Waivers of Inadmissibility for Asylees and Refugees

Exceptional and Extremely Unusual Hardship

 

Introduction

In order for an asylee or refugee to adjust status, he or she must be admissible to the United States. Furthermore, a refugee must be admissible to the United States at the time of admission. The Immigration and Nationality Act (INA) contains a generous waiver of inadmissibility provision for asylee and refugee applicants for adjustment of status.

In this article, we will focus on the relevant statutes, regulations, and other administrative guidance in order to explain the waiver of inadmissibility provision for asylees and refugees in section 209(c) of the INA.

Relevant Statute

Section 209(c) provides for waivers of inadmissibility for asylee and refugee applications for adjustment of status. Through section 207(c) of the INA, the same waiver provisions apply to refugees seeking initial admission to the United States in refugee status. Section 209(c) reads as follows:

The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) of this Act [8 U.S.C 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 such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

Applicable Inadmissibility Grounds

First, section 209(c) provides that several inadmissibility grounds do not apply to asylee and refugee applicants for adjustment of status. The list is detailed in the United States Citizenship and Immigration Service's (USCIS's) Policy Manual (PM) at 7 USCIS-PM L.3 [link] and M.3 [link]:

Section 212(a)(4) — Public Charge;
Section 212(a)(5) — Labor Certification and Qualifications for Certain Immigrants; and
Section 212(a)(7)(A) — Documentation Requirements for Immigrants.

In short, the three above grounds of inadmissibility simply do not apply to asylee and refugee applicants for adjustment of status. For example, if an asylee applying for adjustment of status were to meet the threshold for being likely to become a public charge, that would have no bearing on the adjustment application.

Next, the two sections of the USCIS PM list inadmissibility grounds that do apply but may be waived at the discretion of the USCIS under section 209(c):

Section 212(a)(1) — Health-Related [see article];
Section 212(a)(2) — Crime Related (with one exception);
Section 212(a)(3) — Security Related (with certain exceptions);
Section 212(a)(6) — Illegal Entrants and Immigration Violators;
Section 212(a)(8) — Ineligibility for Citizenship;
Section 212(a)(9) — Foreign Nationals Previously Removed;
Section 212(a)(10) — Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation.

One example of the scope of section 209(c) is that an individual inadmissible for falsely claiming U.S. citizenship under section 212(a)(6)(C)(ii) is eligible for a discretionary waiver of inadmissibility [see section]. Under most other circumstances, section 212(a)(6)(C)(ii) inadmissibility attaches for life and there is no provision for waiving it.

Finally, the USCIS PM lists inadmissibility grounds that cannot be waived under section 209(c). This means that an asylee or refugee adjustment applicant who is subject to one of the following inadmissibility grounds would not be eligible for adjustment of status:

Section 212(a)(2)(C) — Controlled Substance Traffickers;
Section 212(a)(3)(A) — Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government;
Section 212(a)(3)(B) — Terrorist Activities;
Section 212(a)(3)(C) — Adverse Foreign Policy Impact; and
Section 212(a)(3)(E) — Participants in Nazi Persecutions or Genocide.

The provision barring waivers for individuals inadmissible as controlled substance traffickers under section 212(a)(2)(C) sweeps relatively broadly. Please see our full article to learn about inadmissibility for controlled substance traffickers, including how it is distinguishable from other drug-related grounds of inadmissibility [see article]. Non-trafficking grounds of controlled substance-related inadmissibility do not bar relief under section 209(c).

Statutory and Administrative Standard for a Waiver

Provided that the asylee adjustment applicant or refugee applicant for admission or adjustment is subject to a ground of inadmissibility that may be waived by section 209(c), the USCIS may grant a waiver under the following circumstances:

For humanitarian purposes;
To assure family unity; or
When it is otherwise in the public interest.

The burden rests with the applicant for the waiver under 207(c) (for a refugee seeking admission as a refugee) or 209(c) (for an asylee or refugee seeking adjustment of status) to establish that granting the waiver would serve humanitarian purposes, assure family unity, or otherwise be in the public interest.

With the exception of cases described below, there is no requirement that an individual seeking a section 209(c) waiver establish that the denial of the waiver would result in extreme hardship to the applicant and/or certain family members.

In the Matter of Jean, 23 I&N Dec. 323 (AG 2002) [PDF version], then-Attorney General John Ashcroft held that, in the event that inadmissibility was caused by a criminal offense, adjudicators must balance the humanitarian, family unity preservation, or public interest considerations in favor of granting a waiver against the seriousness of the offense that rendered the alien inadmissible. Under Jean, an alien who committed a “violent or dangerous crime” will be ineligible for adjustment of status as an asylee or refugee, even if technically eligible, except in “extraordinary circumstances.” Such circumstances may include national security considerations, foreign policy considerations, or where the alien establishes that the denial of adjustment of status “would result in exceptional and extremely unusual hardship.” Matter of Jean did not set a requirement that any exceptional and extremely unusual hardship must be demonstrated for family members, thus leaving open the possibility that the hardship could be demonstrated for the applicant him or herself. The decision added that meeting the “exceptional and extremely unusual hardship” standard may nevertheless be insufficient depending on the “gravity of the offense.”

