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Over the course of her career, Ms. Alice Yardum-Hunter has given many speeches and has published numerous articles to the lay and professional attorney reader alike. The writings and speeches published here and elsewhere are a sampling of her works.
These publications are made available for your personal edification, but are copyrighted and may be used or reprinted only with permission.
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Waivers: Fraud and Medical
9/24/2008
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by Alice M. Yardum-Hunter
This outline is of a speech given on September 24, 2008 for the American Immigration Lawyers Association, Southern California Chapter meeting on Advanced Issues in Family Processing |
I. Big Picture
A. Finding of inadmissibility at AOS with CIS or immigration court, or IV interview for immigrants, or at POE or COS for nonimmigrants
B. Application for waiver (I-601, Application for Waiver of Grounds of Inadmissibility for immigrants)
C. If immigrant waiver fails:
1. Nonimmigrant 212(d)(3) waivers may be available in discretion of a consular officer when balancing how recent and serious was condition causing inadmissibility, the reason for the applicant’s travel to the U.S. and positive or negative effect, if any, of applicant’s travel on U.S. public interests. Waiver can be for any legitimate reason. It can be multiple for entry (except for drug abusers/addicts or have mental disorders, it can only be single entry).
2. I-601 Appeal - Both fraud and medical waivers can be administratively appealed to AAO (on I-290B form when filed with CIS or DOS office where decision was made) or with BIA if in removal proceedings.
a. Medical waiver administrative appeals
I. Person with Class A medical certification may appeal to DHS, with medical board, and applicant may bring his own medical experts to testify. 42 CFR 34.8(a)(2).
II. In removal proceedings, certification that a person under INA 232(b) has an inadmissible disease, illness or addiction, the IJ “shall” decide solely based decision on the certification of the civil surgeon or board of medical officers (INA 240(c)(1)(B)).
b. Judicial appeals
I. Under IIRAIRA, courts have no jurisdiction to review discretionary decisions of the Attorney General (AG) however, the non-discretionary aspects of discretionary decisions are still subject to judicial review. See Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003).
II. Questions of law and constitutional grounds can be appealed in federal court.
II. Fraud Waivers
A. Applies to an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure or has procured a visa, other documentation or entry into the U.S. or other benefit provided under the Act. Fraud is a permanent bar to entry into the U.S. making alien inadmissible under INA 212(a)(6)(C)(i) of INA.
1. One misrepresentation applies to all entries and applications – it cannot be cured by departure and return to the U.S. per Marriage Fraud Amendments of 1986, PL 99-639.
2. “Materiality” is a fact that would make an alien inadmissible or shut off a line of inquiry which may have resulted in inadmissibility. Materiality relates to whether the misrepresentation or concealment was predictably capable of affecting the official decision (Matter of S-&B-C-, 9 I&N Dec. 436 (BIA 1960); Kungys v. U.S. 485 U.S. 759 (1988)).
a. An applicant’s silence or failure to volunteer information does not in itself constitute a misrepresentation. 9 FAM 40.63 N.4.2.
b. Timely retraction of a material misrepresentation serves to purge a misrepresentation and remove it from further consideration (Id. N.4.6).
c. 30-60 day rule – E.g., where a visitor seeks or commences unauthorized employment within 30 days of visa issuance or entry to the U.S. and becomes employed subsequently, he may be presumed to have misrepresented his intention in seeking a visa or entry. If this occurs within 30-60 days, there is no presumption and if longer than 60 days, the Dept. of State won’t entertain a recommendation that the person is inadmissible. Cable, DOS No. 91-State-187392 (June 7, 1991).
3. “Willfulness”
a. Misrepresentation must be deliberate and voluntary, but intent to deceive is not required (Espinoza-Espinoza v. INS, 554 F.2d921 (9th Cir. 1977).
b. Knowledge of the falsity is necessary.
c. Seeking or procuring entry into the U.S. must be made to a U.S. government official – E.g., one who states their true identity at entry rather than rely on fraudulent foreign passport has not committed fraud because the misrepresentation was not made to a U.S. government official
d. Parents' fraud not imputed to child Singh v. Gonzales (6/21/06) 6th Cir.
