Use of Substitute Sponsor if Visa Petitioner Has Died (Family Sponsor
Immigration Act of 2002)
Petitioner's Death Prior to
Approval of Petition:
The
Family Sponsor Immigration
Act of 2002 was signed into law on March 13,
2002. In a June 15, 2002 memo, INS verifies that the new law permits the foreign
national's spouse, parent, mother-in-law, father-in-law, sibling, child who is
at least 18 years of age, son-in-law, daughter-in-law, sister-in-law,
brother-in-law, grandparent, grandchild, or legal guardian to become a
substitute sponsor if a family-based visa petitioner dies following the approval
of the I-130 petition but before the foreign national obtains permanent
residence. Unfortunately, there is no provision for a substitute sponsor if the
I-130 is not approved prior to the original sponsoring relative’s death.
Even if the I-130 has been approved, Mr. Williams, Executive Associate
Commissioner in the Office of Field Operations at INS, has instructed INS
offices that reinstatement of the application to adjust status is not automatic
but continues to be a matter of discretion. INS must continue to determine
whether "humanitarian reinstatement" is appropriate based on the individual
facts of the case. The Memo suggests that a major factor to consider is whether
"failure to reinstate would lead to a harsh result contrary to the goal of
family reunification."
DEATH OF A FAMILY MEMBER DURING
THE IMMIGRATION
PROCESS
Petitioner's Death Prior to Approval of Petition
Statutory
1. Immigration and Nationality Act of 1952 (INA), Pub.L.No. 82-414, 66 Stat. 163 (codified as amended at 8 USC § 1101-1524)(hereinafter INA); INA § 205, 8 U.S.C. 1155
The Attorney General may, at any time, for what she deems to be good and sufficient cause, revoke the approval of any family petition under the immediate relative or preference categories. Notice of revocation must be mailed to the petitioner's last known address as well as communicated through the Secretary of State to the beneficiary before he or she enters the United States.
Regulations
1. 8 CFR § 205.1(a)(3)(i) Automatic Revocation of Immediate Relative and Family Sponsored Petition
Approval of a visa petition of a relative of a United States citizen or a permanent alien resident is automatically revoked under several circumstances, including death. The petition is revoked, inter alia, based
(B) Upon the death of the petitioner or beneficiary.
(C) Upon the death of the petitioner unless the Attorney General in her discretion determines that for humanitarian reasons revocation would be inappropriate.
8 CFR 213a.2(b) - Affidavit of Sponsors
(i) In the case of an immediate relative and family based relative, the person who filed the immigrant visa petition, the approval of which forms the basis of the intending immigrant's eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or as a family-sponsored immigrant, must execute an affidavit of support on behalf of the intending immigrant.
KEY CONSIDERATION - INVOKING INS' DISCRETION
If the petitioner dies, the INS in its discretion may determine that revocation would be inappropriate for humanitarian reasons. 1However, there exists no such similar regulatory provision when the beneficiary dies. 2A challenge to this inflexible regulation has been rejected on the ground of proper exercise of discretion. Thus, derivative family members of the deceased beneficiary would be unable to immigrate to the United States under any circumstances.
Challenges in federal court have been successful in cases where the INS refused to revalidate a revoked petition under the humanitarian exception when the petitioner died. Pierno v. INS, 397 F.2d 949 (2nd Cir. 1968).
In Pierno v. INS, supra, the beneficiary of an approved petition filed by her husband had applied for an adjustment of her status to that of a permanent resident. When her stepson filed an annulment action against her and his father, the INS stayed all proceedings in connection with her application for adjustment of status pending the outcome of that action. Six months later the annulment action was dismissed on the merits. Her husband died seven days from the dismissal of the action. The INS held that the petitioner's death automatically revoked the approval, and for that reason alone found that she did not meet the statutory requirements for eligibility for adjustment of status.
The Second Circuit noted that "if the proceedings had continued in their normal course, her status would most probably have been adjusted before her husband's untimely death." Id. at 951. It found in essence that an alien should not be penalized as the result of interrupting events unrelated to the normal investigation process and remanded her cause to the INS for further proceedings not inconsistent with its opinion. Id.4 The court did not find it necessary to hold that the government was estopped.
