In Matter of Ramiro Sanchez-Herbert, the Board held that if the respondent received proper notice of the hearing, it should be considered inappropriate to terminate the pending proceedings, even if he or she has left the United States prior to the said hearing. The Immigration Judge can still retain jurisdiction over the pending proceedings even while Respondent is abroad. The Immigration Judge should still proceed with an in absentia hearing.

It is the purpose of in absentia hearings to determine whether the DHS can establish that respondent was able to receive proper notice and is removable as charged. The Immigration Judge will then be able to issue an order of removal once the DHS is able to meet its burden. However, proceedings should be terminated if the DHS fails to meet its burden.

By allowing a respondent who leaves the country while in proceedings to deprive the Immigration Judge of jurisdiction over a case, he or she can eventually avoid the consequences of a formal order of removal, even with proper notice of the hearing.

The DHS should be given the opportunity to proceed with in absentia proceedings to meet and establish removability based on the facts and evidence at hand. That and the establishment of proper notice and service should be enough to give the Immigration Judge a chance to issue an order of removal.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

<a href=”https://plus.google.com/107743308565341841259/posts?rel=author”>Google</a>

{ 0 comments }

Immigrant Intent

Having immigrant intent when you came to the United States on a non-immigrant visa can be a basis for inadmissibility or denial of your green card application. Even if the I-130 petition filed by your husband is approved, meaning the USCIS finds that your marriage and relationship was real and not done for immigration purposes, the I-485 or green card application (adjustment of status) can be denied due to this immigrant intent.

So what are the bases for immigration officers to find immigrant intent?

Actually there are a lot of factors that come into play. Some applicants even say outright at the interview that when they last came to the United States on a specific non-immigrant visa, let’s say a tourist or H-1B visa, or even a visa waiver, that they came with the intent of marrying their spouse and immigrating to the United States. Some applicants had that intention when they came in, get married immediately upon entry, and would thus raise suspicion with the officers.

Some people though may “seem” to have immigrant intent, but actually have none.

Let’s say you came to the U.S. on a non-immigrant visa intending to only visit, study, or work (depending on which type of visa), have a girlfriend or boyfriend, and while here, you and your special friend decide on getting married and you decide to apply for a green card, then that clearly is not immigrant intent. The decision came only while you were here, not before or while entering the United States.

Sample Fact Patterns

Sample 1

• A and B have known each other over the internet for 1 year.
• A is from a foreign country and B is from the US.
• They eventually intend to get married, and A intends to come to the US to get married and immigrate.
• A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
• A’s tourist visa gets approved.
• A goes to the US.
• A gets married and applies for a green card.
• Immigrant Intent: Yes.
• What Should Have Been Done: B could have visited A, got married, came to the US, and filed petition for him on the way to consular processing for the immigrant visa. Or B could have visited A at an point over the past year (the rule is 2, but the fact pattern here says they’ve known for a year), came back to the US, and did a fiance petition on the way to the fiancé visa processing.

Sample 2

• A and B have known each other over the internet for 1 year.
• A is from a foreign country and B is from the US.
• They eventually intend to get married, and A intends to come to the US to get married, but A and B intended to eventually live at A’s home country (foreign country and not the US). So there was an intent to get married, but not an intent for A d to immigrate to the US.
• A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
• A’s tourist visa gets approved.
• A buys a round trip ticket.
• A goes to the US.
• A gets married and does not apply for a green card immediately.
• A few weeks later, A changed her mind, enjoys life in the US, and A and B decide to settle in the US. A decides while in theUS to apply for a green card.
• Officer at interview goes through extensive questioning but A explains to officer that A’s mind changed while here in the U.S., and that A did not have any intent to immigrate when A entered.
• Immigrant Intent: No

Sample 3

• A and B have known each other over for over 5 years.
• A is from a foreign country and B is from the US.
• A has been to the US several times on a tourist visa and B has been to A’s home country several times.
• A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
• A visits B again in theUS with no intention of immigrating.
• B proposes, and A says yes.
• A gets married.
• Officer at interview goes through extensive questioning but A explains to officer that A did not intend to get married, was proposed to while she was here, and A said yes.
• Immigrant Intent: No.

