Supporting documents for 212 application [Archive]

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needhelpfast

11-28-2007, 10:49 PM

OK, let's try this again...
Nice and plain. Please post info directly relating to the 212 waiver application package (not 601, there is a difference if you research the consulate sites). Helpful information like supporting docs, evidence you personally used for your approved 212 case, etc.

I would like to hear from those who have had an approved 212 in conjunction with the 601 or a 212 alone (rare, but exists). If there is any helpful information pertaining to this topic, only the 212, please share. Thank you!!

needhelpfast

11-28-2007, 10:52 PM

Info posted from Rome's Embassy about the 212:

Form I-212 - Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

Some Individuals who have been deported or removed from the United States, or who departed the United States after the expiration of a voluntary departure order will also need to file Form I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal. This application is filed with the Consular Officer at the Embassy where the beneficiary of the petition applied for the visa. The applicant may attach a statement giving the facts that he/she believes USCIS should consider in making a decision on the application. The applicant may attach evidence in support of the statement.

The Consular Officer forwards the form and supporting documentation to the USCIS office with jurisdiction for adjudicating the application. An I-212 waiver will only be sent to the USCIS Rome District Office if there is an accompanying I-601 waiver. If the application is approved, USCIS sends approval notification to the appropriate Embassy for issuance of the visa. If the application is denied, the applicant will be notified in writing of the decision and the visa will not be issued.

needhelpfast

11-28-2007, 11:28 PM

http://www.uscis.gov/files/form/i-212.pdf

Link to updated I-212 application from USCIS site.

needhelpfast

11-28-2007, 11:48 PM

Link to I-212 instruction page. These instructions expire 6/2010

http://www.uscis.gov/files/form/I-212instr.pdf

needhelpfast

11-29-2007, 01:20 AM

This information was found on Attorney Robert L Reeves website at:

http://www.rreeves.com/news_article.asp?aid=379

Please read with discernment. Comment on this article...as previously stated, there's not alot of info out there on 212 waivers...what are your thoughts?

MORE THAN JUST A FORM: THE IMPORTANCE OF A WELL-DOCUMENTED WAIVERPosted on: 10/6/2005

By: Attorneys Robert L. Reeves and Jeremiah Johnson

The first thing many aliens ask after having been removed from the United States is “when can I return.” The answer is not always straightforward and much depends on the circumstances surrounding an alien’s removal. Generally, and alien may not return to the United States after an alien has been ordered removed for a period of 10 years, but like many laws (immigration laws included) there are “exceptions.” The Immigration and Nationality Act provides an alien may return to the United States, notwithstanding the bar, if the Attorney general has consented to the alien’s reapplying for admission.

An alien does not contact the Attorney General for permission to reapply. It is done through immigration officials, either in the United States or oversees who have the authority to grant what is known as an “I-212 waiver” so named for the government form used to apply for this exception. Because this 10-year bar only applies if an alien has departed the United States, the I-212 waiver is required when an alien reapplies for admission. Although the Board of Immigration Appeals in Matter of Roman and Matter of Ducret has recognized that an I-212 waiver may be submitted prior to an alien’s departure, and may be approved after an alien’s subsequent arrival, in most cases the I-212 waiver is submitted at the Embassy or consulate during consular processing.

Often is the case that an alien renters the United States without the advance permission of the Attorney General. Not only would this alien be barred from receiving a green card in the United States if he later becomes eligible, the alien may be subject to reinstatement proceedings if he even tries to apply without the proper waivers. In other words, the alien would be immediately deported. However recent case law provides aliens a way to remain in the United State and adjust their status with a properly submitted I-212 waiver. In Perez-Gonzales v. Ashcroft, the Ninth Circuit Court of Appeals held that “if permission to reapply is granted, the approval of Form I-212 is retroactive to the date on which the alien entered the country, and therefore, the alien is no longer subject to the grounds of inadmissibility.” However, simply submitting the proper I-212 form will not result in an approval.

Mindful by recent case law, the Immigration and Naturalization Service established criteria to be applied to determine whether an alien should be granted readmission. The criteria include establishing good moral character, recency of the deportation, the need for applicant’s services in the United States, and length of time applicant had been in the United States. This list of criteria should not be considered exhaustive, and an I-212 waiver applicant should be prepared to submit additional information that makes his or her waiver stand out. Mere existence of a United States family alone is most often not enough for a successful waiver. An I-212 waiver should evidence the alien’s good moral character and that the alien’s exclusion from the United States would result in not only extreme hardship to the alien but more importantly to their United States family.

Although the Immigration and Naturalization Service did not specifically set forth hardship as a criterion for an I-212 waiver, evidence of hardship to an alien’s United States family is considered essential for a successful I-212 waiver. Indeed, almost all families suffer hardship as a result of the separation caused by immigration removal. However, an I-212 waiver should evidence hardship that is unusual, whether that hardship includes health, financial, education or personal considerations such as close relatives in the United States or length of residence in the United States. Immigration officials will also take into consideration special factors such as cultural, language, religious and ethnic obstacles. A well-prepared I-212 waiver should demonstrate hardship above and beyond what immigration official might be used to seeing.