The humanitarian factors would doubtlessly be far greater when the beneficiaries involve spouses and minor children who have been living in the United States. On the other hand, adult beneficiaries with families of their own and living overseas would most likely not lead to a favorable exercise of discretion.
A case in point is Ba Lun Tan v. David N. Ilchert, 1992 U.S. Dist. LEXIS 15098. In that case, plaintiff's mother, Yi Yao Li, became a naturalized citizen on April 11, 1989. Yi Yao Li, had three adult children residing in the United States two of whom were lawful permanent residents and one of whom was a naturalized citizen. Yi Yao Li petitioned for her three other children living in China all of whom were married with independent families. Prior to filing the petitions on behalf of her adult children, Yi Yao Li informed officials in the INS and Department of State that she had only one month to live and requested expedited processing.
On April 19, 1989, INS approved the petition and forwarded the approval to the American Consulate. On April 20, 1989, the American Consulate forwarded visa packets to the plaintiffs. Upon receipt of the approval the plaintiffs did not inform the American Consulate that they had all of the necessary documents till May 22, 1989. The American Consulate requested visa numbers on June 19, 1989. However, Li died on June 15, 1989 before the American Consulate could issue the visas. Subsequently, the District Director revoked the approved petitions. Plaintiffs requested the INS to re-approve the visa petitions on humanitarian grounds under 8 C.F.R. § 205.1 (a) (3). INS refused the request. Plaintiffs initiated an action in the US District Court for the Northern District Of California.
The District Court held that INS did not abuse its discretion as it was supported by substantial evidence. The District Court further noted that neither the INS nor the American Consulate unreasonably delayed the processing. Indeed, the plaintiffs bore some responsibility for a one month lapse in notifying the American Consulate that their papers were in order. The Court also upheld the INS's viewpoint that Congress had placed lower priority on reuniting adult siblings than it had on reuniting spouses or parents with their minor children. The Court noted that the plaintiffs were all adults in middle age, each with independent families. Furthermore, plaintiffs could have reapplied through their sister who had become a naturalized citizen even though it would have taken several more years.
PROBLEM AREAS
Petitioner's Death Prior to Approval of Petition
The cases cited in the previous section relate to instances where the petitioner died after the approval of the initial petition. The regulation, at 8 CFR § 205.1 (a)(3)(i)(C), specifically states that discretion based on humanitarian grounds can only be exercised upon the automatic revocation of an approved petition.
In immediate relatives situations, the Petition to Sponsor an Alien Relative (Form I-130) and Application to Register Permanent Residence or Adjust Status (Form I-485) are submitted simultaneously with the INS. Both are adjudicated at the same time during the interview. What if the petitioner dies prior to the adjudication of the basic relative petition?
The Ninth Circuit has explicitly held that the humanitarian exception does not operate unless there has been an approval. Dodig v. INS, 9.F3d 1418 (9th Cir. 1993). Interestingly, two lower courts have creatively avoided this problem.
In The Estate Of Wing Hing Tow v. INS, 1990 U.S. Dist. LEXIS 16043, Tow a U.S. citizen, sought to sponsor Chao, for permanent residence as his married daughter on March 11, 1986.
The INS did not accept Chao's birth certificate from the Republic of China and requested additional evidence of the claimed relation between father and daughter. After submitting the requested evidence INS made no further determination on the case. It took the next several years for Tow and Chao to coax the INS to render a decision.
Eventually, Tow, a 70 year old man, became seriously ill in the winter of 1990, prompting his attorney on February 13, 1990, to inquire further about his case. Attention was also drawn toward the grave state of his health. Taking heed of this request, the INS examiner ultimately approved Tow's visa petition on February 28, 1990, nearly four years after the petition was originally filed. As misfortune would have it, Tow died just three days earlier on February 25, 1990.
The INS was unaware of Tow's death when it approved the petition. Chao notified the INS of Tow's death on March 14, 1990, and requested that the INS retain the petition for humanitarian reasons. This request was denied.
