On November 7, 2011, the U.S. Citizenship and Immigration Services issued a new policy memo regarding the priority that they will follow to place certain immigrants in removal ("deportation") proceedings .
Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.
For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.
In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.
The policy memo of November 7 states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.
I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.
The November 7 memo can be found here.
Tuesday, November 8, 2011
Tuesday, October 18, 2011
Record number of deportations
For the past couple of days, there have been a flurry of news reports as well as emails on the local Immigration Attorney listserve about the record number of aliens who have been removed ("deported") from the United States under the Obama administration, almost 400,000. This is a record high under any administration. Interesting because the perception is that Democrats are looser on immigration than Republicans. The Administration has pointed out that the bulk of these removed aliens were criminal offenders who were convicted of everything from homicide to DUI, but it seems that the majority was convicted of drug related offenses, which could theoretically have been simple possession of over 30 g of marijuana. It would be interesting although probably not feasible to have the government break down its statistics even further for example, stating how many of the removed aliens were here without any lawful immigration status. Many people do not realize that having a "Green Card" does not avoid you from being placed in removal proceedings if you have committed certain criminal offenses. So, of this number of removed aliens, it would havebeen interesting to know how many of them were here in some sort of lawful immigration status, whether it was lawful permanent resident status ("Green Card"), student status, visitor status, or any type of employment based visa. Another helpful statistic would have been to find out how many of these removed aliens had committed crimes considered to be aggravated felonies under Immigration and Nationality Act Section 101(a)(43) for example going back to the example of drug related offenses. This is so vague. How many were actual drug traffickers? What kind of controlled substances were involved? You have to remember even though the State of California does not criminalize the medical use of marijuana under Health and Safety Code Section 11362.5, if you are for example convicted of the offense of cultivating, harvesting or processing Marijuana under Health and Safety Code Section 11358, you would likely be removed from the United States since it is considered a particularly serious drug trafficking crime under Ninth Circuit precedent.
Critics from both sides, from pro immigrant advocacy groups to Republicans have decried these results as either too heavy handed or not enough. Homeland Security Secretary Janet Napolitano said it best when she said:
"Our policies have been simultaneously described as engaging in a mean-spirited effort to blindly deport record numbers of illegal immigrants from the country and alternatively as comprehensive amnesty that ignores our responsibility to enforce the immigration laws; two opposites can't simultaneously be true," she said.
Critics from both sides, from pro immigrant advocacy groups to Republicans have decried these results as either too heavy handed or not enough. Homeland Security Secretary Janet Napolitano said it best when she said:
"Our policies have been simultaneously described as engaging in a mean-spirited effort to blindly deport record numbers of illegal immigrants from the country and alternatively as comprehensive amnesty that ignores our responsibility to enforce the immigration laws; two opposites can't simultaneously be true," she said.
Thursday, August 25, 2011
New 9th Circut case on abandonment of lawful permanent resident status
Congratulations to attorney Nadia Farah, who won her client the right to retain his lawful permanent resident status ("Green Card" or "LPR" status) in a case published today, August 25, 2011, by the United States Court of Appeals for the Ninth Circuit. Ms. Farah's client, Salar Khoshfahm, a native and citizen of Iran, was a minor child, 13 years of age, when his parents obtained LPR status. It is important to note that they obtained that status through a family petition filed by Mr. Khoshfahm's uncle, a United States Citizen. It is not clear whether the uncle was related to Mr. Khoshfahm's father or his mother. Suffice it to say that a United States Citizen who files an immigrant petition for a sibling often has to wait about 15 years for the visa to become available, since siblings are not considered to be an immediate family member, like a spouse or a minor child. The Khoshfahm family waited at the back of the queue like everybody else until it was their turn to lawfully enter the United States. It is evident that they wanted to make their life in this country.
After what was supposed to be a short trip back to Iran to sell their property, Mr. Khoshfahm's parents remained there. First they had trouble obtaining airline tickets in the wake of the terrorist attacks of September 11, 2001. Shortly thereafter, Mr. Khoshfahm's father experienced a heart condition for which he had to be hospitalized and thereafter restricted his ability to travel.
