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August XX, 2023

RE: RESPONSE TO REQUEST FOR EVIDENCE ON FROM I-485, APPLICATION TO

REGISTER PERMANENT RESIDENCE OR ADJUST STATUS
Applicant: Andrew Terwane, A209-911-219
I-602 Waiver

Dear Adjudicating Officer,

Our office represents Mr. Andrew Terwane (A209-911-219), who submitted a Form I-485,
Application to Register Permanent Residence or Adjust Status (“Form I-485”) on June 17, 2019.
On May 9, 2023, Mr. Terwane was sent a Request for Further Evidence ( “RFE”) regarding his
Form I-485. Accordingly, he is submitting this response to the RFE along with a Form G-28,
Notice of Entry of Appearance as Attorney or Accredited Representative, and a Form I-602
Waiver. In addition, include below is a brief memorandum on why Mr. Terwane merits an
exercise of favorable discretion and the grant of his I-602 Waiver (and eventually his Form I-
485).

Mr. Terwane applied for Asylum, Withholding of Removal, and Protection under the
Convention Against Torture, and his application was granted before the Arlington Immigration
Court on April 12, 2018. Tab A: Grant of Asylum. Subsequently, after one year of residency
in the United States, Mr. Terwane applied to adjust his status in the United States. This
application, submitted as a Form I-485, and an interview was conducted on April 11, 2023. See
RFE at 1. On May 9, 2023, your office requested Mr. Terwane submit an I-602 Waiver in
response to an allegation that Mr. Terwane made “willful representation of a material fact” to
procure an immigration benefit. Below, In support of his application and this waiver request,
Mr. Terwane submits the following arguments for your office’s consideration.

Waiver Should Be Granted Pursuant to Humanitarian Concerns

Mr. Terwane warrants a grant of his I-602 Waiver on humanitarian grounds.

Section 209 of the Immigration and Nationality Act (“INA”) permits the Secretary of
Homeland Security or Attorney General to:

(a) adjust the status of eligible refugees and asylees from the public charge, labor
certification, and immigrant documentation on grounds of inadmissibility. as well as
(b) allow the DHS Secretary and Attorney General the discretion to waive the other
grounds of inadmissibility under section 212(a) of the INA for humanitarian
purposes, to assure family unity, or when it is otherwise in the public
interest.
 There is no requirement to show hardship for a waiver under Section 209(a) of the INA.
(The waiver in question is the I-602 Waiver).

When considering this I-602 Waiver, an adjudicator must balance the humanitarian,
family unity, and public interest considerations against the seriousness of the issues that
necessitated the requirement for the waiver. In addition, each case must be adjudicated and
evaluated on a case-by-case basis. One strong, positive discretionary factor to consider is that an
Applicant for a I-602 Waiver has already established that he or she suffered past persecution
and/or suffers from a well-founded fear of future persecution. Accordingly, this one factor alone
should weigh heavily when an adjudicator considers an I-602 Waiver. Addressed below are the
specific reasons why an I-602 Waiver under Humanitarian Concerns should be approved by your
office in Mr. Terwane’s case.

Mr. Terwane’s application should be granted under Humanitarian grounds. Mr. Terwane
applied for Asylum based on his membership in a particular social group – a bisexual man – and
his role as a peaceful gay rights activist in Uganda. During his Asylum hearing in Immigration
Court, the Court accepted Mr. Terwane’s testimony as credible and found that Mr. Terwane was
targeted for persecution as a member of the gay and bisexual community in Uganda after being
caught engaging in consensual same-sex sexual conduct and for work providing quality medical
services to gay and bisexual men in Uganda (details of which are included in his affidavit that
accompanied his brief in support of his Asylum application). Tab B: Asylum Brief. Indeed,
because of his sexual orientation and his role as an activist in Uganda, police attempted to arrest
him and continued to search for him even after he fled the country. Tab C: Asylum Brief
Exhibit Excerpt. Accordingly, the Immigration Judge found that Mr. Terwane qualified for
asylum based on well-founded fear of being detained, tortured and potentially killed for his
identity as a bisexual man and political activism.

The current circumstances in Uganda have not changed with respect to the treatment of
gay and bisexual individuals and lesbian, gay, bisexual, and transexual (“LGBT”) activists since
Mr. Terwane fled the country, and if anything, have only become more dire. On May 29, 2023,
Uganda engaged what has been characterized as “one of the world’s toughest anti-LGBTQ
laws,” which includes the death penalty. Tab D: Uganda Anti-LGBTQ Law Article. Those
who engage in consensual same-sex acts may be sentenced to death and activists can be
imprisoned for 20 years.

It is well understood that Mr. Terwane would have faced severe persecution, potentially
including death, if forced to return to Uganda at the time of his asylum hearing. Now, with
Uganda’s enactment of the new anti-LGBTQ law, which codifies the death penalty for gay and
bisexual men, there is a significant possibility, if not a certain possibility, that Mr. Terwane will
be tortured and persecuted in Uganda, in even more harmful ways than prior to leaving Uganda.