Plaintiffs, Chao and now the Estate of Tow, sued the INS in the US District Court for the Northern District of California. At the outset, the Court dismissed plaintiffs' estoppel claim on ground that there was no "affirmative misconduct" on the part of the INS . The INS actions or inactions, which had the effect of deferring adjudication on the petition for nearly four years, was not enough to show misconduct as they were not in any sense intentional.
The Court also rejected INS' argument that § 205.1 (a) (3) was inapplicable since Tow died prior to the approval of the petition. "The real question here, then, is not whether the petition is invalid, but whether the INS has the authority to excuse the invalidity of Tow's petition for humanitarian reasons."
The Court held that a strict reading of section 205.1 (a) (3) yields three basic prerequisites to eligibility of humanitarian relief: (1) that the INS approve the petition; (2) that the beneficiary's application for permanent status be awaiting final decision; and (3) that the death of the petition occur. Id. at 14. All of these elements were present in Tow. The only issue was whether the timing of a death before the approval negated the benefit in section 205.1(a)(3) that otherwise would be available.
The court was unable to discern any meaningful post-death and pre-death approval cases to legitimate the practice of exercising discretionary authority to retain the latter for humanitarian reasons, but not the former. Accordingly, the Court found that the INS' decision not to grant humanitarian relief from revocation was arbitrary, capricious and not in accordance with law.
Tow is interesting because the court upheld the humanitarian exception even though the petition was approved in error. Tow died three days before the INS erroneously approved the petition. At issue is whether humanitarian relief could be invoked if there was no approval whatsoever. In Tow, the petition was approved, albeit erroneously. Could one argue that the petition ought to have been approved retroactively? The next case answers the question affirmatively.
Clara Sanchez-Trujillo v. INS, 632 F. Supp. 1546 (District of N. Carolina, April 21, 1986) revolves around the fact that the INS misled the petitioner. Sanchez filed a petition on behalf of his daughter who was born out of wedlock. The INS denied the petition on grounds that he was not eligible to file the petition if he had never been married to the mother. This was a misstatement of the law. As long as he had legitimated his plaintiff daughter before her eighteenth birthday, Sanchez was eligible to file a petition on her behalf.
About six years later, the plaintiff was advised that her father's petition could have been approved but for the INS' error. By then her father was suffering from acute schizophrenia, and before he could refile the petition, committed suicide. The plaintiff then filed with the INS a Motion to Reopen of the I-130 petition previously filed by her father and denied. The INS denied the Motion and plaintiff sued in the District Court in North Carolina.
The Court held that the plaintiff was "thrown off" by the INS' misstatement of the law to her father. If the INS had properly processed her father's petition, she no doubt would have obtained a decision from the INS before her father's death six years later. The court retroactively approved the petition to the petition, citing Pierno v. INS, supra, and held that the revocation of the petition would be inappropriate under the humanitarian reasons exception.
Both Tow, supra, and Clara Sanchez-Trujillo, supra, are remarkable for their innovative approaches in resolving the knotty problem of a lack of an approval prior to the petitioner's death. Indeed, the court in Clara Sanchez-Trujillo implicitly applied estoppel against the INS without stating so. When there has been no approval prior the petitioner's death, it is imperative to demonstrate extremely egregious factors for a court to creatively apply the humanitarian exception in the beneficiary's favor.
New Affidavit of Support Requirement
§ 551 of IIRAIRA created new § 213A of the INA which requires all persons who wish to sponsor immigrants to the United States to executive an affidavit of support on the family member's behalf.
The interim rule provides that the person who filed an immigrant visa petition must execute an affidavit of support on Form I-864 on behalf of the intending immigrant.6 If this person is unable to meet the minimum income requirement, a joint sponsor may execute a separate affidavit of support.
How will the CIS exercise its discretion in revalidating petitions for humanitarian reasons pursuant to 8 C.F.R. § 205.1(a)(3)(i)(C) in light of the new affidavit of support requirements?
The Family Sponsor Immigration Act of 2002 was signed into law on March 13, 2002. Johnny N. Williams, Executive Associate Commissioner in the Office of Field Operations at INS had issued a Memo on INS’ interpretation of certain provisions under this law on June 15, 2002. However, this Memo was only released recently. This law basically provides that another petitioner in a family-based (FB) case may file a substitute Affidavit of Support as the sponsor, if the original I-130 sponsoring relative has died.
