(B)  Certain Grounds of Inadmissibility are Inapplicable or May be Waived.  Certain exclusion grounds do not apply or can be waived.

 

                The following grounds of inadmissibility do not apply at all to Special Immigrant Juveniles, if they are based on circumstances that existed before the grant of this status:[1]

 

                (1) entry without inspection;[2]
                (2) public charge;[3]
                (3) entry without valid entry document;[4]
                (4) lack of labor certification.[5]

Other grounds of inadmissibility that may be waived in the discretion of the DHS for humanitarian purposes or family unity or when it is otherwise in the public interest include:[6]

 

                (5) being HIV positive;[7]
                (6) involvement in prostitution;[8]
                (7) mental or physical disorder that may pose a risk of harm to oneself or others;[9]
                (8) drug addict or abuser;[10]

                (9) re-entering U.S. within five years after deportation;[11]
                (10) aiding another to enter U.S. illegally;[12]
                (11) affiliation with Communist or other totalitarian party;[13] and
                (12) visa fraud in entry into the United States;[14]

Certain grounds of inadmissibility, however, may not be waived:

 

                (13) reason to believe illicit drug trafficking;[15]

                (14) crime of moral turpitude or controlled substances conviction or admission;[16]

                (15) multiple convictions with five-year sentence imposed;[17] and
                (16) reason to believe noncitizen is a national security concern.[18]

In addition, special immigrant juveniles are deemed “paroled”[19] into the U.S. and thus can adjust status[20] even if they entered without inspection.[21]

[1] INA § § 237(c), 245(h), 8 U.S.C. § § 1227(c), 1255(h).

[2] INA § 245(h)(1), 8 U.S.C. § 1255(h)(1) (deems immigrants under this section to have been paroled into the United States, thereby rendering inapplicable INA § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A)); see also Special Immigrant Juveniles, New Orleans (on reconsideration), INS General Counsel Legal Opinion No. 97-6 (May 30, 1997), reproduced at 74 Interpreter Releases 978 (June 16, 1997) (noting that juvenile noncitizens who are paroled into the United States are not excluded from eligibility for special immigrant status). See generally Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 63.07[1] (2007).

[3] INA § 245(h)(2)(A), 8 U.S.C. § 1255(h)(2)(A) (rendering INA § 212(a)(4), 8 U.S.C. § 1182(a)(4), inapplicable). See generally Gordon, supra, § 63.05.

[4] INA § 245(h)(2)(A), 8 U.S.C. § 1255(h)(2)(A) (rendering INA § 212(a)(7)(A), 8 U.S.C. § 1182(a)(7)(A), inapplicable). See generally Gordon, supra, § 63.08.

[5] INA § 245(h)(2)(A), 8 U.S.C. § 1255(h)(2)(A) (rendering INA § 212(a)(5)(A), 8 U.S.C. § 1182(a)(5)(A), inapplicable).  See generally Gordon, supra, § 63.06[1].

[6] This list is not exhaustive. INA § § 212(a), 245(h)(2)(B), 8 U.S.C § § 1182(a), 1255(h)(2)(B).

[7] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting the DHS discretion to waive INA § 212(a)(1)(A)(i), 8 U.S.C. § 1182(a)(1)(A)(i)).  See generally Gordon, supra, § 63.02[3].

[8] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D)). See generally Gordon, supra, § 63.03[6].

[9] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(1)(A)(iii), 8 U.S.C. § 1182(a)(1)(A)(iii)). See generally Gordon, supra, § 63.02[5].

[10] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(1)(A)(iv), 8 U.S.C. § 1182(a)(1)(A)(iv)).  A waiver obtained for the abuse or addiction inadmissibility ground granted in the context of an adjustment application should protect against the corresponding ground of deportability as well. See generally Gordon, supra, § 63.02[6].

[11] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i)). See generally Gordon, supra, § 63.10[1].

[12] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(1)(6)(E)). See generally Gordon, supra, § 63.07[5].

[13] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(3)(D), 8 U.S.C. § 1182(a)(3)(D)). See generally Gordon, supra, § 63.04[3][d].

