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June 1, 2012

Sunday Aigbe Chief, Regulatory Products Division Office of the Executive Secretariat U.S. Citizenship and Immigration Services Department of Homeland Security 20 Massachusetts Ave. NW Washington, DC 20529-2020 By Email: uscisfrcomment@dhs.gov Re: Proposed Rule, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” DHS Docket No. USCIS-2012-0003 Dear Chief Aigbe: Cyrus D. Mehta and Associates, P.L.L.C. (“CDMA”) submits the following comment in response to the proposed rule issued by U.S. Citizenship and Immigration Services (“USCIS”) on April 2, 2012 regarding “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.” The undersigned attorneys are, respectively, the principal attorney of CDMA, and an Associate at that firm. CDMA is a law firm that for many years has represented corporate and individual clients in complex and routine U.S. immigration law matters. Our representation includes business immigration, labor certifications, removal defense, waivers, federal court litigation, and citizenship matters, as well as other related areas of U.S. immigration law. Because of the breadth of our work, we believe that we are well positioned to address the potential interactions of the proposed waiver rule with other areas of immigration law. We appreciate the opportunity to comment on this proposed rule. First, we wish to commend USCIS for its proposal. As we explained in an article posted on CDMA’s Insightful Immigration Blog earlier this year when USCIS issued its initial notice of proposed rulemaking (http://blog.cyrusmehta.com/2012/01/what-proposed-provisional-waiverrule.html), this proposed rule can help address the significant backlog of undocumented spouses and sons and daughter of U.S. citizens who are eligible for a waiver of inadmissibility under INA

§ 212(a)(9)(B)(v) but fear leaving the United States to obtain a waiver under current rules because this will involve lengthy separation from the very U.S. citizen relative whose suffering and hardship in the event of such a separation qualifies the applicant for the waiver. Moreover, the proposed rule is not as novel as it may be thought by some. As noted in the preamble to the proposed rule, 8 C.F.R. § 212.2(j) has long provided that one who will be departing from the United States to apply for an immigrant visa abroad, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file a Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” 8 C.F.R. § 212.2(j). This new proposed rule would update the regulations to create a similar procedure for the parallel 3and 10-year bars created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, certain aspects of the way in which USCIS proposes to implement this technical fix in the proposed rule will unnecessarily limit its positive effects and lead to an unnecessary burden on other segments of the U.S. immigration system. If USCIS were to revise the proposed rule as we suggest below, the provisional waiver process could further reduce the burden on the Executive Office for Immigration Review (“EOIR”) and on Immigration and Customs Enforcement (“ICE”). We note that while we are supportive of the comments previously submitted by the American Immigration Lawyers Association (“AILA”), we have chosen not to duplicate their comments here, but have instead focused on a few specific areas where we believe that we have something original and useful to add.

Individuals In Removal Proceedings Or With Final Orders of Removal Should Be Eligible to Apply for a Provisional Waiver One simple change that would have a significant positive impact on the efficiency gains enabled by the proposed rule would be to remove the bars to applying for a provisional waiver relating to removal proceedings that are currently contained at proposed 8 C.F.R. § 212.7(e)(v)(viii). The combined impact of those bars is that, once an alien has been placed in removal proceedings, the alien will only be eligible for a provisional waiver if the proceedings are terminated or dismissed, the charging document is cancelled, or the alien has administratively closed proceedings reopened for the issuance of a final voluntary departure order. In contrast, aliens subject to administratively closed proceedings, or who have a petition for review pending before a Court of Appeals the necessity for which could be obviated by the grant of a provisional waiver, will not be eligible for a provisional waiver under proposed 8 C.F.R. § 212.7(e). These proposed restrictions are both logically unjustified and practically counterproductive. As noted above, current regulations, specifically 8 C.F.R. § 212.2(j), allow an alien whose departure from the United States will execute an order of removal and thereby create inadmissibility under INA § 212(a)(9)(A) to file a Form I-212 application for permission to reapply for admission in advance of that departure, and receive a conditional approval. The