7 USCIS PM L.3(D) and M.3(D) reiterate that, when adjudicating a section 209(c) waiver application in the adjustment of status context, adjudicators must balance the factors weighing in favor of granting the waiver against the seriousness of the offense(s) that caused inadmissibility. Regarding adjustment applications, the USCIS PM notes that the fact the applicant has already established that he or she was the victim of past persecution or has a well-founded fear of future persecution “is an extremely strong positive discretionary factor” in favor of granting a waiver.

Exceptional and Extremely Unusual Hardship

The “exceptional and extremely unusual hardship” standard for violent offenses was incorporated into the federal regulations at 8 C.F.R. 212.7(d) in the context of adjudicating section 212(h) waivers. In the 212(h) context, it applies when the alien is inadmissible under section 212(a)(2) for a “violent or dangerous” crime. This means that an alien seeking to waive inadmissibility under section 212(a)(2)(I) (money laundering) would likely not be subject to the “exceptional and extremely unusual hardship” standard. However, depending on the offense, an alien inadmissible under section 212(a)(2)(A)(i) (crime involving moral turpitude (CIMT)) or 212(a)(2)(B) (multiple criminal convictions) may be subject to the higher standard depending on the nature of the underlying offenses (e.g., robbery or assault would likely trigger the higher standard).1 Whether an offense is “violent or dangerous” is subject to administrative and judicial review.

In the Matter of Jean, the Attorney General denied an asylee adjustment of status application filed by an applicant who had pled guilty to second-degree manslaughter in connection with the death of a nineteen-month-old child. The Attorney General did not consider it relevant whether the conviction was an aggravated felony (the applicant was inadmissible for being convicted of a crime involving moral turpitude). In Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006) [PDF version] the Fifth Circuit held, in upholding Matter of Jean, that the standard set forth by the Attorney General was “fact-based” and not “categorical.” This means, for example, that committing an aggravated felony would not automatically render an individual subject to the exceptional and extremely unusual hardship standard. The question for adjudicators is, rather, was the offense “violent or dangerous.”2

In the Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) [PDF version], the Board held that while the “exceptional and extremely unusual hardship” standard is more stringent than the regular “extreme hardship” standard, the hardship need not be “unconscionable.” Medical hardship to the applicant or the applicant's family may, depending on the nature of the offense and the facts of the hardship, warrant a waiver in certain cases.3

We discuss “exceptional and extremely unusual hardship” in more detail in our article on cancellation of removal for non-permanent residents [see section only for discussion on “exceptional and extremely unusual hardship”]. Of specific note, we list the factors considered by the Board in the Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) [PDF version] in a cancellation of removal cases where it found that the standard was met.

The Waiver in Practice: Differences for Asylees and Refugees

All waiver applications for asylees and refugees are filed on the Form I-602, Application by Refugee for Waiver of Grounds of Excludability.

For asylees, inadmissibility is only an issue for eligibility in the context of applying for adjustment of status. However, a refugee must be found to be admissible as a refugee when seeking admission from outside the United States. This distinction leads to certain issues particular to asylees and to refugees regarding waivers of inadmissibility. In the subsequent sections, we will explore the issue from each of these standpoints.

Issues Specific to Asylees Seeking Adjustment

7 USCIS-PM 3.M(B)(2) explains that an individual with a bona fide, pending asylum application does not accrue unlawful presence in the United States while the application is pending. This is provided for in statute by section 212(a)(9)(B) of the INA. However, if an individual is employed without authorization while the asylum application is pending, he or she will accrue unlawful presence as set forth in section 212(a)(9)(B)(iii)(II). The unlawful presence bars, if triggered, may then be waived in the context of an asylee adjustment application under section 209(c). The PM notes that traveling on advance parole with an adjustment application pending also does not trigger the unlawful presence bar, as set forth in the precedent decision, the Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [PDF version]. To learn about these issues further, please see our full articles about unlawful presence [see article] and when an asylum applicant may procure employment authorization [see article].

At 7 USCIS-PM 3.M(C), the USCIS-PM explains that when the USCIS officer adjudicating an asylum adjustment application identifies concerns regarding national security that were unknown at the time of the initial grant of asylum, he or she should refer the case to USCIS for further guidance.

7 USCIS-PM 3.M(B)(1) explains that if a derivative asylee who had a Form I-730 processed overseas had a Class A medical condition waived for purpose of admission as an asylee, the waiver does not carry through to adjustment of status. Accordingly, the applicant would be required to submit to a new medical examination to determine if the Class A medical condition has been resolved.

Issues Specific to Refugees Seeking Waivers

Refugees must seek waivers of inadmissibility (if necessary) in seeking admission as refugees under 8 C.F.R. 209.1(a) and (e). Because refugees must be found to be admissible in order to be granted initial admission in refugee status, the USCIS explains at 7 USCIS-PM L.3 that any information that was known to the refugee officer, consular officer, or inspections officer at the time of the refugee's admission “is generally not used to find the refugee inadmissible at the time of adjustment…” The USCIS lists two exceptions to this principle:

The law or interpretation of the law changed subsequent to the refugee's initial admission; or
The adjudicating officer made a clear error.

