This is the third in a series of posts about the waiver process, and will address strategies for obtaining a favorable consular recommendation that waiver relief be granted under INA Section 212(d)(3)(A).
Although, as mentioned previously in this series, consular officers are not responsible for approving waiver applications, they do have significant influence on the decision ultimately taken by the Admissibility Review Office (ARO) in the Bureau of Customs and Border Protection, Department of Homeland Security. The ARO is not obliged to follow the recommendation of the interviewing consular officer, but a waiver request sent to the ARO without a favorable consular recommendation will nearly always be denied. Therefore, the most important objective of the visa interview for the client who needs a waiver is to get the consul’s favorable recommendation of waiver relief.
The consul’s job in waiver cases is to weigh inadmissible applicants according to the Hranka standards, criteria set forth in a Board of Immigration Appeals (BIA) case (Matter of Hranka) for use by adjudicators in determining whether waiver relief is appropriate for an individual applicant. Hranka instructs adjudicators being asked to recommend or approve a waiver request to evaluate the seriousness of the conduct/action leading to an inadmissibility finding, the risk of harm to the U.S. if the inadmissible applicant is admitted, and the purpose for which the applicant seeks to enter the U.S., in making their decisions. Consular officers are quite familiar with the Hranka standards, so it’s probably not a good strategy either to prepare a client to orally parrot them back to the consul in requesting a favorable consular recommendation, or to devote space in a written request for waiver relief explaining what they are. Instead, the emphasis should be on demonstrating that the criteria are satisfied by the applicant’s individual circumstances. Attempting to over explain Hranka or endeavoring to apply the criteria to an applicant who clearly would not be able to meet them are mistakes commonly made by counsel.
There is no formal application process or special form for requesting a 212 (d)(3)(A) waiver, so the client should be well prepared by counsel before their visa interview on how the process works generally. Most importantly, they need to understand they must make an oral request for favorable consideration of waiver relief as soon as the consular officer advises him or her that a visa is being denied because of their 212 (a) inadmissibility. The client should also have a written request for favorable waiver recommendation that she or he can give to the consul at the interview, although one is not required. This document should make clear that waiver relief is available for the client and make the case that the client satisfies the Hranka requirements. It should be short, straightforward and focused on the waiver issue. One of the principle mistakes attorneys make when requesting favorable consideration of waiver relief is attempting to reopen the question of whether the client is, in fact, inadmissible in the first place. This is a strategic error not only because it is unlikely to succeed in reversing the inadmissibility finding, but also it is likely to irritate the consul who must decide whether or not to recommend waiver relief.
The best researched legal arguments for why waiver relief is available and should be granted to an inadmissible client will go nowhere if the adjudicating consular officer does not want to make a favorable recommendation. Consular consideration of whether to recommend waiver relief requires both the interpretation of facts and the analysis of the applicant’s behavior and motives in seeking the waiver. This points to the heart of the matter–waiver recommendations are discretionary, not required by law even if all the right boxes are ticked. An irritated consul, compelled to read a lengthy and contentious legal argument and confronted with a client whose only grudgingly acknowledges his past actions and has no compelling reason to travel, is not likely to incline sympathetic.
The timing of the request also matters. Someone whose inadmissibility arose recently, for example, would have a harder time obtaining a favorable consular waiver recommendation, particularly if the act or offense leading to inadmissibility was of a serious nature, such as conviction of a crime involving moral turpitude. There is no requirement that a specific period of time elapse before someone can be granted waiver relief, but the closer the request is made to the actions that led to inadmissibility, the less likely that the consul will be willing to send a favorable recommendation to the ARO. In other words, unless there is a compelling urgent reason to travel, some distance in time between the offending act and the application for clemency is often beneficial.
An inadmissible applicant whose purpose for travel is not considered to be compelling will also frequently fail to receive a consular recommendation. Attending an important family event, such as a wedding or funeral, receiving medical treatment, or visiting an ill or dying family member will generally be seen to be compelling. Attending a business meeting or tourism will be a tougher sell–again, particularly if the inadmissibility is recent.
Atmospherics during the interview are also important. A belligerent, hostile, or defensive applicant who fails to acknowledge his or her inadmissibility or attempts to argue that the initial consular finding was flawed or erroneous is going to have an uphill battle gaining a favorable recommendation; someone who is contrite, acknowledges his or her actions, and makes a respectful request for waiver relief will be more likely to get one.
An applicant who fails fails to get a consul’s favorable recommendation for waiver relief can nevertheless request that the waiver application be submitted to the ARO and the consul will send on the request on without any recommendation. While these requests are rarely successful, the ARO will occasionally approve the request.