Criminal Defense of Immigrants

The “T” visa, which provides temporary and potential lawful permanent resident status to victims of alien trafficking, was added to the INA as a part of the 2000 Violence Against Women Act, effective October 28, 2000, [214] and amended by the 2005 VAWA Reauthorization Act of 2005.[215]

All grounds of inadmissibility except for the terrorist grounds are waivable.  The INS regulations, however, impose an improperly high standard for waiver of some criminal convictions.[216]  “T” visa applicants may apply for a special waiver as long as the activities to be waived (including criminal acts or convictions) were caused by or incident to the trafficking victimization.  They may also apply for any other waiver for which they are eligible,[217] including the general INA § 212(d)(3) waiver for most grounds of inadmissibility for non-immigrants.[218]  See § 24.30, infra.  The new VAWA also creates an exception to the 3- and 10-year unlawful presence bars for victims of trafficking.[219]  The regulation, however, states that in order to waive criminal activities or convictions that were not incident to the trafficking, the applicant must meet a standard not present in the general non-immigrant waiver: only “exceptional cases” will merit a grant.  The INA § 212(d)(3) waiver generally carries no “exceptional case” requirement, but rather is granted in the exercise of discretion, involving a balancing of the favorable and unfavorable factors in the applicant’s case.[220]  Applicants should show if possible that they meet the “exceptional case” requirement, but may also argue that this requirement is unlawful.  Juvenile victims of trafficking to not need to demonstrate that they assisted a law enforcement agency in investigating or prosecuting the trafficking offense.[221]

[214] See INA § 101(a)(15)(T), 8 U.S.C. § 1101(a)(15)(T).  For more information, see Cooper, A New Approach to Protection and Law Enforcement Under the Victims of Trafficking and Violence Protection Act. 51 Emory L.J. 1041-1058 (2002).

[215] Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006).

[216] See 8 C.F.R. § 212.16(b)(2).

[217] INA § 212(d)(13), 8 U.S.C. § 1182(d)(13).

[218] INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).

[219] Violence Against Women and Department of Justice Reauthorization Act of 2005 § 802(a), Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (adding INA § 212(a)(9)(B)(iii)(V), 8 U.S.C. § 1182(a)(9)(B)(iii)(V)).

[220] See Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1976).

[221] See generally 22 U.S.C. § 7102.