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Aliens With Invalid Green Cards Allowed to File for Waiver

A green card obtained through a fraudulent scheme is invalid and may subject the holder to removal. But if the green card holder was unaware of the scheme he/she may apply for a waiver of inadmissibility under Section 212(K).

A Section 212(K) waiver may be granted to an immigrant who did not know of his/her “ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence.”

If the waiver is granted, the inadmissibility of the applicant is “cured.”

In a recent case, Shin v. Holder, two brothers from South Korea were part of a group of hundreds of Koreans who obtained their green cards through the fraudulent scheme of a former officer of the Immigration and Naturalization Service. The officer and several middlemen conspired to provide fraudulent green cards after receiving bribes.

The immigration officer and his collaborators were ultimately convicted after the officer turned himself in to the enforcement authorities.

The two brothers were placed under removal proceedings. At their removal hearing, it was proven that they had obtained their lawful permanent resident status through their mother. Their mother, with the help of an immigration broker affiliated with the immigration officer, adjusted to permanent resident status as a spouse of a skilled worker or professional.

This fraud was not known to the two brothers. Their mother told them that she obtained her green card on the basis of her employment as a hairdresser on a U.S. Military base in Korea.

Because the two brothers were linked to the immigration officer’s scheme the immigration judge ordered them removed. The judge said that, although the mother had not knowingly engaged in fraud and that the two brothers had relied on their mother’s representation of their eligibility for a green card, she nevertheless got an invalid green card, and therefore the green cards of the two brothers were also invalid.

The two brothers applied for a waiver of inadmissibility but the immigration judge denied their request. The Board of Immigration Appeals affirmed the decision of the immigration judge.

They then petitioned the Court of Appeals (9th Circuit). The Court affirmed the removal order of the immigration judge, holding that because the mother was never lawfully admitted to permanent residence, the two brothers did not present valid immigrant visas at their entry to the United States.

But the Court said that they could not be precluded from seeking a waiver of inadmissibility because they met the three requirements for waiver, namely that (1) they were inadmissible; (2) they were in possession of an invalid visa; and (3) they were otherwise admissible.

They satisfied the first requirement because they lacked a valid immigrant visa when they entered the United States, thus making them inadmissible. They also met the second requirement because they were in possession of invalid immigrant visas. And they met the third requirement because their lack of a valid visa was the only reason that they were found inadmissible.

In its decision, the Court relied on Mayo v. Ashcroft, a case involving a Filipino citizen who entered the United States as an unmarried daughter although she was married. The immigration judge and the Board of Immigration Appeals ordered her exclusion because of her misrepresentation of her marital status. But the Court of Appeals (8th Circuit) granted her a waiver of inadmissibility because she believed she was unmarried at the time of her entry.

Trafficking Victims Eligible for Green Card

Human trafficking in the U.S. is on the rise. For the first time, the U.S. has been ranked in the Annual Trafficking Report released in June 2010. The report stated that the U.S. is not just a destination country for trafficking but is a “source country for people held in servitude.”

Human trafficking may be sex trafficking or labor trafficking. Sex trafficking is the recruitment, harboring and transporting of a person for commercial sex by force, fraud or coercion.

Labor trafficking is the recruitment, harboring, and transporting of a person for forced labor. About a third of the forced laborers in the U.S. are domestic servants, according to the National Human Rights Center in Berkeley, California.

To help law enforcement agencies to investigate and prosecute human trafficking, Congress passed the Victims of Trafficking and Violence Protection Act in October 2000. This legislation provides for immigration relief and protection to victims that include continued presence and continuation of presence, T nonimmigrant visa and adjustment to lawful permanent resident status. A T visa holder may be granted employment authorization.

To qualify for T visa, the victim must prove that he/she is a victim of severe trafficking in persons, is physically present in the U.S. on account of trafficking, and complies with any reasonable request from law enforcement agency for assistance in the investigation or prosecution of human trafficking. The victim must also demonstrate extreme hardship involving severe and unusual harm if removed from the U.S.

The application is submitted on Form I-914 Application for T Nonimmigrant Status. It should include a statement about the victimization and a law enforcement agency endorsement or evidence of compliance with reasonable request for assistance.

If the applicant is under 18 at the time of victimization, or is unable to cooperate with the enforcement agency due to physical or psychological trauma, a T visa may still be obtained even without aiding in the investigation or prosecution.

Immediate family members may be eligible for derivative nonimmigrant status. If under 21, the victim may apply on behalf of the spouse, children, parents and unmarried sibling under 18 years of age. If 21 or older, the victim may apply on behalf of the spouse and children.

There is a limit of 5000 T visas per year but the limit does not apply to family members. If the cap is reached, the applicant is placed on the waiting list in the following year.