Sample 4

• A and B have known each other over for over 5 years.
• A is from a foreign country and B is from the US.
• A has been to theUSseveral times on a tourist visa and B has been to A’s home country several times.
• A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
• While B was in A’s home country, B proposes, and A says yes.
• They get married in A’s home country (foreign country).
• They intend to live in the US for good.
• A has a 10 year tourist visa that is still valid.
• A comes to the US and files for a green card.
• Immigrant Intent: Yes (But note, if they got married abroad, but came to the US WITHOUT A intending to immigrate, meaning they are still not sure where to settle, but while here in the US they change their mind and decide to settle here, then there is no immigrant intent).
• What Should Have Been Done: A should have stayed in A’s country while B, after going back to the US, files an I-130 immigrant petition for A, on the way to consular processing.

The 30/60/90 Rule

There is also this 30 / 60 / 90 day rule that the USCIS adopts in adjudicating green card applications based on marriage. This is found through the Department of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry to the USA

30 Day Rule: If you file your green card application within 30 days of entry, there is a presumption of immigrant intent. It’s not an automatic finding and denial, it is just a presumption. It can be rebutted by you and your spouse depending on your real intent and answer to the questions. Let’s say you had no intention to immigrate, but got proposed to or thought of marrying a week after entry, and then you filed for a green card within the 30 day period, then there ultimately should not be a finding of immigrant intent, because there was none.

60 Day Rule: If you file your green card application within 31 to 60 days of entry, there is no presumption, but there is a reasonable suspicion of immigrant intent. Inquiries would still be made as to your intent upon entry, but it is not as strict as the 30 day rule.

90 Day Rule: If you file your green card application 61 days and beyond (not sure how the 90 came in, but that’s the memo), then there is a presumption that you acted in good faith. Officers may still ask though what your intention was upon entry, and if immigrant intent was found then the results could still be a finding of immigrant intent.

What Happens If Immigrant Intent Is Found

If immigrant intent is found, then the I-485 green card application will be denied. Some may issue a Notice of Intent to Deny and allow you file an I-601 waiver. It depends on the office’s policy.

If it is denied, you would then have to re-file the I-485 with an I-601 hardship waiver to waive the grounds for inadmissibility. I-601 hardship waivers are tough. You would have to show that there will be extreme hardship to your U.S. Citizen spouse if 1) you are to be abroad with your spouse in your home country; or if 2) you are to be separated with your spouse, meaning your spouse is in the US and you are abroad.

The I-130 petition will still be approved if you are able show a bona fide marriage, but  it won’t grant you a green card because of the immigrant intent and I-485 denial. An approved I-130 will also not allow you to get a work permit.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

The final step in the marriage-based green card process, the I-130 and I-485 based on marriage to a U.S. Citizen, is the interview. Having represented numerous clients in these cases and also having accompanied clients in these interviews in cities such as:

• Baltimore
• Chicago
• Cleveland
• Columbus
• Cincinnati
• Hartford
• Houston
• Los Angeles
• Newark
• New York
• Seattle

… we thought of compiling a list of questions that may be asked in the future, and to write an informative post about the interview itself.

Please note that these questions are simply guidelines on which topics officers usually focus on, and is not exactly what they ask or a guarantee that these would be asked. They could ask more, and they could ask less. Each case is different.

In terms of how long the interview is, it also depends on the facts of the case and the officer you have. I’ve had some that lasted less than ten minutes, while I’ve also had some that lasted about two and half hours. I’ve had some that were interviewed together, and I’ve had some that were interviewed separately. It depends on several factors – the length of marriage, age difference, etc.

Basic Steps

• Check In: Each office has their own procedure, but typically, you first bring your interview notice to the check-in counter, the officer would ask you to take a seat, and they will call your name. Some offices like Arlington and Chicago have those buzzers (like those you get while waiting for a seat in chain restaurants) that vibrate once your turn is up.

• Oath: The officer administers an oath. “Raise your right hand… do you swear or affirm… truth, whole truth… etc.”

• Identification and Basic Documents: The officer would then ask for identification and basic immigration documents – driver’s licenses, passport for the beneficiary, naturalization certificate or birth certificate for the petitioner, birth certificate for beneficiary, marriage certificate, divorce decrees.

• Forms: The interview itself usually starts with the forms I-130, G-325, and I-485. This is pretty informative. Name, birthday, address, divorce information, entry and visa information, parents’ names, and the yes / no inadmissibility questions on Form I-485 (criminal record, fraud, J-1 waiver, public charge etc.) will be asked.