B. Waiver under 212(i) is used to waive fraud of material misrepresentation under 212(a)(6)(C)(i).
1. Pre IIRAIRA law vs. IIRAIRA amendments and current law
a. Ten year statute of limitation on fraud v. permanent bar now per IIRAIRA 349.
b. Parents of USCs and LPRs don’t qualify anymore: must be the spouse or son or daughter of a USC or LPR
c. Extreme hardship to anchor relative was not needed vs. extreme hardship requirement now - standard is the same as suspension of deportation cases, albeit, hardship to the alien is not relevant to 212(i) waivers. Factors include, but use creativity to include others:
I. Alien’s LPR or USC family in the U.S. – the needs of elderly, disabled and children
II. Qualifying relative’s family ties abroad and in the U.S. including psychological, financial, cultural and political impact
III. Country conditions in the country of relocation and qualifying relative’s ties and ability to adjust to that country, including discrimination, etc.
IV. Financial impact on the qualifying relative (and others impacted by the qualifying relative) as a result of alien’s departure
V. Significant health conditions – unavailable suitable care in country of relocation, environmental impact on health there, and medical conditions of anchor relative
VI. Quality of life issues, e.g., ability to raise children, ability to practice religion in the country of relocation
VII. Employability, technical skills, language abilities of anchor relative in the relocation country
VIII. Age of anchor relative and length of residence in the U.S.
IX. Business or occupation of alien and anchor relative
X. Alien’s other means to adjust status and immigration history
XI. Alien’s or anchor relative’s special assistance to the U.S. or community
XII. Fraud itself weighed as a factor
d. Waiver unavailable for INA 212(a)(6)(F) document fraud under INA 274C and false claims to U.S. citizenship made after September 30, 1996 under 12(a)(6)(C)(ii) (Note: 24 I&N Dec. 625 (BIA 2008) Interim Decision #3623, false claim to U.S. citizenship on an I-9 is not a bar to finding good moral character for cancellation of removal, 9/23/2008))
2. Fraud waivers turn on evidence; little evidence leads to denial far more readily than significant, very specific evidence
a. Two part analysis: hardship if the anchor relative remains in the U.S. and hardship if that relative is required to relocate to the country abroad
b. Amount of hardship is a vague amount greater than the normal hardship; adjudications are inconsistent as a result of vagueness.
c. How much hardship is greater than another could turn on the uniqueness of your facts and how facts are presented. Make your client’s hardship different than others, unique to themselves.
d. Evidence should consist of:
I. Affidavit by qualifying relative - detailed, yet concise and tell a compelling, believable story
II. Primary evidence – documentation to support statements in the Affidavit (e.g. relationship certificates to U.S. citizen spouse, parents and children, such as birth and marriage certificates, certificates of U.S. citizenship, medical records of parents who are ill, deeds of ownership of property or businesses)
III.Secondary evidence - documentation to support primary evidence (e.g. financial records of anchor relatives where alien supports them, business payroll records where alien supports U.S. workers, records of donations to charities, by alien, etc. to show extent of community, family reliance on alien, business and community involvement)
A. Affidavits of others – the alien (including describing the relationship history, remorse regarding the misrepresentation), other U.S. family of the alien and anchor relative to show impact of various factors on the anchor relative
B. Where fraud committed in early adulthood, include current developments in brain science which show frontal cortex responsible for higher judgment and decision making is not fully developed, particularly in males until up to age 25.
3. Recent law: Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008) held that an
admission using false documents was not an "admission" for 245(a) adjustment purposes. Such person is treated as EWI, forcing 245(i) or consular processing without that, unlawful presence waiver as well as fraud waiver, filed abroad.
4. Ciudad Juarez – Fraud waivers more difficult than a simple unlawful presence
waivers, but not impossible; inquiries for pending cases in Ciudad Juarez at: http://ciudadjuarez.usconsulate.gov/feedback-form.html.
III. Medical Waivers
A. How the issue arises: After examination by Civil Surgeon (in the U.S. with application for adjustment of status) or Panel Physician (outside the U.S. with
application for IV or NIV), physician finds communicable disease of public health significance or lack of vaccination against illnesses of applicants for whom
inoculation is required.
1. Class A diseases render an alien inadmissible and require waiver.
2. Class B diseases don’t render alien inadmissible, but represent a departure
from normal health or well-being that is significant enough to possibly interfere with the person's ability to care for himself, or to attend school or work, or that may require extensive medical treatment or institutionalization in the future, and are thus brought to the attention of CIS and DOS adjudicators as they may raise other grounds of inadmissibility.
3. Note: where medical waiver is obtained for Class A disease or Class B condition, CIS or DOS could raise public charge inadmissibility, so families should also provide for alien’s current and future medical care to avoid this related issue.
