Visa Lawyer Blog

Proposals have been made in Congress for many years to confer an opportunity for the young students to become legalized. These proposals, commonly known as the “Dream Act”, so far have not gone too far in the legislative process. The terms of the Dream Act various. According to the latest proposal in 2009, a person must be between the ages of 12 and 35 when the law was enacted, must have arrived in the United States before the age of 16, must have resided continuously in the United States for at least five (5) consecutive years since the date of their arrival, must have graduated from a U.S. High School or obtained a General Education Diploma GED, and must have good moral character. If eligible, these individuals will be able to obtain temporary residency for a six year period.

There have been many instances in which immigrant students were released from detention after they were arrested for being without immigration status in the U.S. There is a clear federal policy to suspend or defer enforcement efforts on them, according to various reports. These students were brought to the United States by their parents who did not have legal status. They attended schools and adopted an American lifestyle. Many are now high school graduates but have difficulties continuing their education on account of their illegal status. Although the current immigration policy is temporarily sparing these youngsters from deportation, their future will remain uncertain without actual changes in immigration law. Within the six year period, a qualified student must have acquired a two-year degree from a community college or completed 2 years of a program for a bachelor’s degree or higher degree in the United States. Alternatively, he or she may also serve in the military for at least two years. If the applicant fails to meet one of these three requirements, the student shall revert back to the immigration status that he or she had immediately prior to receiving conditional permanent resident status.

Furthermore, although the applicant would not be eligible for Pell grants, they would be entitled to apply for student loans and work study. However, should these students commit a serious crime or a drug-related violation during these six years, they would lose their conditional status and subject to deportation. Upon successful completion of the requirements at the end of the six years, the applicant will be eligible for lawful permanent status. Legalizing these young students would actually bring in a new pool of educated people to the workforce, reduce costs associated with social problems, and foster family unity. If passed, the law will benefit more than 700,000 individuals throughout the United States. Energetic and educated, these students have become increasingly vocal in fighting for their rights.

ICE officials provided a copy of a new policy memo dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. ICE estimates in the memo that the effort could affect up to 17,000 cases.

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Opponents of illegal immigration were critical of the dismissals.

"They've made clear that they have no interest in enforcing immigration laws against people who are not convicted criminals," said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for strict controls.

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency's priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually — about 4 percent of the estimated illegal immigrant population in the country. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list.

We expect more cases terminations across the United States in the next several months.

Who deported more Bush or Obama? TRAC report finding that ICE data shows a ten percent increase between the number of noncitizens removed during the first nine months of FY 2010 as the result of ICE enforcement compared to the same period in FY 2008, the last fiscal year of the Bush administration.

During the first nine months of FY 2010, 279,035 non-U.S. citizens were removed* from the country as a result of ICE enforcement. This number is ten (10) percent more than the same period during FY 2008 — the last fiscal year of the Bush administration. This represents almost a doubling of the rate of removals that have taken place during the past five years.

In addition to increases in alien removals under the Obama administration, the data also show that ICE — rather than simply trying to ramp up numbers — has also directed more of its attention to going after noncitizens who have committed crimes while in this country.

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A former member of the Bosnian Serb Army has left the U.S. to return to Serbia after a federal judge ordered his denaturalization based on concealment during his application for U.S. citizenship that he served in the military during the Bosnian war.

What is Denaturalization ? Denaturalization is the reverse of naturalization, when a state deprives one of its citizens of his or her citizenship. From the point of view of the individual, denaturalization means "revocation" or "loss" of citizenship. Denaturalization can be based on various legal justifications. The most severe form is the "stripping of citizenship" when denaturalization takes place as a penalty for actions considered criminal by the state, often only indirectly related to nationality, for instance for having served in a foreign military. In countries that enforce single citizenship, voluntary naturalization in another country will lead to an automatic loss of the original citizenship; the language of the law often refers to such cases as "giving up one's citizenship" or (implicit) renunciation of citizenship.