A T nonimmigrant may apply for adjustment of status to permanent residence after being physically present in the U.S. continuously for at least 3 years or for a continuous period during the investigation or prosecution provided the investigation or prosecution is complete, whichever time is less.

The applicant must also maintain good moral character, has complied with any reasonable request for assistance in the investigation or prosecution and must demonstrate extreme hardship if removed from the U.S.

Alien Must Be Informed of Free Legal Services

A court has recently ruled that a removal or deportation order is invalid if the Immigration Judge fails to inform the alien of the availability of free legal services.

The alien in this case had pleaded guilty to conspiracy to possess and distribute 50 grams or more of crack cocaine and was sentenced to 168 months behind bar.

While in prison, he was served with a Notice To Appear (NTA) before an Immigration Judge due to his aggravated felony conviction and controlled substance conviction.

The first NTA did not indicate the time and date of the hearing but referred to a list of organizations and attorneys providing free legal advice. The list however was not in the administrative record.

The second notice indicated the hearing date, time and place but did not check the box for the “Legal Services List.”

When the alien appeared at the hearing held at the county prison, the Immigration Judge asked him if he was seeking an attorney to represent him but he replied that he didn’t have the money to hire one. The Judge did not tell him of the availability of free legal services nor did he ask him if he had received the legal services list. He was eventually ordered to be deported due to the aggravated felony conviction.

The alien appealed the deportation order to the Board of Immigration Appeals but was unsuccessful. So he filed a petition for review before the Court of Appeals for the third circuit.

At the hearing, the alien through his appointed counsel, contended that the Notice To Appear was deficient thus denying him an opportunity to be heard. He also argued that the failure of the Immigration Judge to inform him of the availability of free legal services deprived him of his constitutional right to due process and his statutory right to be represented by an attorney.

He cited a regulation issued by the Attorney General which stated that in a removal proceeding, the Immigration Judge is required “to advice the respondent of the availability of free legal services… located in the district where the removal hearing is being held” and to “ascertain that the respondent has received a list of such programs.”

The court noted that when an agency such as the Office of the Attorney General promulgates a regulation protecting a fundamental or constitutional right of the party appearing before it, the agency must comply with that regulation. Failure to comply would invalidate that action of the agency even without a showing of prejudice to the complaining party.

In holding that the deportation was invalid, the court said that the right to an attorney in a deportation hearing must be safeguarded because of the grave consequences of removal. A deported alien would have a remote possibility of returning to the U.S. thus depriving him of the right to stay and live and work in the U.S.

Visa for Returning Residents

A lawful permanent resident (LPR) who goes abroad must come back to the U.S. within a year in order to maintain his/her status. If the LPR intends to be outside the U.S. for more than a year, a reentry permit must be secured.

A reentry permit is obtained by filing Form I-131 with the USCIS before departure. It is valid for 2 years.

If the LPR remains abroad for more than a year or beyond the validity of the reentry permit, he/she may be considered as having abandoned his/her permanent resident status. To enter the U.S. and resume permanent residence a new immigrant visa will be needed.

An immigrant visa requires an approved immigrant visa petition based on family relationship or employment. But there is a law that provides for another option. The returning resident may obtain a special immigrant returning resident (SB-1) visa.

To qualify for this returning resident visa, the LPR has to prove that he/she was a lawful permanent resident at the time of departure from the U.S. and that he/she intended at that time to return and has not abandoned such intention.

In addition, the returning resident has to show that the protracted stay abroad was due to circumstances beyond his/her control and for which he/she was not responsible.

The State Department has recently issued guidelines for the processing of the application. The guidelines cover where to file the DS-117 (Application to determine returning resident status), how to process such applications, and how to create a permanent denial record.

The DS-117 must be accompanied by the green card or reentry permit, if available. The applicant must document the dates of travel outside the U.S., ties to the U.S., and intention to return to the U.S. The applicant must also prove that the protracted stay abroad was for reasons beyond his/her control.

Intention to return may be proven by tax returns and evidence of economic, family and social ties to the U.S. Dates of travel may be documented by airline tickets and passport stamps.

Examples of reasons why the protracted stay was beyond his/her control are medical incapacitation, employment with a U.S. company, and accompanying a U.S. citizen spouse.

A consular officer will conduct a personal interview of the applicant to determine if the DS-117 is approvable. If it is approved the officer will open a case in Immigrant Visa Overseas (IVO). If it is denied, the DS-117 application and all supporting documents and notes will be entered in the file.

Upon approval of the DS-117, the returning resident will proceed with an application for SB-1 immigrant visa. At the interview he/she will be subjected to medical and security screenings that apply to all immigrant visa cases.

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