An alien needs more than just an I-212 waiver to return to the United States, but the good news is that the I-212 waiver may be combined with other required waivers. As with applying for any immigration benefit, an alien should be prepared to rise far above the minimum. Although the I-212 form is just one page, a proper I-212 waiver is a well-documented and voluminous request to return to the United States and should be at least one inch thick or more of supporting documentation and well written declarations explaining and presenting why they should be granted a waiver. Think of it this way, immigration officials deny most waivers. It is just not enough to be married to a United States citizen or have a United States relative residing in the United States.

needhelpfast

11-29-2007, 01:59 AM

Purpose of Form :
For persons who wish to enter the United States legally after being deported, being removed or having voluntarily departed the United States without an order of deportation to reapply for admission to the United States, if they meet certain qualifications.
Number of Pages :
Instructions:3; Form: 2.
Edition Date :
07/30/07. Previous editions accepted.
Where to File :
See Special Instructions

Filing Fee :
$545
Special Instructions :
Note on Where to File:

If you are abroad, and intend to apply for an immigrant visa, submit this form to the Local Office in which your deportation proceedings were held. If you are concurrently applying for a waiver of grounds of excludability, file this application with the American Consul with whom you are filing your application for waiver.

If you are abroad and intend to apply for a nonimmigrant visa or border crossing card, submit this application to the American Consul with whom you submit your visa or crossing card application, if instructed to do so by the Consul.

If you are at a U.S. port of entry, applying for admission to the United States, submit this application to the Local Office having jurisdiction over that port.

If you are in the United States and will file an application for waiver under Section 212 (g), (h), or (i) of the INA with an American consul, file this application and the waiver application with the American consul.

If you are in the United States and are applying for adjustment of status under Section 245 of the INA, or are seeking advance permission to reapply prior to your departure from the U.S., submit the application to the Local Office having jurisdiction over the place where you reside.

needhelpfast

11-29-2007, 03:17 AM

Carl Shusterman: Normally someone who is ordered deported by an immigration judge, is unable to return to the United States for at least 10 years, unless they obtain special permission from the Attorney General. You should file an "Application for Permission to Reapply for Admission into the United States after Deportation or Removal" (form I-212) .

It is very important that form I-212 be well-documented before filing your application. Be sure to read the major decisions pertaining to this relief from the Immigration Board of Appeals, including "Matter of Tin" and "Matter of Carbajal."

needhelpfast

11-29-2007, 03:33 AM

http://www.shusterman.com/barmemo.html

needhelpfast

11-29-2007, 04:21 AM

4. Success Story: Returning to the U.S. After Deportation
Mr. D, a citizen of the Philippines, received some very poor advice from a so-called "immigration expert". Having entered the United States as a crewman, Mr. D married his long-time girlfriend who had recently become an American citizen. The "expert" informed him that it was perfectly legal for him to apply for adjustment of status on the basis of his marriage. In doing so, however, Mr. D. was in fact violating the terms of the law, which does not permit crewmen to adjust their status to permanent residents. He and his new bride went off on their honeymoon completely unaware of this.
On a train and returning to Minneapolis from their honeymoon in the Pacific Northwest, Mr. D was randomly inspected by a Border Patrol agent, who subsequently detained him based on his illegal presence in the United States. Mr. D was removed to the Philippines, and barred from obtaining an immigrant visa to the U.S. for ten years unless he obtained advanced permission from the Immigration Service to return earlier.

After his wife received an approval of the I-130 Alien Relative Petition, the couple retained an attorney to prepare Form I-212, Permission to Reenter the United States after Removal. To Mr. D's dismay, however, this request was denied by the Nebraska Service Center. Despite his marriage to an American citizen, Mr. D now found himself stuck in the Philippines unable to rejoin his wife in the U.S. for ten years!

Mr. D. retained our law firm to prepare an appeal on his behalf. Upon reviewing the case, we noticed that Mr. D's prior counsel had failed to make a very strong case for his I-212 waiver. In fact, he had almost completely neglected to address the eight crucial factors commonly considered by the Immigration Service in determining an alien's application for permission to reapply to the U.S. after removal. Among these factors are the applicant's moral character, his family responsibilities, the reason that he was originally deported and the hardships to him and to his U.S. citizen or permanent resident relative(s). It was in addressing these factors that we hoped to achieve a successful result.

We first presented substantial evidence demonstrating that Mr. D's marriage to his U.S. citizen wife was genuine and not based on false pretenses, which included a heart-wrenching affidavit from his wife and close family friends, heaps of romantic correspondence between the couple and evidence of heavy international phone traffic between them. Next, we argued that Mr. D possessed good moral character, had no prior arrests and was not a repeat violator of the immigration laws; rather, he had relied in good faith on the erroneous advice of his "expert" acquaintance in violating his nonimmigrant status in the first place. We presented substantial evidence of the dangers inherent to the region of the Philippines where Mr. D resided, as it continues to be wracked by terrorism and guerilla war. Finally, and most importantly, we pointed out the hardship the denial of Mr. D's application was causing to his wife, who had to support a chronically ill mother and two sisters without the possibility of receiving any significant financial and emotional support from her husband for the next ten years.

