Venezuelan Immigrant Wins I-601 Waiver Immigration Appeal Despite Conviction
At the age of 12, Joaquín entered the United States on a B-1/B-2 visitor’s visa along with his entire family, two younger sisters and his mother. Since Joaquín’s father had passed away, their relatives living in the United States convinced his mother that staying here was in the best interest of her children.
About 10 years later, his mother was able to earn lawful permanent residency. The children still lacked legal immigration status.
Born in Argentina, he did not know any English when he entered the United States. But the local school district offered ESL classes, and he was able was able to master English, and complete high school. Afterwards, he spent two years in junior college before obtaining employment as an apprentice printer to help take care of his mother.
He worked his way up the company ladder, becoming assistant print shop manager.
How A Minor Conviction Almost Destroyed Joaquín’s Life
In his early 20s, he and George, one of his best friends, decided to authorize each other as co-credit card holders on their private accounts. They wanted to help build each other’s credit worthiness. They agreed not to withdraw more than $100 on the other’s account per month without advance permission.
On one occasion, while George was out of town on vacation, Joaquín ran into a financial crunch. He withdrew $200.00, $100.00 over the agreed-upon borrowing limits they had jointly approved.
When George found out about the transaction, he immediately contacted the credit authorities. He thought someone had cracked his credit card details. He did not suspect it might have been an overdraw by Joaquín.
Bank officers traced the transaction. They reported the theft to law enforcement, and the police arrested Joaquin for credit card fraud. The bank did not inform George about their findings. He found out when Joaquín’s mother called him to explain what happened.
When his George found out about the error, he tried to drop the charges. The local prosecutor pushed forward. Joaquín was convicted of a misdemeanor.
A public defender convinced Joaquín to accept a plea bargain because it would not impose any jail time. He was not advised about the potential immigration consequences of his plea. He was not told a fraud conviction, even under the minor terms of his sentence, would lead to immigration problems later.
The Danger Of Seeking Green Card Benefits Without A Lawyer
Several years afterwards, at a friend’s 30th birthday party, Joaquín met Donna. They exchanged phone numbers and soon started seeing each other on a regular basis. They fell in love and married two years later.
Knowing Joaquín did not have legal status, Donna did not want to hesitate on legalizing his residency status. She filed a one-step marriage based immigration petition for him. Thinking the process was easy, they did the paperwork on their own, without a lawyer.
As they waited for his application to be processed, Donna gave birth to a baby son. Finally, their green card appointment was scheduled. To their surprise, the application was denied.
The government decision was based on Joaquín’s conviction. According to the officer, the conviction made him inadmissible and ineligible for an immigrant visa. He was told to make arrangements to leave the country as soon as possible. Otherwise, he was told, ICE would place him in proceedings at immigration court to begin the deportation process.
In its written decision, USCIS noted that Joaquín had not sought an I-601 waiver of Joaquin’s inadmissibility. Joaquín and Donna were confused. They had no knowledge of what a waiver meant.
They did not know that they were eligible to file a request for “forgiveness” by filing a waiver of inadmissibility.
They did not know their waiver would be based on hardship to Donna if Joaquín was to be deported.
Afraid and puzzled, they hired a North County immigration law office. The office helped them prepare a motion to reopen the green card denial and an I-601 family unity inadmissibility waiver.
They lost again.
The Complexity Of Immigration Appeals
Although immigration authorities allowed them to reopen their case, they denied the application for permanent resident status once more. In the USCIS view, they did not prove that Donna would suffer sufficient hardship to qualify for a inadmissibility waiver. As a result, Joaquín was still deemed inadmissible to the United States.
Unwilling to give up, this time they went through the internet and yellow pages more thoroughly. They contacted Carlos at our Escondido immigration law office.
They wanted to discuss if there was any way to overcome the two USCIS denials and Joaquín’s pending deportation, based on Carlos’ experience handling immigration appeals.
After reviewing the two permanent residence denials, he explained to Joaquín and Donna how their case involved a few big problems. They needed to win all of them.
- He said they had to demonstrate extreme hardship. But he did not stop there. Since they did not grasp hardship, Carlos explained the concept in depth. He told them it was essential for them to comprehend the meaning of hardship. There was less than 30 days to put all their evidence together in a convincing manner – and their full participation would be required.
- Carlos emphasized that the USCIS officer’s decision whether or not the evidence shows enough hardship is a matter of discretion. To challenge the earlier denials, Carlos said he needed to prove a technical mistake had been committed by the agency. Having studied the denials, Carlos had spotted some potential errors, that he planned to raise. But there were no guarantees his arguments would prevail.
- There was Joaquín’s criminal conviction. To overcome this issue, they would need to demonstrate that Joaquín’s positive virtues outweighed his negative blemishes. Once more, Carlos stressed such decision-making is subjective and success requires strong attorney-client teamwork.
On appeal, Carlos blended deeper factual evidence, clarifying witness statements, with various grounds of government mistake. He showed how the government had misread the nature of Joaquín’s conviction and used the wrong law to assess his request for a waiver.
In addition, Carlos argued the government did not weigh all relevant hardship factors and were required to reassess Joaquín’s application in a complete manner. Further, demonstrated the government had not read certain materials in their proper context, leading them to inappropriately minimize Donna’s evidence in the least beneficial light.
Carlos points persuaded the Administrative Appeals Office (AAO) to reverse the USCIS decision.
The government admitted their errors.
Joaquín won his appeal . . . Joaquín won his the right to adjust his status to permanent residence . . .
. . . And Joaquín and Donna won the right to raise their family together in the United States.
They now have two children, have productive careers, and are able to take annual vacations with their children and Joaquín’s mother.
This article, centered on immigration appeals, I-601 inadmissibility waivers, and adjustment of status (permanent residency) issues, is part ten of a series on the successes of immigration lawyer Carlos Batara in different types of cases.
Follow this link to read more: Immigrant Child Wins VAWA Case At Immigration Court