The current actions taken by the Ugandan government against LGBT individuals and
LGBT-rights activists is persecution. Mr. Terwane is a bisexual man and an LGBT rights
activist in Uganda. Solely based on this identity, he is at high risk of being tortured, killed, and
persecuted in Uganda. When coupled with his activism, this risk is so high, that it is almost
certain that should Mr. Terwane be forced to return to Uganda he will be detained
indiscriminately and potentially subject to the death penalty. This is a significant humanitarian
concern that your office must consider for Mr. Terwane’s I-602 Waiver.

Mr. Terwane had one main discrepancy that your office noted from his interview. Mr.
Terwane explained during his I-485 interview that as part of his visa application, he claimed to
work for the Uganda Reproductive Health Bureau and obtained documents to support this claim
in an effort to attend a conference in the United States as part of his efforts to flee persecution in
Uganda. However, upon entry into the United States, Mr. Terwane addressed the issue with the
relevant U.S. officials and immediately stated his intent to claim asylum, after which he was
denied entry and placed in detention and removal proceedings.

After disclosing these facts to relevant U.S. officials, Immigration Judge Denoso-Stevens
found the Respondent credible and awarded him a grant of asylum during his removal
proceedings. Tab A: Grant of Asylum. Thus, Respondent was credible before a relevant
immigration official who adjudicated his asylum. Accordingly, this discrepancy, which he
explained to relevant U.S. officials and which should not be at issue with his asylum application,
is minor and does not warrant a finding by your office that Respondent is ineligible to adjust
status in the United States.

Mr. Terwane merits approval of his I-602 Waiver. There are several positive
discretionary factors that weigh in favor of granting Mr. Terwane I-602 Waiver, factors that are
significantly more positive than the one minor negative factor in Mr. Terwane’s case.

Accordingly, in light of the above factors, your office should grant Mr. Terwane I-602
Waiver, especially in light of the fact that Mr. Terwane was granted Asylum before an
Immigration Judge and it is certain that he will be tortured, and likely killed, if he returns to
Uganda. Significantly, the one negative factor that your office has presented for revoking Mr.
Terwane’s Asylum Application has no bearing on his Asylum Application at all.

Mr. Terwane was sought by the police in Uganda because of his sexual orientation and
activities as a gay rights activist. He continues to identify as a bisexual man here in the United
States. Gay and bisexual men are currently the victims of gross violence and injustice in
Uganda, and Mr. Terwane will almost certainly be another victim of this if he returns to Uganda.
These are the only factors that need to be considered for Mr. Terwane’s Asylum Application.
His initial statements in his attempts to gain entry into the United States while fleeing for his life
should not be an issue. Nor should any information given on his visa as the visa was actually
denied, and the Immigration Judge already granted Mr. Terwane his Asylum in April 2018.

Thus, in light of the above factors and the argument presented, Mr. Terwane should be
granted his I-602 Waiver.

Any Misrepresentations Were Not Willful

To the extent that Mr. Terwane made any misrepresentations to procure a non-immigrant
visa as alleged in the RFE, such misrepresentations were not “willful” and as such do not satisfy
any basis for inadmissible to the United States under INA § 212(a).
 Individuals are inadmissible under INA § 212(a)(6)(C)(i) if they have sought to procure
or procured a visa or other immigration benefit by fraud or willfully misrepresenting a material
fact. To find inadmissibility based on a willful misrepresentation, all of the following elements
must be satisfied: (1) the applicant procured, or sought to procure, a benefit under U.S.
immigration law; (2) the applicant made a false representation; (3) the false representation was
willfully made; (4) the false representation was material; and (5) the false representation was
made to a U.S. government official. See USCIS Policy Manual Volume 8, Part J, Chapter 2, B-
C. However, misrepresentations while fleeing harm and under duress when applying for a visa
negates “willfulness”. See Maslenjak v. United States, 137 S.Ct. 1918, 1927 (2017) (noting that
“‘[W]illful misrepresentations made for other reasons, such as embarrassment, fear, or a desire
for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks
good moral character’—and so are not generally disqualifying. Kungys v. United States, 485
U.S. 759, 780”).

Here, as discussed above and in detail in Mr. Terwane’s Asylum Brief, Mr. Terwane was
fleeing from the police who were seeking to detain and persecute him based on solely on his
identity as a gay or bisexual man and his LGBT activist work. In fact, as explained in the
Asylum Brief, Mr. Terwane fled from his home when police arrived, and hid at three different
individuals homes until he was able to obtain money and a visa to get to the United States. Tab
B: Asylum Brief. During this time, in an attempt to find Mr. Terwane, the police detained,
interrogated and beat his wife. Tab B: Asylum Brief. These circumstances demonstrate that
Mr. Terwane was under significant levels of duress when seeking to obtain a visa. As such, any
claim that Mr. Terwane’s alleged misrepresentations were willful are clearly negated.
Consequently, the requisite elements to support a finding of inadmissible under INA § 212(a), in
particular “willful”, are not satisfied.

*****

For the reasons discussed above, Mr. Terwane’s I-602 Waiver should be granted. Thank
you in advance for your kind consideration in this case. Please do not hesitate to contact me if
you have any questions or require further information.

Kind regards,

/s/ Justin R. Becker

Justin R. Becker
jbecker@sidley.com
(202)-736-8513