• Bona Fide Marriage: From there, the officer would then proceed with the relationship itself. The sample questions are below. After the questions are asked, the officer would then ask for any supporting documents you have about your relationship. Joint tax, returns, joint bank statements, joint lease, joint insurance documents, utility bills with both names and a common address, pictures taken in different places with friends or family in it, affidavits, are some examples of documents they typically ask. Note that some offices now require that copies of these be made beforehand, as these documents are to be submitted to the officer.

Sample Bona Fide Marriage Questions

1. When did you meet?
2. Where did you meet?
3. When did you first meet in person?
4. Who introduced you to each other?
5. How did you meet?
6. How long did you talk?
7. What happened after?
8. How often did you talk to each other over the phone after you initially met?
9. How often did you see each other after you met?

Courtship and Dating Questions

10. How soon after you met did you start dating?
11. How often did you go out?
12. How often did you talk on the phone?
13. Give us examples of restaurants you went to?
14. Give us examples of some movies you watched together?
15. Did you ever travel out of town while you were dating?
16. Where did you go?

Proposal

17. How did you decide on getting married?
18. When did he propose?
19. Where did he propose?
20. Did he give you a ring?
21. Where did you buy the ring?
22. How did he propose?

Wedding

23. Did you get married in Court or in Church or both?
24. Which Court did you go to?
25. Around what time was the Court wedding?
26. How many people where with you in Court?
27. What did you do after you got married in Court?
28. Did you eat out after you got married in Court?
29. Where did you eat?
30. Who were with you at the restaurant?
31. Which Church did you go to?
32. Around what time was the Church wedding?
33. How did you get to the Church?
34. How many people attended the Church wedding?
35. Did you have a reception?
36. Where was the reception?
37. Around what time was the reception?
38. Around how many people were in the reception?

Family

39. Have you met your spouse’s parents?
40. What are their names parents?
41. When did you first meet your spouse’s parents?
42. Where did you first meet them?
43. How many brothers and sisters does your spouse have?
44. Have you met your spouse’s brothers and sisters?
45. When did you first meet your spouse’s brothers and sisters?
46. Where did you first meet your spouse’s brothers and sisters?
47. Does your spouse have any kids?
48. What are their names?
49. Where do they live?
50. Where do they go to school?
51. Who takes them to school?
52. How do they go to school?
53. How old are the kids?
54. When was the last time you saw her parents?
55. What was the occasion?
56. When was the last time you saw her brothers and sisters?
57. What was the occasion?

Employment

58. Where does your spouse work?
59. What does your spouse do?
60. What are your spouse’s hours at work?
61. What is your spouse’s salary?
62. How does your spouse get to work?
63. What is your spouse’s position at work?
64. Does your spouse drive, take the subway, bus, or walk to work?
65. Which bus does your spouse take?
66. Which subway does your spouse take?
67. Which subway station does your spouse go to for work?
68. Which subway station does your spouse get off at?
69. How long does it take for your spouse to get to work?
70. How many days per week does your spouse work?
71. What days are they?

Residence

72. Do you live in a house or apartment?
73. How may bedrooms in the apartment?
74. How many bathrooms in the apartment?

Special Occasions

75. What did you do for Christmas, or Thanksgiving, or 4^th of July Weekend, Labor Day Weekend, Memorial Day Weekend etc.?
76. What did you do for her (or his) birthday)
77. Did you give her a gift for her birthday?
78. What gift did you give her?
79. Did you give her a gift for Christmas?
80. What gift did you give her?

Recent Events

81. Did you eat together last night?
82. What time did you eat?
83. What did you eat?
84. Did you sleep together last night?
85. What time did you sleep?

Other

86. Was there any point in your marriage where you did not live together?
87. How long a period was this?
88. What was the reason for not living together for that period?
89. Where did your spouse live during that period?
90. What address?
91. Does your spouse have tattoos?
92. How many tattoos?
93. Where are they located?
94. Does your spouse have criminal records that you know of?
95. What are they?
96. When did they occur?
97. Where did they occur?
98. Did your spouse get hospitalized over the past year?
99. When?
100. Which hospital did he go to?

As mentioned, the answers to these questions or inconsistencies in your answers can lead to more questions. But typically, as to the areas or topics the officers asks, your meeting, courtship, proposal, wedding, family, employment, and residence are going to be questioned.

If you have an questions for me, please fill out the FREE CONSULTATION form below.

