09 Nov 2011
209(c) waiver victory in Batavia, NY
Richard Geduldig writes: "On October 11, 2011, Immigration Judge
Philip Montante
issued a ten-page written decision granting adjustment of status with a
Section 209(c) waiver of grounds of inadmissibility to a refugee who
had an aggravated felony conviction, and who had been detained for
approximately one year in the Batavia (NY) Detention Center. This
case highlights several issues: 1) Following Matter of K-A, Immigration Judges should adjudicate adjustment of status applications filed by
asylees or refugees with aggravated felony convictions, versus
terminating their status, and should apply a lower evidentiary standard
on adjudicating I-602 vs I-601 waivers; 2) adjustment of status and a
waiver of inadmissibility can be granted, where it can be shown that
humanitarian concerns and truly compelling countervailing equities
exist; and 3) the value of expert affidavits and live testimony, both by
family members and experts, on the issue of hardship to the family if
the respondent is deported, and human rights conditions in the country
from which asylee or refugee status previously was granted. We
had the respondent’s United States citizen mother & wife testify in
Batavia, as well as two expert witnesses – one addressing the issue of
psychological and emotional hardship to the family, if the respondent
were to be deported to the Ukraine, from which country the entire family
had emigrated as refugees, and never returned; and another providing
testimony on country conditions awaiting a Jewish deportee, with
criminal convictions, to the Ukraine. Of particular importance in such
cases, I believe, is testimony in which the Immigration Judge
understands the unique characteristics (what I call the “profile”) of a
refugee who is forcibly returned from the United States, based on
criminal convictions – which makes the person a particular target of
corrupt and, in this case, anti-Semitic authorities. Indeed,
on the day that my client was released, it was a pleasure to receive a
telephone call from him, as his wife was driving him back home from
Batavia, in which he said, 'Richard, I can’t believe it. I’m actually in
a car in Manhattan, about to cross the Brooklyn Bridge and going home
to Brooklyn!' "