In the June 15, 2002 Memo, Mr. Williams provides an interpretation of how the law has changed for family-based immigrants as of March 13, 2002. Mr. Williams verifies that the new law permits the foreign national's spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence.
Policy Change - Public Law 107-150, The Family Sponsor Immigration Act of 2002: Use of Substitute Sponsor if Visa Petitioner Has Died- 06/15/02 Johnny N. Williams HQOPS
http://www.immigration.gov/graphics/lawsregs/handbook/PL107_150Pub.pdf
Humanitarian Reinstatement Possible under Certain Conditions
Unfortunately, there is no provision for a substitute sponsor if the I-130 is not approved prior to the original sponsoring relative’s death. Even if the I-130 has been approved, Mr. Williams has instructed INS offices that reinstatement of the application to adjust status is not automatic but continues to be a matter of discretion. INS must continue to determine whether "humanitarian reinstatement" is appropriate based on the individual facts of the case. The Memo suggests that a major factor to consider is whether "failure to reinstate would lead to a harsh result contrary to the goal of family reunification."
INS Interpretation of Effective Date
Mr. Williams recognizes that the law became effective upon enactment and further specified that the law should be applied to cases in which the visa petitioner died before, on, or after March 13, 2002. Further, he specifically states that the law applies to pending cases, as well as to cases filed on or after March 13, 2002.
For cases in which the visa petitioner died before March 13, 2002, Mr. Williams has indicated that the foreign national must formally request the INS to reinstate the petition and simultaneously file the I-864 from the substitute sponsor. If INS made a final decision denying adjustment prior to the enactment of this law, the Memo instructs the INS to favorably consider a properly filed motion to reopen and to consider enactment of the Family Sponsor Immigration Act of 2002 as a sufficient reason for not meeting the usual 30-day deadline for the motion to reopen. The motion should include a substitute sponsor's I-864 and the filing fee required for a motion to reopen.
Near Death Situations
Suppose a petitioning client has met with an accident and is in a coma with little or no hope of recovery. The petition cannot possibly be revoked even if the petitioner is on life's edge, though complying with the affidavit of support requirements would still pose a problem in the absence of specific regulations.
Although the petitioner's presence is required at the adjustment of status interview, the INS may waive an interview in the case of a child under the age of fourteen; when the applicant is clearly ineligible for adjustment; or when it is determined by the Service that an interview is unnecessary.
PROCEDURES
One does not need to initiate an action in a federal court to invoke the INS's discretion under 8 C.F.R. § 205.1 (a) (3) (i) (C). A federal court only reviews whether there was an abuse of discretion on the part of the INS in refusing to revalidate the petition.
If the I-130 petition has already been approved and the petitioner dies prior to the beneficiary being eligible to enter the United States, the Service Center that approved the petition should be notified about the death of the petitioner. Immediately contacting the INS as well as the relevant consular post, if the beneficiary resides abroad, would establish the bona fides of the beneficiary when claiming the humanitarian exception.
After the INS Service Center receives notice, it will issue a letter indicating that the petition has been automatically revoked in accordance with 8 CFR section 205.1. The beneficiary should then request the Service Center, in the form of a Motion to Reopen and Reconsider, to revalidate revocation under the humanitarian exception. If the beneficiary is awaiting consular processing, a sympathetic consular official could also be persuaded to request consideration of the INS to reinstate the petition for humanitarian reasons.
The request should elaborate the hardship that would result if the beneficiary is unable to immigrate to the U.S. The case would be more sympathetic if it involved a spouse or minor children who have already been living in the United States and there were no alternative immigration options. If the beneficiary is outside the United States, a humanitarian argument could still be made if the beneficiary will be left behind while the rest of the family is residing in the United States. If the INS refuses to revalidate the petition, a challenge in federal court to review whether the INS abused its discretion would be the next step.
