May/June 2011

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SNEAK PEEK featured in: The Waivers Book: Advanced Issues in Immmigration Law Practice from AILA Publications “The Impact of Matter of Jean on Waivers for Refugees and Asylees” by Jeanette Kain } T he refugee and asylee waiver of inadmissibility under Immigration and Nationality Act (INA) §209(c) waives many grounds of inadmissibility that would doom a client in any other context, even those involving aggravated felonies and false claims to U.S. citizenship. Although the attorney general (AG) has restricted §209(c)’s application to violent or dangerous crimes, it remains a broad waiver for those immigrants who fit within the small class of people who still are eligible. In 2002, the AG severely restricted the reach of the INA §209(c) waiver for criminal cases. Matter of Jean, 23 I&N Dec. 373 (AG 2002), held that those who were convicted of violent or dangerous crimes should be barred from the waiver except in extraordinary circumstances. Matter of Jean requires adjudicators to look at the underlying facts of the crime in question and to make an individualized determination as to whether the offense that was committed was a violent or dangerous crime, for purposes of exercising discretion. There has been some confusion about whether “violent or dangerous crime” is the same as “crime of violence,” which is a category of aggravated felonies and is defined at 18 USC §16. The AG was quite clear in Matter of Jean that these are distinct standards, even stating that it was “unnecessary” to decide whether the offense in question was a crime of violence. More importantly, the categorical or modified categorical approach utilized in determining whether an offense is a crime of violence does not apply to §209(c) waivers or to the exercise of discretion in general. A fact-based approach to adjudication should apply, and the adjudicator can consider factual documents such as police reports, as well as your client’s explanation of the event, including context and extenuating circumstances. $149 MEMBER PRICE $229 REGULAR BUY Excerpted from J. Kain, “INA §209(c) Waivers for Refugees and Asylees,” The Waivers Book 241 (AILA 2011). Many footnotes have been omitted from this version but appear in the original. 22 VOICE

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