209(c) waiver victory in Batavia, NY

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!' "