{ 0 comments }

The impact of Hurricane Sandy on the people up and down the East Coast was massive. It has already been a few days since the people in New York and New Jersey experienced the storm but the effects are still felt— including those involved in immigration applications and removal proceedings.

Just like when other severe hurricanes troubled the states in the U.S.—storms such as Hurricane Katrina—the Department of Homeland Security (DHS) have once again issued widespread information on dealing with immigration consequences of the storm. Thus far, basic information is available regarding U.S. Citizenship and Immigration Services’ (USCIS) plans; virtually nothing has been said about Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE).

On November 2, the USCIS announced the provision of services and relief to those who were affected by the recent storm. Still depending on the circumstance, this announcement would give benefits or considerations in terms of expediting the process of employment authorization documents and extensions of certain non-immigrant status designations. Those who also failed to submit evidence or attend an appointment because of the storm will also be given significant consideration by the USCIS.

So those individuals who failed to meet the deadlines of the submission of materials required after their receipt of the Request for Evidence (RFEs) or Notices of Intent to Deny will have a 30-day extension. But only those whose deadlines indicate the date between October 26th and November 26th are going to be given this leeway. However, the USCIS still stresses that the burden remains on the applicant to provide some proof that Hurricane Sandy indeed impacted them so bad that they were unable to meet the deadlines and submit the required materials or evidence.
Source: ImmigrationImpact.Com

{ 0 comments }

The Ninth Circuit in De Osorio v. Mayorkas held that the plain language of CSPA (Child Status Protection Act) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.

Before this case, when these beneficiaries aged out prior to their parents becoming permanent residents, a new I-130 petition filed by their parents for them would have a new priority date, which means they would have to wait several years before they can immigrate or apply for a green card, in some cases over ten years. With this decision, the old priority date of the I-130 filed for their parents, for which they were derivative beneficiaries, would be retained. So that new I-130 that the LPR (lawful permanent resident) parent files for the aged-out son or daughter, could have that old 1985 or so priority date, speeding up the immigrant visa or permanent resident (green card) process by over a decade in some categories.

I have come across probably over a hundred consultations over the past three years in which parents have asked about what could be done for their aged-out children. Being Filipino myself, I’ve heard stories from several Filipino F4 (sibling petition) beneficiaries who waited at least twenty two years for their immigrant visas to be approved, only to realize they cannot bring their children, most of whom were just babies when they were first petitioned. In most cases, the honest answer has been to file an I-130 again and wait in line, and “hope” that a new case comes out.

Well, this new case has come out in De Osorio v. Majorkas. The decision in the class-action lawsuit against the United States Citizenship and Immigration Service is a victory for tens of thousands of people who lost their priority status upon turning 21, as their parents faced long waits due to backlogs in the immigration systems. Filipino immigrants for example who were petitioned by their siblings were never able to bring their children with them because the waiting time for priority dates to be current has been over 21 years for a while. So all their children aged-out by the time immigrant visas become available. You can have a one month old child when your brother petitioned for you, wait 22 years for priority dates to be current, and your child will automatically over-age. So you needed to petition your child and wait over a decade again. But with this new case, if that parent files an I-130 for their 25-year old daughter, the I-130 F4 priority date in the 1980s would be retained, which obviously is now current.

Below is a quoted section from the 9th Circuit in their decision, providing you with their summary and the relevant portion of the case.

“Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had “aged out” of eligibility.

‘The question before us is whether these children are entitled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

‘The United States Citizenship and Immigration Services (“USCIS”) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries. The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases. We reverse.

‘We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

BALCA in Matter of Select International Inc. 2011-PERM-01478, held that where a resume showed a broad range of experience, training, and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.”

On February 22, 2007, Select International (“Select”) filed for Permanent Employment Certification (“PERM”) for the position of Industrial /. Organizational Psychologist. On June 22, 2007, the Certifying Officer (“CO”) issued an Audit Notification. Select responded on July 25, 2007. On September 30, 2008, the CO requested a signed affidavit and documentation explaining why it is not feasible to train a worker to qualify for the job opportunity. Select filed its recruitment report and other supporting documentation on February 23, 2009. On February 4, 2010, the CO denied the application because Select rejected three U.S. Citizen applicants for non-lawful job-related reasons. Specifically, the CO stated that three potentially qualified applicants were rejected despite Select’s statement in its ETA Form 9089 that it “will accept any suitable combination of education, training, or experience.” Select filed a request for reconsideration.

