USCIS Issues Proposed New Rules Governing I-601 Hardship Waiver Petitions for Immediate Realtives

I have received numerous phone calls over the last few weeks regarding the publicity surrounding the announcement from Homeland Security and their proposed new rules governing the pre-adjudication of I-601 Hardship Waiver petitions and the granting of provisional waivers if the requirements are met.

What is critical to understand at the moment is that this is merely a notice of a proposed rule change and it will not take effect until it is approved and incorporated into the CFR's. (Code of Federal Regulations). Please find a link to the entire publication below.

Also, the proposal explicitly states "USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice . . The provisional waiver, however, would not become effective unless and until the alien departs from the United States."

DHS Proposed Rules on Hardship Waivers

Update on Sustaire Case

Late last week, our office received the DHS Office of Chief Counsel's response to our motion to reopen, based on ineffective assistance of counsel in our Korean family's case. In a surprise to me, the local ACC (Assistant Chief Counsel) did not object to the reopening for the wife's motion, as she was not involved in the underlying fraud by Leland Sustaire at the USCIS San Jose Field Office.

This was welcome news as she has two minor children, born in the US, who can now stay with their mother in the US, if the BIA agrees to reopen and remand to the Immigration Court. We still have a good faith argument for the father, however, the ACC did object.

ICE Officials’ Sporadic Exercise of Prosecutorial Discretion

A recent survey conducted by the American Immigration Lawyers Association, (AILA), to nobody's surprise, found that U.S. Immigration Customs Enforcement (ICE) has a spotty record of applying prosecutorial discretion.

The survey concluded that ICE officers and attorneys across the country are applying different standards on prosecutorial discretion despite the issuance of national policy memoranda this summer. The report, which includes information about all 28 ICE offices nationwide, shows that most ICE offices have not even implemented the two headquarters' memos. These discrepancies reflect a need for ICE and Department of Homeland Security (DHS) leadership to issue additional guidance to its rank and file.

"We felt that ICE's June 2011 memoranda about the use of prosecutorial discretion in certain types of immigration cases were clear and straightforward," said AILA President Eleanor Pelta. "But," Pelta continued, "These survey results show that ICE agents and attorneys are not willing to use the discretion they are responsible for implementing without further guidance. They are asking for more, and the agency's leadership should help them get it," said Pelta.

The June 17, 2011, memo outlines for ICE agents and attorneys the factors that would deem an immigration case a low priority for enforcement action. They include ties to America including service in the U.S. armed forces, schooling, contributions to the community, and other equities for enforcement officials to consider when deciding what course of action to take in a particular case.

What AILA seemingly found is an institutional aversion to applying any form of discretionary relief to the immigrant community. Many ICE officers and attorneys are actively resistant. Some officials said their jobs are "to arrest and deport." So the rank-and-file ICE officers are continuing unabated in their wholesale efforts to deport as many people and quickly as possible, even in the face of leadership that is telling them to slow down and not to tear families apart.

Immigration is Watching Social Media Site

It is critically important to always remember that Government Agencies are trolling the Social Media websites to investigate people applying for immigration benefits. The Electronic Frontier Foundation obtained a memorandum from the Office of Fraud Detection and National Security (FDNS) stating the policy of using social media site to obtain information. The memo was titled, Social Networking Sites and Their Importance to FDNS. The memo contains specific advice to federal agents on how to "friend" a user and thereby gaining access to otherwise restricted content. The memo states that "narcissistic tendencies in many people fuel a need to have a large group of friends link to their pages."

Social media permits federal agents an excellent vantage point to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. "Once a user posts online, they create a public record and timeline of their activities."

Saw My First Leland Sustaire Case Last Week

The office ran across our first Sustaire case. The Korean family had exhausted their appellate proceedings, the Ninth Circuit panel had issued the Memorandum in their petition for review and the Mandate was set to issue today. The clients came in last week, asking if anything could be done in their case.

It started in 1991, when the husband, obtained his LPR status by using an immigration broker who took $10,000 and ostensibly filed an I-140 on his behalf as an EB-3 worker. He even went so far as to interview at the San Jose INS Office and received his Green Card. However, the broker was paying off the Supervisor of the Adjustment Section inside the INS office, Mr. Leland Sustaire.

As reported by the LA Times in 2003:

SAN JOSE — For 12 years, Leland Sustaire was the fix-it man, a veteran U.S. immigration supervisor who accepted $500,000 in bribes from two immigration brokers to authorize green cards for South Korean immigrants throughout California.