CIS' Administrative Appeals Office (AAO) agreed with our argument and approved Mr. D's waiver. He is now permitted to obtain an immigrant visa and to legally rejoin his wife in the United States.

Full newsletter available here:
http://www.shusterman.com/jul05.html#4

Pinkpig

11-29-2007, 09:36 PM

Needhelpfast,

I understand your frustration and It looks as though there has been some misunderstanding with your struggle to get information out to share.

I don't know a lot about filing the 212 waiver. I will share with you what our experience was.

Originally our lawyer said that we did not need the 212 in addition to the 601. We were dealing with Rio, Brazil and Lima, Peru.

Rio kept insisting that we did need the 212 as well as the 601, but our lawyer insisted that we not admit to being guilty of anything other than what they could prove that we were guilty of.

Some have advised others to just go ahead and file the 212 in addition to the 601 as it will not be that much more work and it was just a formality after all. In our case our lawyer totally disagreed with this. She insisted that we not file anything other than what they could prove that we needed, and we did not need the 212 as our DIL was allowed to withdraw her petition to enter at the POE and she returned home at her own expense.

So after about the 3rd visit to Rio our lawyer provided them with a legal interpretation as well as our documentation proving that we did not need the 212.

At this point we were so tired of the expense and frustration of continuing to fly to Rio that our lawyer went ahead and did the 212 waiver in addition to the 601 so that we had it ....if that was the only way we could move our case forward.

This is the part that will probably interest you.....Were you beginning to wonder ....:)

Our lawyer insisted that for Rio we needed to have a totally separate waiver packet for the 212 in addition to the one that she did for the 601.

So what I am saying is that dependent on where you are filing or the particulars of your case you MAY need two entirely separate waivers. I asked our Lawyer how they were different and she said not much difference really but that there were some points that made the two waivers different and she wanted us to have the specific one for each waiver.

At this point our waiver package was 4 inches thick and I did not go through and figure out what the differences were. So I cannot tell you that.

But what I can tell you is that sometimes different consulates require different things for the same situation, and at least our lawyer for Brazil prepared two different waivers, even though in the end we did not have to file both.

I have never posted this information on the site as it is contrary to the general consensus of folks on the site. I applaud the many, many folks on this site that do this on their own. It is just amazing and I understand everyone wanting to do it without a lawyer. For us though I felt like there was a chance of being penny wise and pound foolish, and our family could not have withstood another day longer than the 3 year nightmare we went through. Denial was not an option for us. So we did everything and then some. Every case is different and everyone has to make the decision that is best for their own family.

Granted there are bad attorneys out there but in hind site I tend to think that we don't always get the whole story to evaluate on this public forum. I totally understand that.

So I want you to know that your research on your particular embassy is wise...and that you cannot necessarily go with what everyone else has done. I cannot tell you how many times our lawyer told us you cannot compare cases.

I do not know what your financial situation is and I do not know how difficult your charges will be to overcome and I am sure that you can prepare this waiver and get it approved.

I don't want to scare you but just to make sure you keep your eyes wide open.

Not many people that I know of have done the 212 and the 601 without an attorney. So I am guessing that you are not going to get a lot of help from successful filers before you.

As I am sure you noticed the majority of our members are from Mexico and they rarely need the 212.

So I hope this is some help. Let me know if I have totally confused you.

I know that you are googling your fingers off. Have you looked at Shusterman's site. I know he has a ton of information. If I find anything I will send it to you.

I am going to check my spreadsheet and see if I can find anyone else who is filing both waivers through Rome. I will let you know.

I think that before anyone files anything they should consult with an attorney that is competent and experienced with waivers.

martinamw

11-30-2007, 04:42 AM

needhelpfast

12-01-2007, 12:26 AM

Pinkpig,
Excellent and sound advise, thank you for sharing this on this thread! This shows the complexity of the 212 waiver in particular, especially when filing with the 601. It is not the same, and your story shows this.
No, you did not confuse me, the fact of the matter is that jointly filing a 601 and 212 can be a complex process, and one must consider the consulate standards for which they are applying through. I myself am going through Rome, and Rome's standards, according to the Rome Consulate, are a little different than other consulates. You're right that not many posters here have the experience of filing both waivers (601 and 212), that is why your input is so valuable, because you successfully went through this process. True, not many Mexican filers had to do both, and if they did, I am curious to hear the standards that were applied to their 212 application, as a separate entity.
This is not an easy task to say the least, that is why the more information we can accumulate on the 212 waiver will be beneficial to all for future reading and referencing in one place.
Thank you for your valid contribution. The more information we have, the clearer this process will be to all who are going through it. This thread is not intended to take the place of legal advice, as I agree with your penny wise and pound foolish analogy. Knowledge is power however, and I think the more informed we are ourselves, the better equipted we are in being able to make decisions of how to proceed, and be better positioned to judge the legal advice we receive.
Thanks again,
NHF

Pinkpig

12-01-2007, 01:48 AM

I flew into the US last year (on a one way ticket and a visitors visa). They didn't believe that I was just visiting and allowed me to withdraw my application to enter as long as I pay my own flight back home. I did pay my own flight and flew back to Canada, we got married and applied for a spousal visa, had the interview for that last week and I am now told I need both waivers I212 and I601. The embassy are saying that I was removed last year. I insisted that I withdrew my application to enter.