Mr. Khoshfahm waited patiently until he turned 18 and then immediately set to return to the United States with his Green Card in hand. He was stopped at the airport in San Francisco, CA, where he was referred before an Immigration Judge for removal ("deportation") proceedings by the Immigration and Customs Enforcement under the allegation that he had abandoned his lawful permanent resident status since he had stayed out of the United States for five years.
The Ninth Circuit found that because a child cannot legally form an intent as to domicile, the intent of the child’s LPR parents as to whether they will return to live in the United States is imputed to the child (over whom the parents have custody and control) during the period of the child’s unemancipation. At the point at which the child becomes an adult, however, he may legally demonstrate his intent separate from that of his parents.
The Court further found that the Government did not carry its burden to show Mr. Khoshfahm’s parents had abandoned their LPR status where Mr. Khoshfahm credibly testified that his parents always intended to return to the United States, and that his parents were prevented from returning by the September 11 attacks and then by his father’s heart condition. The Court found that Mr. Khoshfahm's actions clearly demonstrated his intent to return to live in the United States where as soon as he reached the age of adulthood, he immediately obtained the permanent passport that allowed him to travel alone and sought readmission a few months thereafter.
This is an important decision in the area of abandonment of lawful permanent resident status. I do not recall another precedent on this specific issue, where there is a minor child who attempts to return after emancipation. I worked on a factually similar case a few years ago where the immigrant had been forced to return to his native country by his parents, when he was about 3 or 4. There was ample evidence both from United States authorities (child services) and by autorities and witnesses in the native country that all his life, the child had been the subject of severe physical and psychological abuse by the parents. I remember getting chills when reading the child social worker report on the then three year old child that she had never witnessed such horrific abuse in her career. The child's body ha apparently been covered in cigarette burns, and belt marks and he had to be hospitalized and have life-saving surgery. Why the police was never involved to come arrest the parents in the first place before they could flee back to their home country with their abused child, I will never know. Anyways, the child eventually was able to get his Green Card back from his father when he reached the age of majority and immediately set back to the United States. In that case, although he was, like Mr. Khoshfahm, initially detained by ICE agents at the airport and referred for removal proceedings, after he presented evidence of his intent to return to the United States and that he had been forced to leave when he was still a minor child, both the Immigration Judge and counsel for ICE agreed that he had demonstrated that he had not abandoned his LPR status.
I am glad now we have a precedent that clarifies the issues for people in the position of Mr. Khoshfahm. I believe the Court reached a fair and just verdict given the circumstances. Why the government fought them at every step of the way, from the Immigration Court, to the Board of Immigration Appeals, to the Ninth Circuit, is an entirely separate issue.
The entire text of the decision can be read here.
After what was supposed to be a short trip back to Iran to sell their property, Mr. Khoshfahm's parents remained there. First they had trouble obtaining airline tickets in the wake of the terrorist attacks of September 11, 2001. Shortly thereafter, Mr. Khoshfahm's father experienced a heart condition for which he had to be hospitalized and thereafter restricted his ability to travel.
Mr. Khoshfahm waited patiently until he turned 18 and then immediately set to return to the United States with his Green Card in hand. He was stopped at the airport in San Francisco, CA, where he was referred before an Immigration Judge for removal ("deportation") proceedings by the Immigration and Customs Enforcement under the allegation that he had abandoned his lawful permanent resident status since he had stayed out of the United States for five years.
The Ninth Circuit found that because a child cannot legally form an intent as to domicile, the intent of the child’s LPR parents as to whether they will return to live in the United States is imputed to the child (over whom the parents have custody and control) during the period of the child’s unemancipation. At the point at which the child becomes an adult, however, he may legally demonstrate his intent separate from that of his parents.