VI WIDOW/WIDOWER PETITION AS AN ALTERNATIVE
Because it is uncertain that the INS would exercise its discretion favorably, resulting in time-consuming and costly federal litigation, counsel would first explore whether the surviving relative can refile as a self-petitioner under the widow or widower provisions. An alien who was the spouse of a U.S. citizen for at least two years at the time of the citizen's death may self-petition, provided that: 1) the alien spouse was not legally separated from the U.S. citizen at the time of the citizen's death and ii) the alien spouse files a petition within two years after the citizen's death. An alien spouse who meets these conditions can file as an immediate relative until he or she subsequently remarries.
A child of a widow or widower classified as an immediate relative is also eligible for derivative classification as an immediate relative
Petitioner's Death Prior to Approval of Petition
Statutory
1. Immigration and Nationality Act of 1952 (INA), Pub.L.No. 82-414, 66 Stat. 163 (codified as amended at 8 USC § 1101-1524)(hereinafter INA); INA § 205, 8 U.S.C. 1155
The Attorney General may, at any time, for what she deems to be good and sufficient cause, revoke the approval of any family petition under the immediate relative or preference categories. Notice of revocation must be mailed to the petitioner's last known address as well as communicated through the Secretary of State to the beneficiary before he or she enters the United States.
Regulations
1. 8 CFR § 205.1(a)(3)(i) Automatic Revocation of Immediate Relative and Family Sponsored Petition
Approval of a visa petition of a relative of a United States citizen or a permanent alien resident is automatically revoked under several circumstances, including death. The petition is revoked, inter alia, based
(B) Upon the death of the petitioner or beneficiary.
(C) Upon the death of the petitioner unless the Attorney General in her discretion determines that for humanitarian reasons revocation would be inappropriate.
8 CFR 213a.2(b) - Affidavit of Sponsors
(i) In the case of an immediate relative and family based relative, the person who filed the immigrant visa petition, the approval of which forms the basis of the intending immigrant's eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or as a family-sponsored immigrant, must execute an affidavit of support on behalf of the intending immigrant.
KEY CONSIDERATION - INVOKING INS' DISCRETION
If the petitioner dies, the INS in its discretion may determine that revocation would be inappropriate for humanitarian reasons. 1However, there exists no such similar regulatory provision when the beneficiary dies. 2A challenge to this inflexible regulation has been rejected on the ground of proper exercise of discretion. Thus, derivative family members of the deceased beneficiary would be unable to immigrate to the United States under any circumstances.
Challenges in federal court have been successful in cases where the INS refused to revalidate a revoked petition under the humanitarian exception when the petitioner died. Pierno v. INS, 397 F.2d 949 (2nd Cir. 1968).
In Pierno v. INS, supra, the beneficiary of an approved petition filed by her husband had applied for an adjustment of her status to that of a permanent resident. When her stepson filed an annulment action against her and his father, the INS stayed all proceedings in connection with her application for adjustment of status pending the outcome of that action. Six months later the annulment action was dismissed on the merits. Her husband died seven days from the dismissal of the action. The INS held that the petitioner's death automatically revoked the approval, and for that reason alone found that she did not meet the statutory requirements for eligibility for adjustment of status.
The Second Circuit noted that "if the proceedings had continued in their normal course, her status would most probably have been adjusted before her husband's untimely death." Id. at 951. It found in essence that an alien should not be penalized as the result of interrupting events unrelated to the normal investigation process and remanded her cause to the INS for further proceedings not inconsistent with its opinion. Id.4 The court did not find it necessary to hold that the government was estopped.
The humanitarian factors would doubtlessly be far greater when the beneficiaries involve spouses and minor children who have been living in the United States. On the other hand, adult beneficiaries with families of their own and living overseas would most likely not lead to a favorable exercise of discretion.
A case in point is Ba Lun Tan v. David N. Ilchert, 1992 U.S. Dist. LEXIS 15098. In that case, plaintiff's mother, Yi Yao Li, became a naturalized citizen on April 11, 1989. Yi Yao Li, had three adult children residing in the United States two of whom were lawful permanent residents and one of whom was a naturalized citizen. Yi Yao Li petitioned for her three other children living in China all of whom were married with independent families. Prior to filing the petitions on behalf of her adult children, Yi Yao Li informed officials in the INS and Department of State that she had only one month to live and requested expedited processing.
