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Unnecessary Drama: Providing a Legally Sufficient Affidavit of Support

Many Americans were tuned in today to see what various celebrities were wearing to the Academy Awards and who would take home the Oscars. However, there appears to be more drama in the rest of the world than even Hollywood could conjure. For example, internationally there continues to be worrying news about the deteriorating situation in eastern Ukraine and the territorial ambitions of the Russian Federation, which shocked many with its military incursion into Crimea. Domestically, we are seeing even more evidence that conservative lawmakers are under pressure not to move forward with Comprehensive Immigration Reform ("CIR") as shown by the publicized negative reaction to Republican U.S. Senator Marco Rubio, whose work on the issue many believed was refreshing.

Last Wednesday alone saw several other out-of-character portrayals: the veto by Republican Arizona Governor Jan Brewer, who is no stranger to the CIR debate, of a bill that would permit businesses to refuse services to gay and lesbian individuals on the basis of religious belief; the release by U.S. Customs and Border Protection ("CBP"), a sub-agency of the U.S. Department of Homeland Security ("DHS"), of a negative report regarding tactics used by its U.S. Border Patrol to engage with potential and actual unlawful border crossings; and the onset of torrential storms in Southern California.

Not to be outdone by the drama exhibited by, among other things, Los Angeles commuters attempting to drive in the rain, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, provided what some would perceive as an award-winning critique of a decision by the BIA. That critique came in the form of Tadevosyan v. Holder, a case concerning an Armenian-citizen man who following the dismissal by the BIA of his administrative appeal filed a timely motion to reopen based on his marriage to a U.S. citizen who had pending for him an immediate-relative family-based immigrant petition. Although the man attached to his motion evidence that that petition was pending, his Green-Card application to be heard prospectively by the relevant U.S. Immigration Court, and an affidavit of support including income-related documents by a joint sponsor, DHS opposed the motion on the basis that the petition had not yet been approved and on the perceived insufficiency of the affidavit of support. Instead of following what many believe would be a reasonable course of action and granting the man's timely motion to reopen, the BIA opted to side with DHS and to deny the motion on the very same bases cited by DHS, thereby extending the drama of the man's immigration case.

The Ninth Circuit sought to put an end to the man's immigration-related drama by stating in its own form of dramatic fashion, "As we read the BIA's decision here, it is one of those in which the BIA improperly accorded controlling weight to thefact that DHS opposed the motion, without regard to whether the basis of that opposition was correct. The BIA recounted, in one sentence, the substance of the DHS's opposition. It did not analyze at all whether DHS's position ... held water." After subsequently engaging in the appropriate analysis and deciding that the pending nature of the relevant petition and the documents in support of the affidavit of support were adequate to warrant reopening of the man's removal proceedings, the Ninth Circuit concluded by stating, "[T]he failure to provide any reasoned explanation confirms that the [BIA] denied the motion because DHS objected, not because it considered DHS's objection on the merits and agreed with its reasoning."

Aside from the dramatic language used, the opinion's extensive analysis of what is required for a legally sufficient affidavit of support is what makes the decision noteworthy. Using that analysis to one's benefit by ensuring an affidavit of support is legally sufficient may require skilled immigration-related legal advice, which can be used to ensure an unsurprising and consequently undramatic resolution to one's immigration matter.