The Importance of Knowing How Immigration Officers Think: I-601 Waiver Approved Despite a Prior Conviction for a Supposed Crime of Moral Turpitude
In 2014, Gonzalo married the mother of his children, Gwen, who was a United States Citizen. Since Gonzalo had entered the United States in 2004 with a tourist (B-2) visa, he was eligible to file an I-485, application for Resident Status, at the same time that his wife, Gwen, filed an I-130 Petition for him.
Filing the I-485 meant that Gonzalo could become a Lawful Permanent Resident (Green Card) in the U.S. without having to return to his home country of Bolivia. Everything appeared to be in order until Gonzalo and Gwen attended the residency interview with an Immigration officer. During the interview, it became clear that Gonzalo’s criminal record was an obstacle to his residency application. In 2007 Gonzalo had been convicted in court of an Assault & Battery with a Dangerous Weapon. After reviewing the court records and hearing Gonzalo testimony, the Immigration officer decided that the conviction was a Crime Involving Moral Turpitude (CIMT) and therefore he could not be approved for Residency. Fortunately, the officer did advise him that there is a waiver for a CIMT and instructed Gonzalo to apply for it with a Form I-601 application.
A waiver for a CIMT requires the applicant to show that his U.S. Citizen or Lawful Permanent Resident spouse, parent, or child will suffer an extreme hardship if the applicant has to return to his home country. In Gonzalo’s case, since the CIMT was for a crime of violence, he had to meet an even higher standard of exceptional and extremely unusual hardship. At the time, Gonzalo did not have an attorney and did the best he could with the Form I-601 application. Unfortunately, the Immigration officer denied the application because Gonzalo had not shown sufficient evidence of hardship. This meant that Gonzalo’s application to be a Legal Permanent Resident was denied and he was back to having no lawful status. Time passed, Gonzalo’s marriage fell apart and they ended up divorced.
Then one day Gonzalo meet someone new, Victoria. As their relationship developed they decided to start a family and had a son. Victoria was also a U.S. Citizen and wanted to resolve Gonzalo’s immigration status so that their family could continue to build a future in the U.S. Knowing that they needed the assistance of an experienced immigration attorney, they contacted FitzGerald Law Company. After evaluating the case, our office offered 2 options to Gonzalo:
- file for residency without an I-601 Waiver, since there was case law that could show his conviction was not a CIMT; or
- file for residency with an I-601 Waiver supported by proper evidence.
Our office offered these options to Gonzalo because we understood that a conviction for Assault & Battery with a Dangerous Weapon is not always a CIMT, it actually depends on the particular facts of the case, and it was not clear that the facts of Gonzalo’s criminal case were sufficient to be a CIMT.
Gonzalo chose the first option, and had a residency interview with another Immigration officer, who thought that the conviction could qualify as a CIMT. Although our office knew that we had a strong argument it was not a CIMT, we also recognized that the second officer likely felt bound by the first officer’s determination. We also understood that Gonzalo was facing a denial of his residency again, which under the Trump administration meant he could be facing removal/deportation proceedings, and that it might take years for the possibility of receiving U.S. residence.
After careful consideration, our office advised him to file an I-601 Waiver, but this time with voluminous documentation regarding the hardship that would be suffered by Victoria and her son. Both had serious conditions that required special therapy, so our office obtained their counseling records, documents from their treatments, and detailed affidavits.
4 months after filing the I-601 Waiver, the good news finally arrived: the Form I-601 was approved and Gonzalo was now a Lawful Permanent Resident. The news came just in time for Gonzalo and his family to celebrate the start of 2020 with the knowledge that the many years of uncertainty were now behind them. Due to the experience of the lawyers of FitzGerald Law Company, and their knowledge of how Immigration officers tend to think, another family was now ready to move on to the next phase of their lives together.