PERM regulations require an employer to conduct mandatory recruitment steps in good faith to recruit U.S. workers prior to filing an application for permanent alien labor certification. 20 C.F.R. § 656.17(e). To conduct recruitment in good faith, an employer “must take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ., 2010-PER-00038. “Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers.” Id.

The Employer’s Recruitment Report indicated that eight U.S. workers responded to its recruitment efforts. Regarding applicant Avi Avigdor, Select found that he did not have the required experience, so he was not offered an interview. The CO cited Mr. Avigdor’s 47 months of experience in its denial, and Select argued that they were not related to the position. Mr. Avigdor had a master’s degree in I/O Psychology, was in the process of obtaining his Doctorate in I/O Psychology, had 16 months experience in Organizational Development, 8 of which was in a similar position to Select’s, and also has experience using SPSS. BALCA stated that if an applicant’s resume demonstrates a broad range of experience, education, and training, such that it is reasonably possible that he or she is qualified for the job, the employer has an obligation to further investigate the applicant’s credentials beyond the face of the resume. BALCA in this case found that Select had the duty to investigate his qualifications further, and thus affirmed the denial of the labor certification.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

The October 2012 Visa Bulletin was released on September 10, 2012. October is the start of the fiscal year for immigration purposes. As you may know, the EB2 employment category retrogressed a few months ago, including those in “other countries”, which has almost always been current.

Dates for EB2 India is September 1, 2004 and EB2 China is July 15, 2007. “Other countries”, the Philippines, and Mexico all had January 1, 2012 as EB2 priority dates. These are way under the predictions made for the October priority dates. The expectation for India prior to this release was 2007,  3 years less. For Indians under the EB2 category, in order to apply for a green card, or, if pending, for their green card applications to be adjudicated, the I-140 priority date should be September 1, 2004 or earlier.

Porting from EB3 to EB2 has increased the number applicants for EB2 India, putting the priority dates way back. The demand data which was released on September 10 shows that for EB2 India, there are 1,350 applicants with a priority date before January 1, 2007, 5,500 before January 1, 2008, and 20,000 before January 1, 2009.

Source: www.travel.state.gov

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

The DHS has approved the first set of applications from young illegal immigrants eligible for Deferred Action. The first approvals come just three weeks after the United States Citizenship and Immigration Services started accepting applications for the program announced June 15. The government had estimated previously that it could take months for each application to be reviewed and approved. So far, about 72,000 people have applied to avoid deportation. DHS said background checks, including fingerprinting, are being conducted on each individual before an application can be approved. They initially estimated an average wait time of about four to six months.

Source: CBS News

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

Show Me Your Papers

U.S. District Judge Susan Bolton ruled that Arizona authorities can enforce the section of the state’s immigration law critics have called the “show me your papers” provision, as reported on CNN. This clears the way for police to carry out the requirement that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. This provision has been in the middle of a two-year legal battle that resulted in a U.S. Supreme Court decision in June upholding the requirement.

Those against the provision pled for Judge Bolton to block the provision, arguing that it would lead to systematic racial profiling and unreasonably long detentions if enforced. Those for the provision argued that racial profiling was simply a speculation. Governor Jan Brewer’s office also said that police have received training to avoid discriminatory practices and that officers must have reasonable suspicion that a person is in the country illegally to trigger the requirement.

Judge Bolton mentioned that her Court will not ignore statements from the Supreme Court that the provision cannot be challenged further on its face until the law takes effect. She confirmed the Supreme Court’s interpretation that the law may still be challenged as unconstitutional on other grounds.

Arizona’s law, SB1070, was passed in 2010. Five other states, Alabama, Georgia, Indiana, South Carolina, and Utah have adopted similar variations.

ICE Detained and Deported A Record Number of Illegals

Immigration and Customs Enforcement (ICE) detained and deported a record number of illegals in 2011 and are on track for similar numbers this year, even though the number of illegals crossing the border dropped to a 40-year low, according to the New York Times.  ICE agents deported 391,953 in 2011, including 188,000 convicted of crimes, which was an all-time high for such deportations.

Citizens of Mexico, Guatemala, Honduras, and El Salvador made up 93% of all people deported last year. To date there are about 366,000 deported through August 31, but they include 191,000 convicted criminals, more than last year. ICE also detained about 429,000 immigrants last year which was another record.

Though the Department of Homeland Security (DHs) had said that they are focusing on illegal immigrants with criminal convictions, the record number of deportations the past two years had a big impact on the Latino community, causing doubt on the Obama administration.