[14] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (granting DHS discretion to waive inadmissibility under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i)). See generally Gordon, supra, § 63.07[3].

[15] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (no discretion to waive inadmissibility under INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C), except for single offense of simple possession of thirty grams or less of marijuana). See generally Gordon, supra, § 71.05[5].

[16] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (no discretion to waive inadmissibility under INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A)). See generally Gordon, supra, § 71.05.

[17] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (no discretion to waive inadmissibility under INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(A) or (B) (multiple convictions with five-year sentence)). See generally Gordon, supra, § 71.05.

[18] INA § 245(h)(2)(B), 8 U.S.C § 1255(h)(2)(B) (no discretion to waive inadmissibility under INA § 212(a)(3), 8 U.S.C. § 1182(a)(3), with the exception of INA § 212(a)(3)(D), 8 U.S.C. § 1182(a)(3)(D)(membership in totalitarian party). See generally Gordon, supra, § 71.06.

[19] See § 15.14, infra.

[20] See § 24.2, infra.

[21] See INA § 241(h), 8 U.S.C. § 1237(h), excepting various grounds of deportation; INA § 245(h)(2)(B), 8 U.S.C. § 1255(h)(2)(B) providing for waivers of grounds of exclusion and exemptions for other grounds; and INA § 245(h)(1), (2)(A), 8 U.S.C. § 1255(h)(1), (2)(A), creating eligibility for adjustment by deeming special immigrant juveniles to have been paroled in to the U.S. and also exempting them from the public charge ground of exclusion.

First Circuit

RELIEF " SPECIAL IMMIGRANT JUVENILE
In re Israel O., ___ Cal.App.5th ___, 2015 WL 227892 (1st Dist. Jan. 16, 2015) (reversing the order of the juvenile court denying defendant's request that the court make factual findings that would qualify him for special immigrant juvenile (SIJ) status, and remanding for a hearing to determine whether it is in defendant's best interest to be returned to Mexico, since the findings are a prerequisite for filing an SIJ status application, to allow defendant an opportunity to pursue regularization of his immigration status in the United States; reunification of defendant with his father in Mexico is not viable due to abandonment; and an eligible minor under the SIJ statute, 8 U.S.C. 1101(a)(27)(J), includes a juvenile for whom a safe and suitable parental home is available in the United States and reunification with a parent in his or her country of origin is not viable due to abuse, neglect, or abandonment).

Fourth Circuit

JUVENILE " SPECIAL IMMIGRANT JUVENILE " RIGHT TO SIJ FINDING FROM JUVENILE COURT
Eddie E. v. Superior Court, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 545984 (4th Dist. Feb. 11, 2015) (court of appeals ordered juvenile court to make favorable findings under 8 U.S.C. 1101(a)(27)(J)), which are a prerequisite to petitioner applying for special immigrant juvenile status, SIJ status cannot be granted unless a state court finds, among other things, that petitioner cannot reunify with one or both of his parents due to abuse, neglect, or abandonment, and that it would not be in petitioner's best interest to return to his home country, and petitioner satisfied this standard).

Lower Courts of Ninth Circuit

JUVENILE " SPECIAL IMMIGRANT JUVENILE STATUS
Eddie E. v. Superior Court, 223 Cal.App.4th 622 (Oct. 2013) (trial court erred in denying SJIS status by failing to consider whether a resident alien in petitioner's position may also demonstrate he had been "legally committed to, or placed in the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States," under the relevant statute).

Other

SPECIAL IMMIGRANT JUVENILE STATUS " STATE SUPERIOR COURT HAS AUTHORITY MAKE SPECIAL IMMIGRANT JUVENILE STATUS FINDINGS
B.F. v. Superior Court, 207 Cal.App.4th 621, 143 Cal.Rptr.3d 730 (2d Dist. Jul. 2, 2012) (granting writ of mandate commanding Superior Court to consider the request of the Minors B.F., M.F., and L.F., by and through their legal guardians, regarding special immigrant status pursuant to INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J) and 8 CFR 204.11, and to conduct a hearing, as soon as practicable, on the merits of the Minors' request and thereafter issue a new order.)