Michael Aytes Memorandum on IMBRA

[ellis-island 6]

Here is the link.

There are a couple of parts of this memo that concern me.

I have underlined them to point them out. One I think raises serious legal questions,

perhaps constitutional issues as well. The other I think is legally incorrect on its face and

I hope the memorandum will be rewritten to clarify this point.

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"A. Mandatory Submission of Information on Criminal Convictions for Specified Crimes

IMBRA provides that a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F information on any criminal convictions of the petitioner for any of the following “specified crimes”:

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"If the petitioner indicates that he or she has been convicted by a court or by a military tribunal for one of the specified crimes by checking one or more of the boxes in Part C., question 2 of Form I-129F, or USCIS ascertains through relevant background checks that the petitioner has been convicted, the petitioner will be required to submit certified copies of all court and police records showing the charges and dispositions for every such conviction. This is required even if the petitioner’s records were sealed or otherwise cleared."

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Here an obvious issue arises. What if the petitioner is unable to obtain copies of sealed or cleared records? Will DHS be satisfied with a letter from a clerk of court stating that the law forbids the opening of sealed records?

It's important to note, the question of what is a conviction in immigration law is very complicated. There have literally been hundreds of court cases addressing the issue. What if a prosecutor declines to prosecute after the petitioner attends some counseling program. Is this a conviction?

Under IMBRA, petitioners should be absolutely certain they have been convicted, before checking "yes" to that question. It is entirely possible they weren't convicted at all.

Also, a conviction that has been vacated on the merits is no longer a conviction. Some state post-conviction relief statutes are written to overturn a conviction on the merits. Yet, at one point the petitioner had been convicted. Would he be required to disclose a conviction that has been overturned?

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B. Filing Limitations

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3)."

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The IMBRA law itself specifies that the filing limitations apply to those petitions filed for different beneficiaries. The Aytes memorandum does not specify this. Thus, someone simply refiling to correct a previous filing for the same beneficiary would, according to the Aytes memorandum, be required to obtain a waiver.

This is simply incorrect.

Here is the law:

(underlining added for emphasis).

‘‘(2)(A) Subject to subparagraphs (B) and ©, a consular officer

may not approve a petition under paragraph (1) unless the officer

has verified that—

‘‘(i) the petitioner has not, previous to the pending petition,

petitioned under paragraph (1) with respect to two or more

applying aliens; and

‘‘(ii) if the petitioner has had such a petition previously

approved, 2 years have elapsed since the filing of such previously

approved petition.

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The law here refers to consular officers approving petitions - which is

incorrect. USCIS approves petitions. But ignoring that technical detail,

the rest of the this section of the law is clear. Consular officers must verify that

previously approved petitions were for two or more different

"applying aliens" before referring the case to DHS for a waiver.

Thus it is reasonable to assume that DHS need not issue waivers

for those petitioners who have filed two petitions for the same beneficiaries.

But unfortunately, where the law is clear on this point with regard to consulates,

it is ambiguous with regard to DHS.

I fear this Aytes memo will create confusion among adjudicators. It seems

to require waivers for multiple petitions filed for the same beneficiary, which

is contrary to the statute on its face.

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‘‘(B) The Secretary of Homeland Security may, in the Secretary’s

discretion, waive the limitations in subparagraph (A) if justification

exists for such a waiver. Except in extraordinary circumstances

and subject to subparagraph ©, such a waiver shall not be granted

if the petitioner has a record of violent criminal offenses against

a person or persons."

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There are problems with the way the IMBRA law was drafted. They Aytes memo

creates more ambiguity in a couple of areas.

[Dean iWait 0]

Thanks for the post Ellis.