Your lawyer provided you with a letter of legal interpretation proving that you did not need the I212. What was in that do you know, how did you/she prove it? I do have my credit card statement proving I bought the ticket and a copy of the ticket. I think the officer just got mean and decided to issue removal order against even though I withdrew my application to enter.

Our DIL had a round trip ticket when she came in. Her original ticket was roundtrip. They did not marry until 14 months later. She had the original paperwork that they issued her at the POE. It clearly stated that she had withdrawn her application for entry.

Different CO's and POE officers interpret the same laws differently. You may be right about the statement. Do you have the original paperwork that they issued you at POE. That is what saved us. It was the basis for our legal argument.

needhelpfast

12-01-2007, 04:00 AM

Article is dated, but gives a nice summation on the process.

http://www.vkblaw.com/law/permission.htm

needhelpfast

12-01-2007, 04:19 AM

(Check OUT the law, typo)

http://64.233.167.104/search?q=cache:q6gtghXZLQcJ:a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2002/janqtr/pdf/8cfr212.2.pdf+consular+processing+application+for+ permission+to+reapply+for+admission+into+the+unite d+states+after+deportation+or+removal&hl=en&ct=clnk&cd=4&gl=us

needhelpfast

12-01-2007, 04:25 AM

ACTION: 60-Day notice of information collection under review; Application for Permission to Reapply for Admission into the United States after Deportation or Removal; Form I-212

http://www.immigration.com/newsletter/i212form.html

emt103c

12-01-2007, 04:48 PM

If you look back through old posts, you will see that I have posted this link several times. I just submitted my 212 to a district office and this link, straight off the USCIS website comes from the adjudicator's manual.

It was the MOST helpful thing I found in MONTHS of research. I originally saw it on I2US before the "great crash" a couple of months ago.
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=6ef978fa10bce1c601b6cf794a820 8ce

It tells what exactly they are instructed to consider on the case and in what order they are to consider it. I linked to the second page, it is more than one web page long, so use the navigation tool at the top to flip the page. The one I linked to talks about adjudication, the one before it gives legal background.

needhelpfast

12-02-2007, 12:43 AM

EMT,
Great info, thank you so much for posting! No, I didn't see this posted on the other sites, glad you reposted here!!

You're right, the second page is VERY helpful in explaining the adjucation process. I had a hard time finding the second page link at first, it's at the top in green, as you explained. Thanks so much for this valuable link! This sums it up in a nutshell. This link should be added as sticky.
:thumbup:

needhelpfast

12-02-2007, 01:27 AM

This info is a must read for all 212 applicants, thanks again EMT:D....I copied page 2 of the stated article, here it is:

43.2 Adjudication Processes.

Adjudication of Form I-212 is a six step process: (a) review of the application, (b) review of the alien’s file to determine whether the application is necessary, (c) determination of whether the alien is barred from applying for consent to reapply, (d) determination of whether the approval would serve any purpose, (e) consideration of discretionary factors, and (f) generation of a decision.

(a) Review of Application and Supporting Documentation (If Any) . Review the application for fee, jurisdiction, completeness, and signature. There are no particular supporting documents which must be attached to the application, although the instructions on the back of the I-212 describe what documentation may be submitted with the application. Essentially, supporting documentation should establish the relationship(s) or compelling factors which the alien wishes you to consider when you adjudicate the application. If a relative petition has previously been approved in b ehalf of the alien, it will not be necessary to request documentation to establish that relationship again unless you have reason to believe that some aspect of that relationship or a prior relationship was not considered. Frequently the applicant fails to submit documentation to establish the relationship claimed to U.S. citizen children or siblings; however, if the relationship is to be considered as a favorable factor, it must be documented. If the alien wishes you to take into consideration the illness of a close relative, that illness or medical condition must be documented by a statement from the attending physician describing in some detail the diagnosis, prognosis, history, treatment being given, and any need for the applicant, other than for moral support. Frequently, such letters will state only that the patient has been under the doctor's care and the patient "needs" the applicant; a letter of that nature is useless for any immigration purposes, particularly where the claimed illness is a basis for seeking a benefit.

(b) Review of the Alien’s File to Determine Whether the Application Is Necessary .

