TOP 10 WAIVER STRATEGIES & TIPS – by Randall Caudle
1) Should inadmissibility ever be conceded up front as a tactical matter?
There are several schools of thought as to whether inadmissibility should be conceded up front.
One school of thought is that you should always concede inadmissibility and file a waiver application or come to your interview with a waiver application prepared and ready to file.
Another school of thought is that you never concede inadmissibility and wait for U.S. Citizenship & Immigration Services (USCIS) or the U.S. State Department (DOS) to make a determination that your client is inadmissible and then prepare and file a waiver application.
Then there is a combination school of thought that you sometimes concede inadmissibility and file a waiver application and sometimes wait for a USCIS or DOS determination that a waiver is required.
If you always concede inadmissibility, you may incur a lot of unnecessary work, costs and time that may not have been necessary to invest in the case. You should always do a thorough analysis of the inadmissibility grounds and what your client may or may not have done in the past. If you are positive that USCIS or DOS will determine a waiver is needed, you should prepare it and have it ready to go. If you think that USCIS or DOS may not require a waiver, the better strategy is to wait for their determination. You can have your client’s hardship factors and arguments sketched out and ready to go, in case you have to prepare a waiver application quickly.
If you never concede inadmissibility, you may irritate the USCIS or DOS officer, especially if it is crystal clear that your client needs a waiver. Having a waiver ready to file immediately if there is a determination that one is needed will make a more favorable impression on the officer than arguing that a waiver is not needed and then reluctantly filing one when it is still required by the government.
The best approach is to sometimes concede inadmissibility, but only when it is crystal clear to you that your client needs a waiver. Having a waiver application outline of hardships and issues is always a good idea and takes a lot less time, effort and money than doing a full-blown waiver application initially.
2) Strategies & tactical considerations in removal proceedings
The first analysis is if your client is detained or not. The second analysis is if you can successfully get your client out of detention on bond. If your client is detained and unable to bond out of detention, then the analysis shifts to whether a waiver is going to be required in court or not. You can attempt to get the Immigration Judge (IJ) to tell you if they think a waiver is going to be required at the first initial hearing. The longer it takes to prepare and file the waiver, the longer your client is going to be detained.
If your client is not detained, it is usually the better tactical move to wait until the IJ requires a waiver. If ICE says they think a waiver is required, be ready to argue to the IJ why you think a waiver is not required.
Once a waiver is required, work with your client on getting as much sympathetic evidence as possible to present to the court. You will usually have a lot of time to file a waiver if your client is not detained, as your individual hearing will likely be several years away.
In court, timing issues, as well as your client’s level of cooperation and whether they are detained or not are all factors that will direct your tactical strategy.
3) Hardships v. Aggravating Factors:
A USCIS adjudicator balances hardships v. aggravating factors in their analysis of whether to approve or deny a waiver. If there are no aggravating factors, the level of hardship does not have to be that great. If there is an aggravating factor, like a drunk driving conviction or one of the aggravating factors below, then the hardships and positive things about your client have to be substantial. Unlawful presence, by itself, is not an aggravating factor. Do not worry about massively documenting and describing multiple severe hardships if your client has no aggravating factors. If the USCIS adjudicator sees your client in a positive light, the waiver is likely to get approved. Focus on illuminating your client in a positive light. Family photos always help.
4) Aggravating factors include criminal convictions, arrests, prior applications to USCIS that were denied (asylum, marriage to U.S. Citizen, amnesty, and DACA), qualifying relative immigrated through another spouse, excessive traffic tickets or failure to pay fines, civil suits filed against individual, restraining orders, not paying child support and prior non-immigrant visa violations.
5) If your client has a conviction for a sex crime or a crime against a child, do not file a waiver application. It will always get denied, absent extraordinary and unusual circumstances. First of all, if you were an adjudicator, would you approve these cases? Second, as an adjudicator, would you want to have an approval of one of these cases come back to haunt you and your career in the future? If the foreign national later committed another sex crime or crime against a child that ended up in the news, your waiver approval and your government agency would be in the news as well, and not in a favorable light!
6) Tattoos: Make sure you know all tattoos that your client has and whether they could possibly be construed as gang tattoos. An example is a Virgin Mary tattoo, which a lot of religious people get as well as a lot of gang members (many gang members are also very religious). If your waiver is approved, your client could still get stuck outside the U.S. if the U.S. Embassy denies the immigrant visa on the basis of a tattoo. Because of the doctrine of consular non-reviewability, a consular officer’s determination that a tattoo is gang-related is non-reviewable. There is no waiver available for inadmissibility based on tattoos. There is not LegalNet available for tattoo issues, as it is seen as a factual issue, not a legal issue. The tattoos are discovered during the medical exam. The physicians have been known to us black lights to look at tattoos that have been removed.
7) Alien smuggling: Make sure you know if your client ever drove anyone across the border or helped them cross the border. Your client can be found inadmissible by a consular officer for alien smuggling, even if they were ferrying their own kids across the border.
8) Alcohol abuse that threatens the public safety: Your client does not have to be an alcoholic to be found inadmissible. If the civil surgeon finds that your client drinks enough to be a threat to public safety, this will suffice to make them inadmissible. This could be multiple DUIs, a drunken bar fight, an arrest for being drunk in public or even having several drinks a few times a week. Ask your client about any alcohol use and any alcohol related “incidents”. Alcohol use comes up at the medical exam.
9) Inform the client that it usually takes a long time to prepare successful waivers. The client or potential client should not be under the impression that you will have a waiver ready to file in a week. Also, inform them of all of the work on the waiver they will have to help with. This includes getting letters from friends, family, co-workers, fellow church goers and even their own kids. It may include attending counseling or therapy sessions. It will include revisiting some traumatic life events in their past. Be realistic with the potential client or client up front, so they know what to expect.
10) Besides reading all of the AILA resources on waivers, read anything that Laurel Scott, an exceptional immigration attorney and waiver expert, publishes. She has published a lot of useful and important information on waivers. See her website at www.scottimmigration.net.