Ask an Immigration Lawyer: when there are no waivers

Immigration attorney Aggie R. Hoffman answers questions about immigrating to the United States from those submitted by the readers.


From a reader:

My father is undocumented; an "illegal". He has been deported a couple of times and he manages to come back,this last time he got caught and is in prison in Texas. my mother and father are married. She is an American citizen. They filed in 1998 [for immigration papers] but where denied because of something he did in the 80's something to do with drugs, I am not sure. Recently I became a member of the National Guard. Can I in any way help him? Is there any help for him?

Reply:

Preliminarily, thank you for your military service and for keeping America safe.

Keeping families together and bringing skilled and gifted people to the U.S., while giving refuge to those who have suffered persecution is the foundation of U.S. immigration law. At the same time, the law also aims to protect us from those who would harm society. So, not everyone who knocks at the door may enter.

There are many classes of people who are inadmissible to the U.S. Some offenses can be waived (forgiven) if exclusion of the intending immigrant would cause "exceptional and extremely unusual hardship" to a U.S. citizen or lawful resident parent or spouse. In some cases the standard is slightly lower, being limited to "extreme hardship." It depends on whether the intending immigrant is in removal (deportation) proceedings or just in unlawful status, thus requiring to be processed while outside the U.S.

You will notice that hardship to children is not included as a basis for a waiver (pardon). So, your role would be limited, if any. The focus, if possible at all, is on your mother, the wife.

While the facts presented by your case are incomplete, I will address what may be and what is not possible.

Just as the law provides for many ways to immigrate to the U.S., it also punishes and prevents entry by certain people. Those inadmissible fall into several categories: certain criminals, security threats, prior immigration violators, those afflicted with communicable diseases, and those who would be financial burdens. Some of these grounds are eligible for waivers (pardons) while others are not.

Your father appears to fall into the first two categories. It appears that he has a conviction for a drug offense and he has illegally entered the U.S. after being removed (deported). In general, drug offenses are felonies and are not forgivable. Even an expungement does not help. The only possible solution is to reopen the criminal conviction and turn it into a lesser offense or eliminate it. One way to do that is to get the entire court record of conviction and look for procedural errors. For example: the law in a criminal proceeding requires that the person charged with a crime be advised by the court: "if you are not a U.S. citizen, a plea of guilty and conviction may result in your removal." On the other hand, if the conviction is the result of a trial, no error would be committed if the court did not give the warning.

Your father has also violated U.S. immigration laws more than once. The most significant is that he appears to have been removed from the U.S. and illegally reentered thereafter more than once. Unlawful entry after removal is a felony. It is likely that is why he is now serving time in a Texas prison.

The harsh reality is that there appear to be no waivers available for your father. He is permanently inadmissible to the U.S.



Aggie R. Hoffman is a Certified Specialist in Immigration and Nationality Law, licensed by the State Bar of California and certified by the Bd.. of Legal Specialization. Ms. Hoffman has over 25 years of experience in a variety aspects of immigration law, from employment based (investors and PERM) to family immigration. Her victories include cases in Immigration Court, Board of Immigration Appeals, and Ninth Circuit Court of Appeals, focusing on reopening proceedings based on ineffective counsel. For more information, see www.arhlaw.biz.