In this case Jadranko Gostic, 47, a former resident of St. Petersburg, Fla., departed the United States on June 1, 2010. U.S. District Court Judge James Moody in Tampa, Fla., ordered his denaturalization on May 26, 2010.

Gostic was indicted in December 2006 on one count of unlawful procurement of citizenship and one count of making false statements. In January 2010, a civil complaint was filed against Gostic alleging illegal procurement of U.S. citizenship and requesting his denaturalization. Court documents allege that Gostic served in the Zvornik Infantry Brigade of the Bosnian Serb Army from April 1992 until December 1995. According to court documents, international tribunals have found that some units of the Zvornik Brigade engaged in war crimes and crimes against humanity, and that they participated in the July 1995 action against the Srebrenica enclave during which some 8,000 Muslim men and boys were executed.

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After a week full of outrage about the Arizona Immigration law, we are happy to report about an opposite spirit coming all the way from the state of New York.

Gov. David Paterson stepped into the immigration debate Monday, saying he would create the nation's first "pardon panel" to investigate requests of legal immigrants facing deportation because of past convictions.

Paterson, proposing the measure as the nation is embroiled in conflict over an Arizona law that critics say would encourage racial profiling, said he would pardon immigrants if they meet requirements including rehabilitation and demonstrate they're not a danger to society.

Paterson is seeking to combat what he calls harsh and rigid federal measures that result in deporting of immigrants who have shown considerable rehabilitation. Arizona's measure makes it a crime under state law to be in the country illegally.

Paterson said he will seek to use a governor's pardon as a tool to blunt what he called the rigid federal rules for deportation even of immigrants who have successfully engaged in a new life in America. In March, Paterson pardoned Quing Wu, an executive and Chinese immigrant who as a teenager was convicted of a smuggling.

We hope more states will follow this trend, and focus on the real effort - Immigration reform now.

Read more here

San Diego Restaurant, The French Gourmet Inc., indicted recently for knowingly making false attestations on I-9 Forms, hiring employees unauthorized to work in the U.S., and employing those aliens after learning of their ineligibility to work. U.S. v. The French Gourmet Inc. is the case, and you can read it here:

In May 2008, Immigration and Customs Enforcement agents executed a criminal search warrant at, The French Gourmet, and have taken workers suspected of being illegally in the country into custody. ICE has arrived at worksites with both criminal and civil warrants. It has searched businesses, frozen bank accounts, and arrested not only employees but also employers. This recent indicment sends a clear message to employers.

We keep reminding employers to ensure compliance with the I-9 requirements under IRCA, a company should establish an I-9 policy that includes:

* The proper and timely completion and retention of Form I-9 for all employees hired after November 6, 1986;
* Zero-tolerance for the employment of individuals who do not provide the proper identity and employment eligibility documents for Form I-9;
* A tickler system for I-9s that require reverification;
* I-9 training for all company representatives who are part of the recruitment, orientation, and hiring processes for the company; and
* Regularly scheduled in-house I-9 audits.

Conducting self-audits puts a company in better position if it becomes the subject of an ICE investigation. While employers cannot verify whether documents used for employment authorization are authentic, self-audits establish good-faith compliance.

Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) John Morton announced standardized Memorandums of Agreement (MOAs) with 67 state and local law enforcement agencies to participate in 287(g) partnerships by prioritizing criminal aliens who are a threat to local communities.

The administration had previously suspended the program, which critics say was mismanaged and allowed racial profiling and discrimination. Before it was suspended, there had been 66 local and state agencies participating.

Immigration advocacy groups were quick to respond to the ICE announcement. From Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit pro-immigrant advocacy organization in Washington:

"Expanding misguided and ineffective immigration enforcement program like the 287 (g) program does not bring us closer to an immigration system that works. Succumbing to the siren call of an enforcement-only approach will not solve the immigration problem once and for all. Only comprehensive reform of our immigration system will actually work to reduce illegal immigration and get immigrants out of the shadows and into the system, making it easier to weed out those who wish to do us harm and ending the fear and exploitation of life at the fringe."

