Fe Angeli Edralin and her 3 year old son
SAN FRANCISCO – The Edralin family can now finally celebrate after 15 years of living in immigration limbo.
On September 13, 2012, the Board of Immigration Appeals (BIA) issued a unanimous decision dismissing the appeal of the Department of Homeland Security (DHS) and affirming the August 25, 2011 decision of the Ninth Circuit Court of Appeals, which held that the Edralin family was entitled to the waivers that allow them to retain their green cards.
The news proved a welcome relief to Fe Angeli, the youngest of the Edralin children, who was 12 when the family’s immigration ordeal began in 1997 and who is now 27 and the mother of a three year-old son. “The swords over our heads have finally been removed,” she said.
“We wanted to celebrate the end of our long ordeal last year,” Felix Edralin said, “but we couldn’t because the government appealed the Ninth Circuit’s decision, not to the US Supreme Court, which is above it, but to the BIA, which is below it. We couldn’t believe it!”
Another bite at the apple
Rodel Rodis, the Edralin family’s immigration attorney since the Edralins were placed in deportation proceedings in 1997, explained that the Ninth Circuit’s decision simply reminded the BIA that it could not substitute its own judgment with that of the Immigration Judge (IJ) who had determined that “the Edralins did not intend to mislead the government” and were therefore entitled to waivers.
“That really should have been the end of it,” Rodis, also INQUIRER.net’s columnist, said. “The government did not need to put the family through another year of anguish.”
But because the Ninth Circuit Court directed the case to be remanded back to the BIA “for further proceedings consistent with (its) disposition,” Rodis explained, “this allowed the government the opening to seek another bite at the apple and argue the same issues all over again.”
The long legal odyssey of Felix Edralin and his family began after they arrived in the US as immigrants on June 15, 1996, as the beneficiaries of the family preference visa petition filed in 1977 by Edralin’s US citizen brother, Demetrio Edralin.
Almost a year later, on June 2, 1997, Edralin and his family — including his wife (Angeles) and their three minor children (Fean Marie, Felix Angelo and Fe Angeli) – – were placed in deportation proceedings after US immigration authorities learned that Demetrio Edralin had died in 1990, 13 years after he filed the visa petition, but about six years before the visas became available to Felix Edralin and his family.
Petition dies with the petitioner
In family-based visa petitions, the general rule is that the petition dies with the petitioner. This rule was modified on October 28, 2009, when President Barack Obama signed into law an amendment that allowed a petition to survive the petitioner’s death, but only if the beneficiary was residing in the US at the time of the petitioner’s death and continues to reside in the US.
Unfortunately, this amendment would not have benefitted the Edralins even if it had been in effect in 1997 when they were placed in deportation proceedings as they were not in the U.S. in 1990 when Demetrio Edralin, their petitioner, passed away.
At their immigration trial (“evidentiary hearing”) on May 6, 2001, Felix Edralin testified that he was not aware that his brother’s petition for him was extinguished when his brother died. He thought the US government, with all its resources, knew that his brother died in 1990 and that his death did not affect their visa petitions as they were still given notice to travel to Manila from General Santos City in Mindanao, where they lived, to obtain their visas. Under intense cross-examination by the government attorney, Edralin maintained that he was never asked by consular officials at the US Embassy in Manila if his brother was still alive.
No willful misrepresentations
After observing the demeanor and the consistency of the Edralins’ testimony, Immigration Judge Polly Webber ruled that Felix Edralin did not commit fraud and had not made any willful misrepresentations. They were entitled to retain their immigrant visas.
The government did not appeal the Judge’s ruling on this issue but instead amended the charge sheet (“Order to Show Cause”) to allege that the Edralins had entered the US without valid immigrant visas since they were not entitled to the immigrant visas that were issued to them in 1996.
At the evidentiary hearing on the amended charge on April 7, 2003, the IJ ruled for the government this time and ordered the deportation of the Edralins, a decision that was stayed by the timely filing of an appeal to the BIA.
When the BIA reviewed the case, it decided on July 26, 2004 to remand it back to the IJ with directions for the IJ to consider whether the Edralins were eligible for Section 212(k) waivers which are available to aliens whose immigrant visas were not valid at the time of entry but who are able to show that they did not know they were inadmissible at the time of entry.
After carefully reviewing the legal briefs of the parties, the transcripts of the previous hearings and her own notes, Judge Webber issued a ruling that granted the 212(k) waivers of the Edralins on December 6, 2005 which allowed the Edralins to keep their green cards.
In her decision, Judge Webber noted that the Edralins “did not testify in an evasive manner about these issues, they were simply following the procedures put in front of them and they did not think of asking about the effect of a six year-old death on their process.”
Due diligence
The DHS appealed the IJ’s decision to the BIA, arguing that the Edralins did not qualify for the waivers because they “failed to meet their burden to show reasonable diligence to determine the consequence of the death of their petitioning relative.”
The DHS argued that the 1987 case of Matter of Aurelio was the case that governed the issuance of 212(k) waivers. The that case, the IJ denied the waiver request after noting that she was “not uneducated,, that she knew she was immigrating on the basis of her father’s petition, and that she was aware of her father’s lengthy illness and death when applying for a visa”. The IJ determined that “the female applicant should have ascertained in the exercise of reasonable diligence the impact of her father’s death on her eligibility for an immigrant visa.”
Two years later, on May 11, 2007, the BIA, following the Aurelio precedent, overruled the IJ’s December 6, 2005 decision and ordered the Edralins deported from the United States. The Edralins then appealed the BIA’s decision to the Ninth Circuit.
In its decision issued 4 years later on August 25, 2011, the Ninth Circuit ruled in favor of the Edralins finding that: “Here, the IJ found that the Edralins did not intend to mislead the government and it was not reasonable to expect them to inquire about the potential impact of the death of their sponsor. The BIA reviews factual findings by the IJ under the clearly erroneous standard. Rather than review these factual findings by the IJ for clear error, the BIA ignored them and substituted its own. This was error…the Board must defer to the factual determinations of an Immigration Judge in the absence of clear error.”
More than a year later, on September 13, 2012, after reviewing additional briefs submitted by the parties, the BIA finally accepted the Ninth Circuit’s mandate and the long immigration nightmare of the Edralins was thankfully over.
“The persistence of the Edralins paid off. Now, they can finally celebrate,” Rodis said.