In the United States, the legal duties of the notary public are restricted to such tasks as witnessing signatures and certifying the validity of documents. But in Latin American countries, notarios publico receive extensive legal training and provide a range of legal services.
The problem is that many immigrants to the US fail to realize that notarios don't have the same standing her that they do in other countries. Andmany notarios, whose signs are common in the business districts of Hispanic neighborhoods, do nothing to dissuade their customers, or they simply overstep their bounds in efforts to be helpful.
But the result is the same: significant damage to an immigrant's efforts to secure a legal status that will permit him or her to remain in the US.
Immigration fraud is not confined to Hispanic Communities. "In the Hispanic community it is a notario. In the Arab-American community, signs just say 'immigration expert' or 'immigration," says Abed A. Ayoub, a legal advisor to the American-Arab Anti-Discrimination Committee in Washington D.C.
Our office has handle numerous cases where an immigrant has run afoul of USCIS because their notario failed to properly file the correct document or mishandled the application.
Tomorrow, we will be filing a Motion to Reopen an in absentia Final Order of Removal in a case in Seattle, Washington where the alien used a Russian Language Immigration Consultant who is now in prison for fraud.
Link to Story
Tuesday, December 22, 2009
Tuesday, December 15, 2009
U.S. Supreme Court Grants Cert on Question of Whether an Alien Has a Right to Effective Assistance of Counsel
08-651 PADILLA V. KENTUCKY
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
Petitioner, who has lived in this country for nearly 40 years and served in the United States Army, is a legal permanent resident of this country, not a citizen. In 2001 Petitioner was indicted for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Prior to entering a plea of guilty to that offense, Petitioner was incorrectly advised by his counsel that the plea would not affect his immigration status. Unfortunately,
because the offense was an aggravated felony, Petitioner's deportation is mandatory. Upon discovery of this fact, Petitioner sought post conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post conviction relief holding the Petitioner was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Petitioner now seeks certiorari to review the following questions:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
DECISION BELOW:253 S.W.3d 482
CERT. GRANTED 2/23/2009
QUESTIONS PRESENTED:
Petitioner, who has lived in this country for nearly 40 years and served in the United States Army, is a legal permanent resident of this country, not a citizen. In 2001 Petitioner was indicted for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Prior to entering a plea of guilty to that offense, Petitioner was incorrectly advised by his counsel that the plea would not affect his immigration status. Unfortunately,
because the offense was an aggravated felony, Petitioner's deportation is mandatory. Upon discovery of this fact, Petitioner sought post conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post conviction relief holding the Petitioner was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Petitioner now seeks certiorari to review the following questions:
1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and
2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
LOWER COURT CASE NUMBER: 2006-SC-000321-DG
Thursday, December 10, 2009
Lujan Exception Only Available in the Ninth Circuit's Jurisdiction
I have written about the severe consequences of any narcotics conviction to anyone not a U.S. citizen. Outside of the jurisdiction of the Ninth Circuit, such a conviction will result in deportation. The Lujan Exception provides relief to someone charged with "first-time, simple possession" of a narcotic if that person is eligible under a rehabilitative state statute equivalent to the FFOA (Federal First Offense Act).
"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).
The Attorney General's Decision further states:
"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."
"Indeed, although the BIA acquiesces in the decision in the Ninth Circuit, it correctly declines to follow it outside of that circuit. See In re Salazar-Regino, 23 I&N Dec. 223, (BIA 2002) (“[E]xcept in the Ninth Circuit, a first-time simple drug possession offense expunged under a state rehabilitative statute is a conviction under section 101(a)(48)(A) of the [INA].”)
Matter of Erick MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005).
The Attorney General's Decision further states:
"I do not decide whether the Ninth Circuit was correct in concluding that the new definition of conviction did not repeal the FFOA, and therefore, as the Ninth Circuit held, equal protection guarantees require that an alien with a state conviction who would have been eligible for FFOA relief had the conviction been rendered in federal court receive the same treatment as a alien with a federal conviction. I do note, however, that at least three circuits disagree with the Ninth Circuit. See Acosta v. Ashcroft, 341 F.3d 218, 227 (3d Cir. 2003) (concluding that “it seems plain that rational-basis review is satisfied here”);
Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir. 2003) (finding Ninth Circuit’s decision “untenable” and declining to follow it); Vasquez-Velezmoro v. INS, 281 F.3d 693, 697-99 (8th Cir. 2002) (disagreeing with Ninth Circuit and declining to address possible repeal of FFOA by IIRIRA because no equal protection violation for treating alien convicted under state law differently from alien convicted under federal law where the sentences were dissimilar and Congress could have intended to provide relief only for federal convictions, over which Congress would have control)."
Wednesday, November 25, 2009
Ninth Circuit Court of Appeals Asylum Handbook
I recently ran across this handy little pdf file from the Ninth Circuit Court of Appeals which lists all the precedent cases involving asylum, withholding, and claims under the Convention Against Torture and thought I should post it on my blog site.
I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.
9th Circuit Asylum Precedent Handbook -
I will be drafting an opening brief to the Ninth Circuit on a CAT claim involving a Mexican National who was tortured by the drug cartel in a kidnapping for ransom scheme. The IJ and the BIA both conceded that he in fact was tortured, but held that he could safely relocate inside of Mexico. Our argument is that the breakdown of law and order inside of Mexico is so severe that there is no safe location in Mexico where the narco-gangs do not have influence or actual control.
9th Circuit Asylum Precedent Handbook -
Thursday, November 19, 2009
IDENT / IAFIS Screening
I am reading an interesting book about the US Mexican Border, written by Tim Gaynor, a Reuters Reporter who spent years along the border and was named the 2007 Reuters Journalist of the Year for his immigration coverage.
In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.
Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.
"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.
In his book, Tim describes the IDENT system which is used to screen anyone arriving in the US by checking the arriving person's two index fingers against an immigration database. This is the first biometrics system going down a path of ever greater investigation available to all border stations and airports.
Another system also in use behind the scenes is the Automated Fingerprinting Identification System (IAFIS), which is a more thorough check that reads all ten digits and matches them against law enforcement databases. It is about the size of a tissue box. A detainee's thumbs are run over rollers and held against a flat pane of glass on top of the box, where they are photographed by a digital camera. Then all four fingers on each hand are wiped and held up against the glass and are photographed in turn.
"The IAFIS program scans the unrepeatable sequence of nodes and intersections in each of the prints and transforms it into a numerical code. The results are then matched with data held digitally in a live crime database held by the National Crime Information Center (NCIC) that holds information from federal. state, and local law enforcement throughout the US, as well as details on suspects, criminals, and fugitives sought by Interpol." Midnight on the Line, pg. 90.
