)(1)(A)(iii)
  54. ^ a b 8 U.S.C. § 1101(a)(43)
    • "Torres v. Lynch, 136 S. Ct. 1619 (2016)". U.S. Supreme Court. Harvard Law School. May 19, 2016. p. 1627. The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law.
      • "Zivkovic v. Holder, 724 F.3d 894". Seventh Circuit. Harvard Law School. July 31, 2013. p. 911. Because Zivkovic's aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal (although they can be used for many other purposes under the statute).
      • "Ledezma-Galicia v. Holder, 636 F.3d 1059". Ninth Circuit. Harvard Law School. March 29, 2010. p. 1080. Ledezma-Galicia is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like Ledezma-Galicia's, that occurred prior to November 18, 1988.
  55. ^ a b c d 8 U.S.C. § 1101(a)(48) ("(A) The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. (B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.") (emphases added)
    • 8 U.S.C. § 1227(a)(2)(A)(i) ("Any alien who—(I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.") (emphasis added)
    • 8 U.S.C. § 1182(a)(2)(A)(ii)(II)
      • "United States v. Valencia-Mendoza, 912 F.3d 1215". Ninth Circuit. Harvard Law School. January 10, 2019. p. 1224. In sum, the Supreme Court has held that courts must consider both a crime's statutory elements and sentencing factors when determining whether an offense is 'punishable' by a certain term of imprisonment.
      • "United States v. McAdory, 935 F.3d 838". Ninth Circuit. Harvard Law School. August 28, 2019. p. 844. None of McAdory's prior convictions had standard sentencing ranges exceeding one year, nor were any accompanied by written findings of any of the statutory factors that would justify an upward departure. Thus, the district court convicted McAdory under § 922(g)(1) even though he had no predicate offenses within the meaning of the statute.
      • "United States v. Williams, 5 F.4th 973". Ninth Circuit. Casetext. July 16, 2021. The panel held that the Washington offense of theft from a vulnerable adult in the second degree was not 'punishable by a term of imprisonment exceeding one year' when the statutory maximum sentence exceeded one year but the maximum sentence allowed under the State's mandatory sentencing guidelines did not. Accordingly, the district court erred in determining that the defendant committed a Grade B supervised release violation.
      • "United States v. Hisey, ___ F.4th ___, No. 20-3106". Tenth Circuit. Casetext. September 14, 2021. We reverse, concluding that Mr. Hisey has overcome the procedural default by showing actual innocence. He did not commit the underlying offense (unlawfully possessing firearms after a felony conviction) because he had no prior conviction punishable by more than a year in prison.
      • "United States v. Haltiwanger, 637 F.3d 881". Eighth Circuit. Harvard Law School. March 25, 2011. p. 884.
  56. ^ INA section 212(a)(9)(B)(ii)
  57. ^ INA Section 212(a)(6)(C)(i)
  58. ^ http://www.uscis.gov/files/form/I-212instr.pdf
  59. ^ INA section 212(a)(9)(C)(II)
  60. ^ Buss, David; Hryck, David; Granwell, Alan (August 2007). "The U.S. Tax Consequences of Expatriation: Is It a Tax Planning Opportunity or a Trap for the Unwary?" (PDF). International Tax Strategies. Retrieved 2012-05-18.
  61. ^ "9 FAM 40.105: Notes". Foreign Affairs Manual (PDF). U.S. Department of State. 2011-10-06. Retrieved 2012-05-18.
  62. ^ INA Section 212(a)(9)(C)(i)(I)
  63. ^ 8 CFR 212.7(d);
  64. ^ 8 U.S.C. § 1182(a)(1)(A)(iii)
  65. ^ INA section 212(a)(3)(D)(iv)
  66. ^ INA section 212(a)(6)(E)(i)
  67. ^ 8 CFR 1003.2(c)(1) ("A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation....")

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