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On January 24, 2014 USCIS announced a new policy ending mandatory denials for I-601A hardship waivers in the case of applicant’s with criminal backgrounds. The I-601A provisional waiver program, launched on March 4, 2013, gives immigrants a crucial alternative to waiting out their unlawful presence waivers overseas, by allowing them to waive INA 212(a)(9)(B) inadmissibility while in the United States, prior to departing for the immigrant visa interview at the U.S. consular post. See our previous post on I-601A waiver applications for a summary of the new program’s benefits and eligibility criteria. In many cases, we have seen family separation for immigrant visa processing cut down from 6 to 10 months to approximately 2 weeks. U.S. citizen spouses and U.S. citizen children could therefore avoid months of painful separation and the loss of critical financial support.
In practice, however, USCIS has fatally undercut the program’s aim to maintain family unity, by automatically rejecting I-601A application on finding a “reason to believe” the applicant may fall under some other ground of statutory inadmissibility, typically on criminal grounds. Thanks to pressure from the immigrant advocacy community, the January 24, 2014 memo attempts to address USCIS’s misuse of the “reason to believe” standard in connection with minor law enforcement encounters that in no realistic sense would ever trigger inadmissibility.
By way of background, the “reason to believe” standard is drawn from the drug-trafficking ground of inadmissibility under INA 212(a)(2)(C). The Board of Immigration Appeals (BIA) in In re Isabel Diaz has interpreted “reason to believe” to be less than “clear and convincing”, but rather akin to “probable cause“. The “reason to believe” standard has also been further refined by the State Department Foreign Affairs Manual, 9 FAM 40.23 N2(b).
“Reason to believe might be established by a conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports. The essence of the standard is that the consular officer must have more than a mere suspicion there must exist a probability, supported by evidence, that the alien is or has been engaged in trafficking. You are required to assess independently evidence relating to a finding of in admissibility.
In the I-601A context however USCIS has applied the “reason to believe” standard in a manner no way resembling the BIA or FAM’s legal guidelines. Applicants have faced automatic denials in the absence of a conviction even for just a single arrest, and even for minor criminal violations that do not trigger inadmissibility, like misdemeanor DUI.
USCIS abuse of this standard has been truly breathtaking. As reported by CLINIC, 48% of all denials through September 14, 2013, were based on application of the “reason to believe” standard, a stunningly high number, since many of these cases were prepared by attorneys aware of the I-601A bars and familiar with the practical application of “reason to believe” at the consular posts. Few of us would have imagined that a client would have been found inadmissible for an arrest and release for shoplifting, and could not have imagined ever getting hit with a “reason to believe” denial. For many immigrant advocates, who were so hopeful about the I-601A program, it felt like a bait-and-switch, that what the Obama Administration had offered us with one hand, USCIS was taking away with the other.
The January 24, 2014 USCIS policy announcement holds promise, but only for crimes involving moral turpitude and juvenile controlled substance offenses:
If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I- 601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
USCIS’s new I-601A policy brings reason to cases involving CIMTs, but fails to address the serious issue of applying the “reason to believe” standard to arrests without convictions for controlled substances and inaudibility under INA 212(a)(2)(A)(i)(II). If USCIS merely aligns its new memo with the original March 4, 2013 policy and its practice under than memo, an applicant might still face denial for a controlled substance arrest even if that arrest doesn’t lead to conviction. This flies in the face of how the criminal grounds of inadmissibility are actually applied at the consular post. Although an arrest for a controlled substance violation may still trigger INA 212(a)(2)(A)(i)(II) inadmissibility where the authorities have failed to prosecute and the applicant admits the essential elements of the offense, 9 FAM 40.21(a) N5.3, in cases where the non-citizen has been tried and acquitted, or the court dismissed charges, INA 212(a)(2)(A)(i)(II) may not apply, even where the non-citizen has admitted the essential elements of the offense. 9 FAM 40.21(a) N5.2. It seems in the end that USCIS is maintaining a policy that an immigrant arrested but not convicted of a controlled susbtance offense is probably guilty of that offense and does not merit I-601A consideration. BIA decisions and FAM authority take a contrary view.
Our office will continue to monitor implementation of this updated policy under the January 24, 2014 USCIS memo. We hope that in the end, the I-601A program will live up to its promise to minimize family separation and the economic toll on spouses and children, and mothers and fathers left behind.