Monday, November 9, 2009
California Penal Code § 1016.5 - Motion to Vacate Conviction
Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.
Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).
We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.
The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.
So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.
Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).
We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.
The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.
So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.
Wednesday, October 28, 2009
Enforcement of H-1B Labor Condition Application
Nonimmigrant Employment Visa - LCA Enforcement
We took on a case involving an Indonesian Native who was sponsored by an Accounting Firm on an H-1B Visa Petition. The company filed the I-129, LCA, and supporting documents, and obtained an approved H-1B Visa for our client from 2008 to 2011.
However, once the visa approval was obtained, then dismissed him and never paid him according to the LCA contracted rate. Under the parlance of the U.S. Department of Labor (DOL), they "parked him." An employer can lawfully "park" one of their H-1B alien employees, but they are required to continue paying that individual.
20 C.F.R. § 655.731(c)(4) states, "If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), . . . the employer is required to pay the salaried employee the full pro-rata amount due, . . . at the required wage for the occupation listed on the LCA."
The only way that an employer can remove their obligation is by complying with 20 C.F.R. § 655.731(c)(7)(ii) which states in pertinent part, "Payment need to be made if there has been a bona fide termination of the employment relationship.INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is cancelled. See 8 C.F.R. § 214.2(h)(11)."
Pursuant to 20 C.F.R. § 655.806, our office filed with the DOL Employment Standards Administration (ESA), Wage and Hour Division (WHD) a Form WH-4 Complaint for all the backpay our client is entitled to.
Thursday, October 1, 2009
Ninth Circuit Holds that a Probation Violation Terminates Eligibility for the Lujan Exception
Sad to report that a recent Ninth Circuit Court decision limits an immigrant's eligibility for the Lujan Exception to a First-time, simple possession narcotics conviction. The original holding in Lujan found that under the Equal Protection Clause of the Constitution, anyone, even an alien should be treated equally under the law.
Estrada v. Holder -
Now that this exception has been caved out of Lujan, it is essential that anyone eligible for relief under Lujan must not violate the terms of their probation or they will still face deportation.
Estrada v. Holder -
Now that this exception has been caved out of Lujan, it is essential that anyone eligible for relief under Lujan must not violate the terms of their probation or they will still face deportation.
Tuesday, August 18, 2009
USCIS Denies Family Based Visa Petition under Adam Walsh Act
Our office has two cases where a U.S. citizen has filed I-130 Petitions for an Immediate Relative, their spouses, only to have USCIS issue intent to deny letters based upon their interpretation of the Adam Walsh Act of 2006.
The letters read in part,
"On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety and to honor the memory of Adam Walsh and other child crime victims.
Sections 402(a) and(b) of the Adam Walsh Act amend section 101(a)(15)(K), 204(a)(1)(A) and 204(a)(1)(B)(i) of the INA to prohibit U.S. citizens and Lawful Permanent Residents who have been convicted of any 'specified offense against a minor' from filing a family-based visa petition on behalf of any beneficiary, unless the Secretary of the Department of Homeland Security determines in his of her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary of the visa petition. "
One of our clients was convicted of statutory rape, which was the result of consentual relations between a girl of 14 and an 18 year old boy, all of which occurred over 20 years ago.
Stay posted on how this case finally resolves. I sense some weighty constitutional issues implicated by Congress enacting this harsh ex post facto penalty and impinging upon a fundamental right to marry.
The letters read in part,
"On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety and to honor the memory of Adam Walsh and other child crime victims.
Sections 402(a) and(b) of the Adam Walsh Act amend section 101(a)(15)(K), 204(a)(1)(A) and 204(a)(1)(B)(i) of the INA to prohibit U.S. citizens and Lawful Permanent Residents who have been convicted of any 'specified offense against a minor' from filing a family-based visa petition on behalf of any beneficiary, unless the Secretary of the Department of Homeland Security determines in his of her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary of the visa petition. "
One of our clients was convicted of statutory rape, which was the result of consentual relations between a girl of 14 and an 18 year old boy, all of which occurred over 20 years ago.
Stay posted on how this case finally resolves. I sense some weighty constitutional issues implicated by Congress enacting this harsh ex post facto penalty and impinging upon a fundamental right to marry.
Wednesday, August 12, 2009
INA § 287(g) - Turning Local Police into Federal Immigration Authorities
Homeland Security Secretary Janet Napolitano announced the expansion of the controversial 287(g) program to eleven new locations across the country. This program allows local law enforcement agencies to enter into agreements with Homeland Security’s Immigration and Customs Enforcement, or ICE. It effectively gives local police the powers of federal immigration agents.
Amy Goodman on Democracy Now recently covered this story in her program.
However, what is particularly uncomfortable for me is the convergence between this 287(g) program and the US-VISIT initiative using multiple layers of security, including the use of biometrics, such as digital fingerprints, to establish and verify international travelers' identities. US-VISIT also includes LPR's even though they are not actually seeking admission when crossing the U.S. border.
The use of these two programs in conjunction is creating the "Big Brother" effect that Orwell warned the world about in 1984. US-VISIT database is now linked to NCIC database (the National Crime Information Center) which all local law enforcement agencies check when someone is detained. One example of how this works is the situation of a non-immigrant visitor on a tourist visa who has overstayed their permitted stay. They are a passenger in a vehicle stopped for a routine traffic stop. The officer runs the ID's through NCIC and the visitor's name pops up as an overstay from the US-VISIT database. The officer is commissioned under 287(g) to enforce immigration laws and now takes the visitor into immigration detention and turns the person over to ICE to initiate removal proceedings.
Total information awareness, thank you Admiral Poindexter.
Amy Goodman on Democracy Now recently covered this story in her program.
However, what is particularly uncomfortable for me is the convergence between this 287(g) program and the US-VISIT initiative using multiple layers of security, including the use of biometrics, such as digital fingerprints, to establish and verify international travelers' identities. US-VISIT also includes LPR's even though they are not actually seeking admission when crossing the U.S. border.
The use of these two programs in conjunction is creating the "Big Brother" effect that Orwell warned the world about in 1984. US-VISIT database is now linked to NCIC database (the National Crime Information Center) which all local law enforcement agencies check when someone is detained. One example of how this works is the situation of a non-immigrant visitor on a tourist visa who has overstayed their permitted stay. They are a passenger in a vehicle stopped for a routine traffic stop. The officer runs the ID's through NCIC and the visitor's name pops up as an overstay from the US-VISIT database. The officer is commissioned under 287(g) to enforce immigration laws and now takes the visitor into immigration detention and turns the person over to ICE to initiate removal proceedings.