Most Immigration Lawyers that care for their work are tired of Mr. Dobbs. Mr. Leopold from AILA posted a valid statement about Dobbs' campagin of Hate:

CNN has a journalistic obligation to dump Lou Dobbs and his campaign of hate against immigrants.

It is unthinkable that a major network would permit someone to build a career based on fear and hatred of human beings. Why the double standard when it comes to immigrants?

As Janet Murguia, the President and CEO of the National Council of La Raza pointed out yesterday in her Huffington Post blog, http://bit.ly/Mk0ez, Dobbs disgarded any sense of journalistic objectivity or integrity (assuming he had any to begin with) when he openly participated in an anti-immigrant rally in Washington, DC sponsored by the Federation for American Immigration Reform (FAIR), an organization designated by the Southern Poverty Law Center (SPLC) as a hate group. According to SPLC:

· FAIR was founded by John Tanton, who also operates a racist publishing company and has compared immigrants to "bacteria."

· FAIR has employed members of white supremacist groups in key positions.

· FAIR has promoted racist conspiracy theories.

· FAIR has accepted more than $1 million from the Pioneer Fund, a foundation devoted to eugenics and to proving a connection between race and IQ.

· FAIR president Dan Stein once suggested that Asians and Hispanics were engaged in "competitive breeding."

Of course Dobbs’ recent display of hate mongering is just his most recent in a long line of abuse including, as Murguia points out in her blog,

· His regular use of guests representing hate groups, vigilantes, and nativists as experts on immigration

· His relentless repetition of stories on immigrants and crime that project an impression far from reality

· His association of immigrants as carriers of disease that has been both inaccurate and pejorative

Enough is enough.

If CNN is serious about responsible broadcast journalism it must put an end to Lou Dobbs' hateful tirade once and for all.

How is Governor Arnold Schwarzenegger going to save us money? How about massive deportation plan. California Corrections officials are reviewing the cases of undocumented immigrant prisoners to see who can be deported. About 6,000 up for consideration have more than one felony.

Releasing undocumented prisoners is part of the Governor's plan to save the state about a billion dollars. The Governor has the power to release about 2000 undocumented immigrant prisoners. Included are those who have not committed serious, violent or sex crimes and have just one felony.

Mexican officials on the other hand, are not so pleased. Deporting thousands of criminals back to Mexico may weaken the current crackdown on drug gangs all across Mexico. Working together the two governments should find the middle ground.

Read the story here...

Recently AILA shared some information about a "new" benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the "fraud fee" in the H-1B program. This new program involves the hiring of a private contractor to send "investigators" out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition.

The representative will indicate that he/she is a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances) wearing badge with a picture. Questions can be asked in the following way:
1. Basic questions about the company, what you do, how many employees you had, work hours, office locations, etc.

2. How many employees one has on H1Bs, how many of them been sponsored for permanent residency and how many of them are legal permanent residents. Approximate numbers will be fine.

Continue reading "San Diego Immigration Lawyer about Surprise Investigation by USCIS" »

We all know that Asylum is a tough relief to get and one must fit a very strict set of legal standards. Mostly political or related cases. But now the Obama Administration opened the door to a new policy. The government has opened the way for foreign women who are victims of severe domestic beatings and sexual abuse to receive asylum in the United States. The action reverses a Bush administration stance in a protracted and passionate legal battle over the possibilities for battered women to become refugees.

In addition to meeting other strict conditions for asylum, abused women will need to show that they are treated by their abuser as subordinates and little better than property, according to an immigration court filing by the administration, and that domestic abuse is widely tolerated in their country. They must show that they could not find protection from institutions at home or by moving to another place within their own country. We welcome the new policy and will update you of developments in this area.