(1) Obtaining the Alien’s File . If the file was not furnished to you with the application, you must obtain it before you can adjudicate the request. You may be able to locate the file number or location by checking the lookout system or the Central Index System. Your file room can check the local indices or Central Office index for you. Sometimes the file may be charged to the Administrative Appeals Unit (AAU) on a Legalization appeal. If the file is not readily available for transfer, you may wish to contact the AAU to verify the information contained in the file and whether any of the information would influence your decision regarding the pending application. If a file cannot be located, you must have a substitute file opened or a n ew file created before completing your action on the application. Frequently the applicant will not know the file number or will improperly complete the form as to the reason it is required. However, sometimes the alien may be in possession of the deportation documentation. If the file is not available, you may want to request a copy of these documents and any others you may think are necessary for the proper adjudication of the case. If you are unable to locate any file or record on the alien you may accep t the alien's statement on the application concerning a deportation or removal, have a new A-file created, and approve the request, if the alien is otherwise eligible. In that event, you should endorse the remarks block: "No relating file located. Application granted only on alien's allegation of prior deportation." In addition to material located in relating A- files, a record of the revocation of landing permits and deportation of alien crewmen is also maintained in Headquarters indices.

(2) Determining Whether Circumstances of Alien’s Removal Resulted in His or Her Inadmissibility under Section 212(a)(9)(A) . It is not unusual for an alien to file Form I-212 even if it is not required. In order to determine whether the application is required, you must review the alien’s file to determine what transpired. If, in reviewing the A-file, you determine that the alien is not inadmissible under section 212(a)(9)(A) of the Act , the application is not required. In that event, make brief notations in the remarks block to explain your finding, check the appropriate block on the I-272, (or select the appropriate approval text in CLAIMS) and count the application as a statistical denial. Form I-272 (or CLAIMS notice) is then routed as in approval cases.

• Removal (Including Deportation) under a Formal Order . An alien who was deported or removed following a deportation or removal hearing before an immigration judge requires consent to reapply within 10 years of the date of removal. If the alien was actually arrested and deported, the file will usually contain a Warrant of Deportation/Removal ( Form I-205 ). Generally, if a warrant was not issued and executed, consent to reapply is not required: however, in the case of an alien who departed after the voluntary departure period set forth in the decision of the immigration judge, the file may not contain an executed Warrant of Deportation/Removal. Nevertheless, because the judge's deportation order became effective the day after the expiration of voluntary departure authorization, the alien's departure after the date is a deportation pursuant to 8 CFR 241.1(f) , and the alien does require consent to reapply. Occasionally, an alien who departed the U.S. under voluntary departure will believe that such departure constituted a deportation, and will file a Form I-212. If the relating A- file does not contain an executed Warrant of Deportation or an indication that departure was effected after the voluntary departure date granted in an alternate order of deportation, the Form I-212 is not necessary.

Note: In Matter of Fueyo , 20 I&N Dec. 84 (BIA 1989) it was held that evidence that an alien who was taken into custody and deported by the Immigration and Naturalization Service establishes that she was "arrested and deported" within the meaning of section 212(a)(17) of the Act [now section 212(a)(9)(A) of the Act]. The burden is on the respondent to prove that, following her deportation, she applied for and received consent to reapply for admission to the U.S. from the Attorney General or his designate. A nonimmigrant waiver of inadmissibility under sectio n 212(d)(3)(B) of the Act may not be granted nunc pro tunc in deportation proceedings. This interim decision superseded a number of others, including Matter of P- , 8 I&N Dec. 302 (Asst. Comm. 1959); and Matter of M- , 8 I&N Dec. 285 (R.C., Asst. Comm. 1959).

• Removal as an Inadmissible Arriving Alien under an Order of an Immigration Judge . An arriving alien who was removed from the U.S. as an inadmissible alien under the provisions of section 240 of the Act needs consent to reapply within 5 years of such removal. Consent to reapply is not needed by an alien who an immigration judge allowed to withdraw his or her application for admission and depart.

• Removal of a Crewman under Section 252(b) . Summary revocation of a crewman's landing permit pursuant to section 252(b) who seeks to return to the U.S. within 10 years of the date of removal requires consent to reapply. You may receive an application from an crewman or former crewman who was refused landing at a seaport and who believes that such refusal constituted an exclusion or a removal under section 252(b). If the alien was only refused entry, there will probably not be a relating A-file. If the alien was held for an exclusion hearing, an A-f ile would have been created whether the decision was in the alien's favor or against him or her, therefore the file would have to be consulted to determine if the I-212 is required.

Note: In Matter of Di Santillo , 18 I&N Dec. 407 (BIA 1983) it was held that an alien who is deported pursuant to the summary procedures contained in section 252(b) of the Act is not relieved of the requirements of obtaining consent from the Attorney General to reapply for admission under section 212(a)(17) of the Act [now section 212(a)(9)(A) of the Act]. The revocation of an alien’s D-1 conditional landing permit and his removal from the U.S. pursuant to the provisions of section 252(b) of the Act constituted an arrest and deportation for purposes of section 212( a)(17). Therefore, his deportability under section 241(a)(1) was established by this failure to obtain consent from the Attorney General to reapply for admission as a lawful permanent resident.