The Court further found that the Government did not carry its burden to show Mr. Khoshfahm’s parents had abandoned their LPR status where Mr. Khoshfahm credibly testified that his parents always intended to return to the United States, and that his parents were prevented from returning by the September 11 attacks and then by his father’s heart condition. The Court found that Mr. Khoshfahm's actions clearly demonstrated his intent to return to live in the United States where as soon as he reached the age of adulthood, he immediately obtained the permanent passport that allowed him to travel alone and sought readmission a few months thereafter.
This is an important decision in the area of abandonment of lawful permanent resident status. I do not recall another precedent on this specific issue, where there is a minor child who attempts to return after emancipation. I worked on a factually similar case a few years ago where the immigrant had been forced to return to his native country by his parents, when he was about 3 or 4. There was ample evidence both from United States authorities (child services) and by autorities and witnesses in the native country that all his life, the child had been the subject of severe physical and psychological abuse by the parents. I remember getting chills when reading the child social worker report on the then three year old child that she had never witnessed such horrific abuse in her career. The child's body ha apparently been covered in cigarette burns, and belt marks and he had to be hospitalized and have life-saving surgery. Why the police was never involved to come arrest the parents in the first place before they could flee back to their home country with their abused child, I will never know. Anyways, the child eventually was able to get his Green Card back from his father when he reached the age of majority and immediately set back to the United States. In that case, although he was, like Mr. Khoshfahm, initially detained by ICE agents at the airport and referred for removal proceedings, after he presented evidence of his intent to return to the United States and that he had been forced to leave when he was still a minor child, both the Immigration Judge and counsel for ICE agreed that he had demonstrated that he had not abandoned his LPR status.
I am glad now we have a precedent that clarifies the issues for people in the position of Mr. Khoshfahm. I believe the Court reached a fair and just verdict given the circumstances. Why the government fought them at every step of the way, from the Immigration Court, to the Board of Immigration Appeals, to the Ninth Circuit, is an entirely separate issue.
The entire text of the decision can be read here.
Thursday, August 18, 2011
Department of Homeland Security announces Moratorium on Deportation of Dream Act Students
Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. If fully implemented, the new process should stop virtually all DREAM Act deportations.
“The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students,” Durbin said. “These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.”
Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.
On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.
About the DREAM Act:
The DREAM Act would allow a select group of immigrant students with great potential to contribute more fully to America. These young people were brought to the U.S. as children and should not be punished for their parents’ mistakes. The DREAM Act would give these students a chance to earn legal status if they:
•Came to the U.S. as children (15 or under)
•Are long-term U.S. residents (continuous physical presence for at least five years)
•Have good moral character
•Graduate from high school or obtain a GED
•Complete two years of college or military service in good standing
More information about the DREAM Act can be found here.
“The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students,” Durbin said. “These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.”
Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.
On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.
About the DREAM Act:
The DREAM Act would allow a select group of immigrant students with great potential to contribute more fully to America. These young people were brought to the U.S. as children and should not be punished for their parents’ mistakes. The DREAM Act would give these students a chance to earn legal status if they:
•Came to the U.S. as children (15 or under)
•Are long-term U.S. residents (continuous physical presence for at least five years)
•Have good moral character
•Graduate from high school or obtain a GED
•Complete two years of college or military service in good standing
More information about the DREAM Act can be found here.
Thursday, July 28, 2011
California Dream approved for undocumented immigrants
This month, California Jerry Brown signed into a law a bill, known as the California Dream Act, that would allow undocumented (illegal) immigrants in California to receive private funds to go to college, if they would otherwise qualify. As I have said many times over in this blog and elsewhere, this is a part of the solution. The entire text of the California Dream Act can be found on the American immigration Lawyers Association website here.
Thursday, July 21, 2011
Avoid Green Card Lottery Fraud
As I mentioned in my earlier blog, the annual Green Card Lottery is redrawing winners starting from July 15, 2011 in order to fix the computer glitch that corrupted the last results of the draw. Along with this news comes the usual warnings to avoid the many scammers who try to defraud people by sending emails that look like they are official emails from the Department of State and asking the "winners" to wire them money or other vital information.
