Criminal Defense of Immigrants


§ 24.8 V. Family Unity

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Any conviction of an aggravated felony, controlled substance or firearms offense, or of a single felony or three misdemeanors, will disqualify a noncitizen from Family Unity.


Many parents entered the United States through amnesty, the Special Agricultural Worker’s program, or as a Cuban or Haitian, but the children came to the U.S. too late to do so.  The Family Unity program[115] established by the Immigration Act of 1990[116] is designed to help such families by providing temporary lawful status and work authorization to the non-legalized relatives until those relatives can adjust status through family visa petitions filed by the amnesty recipients.


The Family Unity program has the following requirements:


(a)        It applies to the spouse or child under 21 years old (as of May 5, 1988)

of a noncitizen legalized through an amnesty program,

(b)        who entered the U.S. (and in case of a spouse, married) by May 5, 1988,

(c)        who was not convicted of one felony or three misdemeanors,

(d)        who is not within the bars to withholding (i.e., who has not been convicted of a  particularly serious crime, aggravated felony, or serious crime outside the United States, and has not persecuted others),[117]

(e)        who is not deportable under any grounds of deportation, except INA § § 237(a)(1)(A) (inadmissible at time of entry or adjustment), (B) (present in violation of law), (C) (violated nonimmigrant status), or (3)(A) (failure to register change of address), and

(f)         who is not deportable under INA § 237(a)(1)(A) for being inadmissible under INA § 212(a)(2) (crimes), or 3 (security) at entry or adjustment of status.


In a significant departure from the rule against using juvenile delinquency dispositions in immigration proceedings, IIRAIRA denies Family Unity benefits to persons who “commit an act of juvenile delinquency which if committed by an adult” would be a felony involving violence or the threat of physical force.[118]   The new rule applies to benefits “granted or extended” after September 30, 1996.[119]   The new rule arguably applies only to acts committed on or after September 30, 1996, because there is a general presumption against retroactive application of the laws and because the statute uses the present-tense verb “commit.”[120]


                The Ninth Circuit has found that status obtained via the family unity program constitutes an “admission” for purposes of establishing eligibility for cancellation of removal and a waiver under INA § 212(h).[121]  The Ninth Circuit has also found that any period spent under the family unity program is not to be counted toward unlawful presence for purposes of the 3/10 year bars.[122]

[115] 8 C.F.R. § § 236.10-236.18.

[116]  Immigration Act of 1990, § 301.

[117] See INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B).

[118]  IIRAIRA § 383 amends the Immigration Act of 1990 § 301(e)(3) to bar from Family Unity a person who “(3) has committed an act of juvenile delinquency which if committed by an adult would be classified as–  (A) a felony crime of violence that has an element the use or attempted use of physical force against another individual, or (B) a felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense.”

[119]  IIRAIRA § 383.

[120] See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[121] Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. Jul. 24, 2006); Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. Apr. 24, 2006) (lawful permanent resident was able to show lawful residence in the United States for purposes of INA § 212(h) relief despite out of status period because she was prima facie eligible for Family Unity treatment, and the out of status period was caused in part by an improper denial of the relief by the INS).

[122] INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).  Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. Apr. 24, 2006).



Ninth Circuit

Nijar v. Holder, 689 F.3d 1077, 1086-1087 (9th Cir. Aug. 1, 2012) (DHS does not have the authority to terminate an alien's asylum status; The regulations pursuant to which the Department of Homeland Security terminates asylum status, 8 C.F.R. 208.24(a) and 8 C.F.R. 1208.24(a), are ultra vires because the governing statute, 8 U.S.C. 1158(c)(2), confers that authority exclusively on the Attorney General.).