f you or a loved one is currently in removal proceedings before the immigration court, you might have spoken to an attorney about filing an application for a “provisional unlawful presence waiver,” typically called a “waiver” or “I-601A” by immigration attorneys. You might have even paid them thousands of dollars to help you prepare your application, only to be told that you aren’t eligible to apply anymore. So, what gives?
Historical Background
First, some history—it’s important to understand where the provisional unlawful presence waiver came from in order to understand where it is now.
Before the provisional waiver process began in 2013, individuals had to leave the United States to attend their consular interviews and could only seek a waiver of inadmissibility after the consular officer made a formal finding of unlawful presence inadmissibility. These individuals were forced to stay outside the United States for many months, far from family, work, and community ties, while waiting for their inadmissibility waiver application to process. If the waiver was ultimately denied, the immigrant visa applicant would be stuck outside the country with no immediate way to return legally. Lengthy separation and uncertainty in the process meant that, for many families, this pathway to legal status was too risky to undertake. The Department of Homeland Security (DHS) understood this problem and responded by creating the provisional unlawful presence waiver.
The provisional unlawful presence waiver (Form I-601A) was made available for the first time on March 4, 2013 for immigrant visa applicants (people with approved I-130s) who can show that the applicant’s extended presence outside of the United States will result in extreme hardship to their U.S. citizen spouse or parent.
Now, instead of having to wait outside the United States for months or years while an inadmissibility waiver application is processed, the provisional unlawful presence waiver process allows certain immigrant visa applicants to request the waiver before they leave the country. This means they can wait in the United States the many months or years it takes for a decision on the waiver application; if the provisional unlawful presence waiver application is denied, the applicant may choose to postpone consular processing with the knowledge that they cannot presently overcome the unlawful presence inadmissibility ground if they depart. In the initial enacting regulation, DHS stated that “DHS anticipates that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives.”
The regulation which created the provisional unlawful presence waiver also explicitly detailed that DHS initially proposed excluding all noncitizens who were in removal proceedings from the provisional unlawful presence, except those whose: (1) removal proceedings had been terminated or dismissed; (2) Notices to Appear (NTAs) had been cancelled; or (3) removal proceedings had been administratively closed but were subsequently reopened to grant voluntary departure. However, rather than adopting this restrictive language, DHS instead decided to allow noncitizens in removal proceedings to participate in this new provisional unlawful presence waiver process if their removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.
In August 2016, the provisional unlawful presence waiver was expanded to more applicants, allowing any beneficiary who can show hardship to a U.S. citizen or lawful permanent resident spouse or parent (instead of just to spouses or parents of U.S. citizens).
Between March 2013 and May 16, 2018, people in removal proceedings who had an approved immigrant visa petition (Form I-130) simply needed to pay the $325 immigrant visa fee with the Department of State’s (DOS) National Visa Center (NVC) and then file a simple noncontentious motion to administratively close their removal proceedings (which DHS usually joined or opted not to oppose). Immigration courts would routinely grant motions to administratively close removal proceedings if the purpose was to allow someone to apply for a waiver.
Once these two tasks were done, people in removal proceedings were eligible to apply for a provisional unlawful presence waiver by filing a Form I-601A with U.S. Citizenship and Immigration Services (USCIS). After they applied, they waited for the waiver to be granted or denied. If the waiver was granted, the next step would be filing a motion to recalendar the removal case and requesting voluntary departure around the same time that the immigrant visa interview is scheduled; this usually involved being outside of the United States for two weeks or less if no new unexpected issues arose after the applicant left the country. If the waiver was denied, the individual would file a motion to recalendar their case and would typically apply for different forms of relief available to persons in removal proceedings.
Recent Developments
This nice, sensible pathway to a provisional unlawful presence waiver, described above, changed drastically on May 17, 2018 when the Attorney General of the United States used their power to direct the immigration courts by issuing a decision called Matter of Castro-Tum. This decision removed the immigration court’s ability to grant motions to administratively close removal proceedings in most instances, but especially when the sole purpose for administrative closure is to allow an individual to apply for a provisional unlawful presence waiver with USCIS. In a single instant and with the stroke of a pen, every person in removal proceedings (which were not already administratively closed) who was going to apply for a provisional unlawful presence waiver became unable to do so because they could no longer administratively close their removal proceedings.
If you had already retained an attorney to apply for an I-601A waiver prior to Castro-Tum, and if you received a call or letter from your attorney’s office on or after May 17, 2018 stating you can no longer apply for a waiver, Matter of Castro-Tum is the reason you received that phone call or letter. Unfortunately, the Attorney General gave very little notice to attorneys of what would happen, and no one imagined he would end the entire practice of administrative closure so everyone was caught off guard.
How Does Castro-Tum Affect My Case?
Over the last two years, a lot has been happening. When Castro-Tum was first issued, it applied to people all over the country, no matter where they lived. Everyone was affected. However, on August 29, 2019, after a hard-fought court battle, the Fourth Circuit Court of Appeals (just one level below the United States Supreme Court) issued a landmark decision in Romero v. Barr. The Fourth Circuit determined that Matter of Castro-Tum was not lawful, and the Fourth Circuit consequentially vacated the Attorney General’s decision. Unfortunately, based on some procedural and structural minutia, the Fourth Circuit only had the power to invalidate Castro-Tum in the Fourth Circuit.
