Attached a non-precedent decision of the AAO (U.S.C.I.S.’s Administrative Appeals Office), Matter of Y-M-C-, ID #151-8339 (AAO May 25, 2018), which we worked on, withdrawing the U.S.C.I.S. New York Field Office Director’s unfavorable decision and remanding to him for a further judgment as to whether the applicant deserves conditional approval of the I-212 application as a matter of discretion. (Form I-212 is an application for permission to reapply for admission into the U. S. after deportation or removal. Our client had been ordered deported long ago but not left the U. S.). The Acting Director had denied the application on the basis that the applicant had filed a false I-102 (Form I-102 is an application for replacement or for an initial nonimmigrant arrival-departure document) and that, because he was also inadmissible under §212(a)(6)(C)(1) of the Act, the section for fraud or misrepresentation, there would be no purpose in granting the applicant permission to reapply for admission while he remained under that ground of inadmissibility. (The conditional I-212 application was filed as part of the I-601A process, and the I-601A only forgives the unlawful presence grounds of §212(a)(9)(B)(i)(I) or (II) – the 3 and 10 year bars for being in the U. S unlawfully for 180 days or one year respectively). We contested the client’s inadmissibility under the 6(C)(1) section on appeal.
The AAO pointed out that the applicant was not seeking to adjust status inside the United States, and that it is the consular officer’s responsibility to determine an applicant’s inadmissibility and to have an applicant file a form I-601 if required – accordingly, the Director’s finding of inadmissibility under §212 (a)(6)(C)(1) of the Act was premature, and the matter had to be remanded for him to determine whether the applicant merited conditional approval of his application as a matter of discretion.
The case shows that in a conditional I-212 matter in which the applicant must make final application for an immigrant visa to an American consular officer overseas, U.S.C.I.S. should not automatically deny the application as having no purpose where there is another possible ground of inadmissibility, but leave that decision to the consular officer, and confine itself to deciding whether the applicant should be granted or denied the I-212 as a matter of discretion. Although not a precedent decision of U.S.C.I.S., the decision should be given greater weight as it is well reasoned and in line with the agency’s 2016 I-601A instructions that Service officers should leave questions of inadmissibility to the U. S. consulates and secondarily to CBP (Customs and Border Protection).
The full decisions can be read here: Matter of Y-M-C-.