proposed rule, however, would effectively forbid such an advance I-212 from being accompanied by an application for provisional waiver under the new 8 C.F.R. § 212.7(e). That is, the proposed rule would mean that although prospective inadmissibility under INA § 212(a)(9)(A) could be waived in advance of one’s departure, and prospective inadmissibility under INA § 212(a)(9)(B)(i) could also be separately waived in advance of one’s departure, those two advance waivers could not be combined. Since USCIS and its predecessor the Immigration and Naturalization Service (“INS”) have long since determined that it is sensible as a policy matter to permit advance waivers under INA § 212(a)(9)(A), and since USCIS has now determined that it is sensible as a policy matter to permit advance waivers under INA § 212(a)(9)(B)(v) for immediate relatives of U.S. citizens, it is illogical to forbid the latter advance waiver simply because an applicant must simultaneously seek the former. Two sensible efficiencies taken together do not cease to be sensible or efficient. Nothing in the proposed rule satisfactorily explains why such a prohibition should exist. The preamble to the proposed rule states that “USCIS proposes to limit the provisional unlawful presence waiver process to aliens who would be subject only to the unlawful presence bars at the time of visa issuance because of the unique nature of INA section 212(a)(9)(B), as described above,” the reference being to “the fact that the action required from the alien in order to obtain LPR status--the departure to attend the immigrant visa interview--is the very action that triggers the 3-year or 10-year unlawful presence bar.” 77 Fed. Reg. at p. 19907. The very same thing, however, is true of INA section 212(a)(9)(A). An alien subject to a final removal order is not inadmissible under INA § 212(a)(9)(A) unless and until that order is executed by the alien’s departure from the United States. The departure is the very action that triggers the 5-year or 10year bar based upon a prior removal under INA § 212(a)(9)(A), just as it is the very action that triggers the 3-year or 10-year bar based upon prior unlawful presence under INA § 212(a)(9)(B)(i). This is why, as the BIA has confirmed, one who has been ordered removed as an arriving alien, and remains subject to an unexecuted final order of removal on that basis, may adjust status before USCIS despite the final removal order and without the need for any reopening of the order. See Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). Thus, the distinction drawn by the preamble to the proposed rule between inadmissibility under INA § 212(a)(9)(B)(i) and other grounds of inadmissibility actually supports allowing the simultaneous filing of a Form I-601A application for provisional waiver of INA § 212(a)(9)(B)(i) inadmissibility pursuant to the new 8 C.F.R. § 212.7(e), and a Form I-212 application for conditional permission to reapply for admission under INA § 212(a)(9)(A)(iii) pursuant to current 8 C.F.R. § 212.2(j). According to the explanation given in the preamble, 8 C.F.R. § 212.7(e)(viii) should be stricken from the final rule. Moreover, forbidding concurrent applications under 8 C.F.R. § 212.7(e) and 8 C.F.R. § 212.2(j), as proposed 8 C.F.R. § 212.7(e)(viii) effectively does, will have a highly inefficient effect on cases in which a prospective waiver applicant is pursuing a petition for review of a removal order by a Court of Appeals under 8 U.S.C. § 1252 (“PFR”), or has requested that ICE exercise prosecutorial discretion to refrain from enforcing a final removal order in some context other than a petition for review. Absent the prohibition at proposed 8 C.F.R. § 212.7(e)(viii), a successful concurrent application for relief under 8 C.F.R. § 212.2(j) and new 8 C.F.R.


§ 212.7(e) could render moot a pending PFR or prosecutorial discretion request, saving the time of the courts, the Office of Immigration Litigation (“OIL”) within the Department of Justice, and ICE. A PFR or request for prosecutorial discretion could also be held in abeyance pending the outcome of such concurrent applications under 8 C.F.R. § 212.2(j) and new 8 C.F.R. § 212.7(e). Under 8 C.F.R. § 212.7(e)(viii) as proposed, on the other hand, aliens subject to a final order of removal will have a strong incentive to pursue PFRs or prosecutorial-discretion requests all the way to a conclusion in order to avoid lengthy separation from their family members, because they will not be able to moot such PFRs or prosecutorial-discretion requests by obtaining approval of I-212 and I-601A applications and departing the United States only briefly in order to obtain an immigrant visa. In the event that such PFRs or prosecutorial-discretion requests fail, however, such aliens will then need to pursue I-601 and I-212 applications from abroad, resulting in an overall duplication of effort by the government, which will have had to address both the PFR or prosecutorial-discretion request (or both), and the I-601 and I-212 applications that are ultimately filed from outside the United States. Even if a request for prosecutorial discretion succeeds and execution of an order of removal is stayed by ICE, a beneficiary of such prosecutorial discretion will because of new 8 C.F.R. § 212.7(e)(3)(viii) be unable to file a concurrent application under 8 C.F.R. § 212.2(j) and new 8 C.F.R. § 212.7(e) so long as the order of removal remains outstanding. Such a beneficiary either will need to remain in limbo (pursuant to the stay of removal) indefinitely, or will need coordinate a complex process of reopening and issuance of a final voluntary departure order with ICE, EOIR, and USCIS in order to come within the exception at 8 C.F.R. § 212.7(e)(vii) and be permitted to file a provisional waiver application. This, too, is much more inefficient than simply allowing concurrent filings under 8 C.F.R. § 212.2(j) and new 8 C.F.R. § 212.7(e). Similarly, aliens who have had prosecutorial discretion requests granted prior to the issuance of any order of removal, and who thus would not be subject to the proposed 8 C.F.R. § 212.7(e)(3)(viii), will still be inefficiently dissuaded from making use of the provisional waiver process because of 8 C.F.R. § 212.7(e)(3)(v)-(vii). When the ICE Office of the Principal Legal Advisor (“OPLA”) agrees to exercise prosecutorial discretion regarding a pending case, the present practice is that it generally does so by agreeing to administrative closure rather than termination, as can readily be confirmed by ICE OPLA if USCIS is not already aware of this. Pursuant to 8 C.F.R. § 212.7(e)(3)(vii), a case that has been administratively closed in this fashion would need to be reopened for issuance of a final voluntary departure order to render the respondent in that case eligible for a provisional waiver. Not only will this requirement, at a minimum, create additional unnecessary work for EOIR in processing requests for reopening and voluntary departure in otherwise-closed cases, it will create a difficult and wholly unnecessary problem of timing. Because the maximum period of voluntary departure available in removal proceedings is limited by statute to 120 days, see INA § 240B(a)(2)(A), and the existence of a final voluntary departure order is a prerequisite for eligibility to apply for a provisional waiver under proposed 8 C.F.R. § 212.7(e)(2)-(3), avoiding the lengthy separation from an alien applicant’s qualifying U.S. citizen family members that the proposed rule aims to avoid would require USCIS to adjudicate the provisional waiver application within 120 days. Current processing times for many applications and petitions before USCIS do not allow one to conclude with confidence that such a processing time of less than 120 days will be consistently possible.