Total information awareness, thank you Admiral Poindexter.
Monday, August 10, 2009
ICE Agrees to Removal Families at Hutto Detention Center
ACLU Strikes Deal To Continue Humane Conditions At Hutto Detention Center in Texas
The deal comes on the heels of an announcement Thursday that the government will immediately begin ending the detention of families at Hutto, the focus of 2007 lawsuits filed by the ACLU charging that children were being illegally imprisoned under inhumane conditions. The last family is expected to be released from Hutto no later than the end of the year.
The Obama Administration has finally agreed to close this prison where families with children, including babies, had been held in immigration detention, e.g., jail, for months and years. Small children were locked up in prison cells for up to 12 hours a day and only given 1 hour of school education until the ACLU filed suit against the previous Bush Administration polices.
Here is the link:" http://www.aclu.org/immigrants/detention/40648prs20090807.html
The deal comes on the heels of an announcement Thursday that the government will immediately begin ending the detention of families at Hutto, the focus of 2007 lawsuits filed by the ACLU charging that children were being illegally imprisoned under inhumane conditions. The last family is expected to be released from Hutto no later than the end of the year.
The Obama Administration has finally agreed to close this prison where families with children, including babies, had been held in immigration detention, e.g., jail, for months and years. Small children were locked up in prison cells for up to 12 hours a day and only given 1 hour of school education until the ACLU filed suit against the previous Bush Administration polices.
Here is the link:" http://www.aclu.org/immigrants/detention/40648prs20090807.html
Friday, July 31, 2009
Friday, July 17, 2009
DHS Reverse Policy on Asylum Applications for Victims of Domestic Violence
As the New York Times reported July 16, 2009, the Obama Administration, announced in a Supplemental Brief submitted to the Board of Immigration Appeals, a 180 degree reversal from the prior position taken by former Attorney General MuKasey on the question of whether the government recognizes claims for asylum from victims of domestic violence. All of these claims fall under the protection category of "Membership in a Particular Social Group."
The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.
However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.
The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.
The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.
The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.
However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.
The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.
The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.
Tuesday, July 14, 2009
VAWA Appeal to Vermont Service Center
Just received notice from the Vermont Service Center that our office's recently submitted I-290 AAO Appeal of a denied VAWA self-petition will be reopened.
No reason given in the notice, but I suspect that it was the argument made that it is not permitted under the statute to use the testimony of the abuser as forming the basis of denying the VAWA claim. This is an impermissible use and constitutes a Breach of Confidentiality under IIRIRA § 384
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
No reason given in the notice, but I suspect that it was the argument made that it is not permitted under the statute to use the testimony of the abuser as forming the basis of denying the VAWA claim. This is an impermissible use and constitutes a Breach of Confidentiality under IIRIRA § 384
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
Thursday, June 18, 2009
I-290 Appeal of Denied I-360 VAWA Petition
Just finished an interesting AAO appeal of a denied I-360 VAWA petition to the Vermont Service Center of USCIS.
The government denied our client's I-360 Self-Petition essentially based upon the testimony given by the abuser at the I-130 interview where he intentionally sabotaged the interview so that our client would not receive the immigration benefit and would in fact be ordered deported back to India, where the U.S. citizen abuser would have total control over our client
Our argument was based upon the fact that USCIS explicitly cited to and ultimately based their adverse determination upon the discrepant testimony provided by the USC abuser during the 2007 adjustment interview.
As such, this is a clear violation of the confidentiality provision contained in 8 U.S.C. § 1367(a)(1); IIRAIRA § 384(a)(1).
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
Congress enacted this law and the associated penalties, specifically so that abusers could not use the immigration system as a weapon against domestic violence victims. When immigration officials take action based on information provided by the batterer, as is the case here, they violate the law and contravene the purposes behind VAWA.
The statute holds that CIS cannot deny a VAWA self-petition based on information provided solely by the batterer. See IIRAIRA § 384(a)(1).
In adjudicating our client's I-360 self-petition, she cannot be deemed inadmissible or deported based upon information from her batterer and CIS cannot deny a VAWA self-petition based upon information provided by her USC abuser . See 8 U.S.C. § 1367(a)(1).
The government denied our client's I-360 Self-Petition essentially based upon the testimony given by the abuser at the I-130 interview where he intentionally sabotaged the interview so that our client would not receive the immigration benefit and would in fact be ordered deported back to India, where the U.S. citizen abuser would have total control over our client
Our argument was based upon the fact that USCIS explicitly cited to and ultimately based their adverse determination upon the discrepant testimony provided by the USC abuser during the 2007 adjustment interview.
As such, this is a clear violation of the confidentiality provision contained in 8 U.S.C. § 1367(a)(1); IIRAIRA § 384(a)(1).
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
Congress enacted this law and the associated penalties, specifically so that abusers could not use the immigration system as a weapon against domestic violence victims. When immigration officials take action based on information provided by the batterer, as is the case here, they violate the law and contravene the purposes behind VAWA.
The statute holds that CIS cannot deny a VAWA self-petition based on information provided solely by the batterer. See IIRAIRA § 384(a)(1).
In adjudicating our client's I-360 self-petition, she cannot be deemed inadmissible or deported based upon information from her batterer and CIS cannot deny a VAWA self-petition based upon information provided by her USC abuser . See 8 U.S.C. § 1367(a)(1).
Tuesday, May 26, 2009
Wednesday, May 13, 2009
Recent Ninth Circuit Decision Reaffirms Lujan Exception to First Offense, Simple Possession Conviction
The long standing law within the jurisdiction of the Ninth
Circuit is that a first-time, simple possession of a narcotic, does
not subject the alien to removal if the alien would have been
eligible for inclusion under the Federal First Offenders Act [FFOA].
In this instance, Petitioner’s arrest and deferred entry of judgment
for “Attempted Possession of a Narcotic” squarely falls within the
Lujan-Armendariz line of cases. This holding was recently reaffirmed
in a February 4, 2009, decision Ramirez-Altamirano v. Mukasey cited
below.
“[T]he relevant question is whether the person involved could
have received relief under the [FFOA] and does receive relief under a
state rehabilitative statute." Lujan-Armendariz, 222 F.3d at 738
n.18; see also Cardenas-Uriarte, 227 F.3d at 1136 ("If [the
petitioner] would have been eligible for first offender treatment
under federal law, he would not stand 'convicted' for purposes of the
immigration laws."); Dillingham v. INS, 267 F.3d 996, 1006 (9th Cir.
