Policy to Summarily Deny Most Waiver Applications for Past Misrepresentation by the INS Must be Chal

The Immigration and Naturalization Service (INS) has apparently implemented a blanket policy of summarily denying most applications for waiver for those immigrants who have procured visas or admission to the United States through misrepresentation or fraud. This policy effectively denies thousands of people the opportunity to become legal permanent residents of the Unites States despite their eligibility and extensive family ties.

As discussed in our recent article titled “Board of Immigration Appeals sets standards for waiver of fraudulent entry” under section 212(a)(6)(C) of the Immigration and Nationality Act (INA) the INS may deny admission to an immigrant who has obtained or attempted to obtain a visa to the United States by fraud or misrepresentation. Generally, the INS becomes aware of the fraud or misrepresentation when the immigrant appears at his or her adjustment of status interview to become a permanent resident. If it is determined that the immigrant has in fact by fraud or willful misrepresentation procured or has sought to procure a visa or any other benefits, the INS may waive the misrepresentation if the immigrant can show that the refusal of the application to adjust status to that of lawful permanent resident of the United States would result in extreme hardship to the citizen or lawful permanent resident spouse or parent of the immigrant.

In finding whether the immigrant has established extreme hardship to his or her qualifying relative sufficient for a waiver the INS must look to certain factors. The factors are set forth in Re Luis Cervantes-Gonzales Int. Dec. 3380 (BIA 1999). They include the presence of lawful permanent resident or United States citizen family ties, the qualifying relative’s family ties outside the United States, the conditions in the country to which the qualifying relative would relocate, the extent of the qualifying relative’s ties to such country, the financial impact of the departure from the United States, and significant conditions of health. Presumably, upon thorough consideration of these and other relevant factors, the INS will adjudicate the waiver application on a case-by-case basis applying its exercise of discretion.

However, it has become apparent that the INS has abdicated its responsibilities by summarily denying most waiver applications without properly analyzing the relevant factors listed above. The INS has adopted a method by which most applications are simply denied through use of “boilerplate” language without any substantive analysis of the hardships the immigrant would face if forced to leave the United States. This policy is contrary to not only the INS’ own regulations but also the precedence. Indeed, in a recent decision the United States Court of Appeals for the Ninth Circuit (Yehdego v. INS, 159 F.3d 429) specifically found that where an agency such as the INS is charged with exercising its discretion it must do so on a case by case basis taking into account the social and humane considerations presented in the applicant’s favor and balancing them against the adverse factors that evidence the applicant’s undesirability as a permanent resident.

The Court also noted that in balancing the factors, the agency must weigh favorable and unfavorable factors by evaluating all of them, assigning weight or importance to each one separately and then all of them cumulatively. In fact, the agencies failure to follow its own regulations and standards may constitute a violation of the applicant’s constitutional rights.

Despite these clear instructions from the courts, the INS has failed to properly evaluate and adjudicate thousands of waiver applications for past misrepresentations. In doing so, it has imposed a dire penalty on immigrants with extensive family and economic ties to the United States. The INS concedes that shutting off the opportunity to come to or stay in the United States is a crushing deprivation to many prospective immigrants and very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States. Yet, it continues to disregard its regulations and court precedence by denying thousand of waiver applications without a substantive analysis of the hardship factors. As such, we urge all past and prospective waiver applicants to consult an immigration attorney in order to preserve their right to come or stay in the United States.