Therefore, we respectfully propose that 8 C.F.R. § 212.7(e)(3)(v)-(viii) be deleted from the proposed rule, and currently proposed 8 C.F.R. § 212.7(e)(3)(ix)-(xi) renumbered accordingly. This will better comport with the logic behind the proposed rule and will substantially increase the gains in efficiency that it makes possible. We note that to the extent proposed new 8 C.F.R. § 212.7(e)(3)(viii) is sought to be justified by a concern that allowing application for a provisional waiver by aliens subject to a final order of removal would inappropriately reward those who have absconded and prevented execution of such an order – a concern which was nowhere relied upon in the proposed rule or its preamble – we would respectfully suggest that such a concern would be misplaced in light of the long existence of 8 C.F.R. § 212.2(j), and the discretionary nature of both permission to reapply for admission under that provision and waivers of inadmissibility under INA § 212(a)(9)(B)(v). For many years, the possibility to seek conditional permission to reapply for admission under 8 C.F.R. § 212.2(j) has coexisted with the recognition that, as the USCIS Adjudicator’s Field Manual (“AFM”) points out, among the negative factors which will support denial of an I-212 application are “[s]erious violations of immigration laws which evince a callous attitude without hint of reformation of character.” AFM 43.2(e). As USCIS could emphasize in the preamble to the final rule if deemed necessary, an applicant who has in the absence of extenuating circumstances simply defied a request by ICE to report for removal is unlikely to be considered an appropriate candidate for discretionary relief, unless there are unusual positive equities. Rather, as noted in section 43.1(d) of the USCIS Adjudicator’s Field Manual regarding applications for advance permission to reapply for admission: In most cases, an application will be filed when the applicant is under an outstanding order of deportation and ineligible for adjustment of status, but because of the equity involved (such as a U.S. citizen spouse or an immediately available visa number), the alien will be allowed to remain in the U.S. while processing the immigration visa application abroad. AFM 43.1(d). The exercise of discretion in favor of an applicant under a final order of removal is likely to occur only when the applicant has a pending PFR, has a pending or approved request for prosecutorial discretion, did not receive a request from ICE to report for removal (either because no “bag-and-baggage letter” was ever sent or because one was sent to an address at which the applicant did not then reside), or can show that for other equitable reasons he or she has been allowed by ICE to remain in the United States pending immigrant visa processing. Thus, USCIS need not forego the above-discussed gains in efficiency out of some misplaced fear that it would otherwise be required to grant relief to undeserving applicants subject to a final order of removal, because the provisional waiver application and the accompanying request for permission to reapply for admission are both discretionary. The provision of proposed 8 C.F.R. § 212.7(e)(3)(i) that an alien will not be eligible for a provisional waiver under the proposed rule if “USCIS has reason to believe that the alien may be subject to other grounds of inadmissibility at the time of immigrant visa interview with DOS” makes clear that even absent proposed 8 C.F.R. § 212.7(e)(3)(viii), a provisional waiver could only be granted in the face of a final order of removal if advance permission to reapply for admission


were also conditionally granted under 8 C.F.R. § 212.2(j), eliminating the inadmissibility at the time of the immigrant visa interview under INA § 212(a)(9)(A) that would otherwise be anticipated. Under existing standards, such permission to reapply for admission would not be granted in undeserving cases, and thus only deserving cases would be eligible for a provisional waiver. Moreover, the decision whether to approve a provisional waiver itself will always be discretionary, as reaffirmed by proposed 8 C.F.R. § 212.7(e)(1). Those twin exercises of discretion are a more appropriate way to address issues relating to a final order of removal than the indiscriminate blunt instrument of proposed 8 C.F.R. § 212.7(e)(3)(viii).