The Fourth Circuit’s Romero v. Barr decision was important because it means that if your immigration court case was or is taking place in Maryland, North Carolina, South Carolina, Virginia, or West Virginia, you are once again eligible to have your immigration court case administratively closed so that you can apply for a provisional unlawful presence waiver! But if your removal proceedings are not in one of these five states, Romero v. Barr does you no good.
After the Fourth Circuit’s decision invalidating Castro-Tum was announced, attorneys started bringing similar challenges in other parts of the country and, on June 26, 2020, the Seventh Circuit Court of Appeals also struck down Castro-Tum in the case of Morales v. Barr. Once again, however, the Seventh Circuit’s ruling only invalidated Castro-Tum in the Seventh Circuit.
The Seventh Circuit’s Morales v. Barr decision affects persons whose removal proceedings are located in Illinois, Indiana, and Wisconsin. People in removal proceedings in these three states, in addition to the five states in the Fourth Circuit, are now eligible to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver. However, if your removal proceedings are not in the Fourth or Seventh Circuits, these two decisions do you no good.
In addition to the two cases mentioned above, there are currently pending challenges to Castro-Tum in:
the Second Circuit (consisting of Connecticut, New York, and Vermont)
the Third Circuit (consisting of Delaware, New Jersey, and Pennsylvania)
the Sixth Circuit (consisting of Kentucky, Michigan, Ohio, and Tennessee), and
the Ninth Circuit (consisting of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).
Other appeals in other circuits may also be pending. If any of these federal courts of appeals rule the same way as the Fourth and Seventh Circuits, more people will be able to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver.
In addition to the challenges to Castro-Tum currently being fought out in the various courts of appeals, our Minnesota immigration firm, Contreras & Metelska, has been litigating a case in the U.S. District Court for the District of Minnesota which challenges Matter of Castro-Tum in the context of a class action. The name of the case is Lopez v. Barr. The Lopez plaintiffs have not yet been certified as a class, but if the plaintiffs’ future class certification motion is approved, the lawsuit will be brought on behalf of all persons whose immigration court proceedings are located in Minnesota and who would be eligible to apply for a provisional unlawful presence waiver if only their removal proceedings were administratively closed. Right now, there are two named plaintiffs and it is expected that more will be added soon. Assuming the government’s motion to dismiss is partially or wholly unsuccessful, as is expected, our firm expects to obtain class certification before invalidating Castro-Tum in Minnesota. However, because this type of litigation typically moves at a tortoise’s pace, it is unclear when a final decision in Lopez v. Barr will be issued.
Summary
If your removal proceedings are in Illinois, Indiana, Maryland, North Carolina, South Carolina, Virginia, West Virginia, or Wisconsin, you are currently allowed to administratively close your removal proceedings to apply for a provisional unlawful presence waiver on Form I-601A. If you live in any of the other 42 states, you’re currently out of luck.
If your removal proceedings are in Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Idaho, Michigan, Montana, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Tennessee, Vermont, or Washington, you might be eligible to administratively close your proceedings in the future in order to apply for a provisional unlawful presence waiver on Form I-601A, but only if your Circuit Court of Appeals rules in favor of the noncitizen litigants in currently pending cases.
If your removal proceedings are in Minnesota, you might be eligible to administratively close your proceedings in the future in order to apply for a provisional unlawful presence waiver on Form I-601A, but only if our firm is successful in our currently pending lawsuit in the District of Minnesota.
If your removal proceedings are anywhere else, it is unlikely you’ll be able to administratively close your removal proceedings in order to apply for a provisional unlawful presence waiver on Form I-601A anytime soon unless something drastic happens in the interim.
What to Do with This Information
If you were paying close attention, you might have noticed that each paragraph in the summary section, above, starts with “if your removal proceedings are in…”
This language is important, because the decisions of the Fourth and Seventh Circuits apply to all persons whose removal proceedings are within their geographic areas even if the person in removal proceedings no longer lives in those geographic areas. This means that people who don’t live in the Fourth and Seventh Circuits can move to a state within the jurisdiction of the Fourth or Seventh Circuits and apply to have their removal proceedings moved from wherever they are to a court which allows for administrative closure (speak to an attorney before doing this, however, as some of the courts, such as Charleston, South Carolina, have extremely high denial rates for other forms of relief including but not limited to asylum). The caveat is that you have to really intend to reside in the new state permanently (or at least for the foreseeable future); you can’t just move there to avoid the immigration law in your circuit. This typically requires setting down real roots, getting involved with your new community, enrolling your children in schools, finding new employment (if you’re eligible to work), etc. Also, if you’re really attached to your current immigration attorney, you’ll need to be aware that most immigration attorneys will be unwilling to represent you in immigration court if you move to a different state unless you’re able to pay their travel costs. If you’re okay with these tradeoffs, and if you’ve been thinking about moving anyway, and if you’re in removal proceedings, and if you really want to apply for a provisional unlawful presence waiver, be sure to at least take a look at some of the states which allow you to administratively close removal proceedings.
If you are not interested in moving to the Fourth or Seventh Circuits, all you can do is look for alternative forms of relief, make sure you stay up to date with the pending litigation (or better yet, tell your lawyer to), and pray that things change for the better soon.
P.S. Also, don’t forget to update your address with immigration authorities and with your lawyer immediately after moving!
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. Before moving to a new state and changing the venue of your removal proceedings, you are highly encouraged to speak with a lawyer who has experience representing people in immigration removal proceedings. This article will not be updated, so the information might be out of date at some point in the future. For your reference, this article was written on August 18, 2020.