• Expedited Removal An alien who was removed from the U.S. under the provisions of section 235(b) of the Act (“expedited removal”) needs consent to reapply within 5 years of such removal. Consent to reapply is not needed by an alien who was:

– Allowed to withdraw his or her application for admission;

– Refused admission as a Visa Waiver Program applicant; or

– Refused admission at the land border and returned to Canada (using Form I-160A, Notice of Refusal of Admission/Parole into the United States) or to Mexico

Note: If the alien was only refused entry, there will probably not be a relating A-file. If the alien was held for an exclusion hearing, an A-file would have been created whether the decision was in the alien's favor or not. Therefore, the file would have to be consulted to determine if the I-212 is required.

• Removed as a Distressed Alien under Section 250 of the Act . An indigent alien is "removed after having fallen into distress" only if he or she makes a formal application on Form I-243 , and the request is approved. The A-file will contain the application, the decision, and verification of the alien's removal from the country. If ten years have not elapsed since such alien’s removal, consent to reapply is required.

• Removed as Enemy Alien . If the applicant was removed as an enemy alien, and 10 years have not elapsed since such removal, consent to reapply is required. Removal under these circumstances requires a formal order of removal issued by ICE or DHS and the alien's file should contain that order. There have been no removals of enemy aliens in many years, and such applications are rarely, if ever, seen. If the alien repatriated voluntarily, without any formal order for removal, consent to reapply is not required.

• Removed at Government Expense . If the applicant was granted voluntary departure in lieu of deportation for the convenience of the government and transportation was paid entirely by the government after a determination that the alien was financially unable to depart at his own expense, consent to reapply is required, unless ten years have elapsed since his or her departure. If removal was for the convenience of the government without regard to the alien's ability to pay, consent to reapply is not necessary. [ Note: Prior to May 16, 1969, no consideration was given to the ability of most Mexican nationals to pay, and for the majority of Mexican nationals granted voluntary departure at government expense prior to that date, consent to reapply is not required. However, if the file reflects that such a determination of ability to pay was made, formal removal proceedings probably took place (usually following the Mexican alien's apprehension in a region other than the Southern Region--at that time the Southwest Region), an d consent to reapply is required.]

• Removal of an Aggravated Felon under Any Provision of Law . An aggravated felon who has been removed under any provision of law [including sections 235(b), 240, 250, and 252(b)] is barred from returning to the U.S. for an indefinite period and thus will always need consent to reapply. The alien need not have been deported as an aggravated felon (i.e., the order of removal need not have specified that the alien was inadmissible or deportable as a criminal); he or she only need to meet the definition of aggravated felon.

(3) Determining Whether Alien Has Complied with Requirement to Remain Outside the U.S. for a Specified Period of Time . Section 212(a)(9)(A) of the Act only refers to passage of time (5 years for arriving aliens found inadmissible, 10 years for other aliens removed, 20 years for an alien with a second or subsequent removal, and indefinite for any aggravated aliens), it doesn’t specify where that time must be spent. 8 CFR 212.2(a) specifies that the time must be spent outside the U.S. Once the time period has elapsed, the alien is no longer in a position of needing consent to reapply under section 212(a)(9)(A), he or she is instead in a position of being inadmissible under section 212(a)(9)(A) if part or all of that time was spent in the U.S., unless he or she first obtained the necessary consent to reapply. Moreover, if an alien did not spend the entire time outside the U.S., section 212(a)(9)(C) of the Act also applies and the alien is inadmissible to the U.S. on that basis , unless the alien’s presence in the U.S. had been authorized under section 212(d)(3) or 212(d)(5) of the Act. Section 212(a)(9)(C) carries an even stronger prohibition, in that (except for certain victims of domestic violence) the alien must acquire ten years outside the U.S. before even being able to request consent to reapply (see Chapter 42.2(e)(2) of this field manual.)

(c) Determination of Whether the Alien Is Barred from Applying for Consent to Reapply . Consent to reapply can only be granted prior to the date of the alien’s embarkation or re-embarkation at a place outside the U.S. or attempt to be admitted from foreign contiguous territory. If a previously removed alien is already back in the U.S., he or she is barred from receiving consent to reapply and the I-212 application must be denied. ( Note: This bar does not pertain to an alien who is under an order of removal, will be departing from the U.S. to apply for an immigrant visa at an American consulate, and is seeking advance consent to reapply.)

Furthermore, if a determination is made that the alien reentered illegally (i.e., if the alien was not paroled into the U.S.) he or she is barred by section 241(a)(5) from receiving any benefits under the Act (including consent to reapply) and is subject to reinstatement of the prior removal order (see Chapter 15.7 of the Deportation Officer’s Field Manual for the procedures to be followed in making such determination and reinstating the order).

(d) Determination of Whether the Approval Would Serve Any Purpose . In processing an application for consent to reapply filed by such an alien, you should determine whether its approval would enable to alien to be admitted to the U.S. If even after approval of consent to reapply the alien would not be admissible, the application should be denied as its approval would serve no purpose. For example, if the alien is presently inadmissible under section 212(a)(4) as likely to become a public charge, deny the application since the alien would be otherwise inadmissible, and no purpose would be served in granting the I-212.