2001) ("[T]he INS may not discriminate against aliens convicted of
simple possession offenses whose subsequent conduct would have
qualified them for FFOA rehabilitation, but for the fact that they
were convicted and rehabilitated under the laws of another
sovereign."). Similarly, when we have denied FFOA treatment to an
alien convicted under state law, it has consistently been because the
alien would not have been eligible for relief under the FFOA.”
Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009).
Circuit is that a first-time, simple possession of a narcotic, does
not subject the alien to removal if the alien would have been
eligible for inclusion under the Federal First Offenders Act [FFOA].
In this instance, Petitioner’s arrest and deferred entry of judgment
for “Attempted Possession of a Narcotic” squarely falls within the
Lujan-Armendariz line of cases. This holding was recently reaffirmed
in a February 4, 2009, decision Ramirez-Altamirano v. Mukasey cited
below.
“[T]he relevant question is whether the person involved could
have received relief under the [FFOA] and does receive relief under a
state rehabilitative statute." Lujan-Armendariz, 222 F.3d at 738
n.18; see also Cardenas-Uriarte, 227 F.3d at 1136 ("If [the
petitioner] would have been eligible for first offender treatment
under federal law, he would not stand 'convicted' for purposes of the
immigration laws."); Dillingham v. INS, 267 F.3d 996, 1006 (9th Cir.
2001) ("[T]he INS may not discriminate against aliens convicted of
simple possession offenses whose subsequent conduct would have
qualified them for FFOA rehabilitation, but for the fact that they
were convicted and rehabilitated under the laws of another
sovereign."). Similarly, when we have denied FFOA treatment to an
alien convicted under state law, it has consistently been because the
alien would not have been eligible for relief under the FFOA.”
Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009).
Tuesday, April 21, 2009
Special Immigrant Juvenile Visa
Our office has an interesting new case involving two children who came to the U.S. after their father was killed by India Police after an attack on a bus in the Punjab Province. I have been looking at the possibility of somehow obtaining a Special Immigrant Juvenile Visa for them and ran across this USCIS Memo.
U.S. Citizenship and Immigration Services
Office of Policy and Strategy and Domestic
Operations
Washington, DC 20529-2140
HQOPS 70/8.5
Memorandum
TO: Field Leadership
FROM: Donald Neufeld /s/
Acting Associate Director
Domestic Operations
Pearl Chang /s/
Acting Chief
Office of Policy & Strategy
DATE: March 24, 2009
SUBJECT: Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions
1. Purpose
This memorandum will inform immigration service officers working Special Immigrant Juvenile (SIJ) petitions about new legislation affecting adjudication of petitions filed for SIJ status.
2. Background
On December 23, 2008, the President signed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044 (2008). Section 235(d) of the TVPRA 2008 amends the eligibility requirements for SIJ status at section 101(a)(27)(J) of the Immigration and Nationality Act (INA), and accompanying adjustment of status eligibility requirements at section 245(h) of the INA. Most SIJ provisions of the TVPRA 2008 take effect March 23, 2009, although some provisions took effect on December 23, 2008, the date of enactment of the TVPRA 2008.
3. Field Guidance
Eligibility for Special Immigrant Juvenile Status
Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions
Page 2
The TVPRA 2008 amended the definition of a “Special Immigrant Juvenile” at section 101(a)(27)(J) of the INA in two ways. First, it expanded the group of aliens eligible for SIJ status. An eligible SIJ alien now includes an alien:
* who has been declared dependent on a juvenile court;
* whom a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State; or
* who has been placed under the custody of an individual or entity appointed by a State or juvenile court.
Accordingly, petitions that include juvenile court orders legally committing a juvenile to or placing a juvenile under the custody of an individual or entity appointed by a juvenile court are now eligible. For example, a petition filed by an alien on whose behalf a juvenile court appointed a guardian now may be eligible. In addition, section 235(d)(5) of the TVPRA 2008
specifies that, if a state or an individual appointed by the state is acting in loco parentis, such a state or individual is not considered a legal guardian for purposes of SIJ eligibility.
The second modification made by the TVPRA 2008 to the definition of special immigrant juvenile concerns the findings a juvenile court must make in order for a juvenile court order to serve as the basis for a grant of SIJ status. Previously, the juvenile court needed to deem a juvenile eligible for long term foster care due to abuse, neglect or abandonment. Under the TVPRA 2008 modifications, the juvenile court must find that the juvenile’s reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. In short, the TVPRA 2008 removed the need for a juvenile court to deem a juvenile eligible for long-term foster care and replaced it with a requirement that the juvenile court find reunification with one or both parents not viable. If a juvenile court order includes a finding that reunification with one or both parents is not viable due to a similar basis found under State law, the petitioner must establish that such a basis is similar to a finding of abuse, neglect, or abandonment. Officers should ensure that juvenile court orders submitted as evidence with an SIJ petition filed on or after March 23, 2009, include this new language.
A petitioner is still required to demonstrate that he or she has been the subject of a determination in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.
Age Requirements
Section 235(d)(6) of the TVPRA 2008 provides age-out protection to SIJ petitioners. As of December 23, 2008, if an SIJ petitioner was a “child” on the date on which an SIJ petition was properly filed, U.S. Citizenship and Immigration Services (USCIS) cannot deny SIJ status to anyone, regardless of the petitioner’s age at the time of adjudication. Officers must now consider the petitioner’s age at the time of filing to determine whether the petitioner has met the age requirement. Officers must not deny or revoke SIJ status based on age if the alien was a child on the date the SIJ petition was properly filed if it was filed on or after December 23, 2008, or if it was pending as of December 23, 2008. USCIS interprets the use of the term “child” in section 235(d)(6) of the TVPRA 2008 to refer to the definition of child found at section 101(b)(1) of the INA, which states that a child is an unmarried person under 21 years of age. The SIJ definition
found at section 101(a)(27)(J) of the INA does not use the term “child,” but USCIS had previously incorporated the child definition at section 101(b)(1) of the INA into the regulation governing SIJ petitions.
Consent
The TVPRA 2008 also significantly modifies the two types of consent required for SIJ petitions.
Consent to the grant of SIJ status (previously express consent)
The TVPRA 2008 simplified the “express consent” requirement for an SIJ petition. The Secretary of Homeland Security (Secretary) must consent to the grant of special immigrant juvenile status. This consent is no longer termed “express consent” and is no longer consent to the dependency order serving as a precondition to a grant of SIJ status.
