Interesting Question - Can Someone With an Approved U visa and I-192, But also Married to USC, Adjust Their Status Under INA 245(a)?

We have had several U-Visa Holders, who initially entered the US without inspection (EWI), but have been an approved I-918 and I-192, with an I-94 showing their admission date and they are married to United States citizen spouses who have filed and have approved I-130 Immediate Relative Visa Petitions, but have been denied adjustment of status.

There is seemingly some confusion about this issue of adjustment under INA section 245(a) as our USCIS denial letters quote the alien's ineligibly under 245(i). There is no question that after three years the U-Visa holder can adjust under 245(m), but then they must wait another 5 years before becoming eligible for naturalization.

However, there are valid legal arguments to support a 245(a) adjustment for an immediate relative, as the 245(c) & 245(k) bars are waived for immediate relatives.

I think the issue is not something that the Vermont Service Center has exclusive jurisdiction to decide, as it is their sole determination that no U-Visa holder can adjust under 245(a). As some U visa grantees first entered EWI, however the regulations state that they were lawfully admitted to the United States on the date the U visa is granted. This is aside from other inadmissibility issues that may arise.

I focus this response on an EWI granted U visa status that has not left the United States after the initial EWI. I'm in the 9th Circuit and we have Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), where the 9th Circuit held that the family unity grant rendered Garcia-Quintero admitted for calculation of the seven years for cancellation of removal for legal permanent residents. "Our decision focused on the aliens’ acceptance into the Family Unity Program”. Id. at 1015. As part of that acceptance, we looked at Garcia-Quintero’s enrollment in the program, specifically noting that it provided protection from deportation and that FUP beneficiaries “shall be inspected and admitted in the same immigration status as the alien had at the time of departure.” Id. at 1017-18. A U visa grantee received employment authorization, is protected from deportation and the language of the regulation states that they are lawfully admitted. Same benefits as that received by a family unity beneficiary. We deal with legal fictions all the time.

Los Angeles City Council OK's Service ID Cards for Undocumented Aliens

According to a LA Times Report, a plan to provide official photo identification cards for illegal immigrants in Los Angeles appears to be winning wide support. This plan would help the many residents of the city in obtaining services and access to governmental agencies, such as the school district or in opening a bank account.

A Los Angeles City Council committee Tuesday approved the concept after hearing from a wide array of supporters who said it was a practical way to incorporate into civic life the area's large undocumented population.

Opposition to the so-called City Services Card is inevitable because it touches on the hot-button issue of illegal immigration, Councilman Ed Reyes said. But in the end "cooler heads will prevail and understand the humanity of the suggestion," he said.

The committee voted unanimously to begin soliciting proposals from potential vendors who would implement the program, backed by Mayor Antonio Villaraigosa and Councilman Richard Alarcon. That won't happen, however, until a draft proposal is brought before the full council in about three weeks, officials said.

Although no one opposed to the ID cards spoke at Tuesday's committee hearing, the Granada Hills North Neighborhood Council sent a letter stating that it had voted against the proposal.

Reyes, a member of the Arts, Parks, Health and Aging Committee, said it's "about time" that Los Angeles residents, regardless of immigration status, have the ability to easily open bank accounts and access city services.

Los Angeles is a cosmopolitan city with an international economy, Reyes said, and "this card allows people who have been living in the shadows to be out in the light of day." The photo ID would include the user's name, address, date of birth and possibly other identifying information. It could be used by any resident who lacks acceptable documentation to open a bank account or access city services, such as libraries or work-training programs, officials said.

Besides undocumented immigrants, seniors who no longer drive, the homeless and transgender people would also benefit, officials said, because they often lack official ID as well. City staff said the program won't cost taxpayers anything because the third-party vendor would charge from $10 to $20 per card, and would also charge a few dollars a month if an applicant chooses to activate a debit card feature.

Holders would be able to load the card with money, pay bills, make reservations and make purchases via debit transaction at ATM locations, city staff said. San Francisco, Oakland and Richmond are among 10 cities nationwide that already offer such a card or are getting ready to roll one out, said Larry Frank, the mayor's deputy chief of staff.

It would be up to Los Angeles Police Chief Charlie Beck to decide whether patrol officers would accept it as an acceptable form of ID.

Representatives of labor, banks, business groups and librarians uniformly expressed support for the ID cards at Tuesday's council committee hearing.

Jesse Torres, chief executive of Pan American Bank in East Los Angeles, said the card would bring security and "peace of mind" to undocumented residents who are forced to carry large amounts of cash on them because they don't have an account.

He said some workers have no choice but to pay up to $1,000 a year in fees to check cashers and payday lenders. Antonio Bernabe, who organizes day laborers, said his workers deal with those issues on a daily basis.

"They are afraid to go into a bank to deposit money," he said. "They are afraid to go into a city building."

