Qualifying for a Post-Removal Waiver
September 25, 2008
With the rise of immigration raids and focus on removal of undocumented individuals from the United States, the threat of actual removal from the US is becoming more and more of a concern. If the worse actually happens and removal is conducted, the fight to live and work in the United States is not necessarily over. Although naturally a difficult battle, the possibility of a waiver from the removal bar is available.
As background, the immigration laws impose a bar from obtaining a visa against all individuals who have been ordered removed from the US. For those who are removed as an arriving alien, the laws impose a five year bar from obtaining another US visa. For all others removed pursuant to traditional removal proceedings, the laws impose a ten year bar from obtaining another US visa.
The laws, however, allow individuals to seek a waiver of the five or ten year removal bar. The application, which is the I-212 Application for Permission to Reapply After Deportation, must be granted before an individual may secure a visa allowing them to enter the US prior to the expiration of the five or ten year bar.
In considering whether to grant or deny the application, the immigration service takes the following factors into consideration: 1) the basis for deportation; 2) recency of deportation; 3) length of residence in the US; 4) applicant’s moral character; 5) applicant’s respect for the law and order; 6) evidence of reformation and rehabilitation; 7) family responsibilities; 8) any inadmissibility under other sections of law; 9) hardship involved to applicant and others; and 10) the need for applicant’s services in the US.
In considering these factors, the immigration reviews the totality of the circumstances to determine whether an individual should be granted a visa prior to the expiration of the relevant five or ten year bar. The courts have indicated that the recency of deportation factor should only be considered when it is shown that the applicant has “poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience [toward the violation of immigration laws]…In all other instances when the cause for deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered.”
On the other side, however, the courts have consistently ruled that it is appropriate for the immigration to provide less consideration to favorable factors acquired after a removal order. For example, a marriage or birth of a child after a removal order has been entered will be given less weight than factors that were already present prior to the removal. To be granted, the favorable factors need to outweigh the negative factors.
While the path toward obtaining a visa to return to the US after a removal order is indeed an onerous task, the possibility of a waiver of the removal bar is at least a ray of hope in an otherwise daunting situation. As the waiver is very difficult and complex, it is essential that competent legal counsel be obtained to heighten the chance of approval.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
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