The consent determination by the Secretary, through the USCIS District Director, is an acknowledgement that the request for SIJ classification is bona fide. This means that the SIJ benefit was not “sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or
neglect or abandonment.” See H.R. Rep. No. 105-405, at 130 (1997). An approval of an SIJ petition itself shall be evidence of the Secretary’s consent.
Specific consent
The TVPRA 2008 completely altered the “specific consent” function for those juveniles in federal custody. The TVPRA 2008 vests this function with the Secretary of Health and Human Services (HHS) rather than the Secretary of the Department of Homeland Security as previously delegated to Immigration and Customs Enforcement (ICE). In addition, Congress simplified the
language to refer simply to “custody,” not actual or constructive custody, as was previously delineated. However, the requirement remains that an SIJ petitioner need only seek specific consent if the SIJ petitioner seeks a juvenile court order determining or altering the SIJ petitioner’s custody status or placement. If an SIJ petitioner seeks to obtain or obtains a juvenile
court order that makes no findings as to the SIJ petitioner’s custody status or placement, the SIJ petitioner is not required to have sought specific consent from HHS. Therefore, on or after March 23, 2009, officers must ensure that juveniles in the custody of HHS obtained specific consent from HHS to juvenile court jurisdiction where the juvenile court order determines or
alters the juvenile’s custody status or placement. USCIS will provide HHS guidance regarding adjudications of specific consent as soon as it is available.
Due to the complex nature and changing requirements of specific consent determinations, USCIS Headquarters (HQ) is temporarily assisting in making the determination on specific consent requirements. As outlined in the February 20, 2009 guidance email, Field Officers are instructed to forward certain documents to HQ for those SIJ petitions that may involve specific consent that are filed prior to March 23, 2009. HQ will notify the Field Office of the decision on specific consent. The Field Office will then complete adjudication of the petition. This temporary guidance providing HQ assistance with specific consent determinations will remain in effect until further notice.
Expeditious Adjudication
Section 235(d)(2) of the TVPRA 2008 requires USCIS to adjudicate SIJ petitions within 180 days of filing. Field Offices need to be particularly aware of this new requirement and take measures locally to ensure timely adjudication. Officers are reminded that under 8 CFR 245.6 an interview may be waived for SIJ petitioners under 14 years of age, or when it is determined that
an interview is unnecessary. Eliminating unnecessary interviewing of SIJ petitioners may help in expeditiously adjudicating petitions. Necessary interviews should be scheduled as soon as possible. During an interview, an officer should focus on eligibility for adjustment of status and should avoid questioning a child about the details of the abuse, abandonment or neglect suffered, as those matters were handled by the juvenile court, applying state law. Under no circumstances
can an SIJ petitioner, at any stage of the SIJ process, be required to contact the individual (or family members of the individual) who allegedly abused, abandoned or neglected the juvenile. This provision was added by the Violence Against Women Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) and is incorporated at section 287(h) of the INA. Officers must ensure proper
completion of background checks, including biometric information clearances and name-checks.
Adjustment of Status for Special Immigrant Juveniles
The TVPRA 2008 amends the adjustment of status provisions for those with SIJ classification at section 245(h) of the INA, to include four new exemptions. Approved SIJ petitioners are now exempted from seven inadmissibility grounds of the INA:
* 212(a)(4) (public charge);
* 212(a)(5)(A) (labor certification);
* 212(a)(6)(A) (aliens present without inspection);
* 212 (a)(6)(C) (misrepresentation);
* 212(a)(6)(D) (stowaways);
* 212(a)(7)(A) (documentation requirements); and
* 212(a)(9)(B) (aliens unlawfully present).
On or after March 23, 2009, none of the above listed grounds of inadmissibility shall apply to SIJ adjustment of status applicants.
Officers are reminded that this list of exemptions is in addition to the waivers available for most other grounds of inadmissibility for humanitarian purposes, family unity, or otherwise being in the public interest. The only unwaivable grounds of inadmissibility for SIJ petitioners are those listed at INA 212(a)(2)(A)-(C) (conviction of certain crimes, multiple criminal convictions, and controlled substance trafficking (except for a single instance of simple possession of 30 grams or
less of marijuana)), and 212(a)(3)(A)-(C), and (E) (security and related grounds, terrorist activities, foreign policy, and participants in Nazi persecution, genocide, torture or extrajudicial killing).
4. Use
This guidance is created solely for the purpose of USCIS personnel in performing their duties relative to adjudication of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantial or procedural, enforceable at law by any individual or any other party in removal proceedings, in litigation with the United States, or in any other or form or matter.
5. Contact Information
This guidance is effective immediately. Please direct any questions concerning these changes through appropriate supervisory channels to Rosemary Hartmann, Office of Policy and Strategy or Tina Lauver, Office of Field Operations.
Distribution List: Regional Directors
District Directors
Service Center Directors
Field Office Directors
National Benefits Center Director
U.S. Citizenship and Immigration Services
Office of Policy and Strategy and Domestic
Operations
Washington, DC 20529-2140
HQOPS 70/8.5
Memorandum
TO: Field Leadership
FROM: Donald Neufeld /s/
Acting Associate Director
Domestic Operations
Pearl Chang /s/
Acting Chief
Office of Policy & Strategy
DATE: March 24, 2009
SUBJECT: Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions
1. Purpose
This memorandum will inform immigration service officers working Special Immigrant Juvenile (SIJ) petitions about new legislation affecting adjudication of petitions filed for SIJ status.
2. Background
On December 23, 2008, the President signed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044 (2008). Section 235(d) of the TVPRA 2008 amends the eligibility requirements for SIJ status at section 101(a)(27)(J) of the Immigration and Nationality Act (INA), and accompanying adjustment of status eligibility requirements at section 245(h) of the INA. Most SIJ provisions of the TVPRA 2008 take effect March 23, 2009, although some provisions took effect on December 23, 2008, the date of enactment of the TVPRA 2008.
3. Field Guidance
Eligibility for Special Immigrant Juvenile Status
Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions
Page 2
The TVPRA 2008 amended the definition of a “Special Immigrant Juvenile” at section 101(a)(27)(J) of the INA in two ways. First, it expanded the group of aliens eligible for SIJ status. An eligible SIJ alien now includes an alien:
* who has been declared dependent on a juvenile court;
* whom a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State; or
* who has been placed under the custody of an individual or entity appointed by a State or juvenile court.
Accordingly, petitions that include juvenile court orders legally committing a juvenile to or placing a juvenile under the custody of an individual or entity appointed by a juvenile court are now eligible. For example, a petition filed by an alien on whose behalf a juvenile court appointed a guardian now may be eligible. In addition, section 235(d)(5) of the TVPRA 2008
specifies that, if a state or an individual appointed by the state is acting in loco parentis, such a state or individual is not considered a legal guardian for purposes of SIJ eligibility.
