tag:blogger.com,1999:blog-2399750140932278409.post4024902254486340252..comments2024-01-02T04:16:32.146-08:00Comments on The Insightful Immigration Blog – Commentaries on Immigration Policy, Cases and Trends: WAIVING GOODBYE TO UNAPPEALABLE DECISIONS: INDIRECT AAO JURISDICTION, OR WHY HAVING YOUR APPEAL DISMISSED CAN SOMETIMES BE A GOOD THINGCyrus D. Mehta & Associates, PLLChttp://www.blogger.com/profile/02968992345997982326noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-2399750140932278409.post-12820774867034820582013-08-11T12:01:24.889-07:002013-08-11T12:01:24.889-07:00I've used a variation of this "moot waive...I've used a variation of this "moot waiver" approach at an earlier stage of the process, often with clients who entered to seek asylum after traveling with false documents but who did not actually present the false documents to a U.S. official. If they later seek to adjust status based on an I-130 from an immediate relative, the CIS officer at the 485 interview will sometimes require a waiver of 212(a)(6)(C) (fraud and misrepresentation) when they were in fact charged and pled only to 212(a)(7)(A) (lacking documents), which doesn't usually require a waiver application. While I'm aware that CIS is not necessarily bound by the finding of the Immigration Judge, I usually respond to a request for a waiver or notice of intent to deny by arguing 1) no waiver should be required because the client wasn't charged with fraud at entry or removed on that basis but 2) just in case, here's a waiver application. Several of these have been approved with no indication of whether the waiver was approved or whether it was determined that it was not needed, so we don't know why.<br /><br />In other cases, the I-485 and the waiver were denied, often (but not always) with two decisions, one denying the 485 with instructions on how to file a motion to reopen/reconsider and a second denying the waiver with instructions on how to appeal to AAO. So I've taken the same approach with the AAO, saying that waiver shouldn't have been required but it should have been approved. AAO is so backed up (probably from David's moot waiver cases!) there hasn't been a decision on any of these. <br /><br />It's really important to plan ahead and not make any incorrect admissions on the waiver form in this situation. The forms are set up for applicants to admit they are admissible to a certain charge. Rather than admitting to being admissible, it's best to look for an "other" option, and explain that while the waiver shouldn't be required, it's being filed because USCIS is alleging inadmissibility based on a certain charge that is incorrect for the following reasons. Janet Higbiehttps://www.blogger.com/profile/06359947657905696573noreply@blogger.com