Circuit Cases

• 1st Circuit: Rebenko v. Holder, September 4, 2012. Asylum. Petitioner testified at the IJ level that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: (1) her arrest in May of 1999; (2) her receipt of threatening phone calls from nationalists following her arrest; (3) the “mockings” she experienced during her graduation in June of 2000; and (4) her beating at the hands of “skinheads”. The 1st Circuit noted that Petitioner did not report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The Court held that the IJ could have reasonably concluded that the mistreatment Petitioner described was not “systematic” but was “reflective of a series of isolated incidents” over the course of a bad year. The Court mentioned that Petitioner describes no nexus between her harassment at her graduation and any government action or omission. Her speculation that the police caused nationalists to make threatening phone calls was not supported by evidence. The Court viewed Petitioner’s May 1999 arrest as a single incident in which Petitioner suffered no injuries requiring medical treatment, and that a reasonable adjudicator would not be compelled to find that this incident rose to the level of persecution.
• 9th Circuit: Sanchez-Avalos v. Holder, September 4, 2012. Criminal. Petitioner petitioned for review the BIA’s decision that he is not eligible for waiver of inadmissibility because he was convicted of an aggravated felony. Petitioner argued that his conviction for sexual battery under California Penal Code § 243.4(a) did not qualify as sexual abuse of minor. The Court applied the categorical and modified categorical approaches. The Court concluded that the crime of sexual battery under California law is categorically broader than the federal generic crime of “sexual abuse of a minor” because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor. Court held that the crime of sexual battery in California is not categorically an aggravated felony, and that none of the evidence established that the petitioner’s victim was a minor.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }

Family

The Philadelphia Inquirer had a piece on the hardships families with deported parents and U.S. citizen children face. They talked about Chon and Ibed, a Mexican couple with three U.S. Citizen children, telling their story from how they met as two illegal immigrants to eventually having a family, to Chon’s recent deportation. It is a story that is typical in the field of immigration, one that is similar to most families with a deported parent and U.S. citizen children.

Around four million U.S.-born children have at least one parent with no immigration status, based on the findings of the Pew Hispanic Center, a research organization in Washington. They also found that the proportion of adults who entered the border illegally, get deported, and try to cross again is growing. The current immigration policy has led to an increase in female-headed households, with mothers being forced to support their families since their husbands got deported, affecting thousands of U.S. citizen children in the process.

According to the Applied Research Center, an think tank organization in New York that recently analyzed Immigration and Customs Enforcement data, from 2000 to 2010, 8 percent of all deportees had U.S. Citizen children.

Tuition

A federal judge ruled that children of undocumented immigrants cannot pay higher out-of-state tuition in Florida just because their parents are illegal, based on this report by the Miami Herald. Judge K. Michael Moore held that the policy violates the equal protection clause of the Constitution by forcing these U.S. Citizen students to pay three times more than Florida residents. The ruling came in a lawsuit filed by the Southern Poverty Law Center on behalf of Florida U.S. Citizen students denied in-state tuition because they could not prove their parents’ legal status. This would provide thousands of students greater access to an education. At the University of Florida for example, in-state tuition costs $205 per credit hour, while out-of-states costs $947 per hour. Based on a Florida International University law professor’s analysis of the U.S. Census, nearly 9,000 children of undocumented immigrant parents are enrolled in Florida public colleges and universities in a given year.

Other states had similar rulings recently. In New Jersey, a state appeals court ruled that U.S. born student whose parents could not prove valid immigration status was wrongly denied financial aid. In California and Colorado, similar rulings were made.

Politics

CBS News summarized the Democratic and Republican immigration agendas based on recent convention speeches by members of both parties. The Democrats are committed to helping some undocumented immigrants get a “path toward citizenship”, “learn English and pay taxes”, and have a visa system that meets the country’s “economic needs, keeps families together and enforces the law. The Deferred Action Program illustrates this theme, and would likely be continued with an Obama reelection.

The Republican platform on the other hand is against any form of amnesty for those who intentionally violated immigration laws. They called for the Justice Department to stop their lawsuits against states with tough immigration laws. They also intend to deny federal funding to schools that provide lower in-state tuition to illegal immigrants. An increase in “show-me” laws such as those in Arizona and a possible repeal of the Deferred Action Program are possible repercussions of a Romney presidency.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ 0 comments }