Individuals Should Be Able to Obtain Provisional Waivers Under INA § 212(i) or an Advance Determination Of Whether Inadmissibility Under INA § 212(a)(6)(C)(i) Exists Another change which would increase the gain in efficiency possible as a result of the proposed rule would be to allow either advance waivers under INA § 212(i), or at least an advance finding, binding on the Department of State (“DOS”) in the absence of new evidence, that a provisional waiver applicant is not subject to INA § 212(a)(6)(C)(i) and has no need of such a §212(i) waiver. This could increase the likelihood that the proposed provisional waiver process will be utilized by applicants who would otherwise need to pursue factually complicated claims under Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), before EOIR. Matter of Quilantan makes clear that entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have theoretically valid claims under Matter of Quilantan, but little corroborating evidence of their manner of entry. Absent the proposed provisional-waiver process, if a Quilantan entrant is married to a U.S. citizen and is denied adjustment of status under INA § 245(a) by USCIS because USCIS does not consider their testimony regarding manner of entry to be sufficient evidence of admission, such a Quilantan entrant will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Some such Quilantan entrants may decide that it is simpler to seek a provisional waiver under INA § 212(a)(9)(B)(v) under the proposed rule, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable; if the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the manner of entry. However, the proposed rule’s exclusion of waivers of fraud-related inadmissibility under INA § 212(i) could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove, making it hard to refute an inaccurate consular suspicion that some fraud may have been committed. The potential efficiency created by the proposed rule in this respect would be much greater if the proposed rule were modified to allow either advance waivers under INA § 212(i),


or at least to allow for an advance finding by USCIS, binding on DOS in the absence of new evidence, that no fraud was committed by an applicant. Otherwise, aliens within the United States who have entered in a manner qualifying as an admission under Matter of Quilantan, but whose evidence of this admission is found insufficient by USCIS, may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer. The proposed rule indicates at proposed 8 C.F.R. § 212.7(e)(3)(i) that an alien will not be eligible for a provisional waiver under the proposed rule if “USCIS has reason to believe that the alien may be subject to other grounds of inadmissibility at the time of immigrant visa interview with DOS.” This appears to imply that the approval of a provisional waiver by USCIS constitutes a finding that there is no reason to believe that any such other grounds of inadmissibility exist. However, the proposed rule does not make clear that the finding of a lack of other grounds of inadmissibility, which is implicit in an approval of the provisional waiver notwithstanding 8 C.F.R. § 212.7(e)(3)(i), is something to which DOS will be expected to defer in the absence of new evidence. We respectfully suggest that it would be helpful for USCIS to clarify this in the final rule, as doing so would increase the number of applicants with difficultto-prove Quilantan scenarios who can be expected to make use of the provisional waiver process. Such clarification could be accomplished by adding to the end of proposed 8 C.F.R. §§ 212.7(e)(11)(i)(C), 212.7(e)(11)(iii), and 212.7(e)(13)(i) substantially the following language: “Provided, that USCIS shall indicate to the appropriate DOS consular officials that the finding made by USCIS under 8 C.F.R. § 212.7(e)(3)(i) in the course of approval of the provisional waiver, to the effect that there is no reason to believe that the alien is subject to any other grounds of inadmissibility other than under INA § 212(a)(9)(B)(i), should be given deference, and should only be rejected by DOS based on new evidence not previously presented to USCIS during the adjudication of the provisional waiver.”

The Proposed Rule Should Be Modified To Include Adult Sons and Daughters of U.S. Citizens Among Those Eligible to Apply For a Provisional Waiver Finally, we urge USCIS to modify 8 C.F.R. § 212.7(e)(2)(iii)-(vi) so as to include, within the provisional waiver process as established by the final rule, sons and daughters of U.S. citizens who do not qualify as “children” under INA § 101(b)(1) or immediate relatives under INA § 201(b)(2)(A)(i) because they are over the age of 21. A child who has reached the age of 21, and who may not be protected under the Child Status Protection Act, can still remain very much part of the nuclear family, especially in hard economic times when their parents may still be their lifeline. These adult children, although technically sons and daughters under the INA, would often otherwise qualify under the proposed DREAM Act legislation, and may in lieu of that at least be able to take advantage of the provisional waiver if the proposed rule is adjusted to allow them to do so. We appreciate the opportunity to comment on this proposed rule, and hope that we may be able to engage in a continuing dialogue with USCIS regarding this important matter.