Viewing entries tagged
provisional waiver

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Fourth Circuit Holds Provisional Waiver Regulations Do Not Shield Applicants from Removal

The Fourth Circuit has vacated summary judgment for a certified class of noncitizens married to U.S. citizens who were arrested at USCIS offices while pursuing provisional unlawful-presence waivers, holding that the waiver regulations do not bar the government from detaining or removing applicants while their waiver applications remain pending.

The Court held the regulations expressly warn that a pending provisional waiver application does not stay removal, and that intervening circuit precedent forecloses any due process right to access the waiver process without interference. The Court also held the sparse, discovery-free record could not support the class's alternative theory that the government used the waiver program as "bait" to lure and target applicants for arrest, and remanded for further proceedings on that narrower theory.

The full text of Sanchez v. Mullin can be found here: https://www.ca4.uscourts.gov/opinions/241487.P.pdf

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Sixth Circuit Restores Administrative Closure for Provisional Waiver Applicants

The Sixth Circuit has determined that administrative closure is available in removal proceedings to non-citizens eligible for provisional waivers of unlawful presence. Although the court had previously deferred to the Attorney General’s decision in Matter of Castro Tum, it limited its prior holding as inapplicable to provisional waiver applicants. “Administrative closure is ‘appropriate and necessary’ in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.”

The full text of Garcia-Deleon v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0127p-06.pdf

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Ninth Circuit Remands for Board of Immigration Appeals to Consider Eligibility for Provisional Waiver

In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.  

In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion."  In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings.  Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening.  In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."

The full decision in Benitez v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-73614.pdf

The full decision in Osegueda de Alfaro v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-72679.pdf

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