Read more....

A few days ago, Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning.

By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures.

I am not very proud to announce this but, ICE stated a few days ago that the San Diego County Sheriff’s Department is the first law enforcement body to implement the Secure Communities program, under which every individual booked into the three largest jails in San Diego County will have biometric-fingerprints checked in a DHS system for an immigration record.

Secure Communities, which is administered by U.S. Immigration and Customs Enforcement (ICE), streamlines the process by which ICE determines if an individual in the prison system is a removable criminal alien. Under the program, every individual booked into the three largest jails in San Diego County has their biometrics-fingerprints-checked in the U.S. Department of Homeland Security's (DHS) biometric system for any immigration record. Prior to the advent of Secure Communities, as part of the standard booking process, these fingerprints were only checked for criminal history information in the U.S. Department of Justice's (DOJ) biometric system.

If any fingerprints match those of someone in DHS's biometric system, the new automated process notifies ICE and the San Diego intake site submitting the fingerprints. ICE evaluates each case to determine the individual's immigration status and takes appropriate enforcement action after offenders complete their prison terms.

Illegal Immigrants will now be more reluctant to get in touch with law enforcement, thus expect more abuse towards illegals.

Read the ICE press release here..

There are presently 3-5 full time I-601 adjudicators, and 3 staff who are on duty. There is a backlog of 7000 - 9,000 I-601 applications. They are discussing opening an office in Los Angeles where they will only work on those backlog cases.

I-601 Procedure:

The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his IV interview will take place (He just has to make his I-601 appointment for a date after his IV interview).

When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant.

The applicant is then told to pay a fee of (80) pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision.
He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application.

If his case is not granted right away, he can supplement the I-601 at any time up to the day he receives a decision. New information can be mailed, or sent via e-mail to the USCIS. This is good for people who prepared an I-601 without an attorney. If they hire an attorney later on, the attorney can file the supplemental documents even if it has been more than 30 days since the case was referred to the backlog. They do not need to file a new I-601.

Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of referred cases are ultimately approved. The cases in the "backlog" are taking about 13 to 15 months to decide!!

Expedited Processing:

They will consider expediting an I-601 for serious medical issues. This excludes mental/psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver via e-mail.

Criminal Issues:

If your client has any arrests or convictions, you must fully document and disclose them even if the charges were never filed or were dropped. They have been asking for police reports and juvenile records too! Even issues that would not make someone inadmissible can be considered for discretion. They want this information up-front from the applicant.

Denials:

If an I-601 is denied, the applicant may appeal the denial. While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole IV process. However, there is no need to file a new I-130 visa petition. After the new IV interview, they can schedule a new I-601 appointment.
The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.

Tips for legal cover letter:
• The consulate will follow BIA case law, so citing cases from a Court of Appeals is a waste of time.
• The less legalese the better; if you are going to include any, save it for the end of the letter.
• Start off your letter with a summary of the case. It is helpful to have a bullet point list of the documents you are submitting.
• Do not bother including country condition evidence since the adjudicators live in Mexico!

I-212 Applications:

The government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. So if your client does not need an I-601 waiver, CDJ will not accept their I-212 applications. These applications must be filed in the U.S.
They adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.

Continue reading "I-601 Waiver Attorney - Ciudad Juarez New Procedures 2009" »

Last week, the Attorney General overruled the Board's decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don't have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don't have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer's actions were "egregious," and if the agency believes the immigrant has a valid claim to avoid deportation.

ACLU and other groups plan to appeal the attorney general's new ruling, and to pressure the new Obama administration to overturn it.

Read more....

When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding "lawful permanent residents," who could be more easily deported.

Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as "aggravated felonies" that would make aliens deportable. When the category of "aggravated felonies" was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

When immigrants are arrested, they first go through the U.S. legal system. Here is where their alien status puts them at risk. Most attorneys who practice criminal defense work don't have that knowledge of immigration law and will take a plea instead of going to trial. That will put a person in the system, and often lead to deportation proceedings. Immigrants first serve their U.S. sentence before immigration proceedings and often opt for the shortest time served without understanding the implications of their sentence. Always consult an experienced Immigration Attorney before taking any plea deals.

Read the following article about Cambodian immigrants being affected by this policy

U.S. Border Patrol announced that they discovered an incomplete tunnel that originates in Tijuana, Mexico and stretches about 10 feet into San Diego. Several Taxi Drivers that cross in the area reported suspicious activity in that area.

Border Patrol spokesman Julius Alatorre says an agency contractor discovered the tunnel when a driver crushed into a soft spot in the pavement. A hammer and chisel — believed to be abandoned long ago — were found inside. Dozens of secret tunnels have been found along the U.S.-Mexico in recent years, many of them incomplete. Sources confirm they are designed to smuggle drugs or people.

Read the article here...

ILW.com recently published an interesting article by a former USCIS officer stationed at the London US Embassy, working on I-601 waivers. The question we all ask is whether officers exercise discretion when adjudicating 601 waivers, or are they following the law with respect to the extreme hardship standard.

Officer Heller explains: "When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors)."

He further stated: "In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said "applicant" and not "qualifying family member"). Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion."

When we prepare I-601 waivers we often consider that where extreme hardship is a totality determination, discretion is a balancing test (based on the record as a whole).

Some of the favorable factors found in case law are as follows:

Family ties in the United States and the closeness of the underlying relationship;

Unusual hardship to the applicant or to the lawful permanent resident or United States citizens, or relatives and employers;

Evidence of reformation and rehabilitation; Length of lawful residence in the United States and status held during that residence (particularly where the alien began his or her residency at young age);

Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives);

Considerable passage of time since deportation or removal;

Deportation or removal for less serious reasons;

Absence of significant undesirable or negative factors; and

Eligibility for waiver of other exclusionary grounds.

Some of the unfavorable factors to consider are:

Evidence of moral depravity, or criminal tendencies reflected by an ongoing or continuing police record, the nature, recency and seriousness of the criminal violations, if any;

Repeated violations of immigration laws, willful disregard for other laws;

Likelihood of becoming a public charge;

Previous instances of fraud in dealings with US immigration authorities or false testimony;

Mandatory grounds of inadmissibility for which no waiver exists or for which the alien is not eligible;

Absence of close family ties or hardships;

Spurious marriage to a USC for the purpose of gaining an immigration benefit;

Serious violations of immigration laws which evidence a callous attitude without hint of reformation of character;

Nature and underlying circumstances of the exclusion ground at issue; and

The presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country.

Upon review of the record as a whole, the adjudicator must balance the positive and adverse factors to determine whether discretion should be favorably exercised.

Read the article

It seems that the prediction of more and more enforcement before the elections is true. Federal agents swept through a chicken processing plant today, detaining more than 300 suspected illegal immigrants, sending panicked workers running and screaming through the hallways. Worried relatives collected outside, fearful their loved ones would be deported.

It is a clear message sent by the government - if you are hiring illegals, we will raid you and make sure the rest of the world will know about it. Employers desperate for workers, will find it more and more difficult to hire legally. Those that will hire illegally will pay the price. It is time for our immigration system to change.

Read the full raid story here

Due to limited resources the government is using private contractors to secure and run immigration jails. The abuse and terrible conditions in these jails is beyond unreasonable. Many detainees from California are being sent to Arizona and Washington state jails for lack of detention space. Federal authorities are taking a second look at security guards at the Northwest Detention Center, a privately run immigration lockup in Tacoma, after finding that some were hired without preliminary background checks, The Associated Press has learned.

"Clearly this is a cause for concern," said Virginia Kice, a spokeswoman for U.S. Immigration and Customs Enforcement.

Read more here