Betty Hung, of the Asian Pacific American Legal Center, said an ID would bring psychological as well as practical benefits to hundreds of thousands of undocumented immigrants who live in the shadows because they're fearful of deportation.

"It sends the message that we are one city," she said. "We are all Angelenos."

LAPD Chief Says Illegal Immigrants Arrested In Petty Crimes Won't Be Placed on ICE Holds

LAPD Police Chief, Charlie Beck, on Thursday unveiled plans to stop handing over undocumented immigrants arrested for low-level offenses to Immigration and Customs Enforcement (ICE) for potential deportation. The move by Chief Beck represented a victory for immigrant rights activists just days after California Governor Jerry Brown vetoed the TRUST ACT bill that would have extended statewide an approach similar to what Beck is proposing. Under a federal program launched in 2008 called Secure Communities, U.S. Immigration and Customs Enforcement officials work in partnership with local law enforcement agencies to deport undocumented immigrants arrested for crimes. The program helped the federal government to deport a record high of about 400,000 undocumented immigrants last year. Beck told reporters he does not believe federal detentions under the program should apply to undocumented immigrants arrested for "low-grade misdemeanor offenses" and similar crimes. "The LAPD is proposing to no longer grant an ICE hold requests without first reviewing the seriousness of the offense for which the person is being held, as well as their prior arrest history and gang involvement," Beck said. Beck said he believes in some cases the detention of illegal immigrants has unnecessarily split up families. "Community trust is extremely important," he said. "It's my intent that we gain that trust back." Beck said his department arrests about 105,000 people per year and receives ICE holds for about 3,400 of them. About half of those requests are for misdemeanor crimes, which include everything from vandalism to driving offenses, and Beck said he believes about 400 of those requests would be denied by his department if his proposed policy goes into effect. Beck said his department would still honor ICE detention requests on all felonies, which include crimes of violence such as murder and assault, and that his goal was to implement the new protocols by Jan. 1. The proposal, which has the support of Los Angeles Mayor Antonio Villaraigosa, will have to be presented to the Los Angeles Board of Police Commissioners for their review. The law vetoed by Brown on Sunday would have made California the first state to bar local authorities from honoring federal detention requests on undocumented immigrants, unless those individuals were charged or convicted of a serious or violent felony. Brown faulted the bill for not exempting individuals who had committed crimes such as child abuse, drug trafficking and selling weapons. Law enforcement officials had opposed the bill, including Los Angeles County Sheriff Lee Baca.

ICE Director John Morton Kills California's TRUST Act

In a report issued today by the Immigrant Youth Coalition, IYC accused ICE Director John Morton of single-handedly sabotaging the efforts of the California Legislature to mitigate the harsh effects of the "Secure Communities" by the passage of the TRUST Act. In order to stop the California TRUST Act which had gained widespread support, Immigration Customs Enforcement's Director John Morton went as far as to blackmail the Governor of California into vetoing the TRUST Act. When advocates asked the governors office why Brown vetoed the bill, the staff responded that they had received a call from John Morton Director of ICE saying that if Brown doesn't veto the TRUST Act that California would essentially go back to the old days in reference to immigration raids and more overt enforcement. California would have been the first state in which the impact of "Secure Communities" would be significantly reduced by not honoring immigration detainers. California holds one of the largest undocumented immigrant population in the nation, and deports about 80,000 undocumented immigrants about one fourth of the yearly quota for deportations that the Department of homeland security set in 2010. John Morton could not allow for the TRUST Act to pass, with the Deferred Action for Childhood arrivals now being implemented the pool of deportable immigrants shrunk by almost a million. ICE needed to make sure they meet their 400,000 a year quota for deportations and so they intervened in state politics to ensure the survival of "Secure Communities" If the "Prosecutorial Discretion" memo were actually implemented, laws like the TRUST Act wouldn't be necessary. The TRUST Act would ensure that people with minor or no offenses would be let go without any immigration consequences; it was California's way of holding the Federal Government accountable.

Started at a New Law Practice This Week

On Monday October 1, 2012, I began my association with a great group of attorneys in Oakland, California, leaving behind the Law Offices of Haitham Ballout, where I practice for the last five years. The incentive in making this change is the intention of the group to form a partnership with myself as one of the named partners. This is an exciting and challenging moment, but in the long run, I firmly believe this is the right move professionally. In my former position at Mr. Ballout's Office, a very capable young attorney as accepted the offer and she will fill my post. The new practice will focus on removal and deportation cases, along with Mr. Dae Hee Kim, Esq. as the experienced criminal defense counsel. I have many years of experience in handling both immigration and criminal appellate cases. My experience also includes many administrative appeals to both the Board of Immigration Appeals (BIA) and the Administrative Appeals Office (AAO)in humanitarian cases, removal defense, and visa petitions, which involves Walsh Act cases and waivers of all types.