Beware of secondary source errors when conducting legal research.

Sunday, March 28th, 2010
By: Jonathan MontagJ.D.

Something very big is happening in May at a U.S. Consulate abroad. More details later, but rest assured, if all goes well, it could be a highlight of my career. To prepare, I had to do some research today. What I learned is that sometimes writers can be very careless. They write things that just are not so, or at least appear not to be so. The issue I was researching is the effect of the 10-year bar at INA § 212(a)(9)(B) on battered spouses who are immigrating to the United States. The law says that there is an exception at 212(a)(9)(B) for battered women and children (they better not mean “women,” but rather, “people”) if there was a substantial connection between the battery or cruelty and the alien’s violation of the terms of the alien’s nonimmigrant visa. 212(a)(9)(B)(iii)(IV).

AILA put out a long “practice advisory” on a May 6, 2009, USCIS memo on the subject. The advisory states:

Certain battered spouses, parents and children are protected from accumulating ULP [unlawful presence]. An approved VAWA self-petitioner, and her children, can claim an exception from the three and ten year bars where there is a substantial connection between the abuse, the ULP, and her departure from the U.S.”

There is no footnote or reference to where these two sentences come from. It cannot be from 212(a)(9)(B)(iii)(IV), because that exception is if there is a abuse-related reason for violating a nonimmigrant visa, not departure. A strict reading seems to indicate that if an alien entered the country legally and then violated the terms of the visa because of abuse, the 212(a)(9) bars would not apply. However, it does not say that an alien who entered the United States without inspection or fraudulently would not be subject to the bar. Nor does it say that an alien who entered with a visa, overstayed or otherwise violated the terms of a visa, then got involved in an abusive relationship and then left the country because of the abuser is exempt from the bar. This is the implication of the practice advisory and it seems wrong to me. It is violation of the terms of a visa after lawful entry because of abuse that is the exception to the bar, not leaving because of abuse after unlawful entry or for violating the terms of a visa before encountering abuse that then motivates a departure.

Gordon, Mailman, and Yale Loehr, write, “Qualified self-petitioners are exempt from the three-year and ten-year bars to admissibility triggered by previous unlawful presence, if they demonstrate a “substantial connection” between the abuse that they suffered and their unlawful presence.” Immigration Law and Procedure§ 41.05(6)(b). This implies that if an alien enters the United States independently of abuse either legally, without inspection, or by fraud (again, say the alien did not meet the abuser until after he or she entered the United States) and then gets caught up in abuse that causes the alien to accrue too much unlawful presence, the bar would not apply. This is not what the statute says. Only if the alien entered with a valid visa and then violated its terms or overstayed because of abuse, would there be no 212(a)(9)(B) bars.

Kurzban’s Immigration Law Sourcebook gets it right. It states,”The provision does not apply to spouses or children subjected to battery or extreme, if there is a relationship between the battery or cruelty and the violation of the term of the spouse or child’s nonimmigrant stay.”

Kurzban and Gordon, Mailman and Yale Loehr both note that the bar does not apply if the alien arrived before April 1, 1997, citing IIRIRA § 301(c)(2). The AILA Practice Advisory does not mention this tidbit. Neither source that does mention it goes through the painstaking chain of statutes that leads to that conclusion which is somewhat ambiguous. Unfortunately, there does not appear to be any government source of interpretation to confirm that observation. I will find out in May if the government accepts the chain of statutes as leading to that conclusion. It is always good to go back and check original sources and to rely on sources that footnote their wisdom. The stakes are too high not too.  Published March 28, 2010.



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