B. Communicable diseases – most commonly sexually transmitted Diseases (STDs)
and tuberculosis
1. Ground of Immigrant and Nonimmigrant Inadmissibility: INA 212(a)(1)(A)(i), 8 USC 1182(a)(1)(A)(i): Any alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.
2. Communicable diseases include Class A findings of chancroids, gonorrhea,
granuloma inguinale, HIV (see below), leprosy, lymphogranuloma venerelum,
infectious syphilis and tuberculosis.
a. There are distinctions between exposure to, infection and Class A inadmissible disease, and physicians consult Technical Instructions of the Centers for Disease Control (CDC) as to how to screen, evaluate, and treat or recommend treatment – a complex set of rules as to how to approach medical admissibility updated in 6/08 (for Medical Examinations for Civil Surgeons (see http://www.cdc.gov/ncidod/dq/civil.htm) and Panel Physicians (see http://www.cdc.gov/ncidod/dq/panel.htm))
b. Adjustment and IV applicants 15 and over must be examined as adults, for all inadmissibility illnesses. For those under 15 years old, there is no need to test for STDs, unless there’s a reason to suspect possible positive test results.
c. When physician finds alien to have a communicable disease rendering him inadmissible, physician issues as Class A certificate and travel is denied. Treatment is initiated. A Class B certificate is issued when therapy is complete. Travel will be cleared and alien is admissible. Waiver required for Class A inadmissible aliens. Health
related waiver not necessary for Class B diseases.
3. HIV – study of a unique inadmissible disease, inadmissibility results in de facto discrimination against homosexual population
a. In 1993, Congress amended the INA to specify HIV as a communicable disease of public health significance, while all other communicable diseases were so designated by U.S. Department of Health and Human Services (HHS) and adjudicators, at this level, are physicians.
b. On 7/30/08, President Bush signed into law the U.S. Global Leadership
Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, PL 110-293. Section 305 amends section 212(a)(I)(A)(i) of the Act so HHS is no longer required to designate HIV infection as a communicable disease of public health significance. HHS has not amended 42 CFR 34.2(b) to remove HIV from the list of diseases that qualify as such a disease. Until HHS amends 42 CFR 34.2(b), someone with Class A HIV infection, as diagnosed by the civil surgeon or panel physician, remains inadmissible under 212(a)( 1)(A)(i) of the Act and requires an I-601 waiver. CIS issued memorandum on this issue 8/26/2008 (see http://www.aila.org/Content/default.aspx?docid=26357)
4. Change in tuberculosis requirements became effective 05/01/08.
a. The revised Technical Instructions for Vaccinations include new age-specific vaccination requirements and became effective 07/01/08.
b. New TB classification: Class B for Latent TB infection requires evaluation for treatment created for countries with high TB prevalence (see http://www.cdc.gov/ncidod/dq/pdf/civil_surgeon_ltr.pdf)
5. Immigrant Waiver under 212(g)(i), 8 USC 1182 (G)(1) and sparse regulations at 8 CFR 212.7(b). Most regulations on medical inadmissibility and waiver details found at 42 CFR, HHS regulations. The AG may waive inadmissibility under INA 212(a)(1)(A)(i) if the alien is the spouse, unmarried son or daughter or minor unmarried lawfully adopted child of a USC, LPR or a person issued and immigrant visa OR alien has a son or daughter who is an USC, LPR or person issued an IV.
B. Vaccinations – The CDC sets forth vaccination requirements in the Technical Instructions for Medical Examinations for Civil Surgeons and Panel Physicians (see website references, above)
1. Ground of Immigrant Inadmissibility: INA 212(a)(1)(A)(ii), 8 USC 1182(a)(1)(A)(ii) – Any alien who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who failed to present documentation of having received vaccination against vaccine-preventable diseases, which include at least the following diseases: mumps, measles, rubella, polio, tetanus diphtheria toxoids, pertussis, influenza type B, hepatitis A or B, varicella, pneumococcal, rotavirus and any other vaccinations recommended by the Advisory Committee for Immunization Practices.
a. Inapplicable to (per Paul Virtue, Acting Executive Associate Commissioner (9/29/1997) Memo:
I. NIVs, including for families; Ks, who can be assessed as to whether they have the proper vaccinations, but cannot be denied the visa as it applies to immigrant applicants.
