Humanitarian reinstatement of dead petitioner’s petition—is it a farce?

A “farce” is a broad satire or comedy, though now it’s used to describe something that is supposed to be serious but has turned ridiculous.” https://www.vocabulary.com/dictionary/farce

What are examples of a farce? (1) Honolulu rail project, (2) Russians decided the outcome of the last national election by using social media, (3) USCIS will likely grant humanitarian reinstatement of a dead petitioner’s petition, (4) all of the above, (5) none of the above. 

Upon the death of an immigration petitioner, the approval of the petition is revoked as of the date of the approval. 8 CFR 205.1(a)(3). In other words, the petition dies with the petitioner.

However, there is an exception known as “humanitarian reinstatement” or “humanitarian revalidation”. The petition is not deemed revoked if “U.S. Citizenship and Immigration Services (USCIS) determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 CFR Part 213a as a substitute sponsor.” 8 CFR 205.1(a)(3)(i)(C)(2).

In the good old days, it was relatively easy to obtain humanitarian reinstatement. In fact we had a 100% success rate. We wrote an article “TEN COMMANDMENTS ON HOW TO RESURRECT A DEAD PETITIONER’S PETITION”. See https://immigrationservicesusablog.wordpress.com/immigration-guide/

All that a beneficiary needed to do was write a letter to the USCIS office that originally approved the petition stating (a) the name of the dead petitioner and beneficiary, (b) the receipt number of the petition, (c) the dead petitioner’s alien number, (d) whether there is another pending petition for the beneficiary, (e) the beneficiary’s parents, siblings, spouse, and children, with their addresses and whether they were living or dead, and (f) the reasons why a favorable exercise of discretion was warranted. The beneficiary had to submit supporting documents, including (1) a copy of the petitioner’s death certificate, (2) a copy of the a notice of approval of the petition, (3) the beneficiary’s birth certificate, and (4) an affidavit of support (Form I-864) executed by a qualified substitute sponsor.  See https://www.uscis.gov/greencard/humanitarian-reinstatement

Consular officials who were presented with a humanitarian request were quite liberal in recommending humanitarian reinstatement. See 9 FAM 504.2-8(C)(4).

Factors required for favorable exercise of discretion

But then the good old days turned to bad. Anti-immigration elements in the USCIS imposed specific requirements that must be complied with in order to warrant a favorable exercise of discretion. These are:

(1) Disruption of an established family unit.

(2) Hardship to United States citizen or lawful permanent resident.

(3) Beneficiary is elderly or in poor health.

(4) Beneficiary has lengthy residence in the United States.

(5) Beneficiary has no home to go to.

(6) Undue delay by USCIS or Consular Officer in processing petition and/or visa.

(7) Beneficiary has strong family ties in the United States.

How can a beneficiary meet all these 7 factors?

Disruption of family unit. USCIS will probably blame the dead petitioner for disrupting the family unit.  It might say that the petitioner disrupted the established family unit when he emigrated to the United States. The beneficiary’s coming to America cannot “undisrupt” the family unit that was disrupted by the petitioner and who by the way is already dead.

Hardship to family in U.S. USCIS will ask how the beneficiary’s failure to immigrate can cause hardship to a family member in the U.S.  The stateside family member is not suffering any present hardship, and if there is any suffering it was not caused by nor can it be cured by the immigration of the beneficiary.

Beneficiary is elderly or in poor health. What is “elderly”? “Being past middle age,” says Merriam-Webster’s Dictionary. Most beneficiaries are not elderly. Most beneficiaries are not in poor health, otherwise they will not be able to come to the United States since they could not pass the medical examination.

Lengthy residence in U.S. Nearly all beneficiaries have never resided in the United States.

Beneficiary has no home to go to. All beneficiaries, especially in the Philippines, have a home to go to. They have amor propio (self-respect). What do you think they are—like the homeless in Paradise?

Undue delay by USCIS or consular officer.  USCIS will find no evidence of “undue delay” by government officials. It might say that the lengthy processing of the visa petition is normal.

Beneficiary has strong family ties in the U.S. USCIS will likely find that the beneficiary has stronger family ties in the Philippines.

Where did USCIS get these factors that are impossible to meet? What is the law upon which these factors was based? Obviously these factors were taken from certain court decisions specifying what a person being deported must establish to obtain a favorable exercise of discretion. Thus, disruption of an established family unit will occur if the alien is deported. The alien’s family left behind in the U.S. will suffer hardship if the alien is deported. The alien facing deportation is elderly or in poor health and will have no welfare or health benefits in his home country. The alien being deported has lived in the U.S. for a lengthy period of time. The alien sought to be deported has no home to go to in his former country.

These factors may be suitable for deportation purposes. But they are irrelevant in the context of a humanitarian reinstatement request.

Hopefully, President Donald J. Trump, who believes that there are too many government regulations, will cause to be undone these humanitarian reinstatement regulations improperly imposed by immigration authorities.

Comment: Under the circumstances prescribed by INA Section 204(l), USCIS may adjudicate a dead petitioner’s petition if the qualifying beneficiary was residing in the U.S. on the date of the petitioner’s death and continues to reside in the U.S.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)