The scheme fell apart in 1998 when a nervous Sustaire turned himself in, agreeing to wear a hidden microphone to help indict Korean American brokers John Choe and Daniel Lee. Both were convicted of fraud and bribery in 1999 and sentenced to three years in prison. For Sustaire's cooperation, prosecutors argued that the 54-year-old former official should avoid time behind bars: He was sentenced to six months in a halfway house and six months' home confinement.

Even worse, when reviewing his testimony, Mr. Sustaire avoided any jail time for his fraud, he got to keep all of the illicit money he collected over the years, somewhere in the range of $500,000 to $650,000, and he got a free pass on having to pay any taxes to the IRS on this loot. However, the lives of the approximately 270 families he ruined did not get such a sweet deal.

The family we saw last week had been represented by a well-known San Francisco lawyer who arguably botched the case. At the hearing on the merits, he asked for a INA § 212(k) waiver, to which the Koreans were not even eligible to obtain, instead of asking for an INA § 237(a)(1)(H) waiver, which would have forgiven the fraudulent method in which the Green Card was obtained and grandfathered the green card back to the adjustment date. Then, compounding this error, the attorney missed the filing deadline for the Opening Brief at the Board of Immigration Appeals, the BIA never considered the brief, yet he gave the clients a copy of the brief, with the late time stamp from the BIA and led them to believe it had been filed on time.

Needless to say, we filed a motion to reopen with the BIA on the basis of ineffective assistance of counsel. We are keeping out fingers crossed on this one as the Board is always loath to reopen such an old case.

Stop-Time Rule for Cancellation

One of the more arcane, gotcha rules out there is the so called "Stop-Time Rule," which pretermits the consideration of a EOIR-42A or EOIR-42B Application for Cancellation of Removal. Every time I get one of these types of cases, I need to carefully review the regulation and applicable case-law on this point and the rules are different depending upon whether the application is for an LPR or a non-LPR.

So, the other day, I am asked to look at someone who initially entered the US as a student and then married a USC and adjusted to an LPR. They seem to have a psychological condition where they want to take things that do not belong to them. Kleptomania. Many theft offenses, and all of them a CIMT's (Crimes Involving Moral Turpitude).

So the statutory eligibility for filing this relief is:
1. "Lawfully admitted for permanent residence" for 5 years; and
2. Resided in the US continuously for 7 years after having been admitted in any status. INA § 240A(a)(2).

The "Stop-time rule" for an LPR, applies only to the seven-year continuous residence issue and 'does not apply to the five-year requirement." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006) and "has no other bearing on the other requirements for cancellation of removal, including the issues of qualifying relatives, hardship, or good moral character."Matter of Bautista Gomez, 23 I&N Dec. 893, 895 (BIA 2006).

So in my case, the fact that our client had entered the US many years ago on F status, as a student, meant she had enough time in continuous residence to qualify and the other five-year requirement is deemed to end upon service of the notice to appear and not the actual date of the offense. INA § 240A(d)(1)(A), meaning our client qualifies for this form of relief.

U.S. Supreme Court to Hear Oral Arguments on Oct. 12th in Immigration Case Involving Question of Whether LPR is Eligible for 212(c) Waiver

SCOTUS is hearing oral arguments in immigration case out of the Ninth Circuit in Judulang v. Holder, Docket No.: 10-694, on issue of whether Lawful Permanent Resident who plead guilty to manslaughter in 1989, was eligible for INA § 212(c) waiver relief.

In reading the memorandum from the Ninth Circuit, the primary claim for relief by the petitioner seemed to be one of derivative citizenship through his parents, both of whom naturalized. However, the record below seems to indicate that his mother did not naturalize until he turned nineteen.

The question certified for review is:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

The Ninth Circuit held that petitioner was not eligible because under the INA as it existed at the time, there was no substantially similar statutory counterpart for aggravated felony crimes of violence in the grounds for exclusion in former INA § 212(a), and therefore Judulang was ineligible for a waiver under § 212(c).

The Ninth Circuit held that Judulang’s argument is foreclosed by the court's decision in Abebe v. Gonzales, No. 05-76201, 2007 U.S. App. LEXIS 16191, at *32-35 (9th Cir. July 9, 2007). "In Abebe, we concluded that lack of a substantially identical statutory counterpart in § 212(a) for aggravated felony sexual abuse of a minor among the grounds for exclusion rendered the alien ineligible for § 212(c) relief. Id. Abebe is controlling."

Here is the link to the SCOTUS page and all of the submitted briefing before the court.