In Matter of X-M-C, 25 I&N Dec. 322 (BIA 2010), the Board held that a frivolous finding for an asylum application can be made despite the lack of a final decision on the merits. The Board also held that a withdrawal of the asylum application after the warnings and safeguards have been provided to the alien does not preclude a frivolous finding. This is another case that should serve notice to foreigners to be more careful in filing asylum applications.

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In assessing whether a person can adjust status based on marriage to a U.S. Citizen, one of the documents we look for is the I-94. Unless you came in due to fraud or misrepresentation, the I-94 is usually an indication that you entered either legally or were paroled in the United States. Unless there are other grounds of inadmissibility, that usually means you can adjust to permanent resident status, but is not always the case. In Matter of Castillo-Padilla, the Board held that an alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act. It should be noted that an I-94 was still issued but did not automatically mean that Respondent was “paroled.” Thus aliens and practitioners should take caution on the type of parole / conditional parole aliens are subjected to, and not assume based on an I-94 that one entered legally or was paroled and could thus apply for adjustment.

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DHS extends TPS designation for Honduras and Nicaragua to January 5, 2012. This extension does not apply to Hondurans and Nicaraguans who entered the U.S. after December 30, 1998. Some nationals who have not applied may be eligible for the late initial registration provisions. The links above also contain several FAQs regarding TPS eligibility and filing requirements.

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Recent decision from the BIA – Matter of Alania. Respondent is from Peru. He entered the U.S. in 96 on a temporary visa, overstayed, and engaged in unauthorized employment. A labor certification was filed for him before April 30, 2001 and was approved. An I-140 Petition was then filed for him which was also approved on December 21, 2006. Section 245i allows him to adjust status based on an employment petition despite his overstay and unauthorized employment because he is the beneficiary of a labor certification filed on or before April 30, 2001 and he was physically present in the U.S. on December 21, 2000. However, the Immigration Judge denied his application for adjustment of status because he engaged in unauthorized employment. On appeal, the Board of Immigration Appeals held that a respondent who is otherwise eligible to adjust status under INA section 245(i) is not subject to the unauthorized employment restrictions of sections 245(c). The provisions of section 245(k) regarding unauthorized employment are not applicable to section 245(i) adjustment applications.  The alien is thus eligible to adjust the permanent resident status. The case was remanded to the Immigration Judge for the continuation of proceedings consistent with the Board’s decision.

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An alien who gets placed in removal proceedings due to criminal convictions used to have this recourse: lawyers obtain the transcript of the criminal court proceeding, check whether advisement (a warning that a guilty plea would lead to immigration consequences) was given by the judge (note that these are criminal court judges, not immigration judges), and if none was given file a Motion to Withdraw Guilty Plea and Vacate Conviction. If it gets withdrawn and the case vacated, if that was the only basis for removability, then the alien is good to go. Maybe removal proceedings can be terminated, maybe an alternative form of relief could be sought.

A lot of judges in recent years have started to be aware of this situation. So most of the time, advisement is given to these foreigners. Guilty pleas are sometimes still given despite the advisement, most of the time because barring any immigration consequences the specifics of which are unknown to foreigner at that time, the plea bargain seems to benefit the alien if he or she just pleads guilty – no jail time, probation is better than jail, the fine seems reasonable, community service is not that bad etc. So if a guilty plea was given despite the judge’s advisement, but the criminal defense attorney failed to advice the alien of the immigration consequences of his guilty plea, before this new Supreme Court case, there were limited ways to reopen the case.

In Padilla v. Kentucky, the Supreme Court on March 31, 2010 held that a criminal defense counsel must inform noncitizen clients whether the plea carries a risk of deportation. This is an important case for foreigners facing deportation due to criminal convictions, who originally plead guilty at their criminal proceedings but was not given immigration advisement by their criminal defense attorney. Several cases can get reopened on this basis.

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