One easy way to tell they are a fraud is that the e-mail address does not end with a “.gov”.
One particularly common fraud email comes from an address ending in @diplomats.com or @usa.com and asks potential victims to wire $819 per applicant/family member via Western Union to an individual (the name varies) at the following address in the United Kingdom: 24 Grosvenor Square, London W1A 1AE. If you receive this email, do NOT respond. Report it immediately to the Internet Crime Complaint Center and the Federal Trade Commission online or by calling 1-877-FTC-HELP (1-877-382-4357).
You can access more information about these types of fraudulent activities on the Beacon, the USCIS official blog here and also on the Department of State's official website here.
One easy way to tell they are a fraud is that the e-mail address does not end with a “.gov”.
One particularly common fraud email comes from an address ending in @diplomats.com or @usa.com and asks potential victims to wire $819 per applicant/family member via Western Union to an individual (the name varies) at the following address in the United Kingdom: 24 Grosvenor Square, London W1A 1AE. If you receive this email, do NOT respond. Report it immediately to the Internet Crime Complaint Center and the Federal Trade Commission online or by calling 1-877-FTC-HELP (1-877-382-4357).
You can access more information about these types of fraudulent activities on the Beacon, the USCIS official blog here and also on the Department of State's official website here.
Wednesday, July 13, 2011
Green Card Lottery draw rescheduled for this Friday July 15, 2011
The annual U.S. Diversity Immigrant Visa Program, popularly known as the Green Card Lottery, makes available up to 55,000 diversity visas annually, drawn from random selection among applicants who come from countries with low rates of immigration to the United States. This program is very important because the very basic requirements (high school diploma or work equivalent, plus being a native of one of the eligible counties, the lack of a filing fee, and the simple application process of submitting the application form and photographs electronically through the US Department of State website) opens the doors to many who otherwise would have no way to lawfully immigrate to the U.S.
Each year, there is a registration period that usually lasts 1-2 months, in the fall, during which you can submit your application (registration phase) and after a random computer generated selection, the lucky few can check the US Department of State website for news of their selection in the following spring/summer, and invited to complete the visa process at the local US Consulate or take the required steps to adjust their status if they are already in the United States.
For the most recent 2012 lottery however, a computer glitch caused the selection of winners not to be random at all. After review, it was discovered that 90% of winners were selected among applicants who had filed their application on the first two days of registration (Octoebr 5 and 6, 2010). This caused the U.S. Department of State the embarassment of having to notify all those "winners" that in fact their selection had to be voided (and their hopes crushed). A new draw has been scheduled and so, for those of you who applied for the 2012 lottery on any day of the registration period between October 5, 2010 and November 3, 2010, it will be included in the new selection lottery. Your confirmation number to check results on the U.S. Department of State website is still valid.
So check the status of your application through the DOS website between July 15, 2011 (this Friday) until June 30, 2012. More information can be found on the official Diversity Visa Lottery website here.
Good luck!!!
Each year, there is a registration period that usually lasts 1-2 months, in the fall, during which you can submit your application (registration phase) and after a random computer generated selection, the lucky few can check the US Department of State website for news of their selection in the following spring/summer, and invited to complete the visa process at the local US Consulate or take the required steps to adjust their status if they are already in the United States.
For the most recent 2012 lottery however, a computer glitch caused the selection of winners not to be random at all. After review, it was discovered that 90% of winners were selected among applicants who had filed their application on the first two days of registration (Octoebr 5 and 6, 2010). This caused the U.S. Department of State the embarassment of having to notify all those "winners" that in fact their selection had to be voided (and their hopes crushed). A new draw has been scheduled and so, for those of you who applied for the 2012 lottery on any day of the registration period between October 5, 2010 and November 3, 2010, it will be included in the new selection lottery. Your confirmation number to check results on the U.S. Department of State website is still valid.
So check the status of your application through the DOS website between July 15, 2011 (this Friday) until June 30, 2012. More information can be found on the official Diversity Visa Lottery website here.
Good luck!!!
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