The second modification made by the TVPRA 2008 to the definition of special immigrant juvenile concerns the findings a juvenile court must make in order for a juvenile court order to serve as the basis for a grant of SIJ status. Previously, the juvenile court needed to deem a juvenile eligible for long term foster care due to abuse, neglect or abandonment. Under the TVPRA 2008 modifications, the juvenile court must find that the juvenile’s reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. In short, the TVPRA 2008 removed the need for a juvenile court to deem a juvenile eligible for long-term foster care and replaced it with a requirement that the juvenile court find reunification with one or both parents not viable. If a juvenile court order includes a finding that reunification with one or both parents is not viable due to a similar basis found under State law, the petitioner must establish that such a basis is similar to a finding of abuse, neglect, or abandonment. Officers should ensure that juvenile court orders submitted as evidence with an SIJ petition filed on or after March 23, 2009, include this new language.
A petitioner is still required to demonstrate that he or she has been the subject of a determination in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.
Age Requirements
Section 235(d)(6) of the TVPRA 2008 provides age-out protection to SIJ petitioners. As of December 23, 2008, if an SIJ petitioner was a “child” on the date on which an SIJ petition was properly filed, U.S. Citizenship and Immigration Services (USCIS) cannot deny SIJ status to anyone, regardless of the petitioner’s age at the time of adjudication. Officers must now consider the petitioner’s age at the time of filing to determine whether the petitioner has met the age requirement. Officers must not deny or revoke SIJ status based on age if the alien was a child on the date the SIJ petition was properly filed if it was filed on or after December 23, 2008, or if it was pending as of December 23, 2008. USCIS interprets the use of the term “child” in section 235(d)(6) of the TVPRA 2008 to refer to the definition of child found at section 101(b)(1) of the INA, which states that a child is an unmarried person under 21 years of age. The SIJ definition
found at section 101(a)(27)(J) of the INA does not use the term “child,” but USCIS had previously incorporated the child definition at section 101(b)(1) of the INA into the regulation governing SIJ petitions.
Consent
The TVPRA 2008 also significantly modifies the two types of consent required for SIJ petitions.
Consent to the grant of SIJ status (previously express consent)
The TVPRA 2008 simplified the “express consent” requirement for an SIJ petition. The Secretary of Homeland Security (Secretary) must consent to the grant of special immigrant juvenile status. This consent is no longer termed “express consent” and is no longer consent to the dependency order serving as a precondition to a grant of SIJ status.
The consent determination by the Secretary, through the USCIS District Director, is an acknowledgement that the request for SIJ classification is bona fide. This means that the SIJ benefit was not “sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or
neglect or abandonment.” See H.R. Rep. No. 105-405, at 130 (1997). An approval of an SIJ petition itself shall be evidence of the Secretary’s consent.
Specific consent
The TVPRA 2008 completely altered the “specific consent” function for those juveniles in federal custody. The TVPRA 2008 vests this function with the Secretary of Health and Human Services (HHS) rather than the Secretary of the Department of Homeland Security as previously delegated to Immigration and Customs Enforcement (ICE). In addition, Congress simplified the
language to refer simply to “custody,” not actual or constructive custody, as was previously delineated. However, the requirement remains that an SIJ petitioner need only seek specific consent if the SIJ petitioner seeks a juvenile court order determining or altering the SIJ petitioner’s custody status or placement. If an SIJ petitioner seeks to obtain or obtains a juvenile
court order that makes no findings as to the SIJ petitioner’s custody status or placement, the SIJ petitioner is not required to have sought specific consent from HHS. Therefore, on or after March 23, 2009, officers must ensure that juveniles in the custody of HHS obtained specific consent from HHS to juvenile court jurisdiction where the juvenile court order determines or
alters the juvenile’s custody status or placement. USCIS will provide HHS guidance regarding adjudications of specific consent as soon as it is available.
Due to the complex nature and changing requirements of specific consent determinations, USCIS Headquarters (HQ) is temporarily assisting in making the determination on specific consent requirements. As outlined in the February 20, 2009 guidance email, Field Officers are instructed to forward certain documents to HQ for those SIJ petitions that may involve specific consent that are filed prior to March 23, 2009. HQ will notify the Field Office of the decision on specific consent. The Field Office will then complete adjudication of the petition. This temporary guidance providing HQ assistance with specific consent determinations will remain in effect until further notice.
Expeditious Adjudication
Section 235(d)(2) of the TVPRA 2008 requires USCIS to adjudicate SIJ petitions within 180 days of filing. Field Offices need to be particularly aware of this new requirement and take measures locally to ensure timely adjudication. Officers are reminded that under 8 CFR 245.6 an interview may be waived for SIJ petitioners under 14 years of age, or when it is determined that
an interview is unnecessary. Eliminating unnecessary interviewing of SIJ petitioners may help in expeditiously adjudicating petitions. Necessary interviews should be scheduled as soon as possible. During an interview, an officer should focus on eligibility for adjustment of status and should avoid questioning a child about the details of the abuse, abandonment or neglect suffered, as those matters were handled by the juvenile court, applying state law. Under no circumstances
can an SIJ petitioner, at any stage of the SIJ process, be required to contact the individual (or family members of the individual) who allegedly abused, abandoned or neglected the juvenile. This provision was added by the Violence Against Women Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) and is incorporated at section 287(h) of the INA. Officers must ensure proper
completion of background checks, including biometric information clearances and name-checks.
Adjustment of Status for Special Immigrant Juveniles
The TVPRA 2008 amends the adjustment of status provisions for those with SIJ classification at section 245(h) of the INA, to include four new exemptions. Approved SIJ petitioners are now exempted from seven inadmissibility grounds of the INA:
* 212(a)(4) (public charge);
* 212(a)(5)(A) (labor certification);
* 212(a)(6)(A) (aliens present without inspection);
* 212 (a)(6)(C) (misrepresentation);
* 212(a)(6)(D) (stowaways);
* 212(a)(7)(A) (documentation requirements); and
* 212(a)(9)(B) (aliens unlawfully present).
On or after March 23, 2009, none of the above listed grounds of inadmissibility shall apply to SIJ adjustment of status applicants.
Officers are reminded that this list of exemptions is in addition to the waivers available for most other grounds of inadmissibility for humanitarian purposes, family unity, or otherwise being in the public interest. The only unwaivable grounds of inadmissibility for SIJ petitioners are those listed at INA 212(a)(2)(A)-(C) (conviction of certain crimes, multiple criminal convictions, and controlled substance trafficking (except for a single instance of simple possession of 30 grams or
less of marijuana)), and 212(a)(3)(A)-(C), and (E) (security and related grounds, terrorist activities, foreign policy, and participants in Nazi persecution, genocide, torture or extrajudicial killing).