On April 19, 1989, INS approved the petition and forwarded the approval to the American Consulate. On April 20, 1989, the American Consulate forwarded visa packets to the plaintiffs. Upon receipt of the approval the plaintiffs did not inform the American Consulate that they had all of the necessary documents till May 22, 1989. The American Consulate requested visa numbers on June 19, 1989. However, Li died on June 15, 1989 before the American Consulate could issue the visas. Subsequently, the District Director revoked the approved petitions. Plaintiffs requested the INS to re-approve the visa petitions on humanitarian grounds under 8 C.F.R. § 205.1 (a) (3). INS refused the request. Plaintiffs initiated an action in the US District Court for the Northern District Of California.
The District Court held that INS did not abuse its discretion as it was supported by substantial evidence. The District Court further noted that neither the INS nor the American Consulate unreasonably delayed the processing. Indeed, the plaintiffs bore some responsibility for a one month lapse in notifying the American Consulate that their papers were in order. The Court also upheld the INS's viewpoint that Congress had placed lower priority on reuniting adult siblings than it had on reuniting spouses or parents with their minor children. The Court noted that the plaintiffs were all adults in middle age, each with independent families. Furthermore, plaintiffs could have reapplied through their sister who had become a naturalized citizen even though it would have taken several more years.
PROBLEM AREAS
Petitioner's Death Prior to Approval of Petition
The cases cited in the previous section relate to instances where the petitioner died after the approval of the initial petition. The regulation, at 8 CFR § 205.1 (a)(3)(i)(C), specifically states that discretion based on humanitarian grounds can only be exercised upon the automatic revocation of an approved petition.
In immediate relatives situations, the Petition to Sponsor an Alien Relative (Form I-130) and Application to Register Permanent Residence or Adjust Status (Form I-485) are submitted simultaneously with the INS. Both are adjudicated at the same time during the interview. What if the petitioner dies prior to the adjudication of the basic relative petition?
The Ninth Circuit has explicitly held that the humanitarian exception does not operate unless there has been an approval. Dodig v. INS, 9.F3d 1418 (9th Cir. 1993). Interestingly, two lower courts have creatively avoided this problem.
In The Estate Of Wing Hing Tow v. INS, 1990 U.S. Dist. LEXIS 16043, Tow a U.S. citizen, sought to sponsor Chao, for permanent residence as his married daughter on March 11, 1986.
The INS did not accept Chao's birth certificate from the Republic of China and requested additional evidence of the claimed relation between father and daughter. After submitting the requested evidence INS made no further determination on the case. It took the next several years for Tow and Chao to coax the INS to render a decision.
Eventually, Tow, a 70 year old man, became seriously ill in the winter of 1990, prompting his attorney on February 13, 1990, to inquire further about his case. Attention was also drawn toward the grave state of his health. Taking heed of this request, the INS examiner ultimately approved Tow's visa petition on February 28, 1990, nearly four years after the petition was originally filed. As misfortune would have it, Tow died just three days earlier on February 25, 1990.
The INS was unaware of Tow's death when it approved the petition. Chao notified the INS of Tow's death on March 14, 1990, and requested that the INS retain the petition for humanitarian reasons. This request was denied.
Plaintiffs, Chao and now the Estate of Tow, sued the INS in the US District Court for the Northern District of California. At the outset, the Court dismissed plaintiffs' estoppel claim on ground that there was no "affirmative misconduct" on the part of the INS . The INS actions or inactions, which had the effect of deferring adjudication on the petition for nearly four years, was not enough to show misconduct as they were not in any sense intentional.
The Court also rejected INS' argument that § 205.1 (a) (3) was inapplicable since Tow died prior to the approval of the petition. "The real question here, then, is not whether the petition is invalid, but whether the INS has the authority to excuse the invalidity of Tow's petition for humanitarian reasons."
The Court held that a strict reading of section 205.1 (a) (3) yields three basic prerequisites to eligibility of humanitarian relief: (1) that the INS approve the petition; (2) that the beneficiary's application for permanent status be awaiting final decision; and (3) that the death of the petition occur. Id. at 14. All of these elements were present in Tow. The only issue was whether the timing of a death before the approval negated the benefit in section 205.1(a)(3) that otherwise would be available.