Of course, an alien might be applying for both consent to reapply and a waiver of inadmissibility, provided the particular ground(s) of inadmissibility applying to the alien are waivable. If the alien has filed both applications (Forms I-212 and I-601), adjudicate the waiver application first. If the Form I-601 waiver is approved, then consider the Form I-212 on its merits; if the Form I-601 is denied (and the decision is final), deny the Form I-212 since its approval would serve no purpose.

Note: In Matter of Roman , 19 I&N Dec. 855 (BIA 1988) , it was held that an alien who was excludable under both sections 212(a)(17) and (20) of the Immigration and Nationality Act cannot establish combined eligibility for nunc pro tunc consent to reapply for admission and a waiver of inadmissibility pursuant to section 241(f) of the Act where she is not separately eligible for either form of relief. [Sections 212(a)(17) and (20) of the Act as it existed prior to 1990 correspond to the current sections 212(a)(9)(A) and 212(a)(7)(A).]

(e) Consideration of Threshold Eligibility Requirements . The question of whether an applicant for consent to reapply must meet statutory threshold eligibility requirements depends on the section of law under which consent is sought:

(1) Under Section 212(a)(9)(A)(iii) of the Act . Unlike sections 212(g), (h), and (i) of the Act (which relate to waivers of inadmissibility for prospective immigrants), section 212(a)(9)(A)(iii) of the Act does not specify particular familial or hardship threshold requirements which must be met. A Form I-212 applicant need not be related to a citizen or resident of the U.S.; he or she need not establish a particular level of hardship would result if the application is not granted; he or she need only establish that the application should be granted as a matter of discretion. As always, the burden of proof is on the alien who is seeking a benefit under the Act.

(2) Under Section 212(a)(9)(C)(ii) of the Act . Before weighing the positive and negative discretionary factors relating to an application for consent to reapply under section 212(a)(9)(C)(ii) of the Act, you must first determine whether the alien has met either of two statutory threshold requirements:

(A) The Ten-Year Provision . An alien may apply for consent to reapply under this section if more than 10 years have elapsed since the date of his or her last departure from the U.S. This is not necessarily the date of the alien’s formal deportation or removal. If the alien returned to the U.S. one or more times after having been deported or removed, and then departed after such return(s), a new “10-year clock:” starts ticking with the last departure. If more than 10 years have elapsed since that last departure, then you must weigh the positive and negative discretionary factors (see paragraph (f)). If more than 10 years have not elapsed since the alien’s last departure (and the alien cannot meet the domestic violence requirement), the application must be denied.

(B) The Domestic Violence Provision . In order to be apply for consent to reapply under this provision, the alien must:

• Be the beneficiary of an approved self-petition (see Chapter 21 of this field manual) filed any of the following sections of law relating to spouses and child who have been the victims of battering or extreme cruelty:

– Section 204(a)(1)(A)(iii) of the Act;

– Section 204(a)(1)(A)(iv) of the Act;

– Section 204(a)(1)(A)(v) of the Act;

– Section 204(a)(1)(B)(ii) of the Act;

– Section 204(a)(1)(B)(iii) of the Act; or

– Section 204(a)(1)(B)(iv) of the Act; and

• Establish that there is a connection between:

– The battering or extreme cruelty on which the self-petition was based; and

– The applicant’s removal, departure, reentry (or reentries) into the U.S., or attempted reentry into the U.S.

The nature of this connection is not specified in the statute. It could be as direct as the alien having had to take the action in order to escape from life- threatening abuse, as indirect as a simple desire to “get away for a while in order to sort things out”, or anything in between.

Note: There is no minimum amount of time that must elapse following removal or departure for an alien qualifying for the domestic violence provision.

If the alien is able to establish both that a self-petition under one of the relevant sections of law has been approved and that there is a connection between the alien having been battered or subjected to extreme cruelty, then you must weigh the positive and negative discretionary factors (see paragraph (f)). If the alien is not able to establish either or both of these requirements (and 10 years have not elapsed since the alien’s last departure from the U.S.), the application must be denied.

(f) Consideration of Discretionary Factors . In adjudicating an application for consent to reapply, you must weigh the unfavorable factors against the favorable factors and be guided by published precedent decisions where similar factors were considered. In cases where the alien is mandatorily excludable on some other ground(s), the denial must include all grounds considered for the denial. In cases where there are precedent decisions involving similar cases, you would cite the appropriate precedent decisions on which you are basing your denial. In other words, the denial must cover all grounds for the denial; not just one area.

Among a number of precedent decisions dealing with discretionary determinations in Consent to Reapply cases, two which stand out are Matter of Carbajal , 17 I&N Dec. 272 (BIA 1978) and Matter of Lee , 17 I&N Dec. 275 (BIA 1978) :

• In Matter of Carbajal the Board weighed the favorable factor of the needs of the U.S. employer who petitioned for an alien against negative factor of the alien having repeatedly violated immigration law (through 4 occasions of illegal entry), and found the favorable factor to be more persuasive. The Board did not find that prior grants of voluntary departure indicated bad moral character, since good moral character is one of the requirements for being granted voluntary departure.