4. Use
This guidance is created solely for the purpose of USCIS personnel in performing their duties relative to adjudication of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantial or procedural, enforceable at law by any individual or any other party in removal proceedings, in litigation with the United States, or in any other or form or matter.
5. Contact Information
This guidance is effective immediately. Please direct any questions concerning these changes through appropriate supervisory channels to Rosemary Hartmann, Office of Policy and Strategy or Tina Lauver, Office of Field Operations.
Distribution List: Regional Directors
District Directors
Service Center Directors
Field Office Directors
National Benefits Center Director
Friday, April 3, 2009
Justice Bybee's Torture Memo
Bybee Torture Memo
The full text of Ninth Circuit Court of Appeals Justice Jay Bybee's Torture Memo, dated August 2002 is linked above. I find it fascinating that an LDS (Mormon) trained attorney (BYU School of Law) and a member of this same faith is directly responsible for the use of torture, including water-boarding, by the U.S. Government and the subsequent shame and international condemnation rightfully heaped onto the Bush Administration for its blatant violation of fundamental human rights.
The full text of Ninth Circuit Court of Appeals Justice Jay Bybee's Torture Memo, dated August 2002 is linked above. I find it fascinating that an LDS (Mormon) trained attorney (BYU School of Law) and a member of this same faith is directly responsible for the use of torture, including water-boarding, by the U.S. Government and the subsequent shame and international condemnation rightfully heaped onto the Bush Administration for its blatant violation of fundamental human rights.
Thursday, April 2, 2009
Ninth Circuit Associate Justice Jay Bybee to be Indicted by Spanish Court for Crimes Against Humanity
A Spanish court has initiated proceedings that are likely to result in criminal charges against six top legal officials in the Bush administration for their role in crafting the justifications for the use of unlawful detention, torture and other internationally outlawed methods in the "war on terrorism."
The accused include former White House counsel and later US Attorney General Alberto Gonzales and former Justice Department lawyer John Yoo, who authored the infamous "torture memo" that justified waterboarding and narrowly defined torture as acts that "would result in death, organ failure, or serious impairment of bodily functions." Also charged is Yoo's former boss in the Justice Department's Office of Legal Counsel Jay Bybee; former Under Secretary of Defense for Policy Douglas Feith; former General Counsel for the Department of Defense William Haynes; and David Addington, who was the former chief of staff and legal advisor to Vice President Dick Cheney.
Jay Bybee is now a sitting justice on the Ninth Circuit Court of Appeals and under the imminent threat of having an extradiction order issued for his arrest for his involvement in the torture of detainees in U.S. custody.
A Spanish human rights group, the Association for the Dignity of Prisoners, filed the legal case on March 17 in Spain's National Court (Audiencia Nacional). The court gave the case to Judge Baltasar Garzón, who gained international fame in 1998 for issuing an arrest order for Augusto Pinochet for the murder, disappearance and torture of Spanish citizens under his military dictatorship in Chile. Pinochet was held under house arrest in Britain for a year and a half until the British government finally rejected Spain's extradition request and allowed him to return to Chile.
Garzón has already turned the 98-page complaint over to state prosecutors for review, and lawyers close to the case have stated that it is almost inevitable that a criminal investigation will proceed, potentially resulting in orders for the arrest of the six US officials, placing them in jeopardy of facing the same fate as Pinochet if they travel abroad.
The complaint argues that Spain has jurisdiction to try the American officials under universal jurisdiction, the same principle invoked in the Pinochet case, which holds that actions so heinous that they rise to the level of crimes against humanity may be tried by any court in the world.
As in the Pinochet case, however, the complaint also anchors its claim on jurisdiction to the fact that five Spanish citizens were victims of the policies crafted and justified by the accused, having been held without charges in Guantánamo and subjected to torture.
It also argues that the US use of torture to extract confessions had forced the Spanish Supreme Court's acquittal of all five of the former Guantánamo detainees, whom Garzón himself had charged with having links to Al Qaeda. This connection provides Garzón with grounds for reopening the case and charging the six former American officials, including Justice Bybee.
The accused include former White House counsel and later US Attorney General Alberto Gonzales and former Justice Department lawyer John Yoo, who authored the infamous "torture memo" that justified waterboarding and narrowly defined torture as acts that "would result in death, organ failure, or serious impairment of bodily functions." Also charged is Yoo's former boss in the Justice Department's Office of Legal Counsel Jay Bybee; former Under Secretary of Defense for Policy Douglas Feith; former General Counsel for the Department of Defense William Haynes; and David Addington, who was the former chief of staff and legal advisor to Vice President Dick Cheney.
Jay Bybee is now a sitting justice on the Ninth Circuit Court of Appeals and under the imminent threat of having an extradiction order issued for his arrest for his involvement in the torture of detainees in U.S. custody.
A Spanish human rights group, the Association for the Dignity of Prisoners, filed the legal case on March 17 in Spain's National Court (Audiencia Nacional). The court gave the case to Judge Baltasar Garzón, who gained international fame in 1998 for issuing an arrest order for Augusto Pinochet for the murder, disappearance and torture of Spanish citizens under his military dictatorship in Chile. Pinochet was held under house arrest in Britain for a year and a half until the British government finally rejected Spain's extradition request and allowed him to return to Chile.
Garzón has already turned the 98-page complaint over to state prosecutors for review, and lawyers close to the case have stated that it is almost inevitable that a criminal investigation will proceed, potentially resulting in orders for the arrest of the six US officials, placing them in jeopardy of facing the same fate as Pinochet if they travel abroad.
The complaint argues that Spain has jurisdiction to try the American officials under universal jurisdiction, the same principle invoked in the Pinochet case, which holds that actions so heinous that they rise to the level of crimes against humanity may be tried by any court in the world.
As in the Pinochet case, however, the complaint also anchors its claim on jurisdiction to the fact that five Spanish citizens were victims of the policies crafted and justified by the accused, having been held without charges in Guantánamo and subjected to torture.
It also argues that the US use of torture to extract confessions had forced the Spanish Supreme Court's acquittal of all five of the former Guantánamo detainees, whom Garzón himself had charged with having links to Al Qaeda. This connection provides Garzón with grounds for reopening the case and charging the six former American officials, including Justice Bybee.