At 7 USCIS-PM L.3(B), the USCIS explains that while waivers granted to refugees at the time of refugee admission generally carry over to an adjustment application, there is one exception. If the refugee was granted a waiver of medical inadmissibility for a Class A medical condition, he or she will be required to submit to a new medical exam to determine if the Class A medical condition has been resolved.

At 7 USCIS-PM L.3(C), the PM explains that if an officer adjudicating a refugee adjustment of status application identifies national security indicators or concerns unknown at the time of the initial refugee grant, he or she should refer the case to a supervisor for further guidance.

7 USCIS-PM L.3(D) explains that, in a case where the refugee adjustment applicant is subject to a ground of inadmissibility that arose subsequent to initial admission as a refugee, or where the inadmissibility ground was not known to the officer who approved the refugee application, the refugee adjustment applicant may file for a waiver of inadmissibility by using the Form I-602. Under the following circumstances, the officer handling the adjustment application may grant a waiver without the applicant filing the Form I-602:

The applicant is inadmissible under a ground of inadmissibility that can be waived by section 209(c), except for health related grounds;
The officer has access to sufficient information through USCIS records and other information to assess eligibility for the waiver;
There is no evidence suggesting that negative factors would weigh against the discretionary decision to grant the waiver;
It is appropriate to grant the waiver.

In the event that an applicant is either found ineligible for a waiver or the waiver application is denied, “[t]he denial of the waiver should be fully discussed in the denial of the adjustment application.”

Appeal of Waiver Denial

7 USCIS-PM L.3(D) explains that a refugee whose waiver application is denied in seeking adjustment cannot appeal the denial to the USCIS. However, an immigration judge has jurisdiction to consider a waiver application de novo (from the start) when he or she considers a new adjustment application during removal proceedings. Under 8 C.F.R. 209.2(c), if an alien is placed in removal, deportation, or exclusion proceedings, the waiver application can only be filed in a section 240 proceeding.

In the Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999) [PDF version], the Board of Immigration Appeals (BIA) held that both an Immigration Judge and the Board have jurisdiction to adjudicate 209(c) waivers following the denial of a waiver application.

No Appeal from Denial of Waiver for Initial Refugee Admission

If the waiver application of a refugee seeking initial admission as a refugee is denied, 8 C.F.R. 207.3 makes clear that there is no grounds for appeal from the denial.

In Doan v. INS, 160 F.3d 508 (8th Cir. 1998) [PDF version], the Eighth Circuit held that there was no statutory authority to review the denial of a waiver for a refugee applicant seeking initial admission as a refugee. Furthermore, in this context, the Eighth Circuit held that the then-INS officer (now would be a DHS officer) adjudicating the waiver application was “the functional equivalent of a consular official, because he is an Executive Branch official, located outside the United States, deciding questions of admissibility brought before him by aliens who are also located outside the United States.”

Broad Authority for IJs and BIA in Asylee Removal Proceedings

In the Matter of K-A-, 23 I&N Dec. 661 (BIA 2004) [PDF version], the Board distinguished its decision from the Matter of H-N-. The Board held that once an asylee is placed in removal proceedings, the IJ and BIA have exclusive jurisdiction to adjudicate the asylee's applications for adjustment of status and for an associated waiver under section 209(c) of the INA. Accordingly, the Board held that this authority extends even where the DHS has not administratively denied a waiver application.

Conclusion

Both refugees seeking initial admission as refugees and asylees and refugees seeking adjustment of status may benefit from the relatively generous inadmissibility waiver provisions in sections 207(c) and 209(c) of the INA, respectively. However, it is important to note that the decision to grant or deny a waiver of a waivable ground of inadmissibility is discretionary . Adjudicators may weigh the positive and negative factors in deciding whether to grant a waiver. Furthermore, in cases where the applicant's inadmissibility stems from a violent offense, he or she will have a very high bar to clear in order to procure a waiver.

It is crucial for asylee and refugee adjustment applicants to consult with an experienced immigration attorney throughout their application processes, regardless of whether they are subject to any grounds of inadmissibility. An attorney may help such applicants navigate the complicated application process. If the applicant is subject to a ground of inadmissibility, an attorney will be able to help the applicant address that by providing evidence to support the applicant's case for eligibility for a waiver under section 209(c). An attorney may also help the applicant if his or her waiver application is being adjudicated in section 240 immigration proceedings.

______________________

  1. Brady, Katherine. “§ N.17 Immigration Relief Toolkit For Criminal Defenders.” Immigrant Legal Resource Center. (Jan. 2016) [for the example]. 41
  2. Murray-Tjan. “11-07 Immigration Briefings 1: Waivers of Inadmissibility Under Sections 212(h) and 209(c) of the Immigration and Nationality Act: Strategies for Success When the Government Alleges a 'Violent or Dangerous' Crime.” Immigration Briefings. (Jul. 2011)
  3. Brady, Katherine. 41

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 163, 695-96, Print. Treatises & Primers.

Tags: 
inadmissibility