II. Children of returning residents
b. Inapplicable to adopted children under 10 years old per PL 105-73 whose parents execute affidavits that they will insure vaccinations will be done within 30 days after child’s admission to the U.S. (though those over 10 qualify for waiver, below)
2. Waivers under 212(g)(2) apply, as follows, broadly interpreted based on
legislative history
a. Person received vaccination but doesn’t have documentation
b. Blanket waiver available where vaccination would not be medically
appropriate, with physician indicating whether:
I. Vaccination is not age appropriate
II. Vaccination is medically contraindicated (e.g., pregnancy,
allergy or hypersensitivity to vaccine)
III. Insufficient time interval between doses of vaccination
IV. Vaccine is seasonal
V. Vaccine is not available
c. Regulations of the AG do not require vaccination because of religious
beliefs or moral convictions
I. Opposition to vaccinations in any form
II. Objection based on religious belief or moral conviction; and
III. Belief or conviction is sincere
C. Other grounds of medical inadmissibility: Physical or Mental Disorder inadmissible under INA 212(a)(1)(A)(iii), 8 USC 1182(a)(1)(A)(iii) – Aliens determined per HHS regulations in consultation with AG to have (1) physical or mental disorder and behavior associated with the disorder that may pose or has posed threat to property, safety or welfare of the alien or others; (2) to have a physical or mental disorder and history of behavior associated with the disorder which behavior has posed such threat and which is likely to recur or lead to other harmful behavior; or (3) is determined to be a drug abuser or addict.
a. Mental or physical illness alone doesn’t pose significant risk or mental shortcoming due to ignorance or attributable to remediable physical causes or temporary nature caused by toxin, medically prescribed drug, or disease. Medical examiner may not issue a Class A Certificate.
I. History of institutionalization for mental disorder, criminal history of assaults and domestic violence, e.g., where alcohol or other psychoactive substance was a contributing factor, other criminal arrests where there is reasonable possibility of mental disorder as contributing factor, or DI/DWI conviction and/or arrests under certain circumstances should require mental status exam to determine admissibility. William Yates, Associate Director of Operations Memo (1/16/2004).
II. Alcohol abuse/dependence resulting in alcohol impaired driving may serve as basis that alien has mental disorder with associated harmful behavior resulting in inadmissibility. (Id.)
A. DUI arrests and convictions are considered serious mental disorders with great potential for harmful behavior. Those with such arrests/convictions may be referred to a panel physician or civil surgeon for exam.
B. DOS Cable – Guidance on Processing Visa Applicants with Drunk Driving Hits, 6/7/07 mandates referral to panel physicians for all visa applicants with a single drunk driving arrest or conviction within the last three years or two arrests iin such period, or convictions within any period. Consuls must also refer to panel physicians where there is any other evidence to suggest an alcohol problem. Incidents of drunk driving or alcohol abuse alone are not grounds of inadmissibility and must be coupled with harmful behavior component.
b. Waiver – INA 212(a)(g)(3) does not provide a waiver per se for 212(a)(1)(A)(iii) health inadmissible aliens, but does permit by regulation for AG after consultation with HHS to set terms and conditions, including bond, and otherwise proscribing by regulation. So, it’s important such individuals avoid designation in this category as there is no statutory waiver.
I. Physical or mental addiction is not required to be found an inadmissible abuser
II. Experimentation (one time use is not abuse or addiction per DOS CABLE, 91 State 416180 (12/24/1991); 9 FAM 40.11 N.9.1(c).
III. One is not an abuser or addict when has not used psychoactive drug within the last three years (9 FAM 40.11 N.9.5) or a controlled substance within the last two years. (Id.)
Caution: This outline is limited to traditional family immigration. References to F-1s, J-1s, registry applicants, asylees/refugees, VAWA applicants and North American Indian, and all other aliens who may qualify for fraud or medical waivers have been omitted.
Alice M. Yardum-Hunter, Certified Specialist and Former Commissioner, Board of Legal Specialization, California State Bar, has practiced business immigration law for 28 years. She has been honored as “Super Lawyer” since inception in 2004. Alice is Liaison with Customs and Border Protection for the L.A. County Bar Association, Immigration Section. She is a member of the American Immigration Lawyers Assn., for which she has been a conference speaker and edited two books: California Chapters Conference Handbook and Practice Before the Department of Labor. In 2007, she was nominated as among the top 25 lawyers from 9,000 practicing in the San Fernando Valley.
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