Friday, March 27, 2009
Mexico Follow-up
I just finished writing my brief in support of a direct case appeal to the Board of Immigration Appeals (BIA) for a client who has a claim under CAT - Convention Against Torture. The IJ denied his application for relief holding that despite proving past torture, which included water-boarding, burning of his skin with cigarettes, physical beating, and electro-shock to his genitals by members of the Mexican Federal Judicial Police, that he could safely relocate within Mexico, or alternatively to given testimony to the anti-corruption police.
Our argument basically stresses the fact that corruption inside of Mexico is not incidental, but in fact systemic throughout the judiciary and law enforcement to such an extent that he cannot safely go anywhere in Mexico where the cartels cannot find him. This fact is inescapable given that the Mexican Head of Interpol himself was recently arrested for taking $120,000 a month from the cartels and now Interpol is investigating whether their entire network has been compromised by the criminal gangs.
As Ken Bode of the Indianapolis Star reported on Mach 27, 2009, "In the past few years, drug cartels have grown so greatly in wealth, power and influence that they actually control some parts of the country. They have infiltrated and corrupted every level of Mexican law enforcement to the point that federal police, the army and local police no longer trust each other. A recent study of 400 federales revealed that 90 percent had ties to the cartels."
This is precisely my argument to the BIA, that any return of our client will lead to his renewed persecution and torture as there is realistically no place in Mexico where he can safely return.
Our argument basically stresses the fact that corruption inside of Mexico is not incidental, but in fact systemic throughout the judiciary and law enforcement to such an extent that he cannot safely go anywhere in Mexico where the cartels cannot find him. This fact is inescapable given that the Mexican Head of Interpol himself was recently arrested for taking $120,000 a month from the cartels and now Interpol is investigating whether their entire network has been compromised by the criminal gangs.
As Ken Bode of the Indianapolis Star reported on Mach 27, 2009, "In the past few years, drug cartels have grown so greatly in wealth, power and influence that they actually control some parts of the country. They have infiltrated and corrupted every level of Mexican law enforcement to the point that federal police, the army and local police no longer trust each other. A recent study of 400 federales revealed that 90 percent had ties to the cartels."
This is precisely my argument to the BIA, that any return of our client will lead to his renewed persecution and torture as there is realistically no place in Mexico where he can safely return.
Wednesday, March 18, 2009
Thursday, March 5, 2009
U Non-Immigrant Visas
Started working on a "U" Visa, USCIS Form I-918, for a client who tipped off the police about rampant drug dealing going on inside of her store. The police raided the location, made numerous arrests and broke up a fairly high-level drug distribution network. After the police arrests, the aliens started receiving death threats and were forced to relocate and go into hiding.
There is not much information out there on how to file the application and a lot of the police departments are still trying to figure out how to fill out the Supplement "B" Form of the I-918 Application that really is the heart of the U Visa. I will keep the blog posted on how the application proceeds.
I called my friend who is specializing in "U" Visas and currently has over 15 applications on file.
The only meaningful discussion is the Sept. 5, 2007 Fact Sheet put out by USCIS.
Here is the link:
USCIS Fact Sheet
There is not much information out there on how to file the application and a lot of the police departments are still trying to figure out how to fill out the Supplement "B" Form of the I-918 Application that really is the heart of the U Visa. I will keep the blog posted on how the application proceeds.
I called my friend who is specializing in "U" Visas and currently has over 15 applications on file.
The only meaningful discussion is the Sept. 5, 2007 Fact Sheet put out by USCIS.
Here is the link:
USCIS Fact Sheet
Friday, February 13, 2009
My First Year Study Partner Makes the Headlines
In an amazing turn of events, my fellow first year law school study partner, David Xue, has made the headlines. I would have thought that David learned more about contract law during our torturous first year contracts class with Professor John J. Osborn, who is famous for writing the novel "The Paper Chase" during his law school education at Harvard.
Here is the link:
The News Story About My Partner, David Xue
Stay tuned.
Here is the link:
The News Story About My Partner, David Xue
Stay tuned.
Wednesday, January 28, 2009
AAO Appeal of Denied I-140 Petition
Last Monday, I finished a I-290B appeal of a denied I-140 Immigrant Petition for an Alien Worker of "Extraordinary Ability."
Yes, I know this is not a deportation matter, but I have not handled many deportation matters recently as my time is more and more being sucked up by commercial law litigation involving breached contracts and monies owed.
However, this appeal to the USCIS AAO (Administrative Appeals Office) in Washington, D.C. is interesting as my client is a Ph.D. Mathematician who is at the cutting edge on integrating computer technologies in the teaching of Calculus and differential equations. His focus is on allowing the student to "see" and visualize the complex relationships is real time so the non-mathematics student can work with real world applications, e.g. engineers, chemists, etc. Currently, my client holds the position as the Chair of the Computer and Mathematics Department in a prestigious university in Lebanon
The USCIS Nebraska Service Center Director, F. Gerard Heinauer, strictly applied the regulations in 8 C.F.R. § 204.5(h)(3) against all mathematicians and concluded that my client did not meet the definition of an alien of extraordinary ability in 8 C.F. R. § 205.5(h)(2) which states, "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."
In my appeal, I argued that the Service Center Director erred in not considering his field of endeavor as that of a mathematics education and not as a mathematician. Looking through that filter, my client can establish that he is at the forefront of this change in the pedagogical methodologies of how math is taught in higher education.
I will keep you posted on how this appeal is decided.
Yes, I know this is not a deportation matter, but I have not handled many deportation matters recently as my time is more and more being sucked up by commercial law litigation involving breached contracts and monies owed.
However, this appeal to the USCIS AAO (Administrative Appeals Office) in Washington, D.C. is interesting as my client is a Ph.D. Mathematician who is at the cutting edge on integrating computer technologies in the teaching of Calculus and differential equations. His focus is on allowing the student to "see" and visualize the complex relationships is real time so the non-mathematics student can work with real world applications, e.g. engineers, chemists, etc. Currently, my client holds the position as the Chair of the Computer and Mathematics Department in a prestigious university in Lebanon
The USCIS Nebraska Service Center Director, F. Gerard Heinauer, strictly applied the regulations in 8 C.F.R. § 204.5(h)(3) against all mathematicians and concluded that my client did not meet the definition of an alien of extraordinary ability in 8 C.F. R. § 205.5(h)(2) which states, "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."
In my appeal, I argued that the Service Center Director erred in not considering his field of endeavor as that of a mathematics education and not as a mathematician. Looking through that filter, my client can establish that he is at the forefront of this change in the pedagogical methodologies of how math is taught in higher education.
I will keep you posted on how this appeal is decided.
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