The court was unable to discern any meaningful post-death and pre-death approval cases to legitimate the practice of exercising discretionary authority to retain the latter for humanitarian reasons, but not the former. Accordingly, the Court found that the INS' decision not to grant humanitarian relief from revocation was arbitrary, capricious and not in accordance with law.
Tow is interesting because the court upheld the humanitarian exception even though the petition was approved in error. Tow died three days before the INS erroneously approved the petition. At issue is whether humanitarian relief could be invoked if there was no approval whatsoever. In Tow, the petition was approved, albeit erroneously. Could one argue that the petition ought to have been approved retroactively? The next case answers the question affirmatively.
Clara Sanchez-Trujillo v. INS, 632 F. Supp. 1546 (District of N. Carolina, April 21, 1986) revolves around the fact that the INS misled the petitioner. Sanchez filed a petition on behalf of his daughter who was born out of wedlock. The INS denied the petition on grounds that he was not eligible to file the petition if he had never been married to the mother. This was a misstatement of the law. As long as he had legitimated his plaintiff daughter before her eighteenth birthday, Sanchez was eligible to file a petition on her behalf.
About six years later, the plaintiff was advised that her father's petition could have been approved but for the INS' error. By then her father was suffering from acute schizophrenia, and before he could refile the petition, committed suicide. The plaintiff then filed with the INS a Motion to Reopen of the I-130 petition previously filed by her father and denied. The INS denied the Motion and plaintiff sued in the District Court in North Carolina.
The Court held that the plaintiff was "thrown off" by the INS' misstatement of the law to her father. If the INS had properly processed her father's petition, she no doubt would have obtained a decision from the INS before her father's death six years later. The court retroactively approved the petition to the petition, citing Pierno v. INS, supra, and held that the revocation of the petition would be inappropriate under the humanitarian reasons exception.
Both Tow, supra, and Clara Sanchez-Trujillo, supra, are remarkable for their innovative approaches in resolving the knotty problem of a lack of an approval prior to the petitioner's death. Indeed, the court in Clara Sanchez-Trujillo implicitly applied estoppel against the INS without stating so. When there has been no approval prior the petitioner's death, it is imperative to demonstrate extremely egregious factors for a court to creatively apply the humanitarian exception in the beneficiary's favor.
New Affidavit of Support Requirement
§ 551 of IIRAIRA created new § 213A of the INA which requires all persons who wish to sponsor immigrants to the United States to executive an affidavit of support on the family member's behalf.
The interim rule provides that the person who filed an immigrant visa petition must execute an affidavit of support on Form I-864 on behalf of the intending immigrant.6 If this person is unable to meet the minimum income requirement, a joint sponsor may execute a separate affidavit of support.
How will the CIS exercise its discretion in revalidating petitions for humanitarian reasons pursuant to 8 C.F.R. § 205.1(a)(3)(i)(C) in light of the new affidavit of support requirements?
The Family Sponsor Immigration Act of 2002 was signed into law on March 13, 2002. Johnny N. Williams, Executive Associate Commissioner in the Office of Field Operations at INS had issued a Memo on INS’ interpretation of certain provisions under this law on June 15, 2002. However, this Memo was only released recently. This law basically provides that another petitioner in a family-based (FB) case may file a substitute Affidavit of Support as the sponsor, if the original I-130 sponsoring relative has died.
In the June 15, 2002 Memo, Mr. Williams provides an interpretation of how the law has changed for family-based immigrants as of March 13, 2002. Mr. Williams verifies that the new law permits the foreign national's spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence.
Policy Change - Public Law 107-150, The Family Sponsor Immigration Act of 2002: Use of Substitute Sponsor if Visa Petitioner Has Died- 06/15/02 Johnny N. Williams HQOPS
http://www.immigration.gov/graphics/lawsregs/handbook/PL107_150Pub.pdf
Humanitarian Reinstatement Possible under Certain Conditions
Unfortunately, there is no provision for a substitute sponsor if the I-130 is not approved prior to the original sponsoring relative’s death. Even if the I-130 has been approved, Mr. Williams has instructed INS offices that reinstatement of the application to adjust status is not automatic but continues to be a matter of discretion. INS must continue to determine whether "humanitarian reinstatement" is appropriate based on the individual facts of the case. The Memo suggests that a major factor to consider is whether "failure to reinstate would lead to a harsh result contrary to the goal of family reunification."
