New Court Ruling Reopens Doors for Some Immigrants November 6, 2008
In a reverse turn, the 9th Circuit Court of Appeals recently issued a court ruling that reinstates the opportunity for individuals who commit fraud at the time of entry to apply for permanent residency. The case of Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), involves a non-US citizen who entered the US through a checkpoint in San Ysidro, California using a green card that belonged to someone else that resembled him.Mr. Orozco ultimately married a US citizen and sought to acquire permanent residency through the marriage. Historically, the Department of Homeland Security (DHS) would allow individuals in this situation to apply for adjustment of status to lawful permanent residency in the US.Due to the fraudulent use of a document at entry, however, individuals would also need to apply for a fraud waiver under the Immigration and Nationality Act (INA) §212(i). The Orozco decision, which was issued on March 25, 2008, completely reversed this possibility by stating that an individual who enters the US through fraudulent means is statutorily ineligible for adjustment of status to permanent residency.Further, the Court ruled that the availability of a 212(i) fraud waiver does not render an individual eligible for adjustment of status.Consequently, the DHS has since been denying adjustment of status applications for those who committed fraud at entry without even considering the application for a 212(i) fraud waiver. In an astounding turn of events, the 9th Circuit Court issued a ruling on October 20, 2008, voiding the decision issued in March.It therefore reinstates a Board of Appeals court decision from 1980 that once again allows individuals who committed fraud at the time of entry the ability to apply for adjustment of status to lawful permanent residency.As before, individuals in this situation must still apply for a 212(i) fraud waiver as a part of the application for adjustment of status. To qualify for a 212(i) waiver, an individual must prove that his US citizen or permanent resident spouse or parent would experience extreme hardship if the individual is denied permanent residency.Individual’s should note that this waiver does not allow a showing of extreme hardship to children, so unless an individual has a US citizen parent or spouse they would not qualify to for a fraud waiver. While the laws do not specifically define what qualifies as “extreme hardship,” the following are some criteria used in evaluating extreme hardship:1) Health conditions; 2) Financial considerations, such as future employability, loss due to sale of home or business, or costs for extraordinary needs to children or other family members; 3) Educational consequences, such as loss of opportunity, lower quality of education or disruption of current program; 4) Personal considerations, such as close relatives in the US, separation from spouse/children, ages of involved parties, length of residence and community ties in the US; and 5) Special factors, such as cultural, language, religious, and ethnic obstacles, valid fears of persecution, physical harm or injury, social ostracism or stigma, or access to social institutions or structures. The new ruling reopens the doors to individuals who otherwise had no available means of legalizing immigration status in the US.Individuals who had an adjustment of status application denied as a result of the March decision may now seek to reopen or refile the application.Due to the extraordinary difficulty with these applications, individuals must ensure that they have competent legal counsel to assist them with the following the intricacies of the law.
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