Cal­i­for­nia Ser­vice Cen­ter ap­proves less than 7% of hu­man­i­tar­ian reval­i­da­tion re­quests

The Philippine Star - - OPINION - MICHAEL J. GURFINKEL, ESQ

Ihave long sus­pected that with the way the Cal­i­for­nia Ser­vice Cen­ter (CSC) ad­ju­di­cates hu­man­i­tar­ian reval­i­da­tion re­quests, it is vir­tu­ally im­pos­si­ble for any ben­e­fi­ciary in the Philip­pines to qual­ify. Lit­tle or no dis­cre­tion is be­ing ex­er­cised, and it seems the Hu­man­i­tar­ian Reval­i­da­tion ad­ju­di­ca­tors have for­got­ten the “hu­man­i­tar­ian” por­tion of hu­man­i­tar­ian reval­i­da­tion. They sim­ply find ways to deny hu­man­i­tar­ian reval­i­da­tion re­quests.

In fact, I served a Free­dom of In­for­ma­tion Act (FOIA) re­quest, to find out what CSC’s de­nial rate was. I re­quested:

• the to­tal num­ber of hu­man­i­tar­ian reval­i­da­tion’s re­quests sub­mit­ted to the CSC since 2010

• the to­tal num­ber of hu­man­i­tar­ian reval­i­da­tion re­quests that were ap­proved since 2010

• the to­tal num­ber of hu­man­i­tar­ian reval­i­da­tion re­quests that were de­nied since 2010.

I just re­cently re­ceived the CSC’s re­sponse, and the re­sults are shock­ing, but re­ally not sur­pris­ing:

• A to­tal of 10,755 hu­man­i­tar­ian reval­i­da­tion re­quests were sub­mit­ted to CSC since 2010.

• A to­tal of 720 hu­man­i­tar­ian reval­i­da­tion re­quests were granted! That means less than 7% of the hu­man­i­tar­ian reval­i­da­tion re­quests sub­mit­ted were granted.

• A to­tal of 7,309 hu­man­i­tar­ian reval­i­da­tion re­quests were de­nied.

• There are some dis­crep­an­cies be­cause not all I-130 pe­ti­tions were prop­erly up­dated in their sys­tem, and there may be du­pli­cate re­ceipts be­cause some cases were con­verted from hu­man­i­tar­ian reval­i­da­tion to the sur­vivor law, sec­tion 204 (l), where hu­man­i­tar­ian reval­i­da­tion is not re­quired if the ben­e­fi­ciary was in the US at the time of the pe­ti­tioner’s death and re­mained or resided con­tin­u­ously in the US.

The CSC con­cedes there are no reg­u­la­tions set­ting forth fac­tors for el­i­gi­bil­ity, and they there­fore robot­i­cally rely on seven fac­tors listed in the De­part­ment of State’s (DOS) For­eign Af­fairs man­ual (FAM): (1) Dis­rup­tion of an es­tab­lished fam­ily unit; (2) Ben­e­fi­ciary is el­derly or in poor health;

(3) Ben­e­fi­ciary has had lengthy res­i­dence in the United States; (4) Ben­e­fi­ciary has no home to go to; (5) Un­due de­lay by DHS or con­sular of­fi­cer in pro­cess­ing the pe­ti­tion or visa;

(6) Hard­ship to US cit­i­zens or law­ful per­ma­nent res­i­dents; and

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

In ap­ply­ing th­ese sup­posed “el­i­gi­bil­ity” fac­tors, vir­tu­ally no Filipino in the Philip­pines could ever qual­ify for hu­man­i­tar­ian reval­i­da­tion, as at least five of th­ese seven fac­tors would not even ap­ply! For ex­am­ple, if the ap­pli­cant is rel­a­tively young and healthy and liv­ing in the Philip­pines, they would not be el­derly or sickly, there is tech­ni­cally no “dis­rup­tion” of the fam­ily unit in the US, and they would ob­vi­ously not have “lengthy res­i­dence” in the US, but in­stead have a “home” to go to. Since it typ­i­cally takes many years for the pri­or­ity date on most pe­ti­tions to be­come cur­rent, ob­vi­ously there would be no “un­due de­lay” by the US­CIS.

It ap­pears that the CSC has set up and re­lied on Hu­man­i­tar­ian Reval­i­da­tion fac­tors that are vir­tu­ally im­pos­si­ble to meet or sat­isfy. If so, why even bother hav­ing th­ese fac­tors? Why not just sim­ply flip a coin?

What makes this sit­u­a­tion more frus­trat­ing is that if the ben­e­fi­ciary hap­pened to be in the US when the pe­ti­tioner died, (even if TNT) then, un­der the “Sur­vivor Law,” the pe­ti­tion is au­to­mat­i­cally reval­i­dated, with­out any­one hav­ing to prove any of th­ese un­achiev­able fac­tors. Thus, if a per­son came to the US years ago as a vis­i­tor, over­stayed his or her visa, worked with­out au­tho­riza­tion, and oth­er­wise vi­o­lated the im­mi­gra­tion laws, that per­son would be quickly and eas­ily en­ti­tled to pur­sue his or her green card, de­spite the death of the pe­ti­tioner. But, if they obeyed the laws, and pa­tiently waited in the Philip­pines for their pe­ti­tions, then they have to sat­isfy th­ese seven fac­tors, which are vir­tu­ally im­pos­si­ble to sat­isfy.

In con­clu­sion, the re­lief is called Hu­man­i­tar­ian Reval­i­da­tion and the goal is fam­ily re­uni­fi­ca­tion. The CSC needs to in­ject a lit­tle more hu­man­ity in ad­ju­di­cat­ing th­ese re­quests. The goal should be to ex­er­cise dis­cre­tion, and not to see how many form de­nials can be gen­er­ated. A mis­er­able seven per­cent ap­proval rate shows the CSC is re­ally not ex­er­cis­ing any dis­cre­tion, but in­stead is look­ing for ways to al­ways deny hu­man­i­tar­ian reval­i­da­tion re­quests. They need to be re­minded of their mis­sion state­ment and that they are the agency within Home­land Se­cu­rity in charge of pro­vid­ing/ ap­prov­ing im­mi­gra­tion “ben­e­fits,” not look­ing for ways to al­ways deny them. WEB­SITE: www.gurfinkel.com Fol­low us on Face­book.com/GurfinkelLaw and Twit­ter @GurfinkelLaw Four of­fices to serve you: PHILIP­PINES: 8940258 or 8940239; LOS AN­GE­LES; SAN FRAN­CISCO; NEW YORK: TOLL FREE NUM­BER: 1-866-GURFINKEL (1-866-487-3465)

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