• In Matter of Lee the Board found that a record of immigration violations standing alone will not conclusively support a finding of lack of good moral character. Recency of deportation can only be considered when there is a finding of a poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. In such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant’s ability to integrate into our s ociety. 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.

When determining whether an alien meets the discretionary threshold for approval, you may find it useful to draw up two separate lists of the factors you must consider:

Some favorable factors to consider :

• Close family ties in the U.S.;

• Unusual hardship to the applicant or to lawful permanent residents or U.S. citizens, including relatives, and employers;

• Deprivation of livelihood to a bona fide crewman who has not abandoned that calling;

• Evidence of reformation and rehabilitation;

• Length of lawful residence in the U.S., and status held during that residence;

• Evidence of respect for law and order, good moral character, and intent to hold family responsibilities;

• Considerable passage of time since deportation;

• Deportation for less serious reason(s);

• Absence of significant undesirable or negative factors;

• Eligibility for waiver of other exclusionary grounds;

• Likelihood that lawful permanent residence will ensue in the new future.

Some unfavorable factors to consider :

• Evidence of moral depravity, criminal tendencies reflected by an ongoing or continuing police record;

• Repeated violations of immigration laws, willful disregard for other laws;

• Likelihood of becoming a public charge;

• Poor physical or mental condition (however, a need for treatment in the U.S. for such condition would be a favorable factor);

• Previous instances of fraud in dealings with service or false testimony;

• Absence of close family ties or hardships;

• Spurious marriage to a USC for the purpose of gaining an immigration benefit (204(c) applies and waiver cannot be granted);

• Unauthorized employment in the U.S.;

• Lack of skill for which labor certification could be issued;

• Serious violations of immigration laws which evince a callous attitude without hint of reformation of character.

(f) Generation of a Decision .

(1) Application Approved . If the application is approved, advise the applicant, and any attorney or representative of record, using either the appropriate approval letter now generated by CLAIMS, or by completing the form I-272 (if CLAIMS is not available). Either method specifies the reason for the approval and tells the applicant and/or attorney where the application was sent. If the CLAIMS notice is generated, the adjudicator will no longer need to instruct the clerk to prepare the I- 272.

Place the approval stamp in the appropriate block on the I-212, and endorse both copies with "Consent granted" in the decision block. If a CLAIMS notice is generated, note in the remarks area of the I-212 "Claims approval notice sent". Update the case in CLAIMS as an approval and pick the appropriate approval phrase (if CLAIMS notice generated). If the applicant is applying through a Consular Office abroad for an immigrant or nonimmigrant visa, a copy of the approved I-212 should be forwarded to the locatio n indicated by the alien on the application. If the alien is a nonimmigrant who will not require a visa, retain both I-212's in the file. The approval notice will suffice for the alien to make application for admission.

When the Form I-212 is filed and adjudicated concurrently with Form I-601, approval of both applications is recorded on Form I-607 and placed in the file.

(2) Application not Required . If the application is not required, make brief notations in the remarks block of Form I-212 to explain your finding, check the appropriate block on the I-272, (or select the appropriate approval text in CLAIMS) and count the application as a statistical denial. Form I-272 (or CLAIMS notice) is then routed as in approval cases.

(3) Application Denied . Prepare Form I-292. Since the denial is appealable to the AAO, attach a Form I-290B to the denial. As with any denial on Form I-292, discuss the basis of your decision in the text of the denial. If you reached that decision after balancing all the factors in the case, list those factors, both negative and positive, which you considered. If the decision was based on the alien's ineligibility, state the basis for that ineligibility. If the decision is based on both the factors of the case and the ineligibil ity of the alien, address both issues. However, if the applicant is excludable under a ground for which a waiver is not possible, a discussion of the favorable and unfavorable factors is not necessary. When a denial is based on precedent decisions, use these decisions to support your denial.

Remember to keep the application with supporting documents in the file. In general, the record should include copies of documentation in the file relating to the alien's deportation or exclusion proceedings. Documents might include a copy of the Order to Show Cause or Notice to Appear, the executed Warrant of Deportation, any final court orders relating to criminal proceedings, and any other documentation (e.g., results of agency checks) from the file which supports the decision.

ictomi

12-04-2007, 02:26 PM

Thank you for this information, it looks like I will have to file a 212 along with the I-601. I will be filing, all of this together in Tunisia, but it will be adjudicated in Rome.

DaveH

12-04-2007, 07:51 PM

What would also help is knowing when its needed and when not.
Directly from the form itself, these are the individuals who DO NOT need a 212

A. Persons who were excluded from admission and removed or deported more than a year ago.

B. Persons who voluntarily departed from the U.S. without expense to the Gov and without an order of removal or deportation having been entered.

C. Persons who have been outside the US for five successive years following their last removal or deportation

Loose translation.

A, Means if a person was deported more than a year ago. (immigration caught them) and they are not admittable for some other reason.
B Means a person who left before immigration caught them, more or less.
C Means the person has been gone 5 years or longer after being deported. This sounds like A but is a bit different. For A you have to be excluded for admission for some other reason such as crimes of moral turpitude.

emt103c

12-05-2007, 02:28 AM