Immigration
Waiver of inadmissibility

An alien is not required to apply for a waiver of inadmissibility when filling out a visa application in a foreign country.

"As a practical matter, we see no reason why Atunnise would not still be eligible for a § 212(d)(3) waiver. Even if she is required to file her I-601 with the consular office, nothing in the regulation states that she has to be physically present in Lagos to do so. The regulations require a visa applicant to 'personally appear before and be interviewed by a consular officer,' 22 C.F.R. § 41.102(a), but Atunnise has already met that requirement, and even if she had not, the consular officer could waive personal appearance in this 'unusual circumstance,' see id. § 41.102(b)(6). And in any event, the consular officer does not have the authority to grant a § 212(d)(3) waiver-whether an alien qualifies is a decision that is always left to 'the discretion of the Attorney General.' 8 U.S.C. § 1182(d)(3)(A). And as Atunnise notes, the IJ has the catchall authority during removal proceedings 'to take any action consistent with applicable law and regulations as may be appropriate.' 8 C.F.R. § 1240.1(a). Indeed, in other cases the BIA has approved of an alien applying for a similar waiver before an IJ when the alien has not yet been admitted to the United States. See Matter of Kazemi, 19 I. & N. Dec. 49, 52 (BIA 1984) (holding that the BIA has jurisdiction during exclusion proceedings to consider an application for waiver of inadmissibility under § 212(d)(4)); Matter of LeFloch, 13 I. & N. Dec. 251, 255 (BIA 1969) (noting that alien may apply for § 212(d)(4) waiver of inadmissibility during exclusion proceedings). At best, the government has shown that applying for a § 212(d)(3) waiver at the consulate at the time an alien applies for her visa is the typical procedure, but it points to no authority that would preclude Atunnise from seeking that waiver after she left Nigeria but before she enters the United States."

Petition Granted.

06-4008 & 07-1287 Atunnise v. Mukasey

Petitions for Review of Orders of the Board of Immigration Appeals, Rovner, J.

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