INS Interpretation of Effective Date
Mr. Williams recognizes that the law became effective upon enactment and further specified that the law should be applied to cases in which the visa petitioner died before, on, or after March 13, 2002. Further, he specifically states that the law applies to pending cases, as well as to cases filed on or after March 13, 2002.
For cases in which the visa petitioner died before March 13, 2002, Mr. Williams has indicated that the foreign national must formally request the INS to reinstate the petition and simultaneously file the I-864 from the substitute sponsor. If INS made a final decision denying adjustment prior to the enactment of this law, the Memo instructs the INS to favorably consider a properly filed motion to reopen and to consider enactment of the Family Sponsor Immigration Act of 2002 as a sufficient reason for not meeting the usual 30-day deadline for the motion to reopen. The motion should include a substitute sponsor's I-864 and the filing fee required for a motion to reopen.
Near Death Situations
Suppose a petitioning client has met with an accident and is in a coma with little or no hope of recovery. The petition cannot possibly be revoked even if the petitioner is on life's edge, though complying with the affidavit of support requirements would still pose a problem in the absence of specific regulations.
Although the petitioner's presence is required at the adjustment of status interview, the INS may waive an interview in the case of a child under the age of fourteen; when the applicant is clearly ineligible for adjustment; or when it is determined by the Service that an interview is unnecessary.
PROCEDURES
One does not need to initiate an action in a federal court to invoke the INS's discretion under 8 C.F.R. § 205.1 (a) (3) (i) (C). A federal court only reviews whether there was an abuse of discretion on the part of the INS in refusing to revalidate the petition.
If the I-130 petition has already been approved and the petitioner dies prior to the beneficiary being eligible to enter the United States, the Service Center that approved the petition should be notified about the death of the petitioner. Immediately contacting the INS as well as the relevant consular post, if the beneficiary resides abroad, would establish the bona fides of the beneficiary when claiming the humanitarian exception.
After the INS Service Center receives notice, it will issue a letter indicating that the petition has been automatically revoked in accordance with 8 CFR section 205.1. The beneficiary should then request the Service Center, in the form of a Motion to Reopen and Reconsider, to revalidate revocation under the humanitarian exception. If the beneficiary is awaiting consular processing, a sympathetic consular official could also be persuaded to request consideration of the INS to reinstate the petition for humanitarian reasons.
The request should elaborate the hardship that would result if the beneficiary is unable to immigrate to the U.S. The case would be more sympathetic if it involved a spouse or minor children who have already been living in the United States and there were no alternative immigration options. If the beneficiary is outside the United States, a humanitarian argument could still be made if the beneficiary will be left behind while the rest of the family is residing in the United States. If the INS refuses to revalidate the petition, a challenge in federal court to review whether the INS abused its discretion would be the next step.
VI WIDOW/WIDOWER PETITION AS AN ALTERNATIVE
Because it is uncertain that the INS would exercise its discretion favorably, resulting in time-consuming and costly federal litigation, counsel would first explore whether the surviving relative can refile as a self-petitioner under the widow or widower provisions. An alien who was the spouse of a U.S. citizen for at least two years at the time of the citizen's death may self-petition, provided that: 1) the alien spouse was not legally separated from the U.S. citizen at the time of the citizen's death and ii) the alien spouse files a petition within two years after the citizen's death. An alien spouse who meets these conditions can file as an immediate relative until he or she subsequently remarries.
A child of a widow or widower classified as an immediate relative is also eligible for derivative classification as an immediate relative
Posted: Fri - September 26, 2003 at 07:30 PM
Quick Links
Calendar
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
Categories
Archives
XML/RSS Feed
Statistics
Total entries in this blog:
Total entries in this category:
Published On: Dec 09, 2004 09:19 PM
Total entries in this category:
Published On: Dec 09, 2004 09:19 PM