Visa Lawyer Blog

With the upcoming changes to the I-601 Extreme Hardship Waiver coming this year, allowing applicants to file the Waivers inside the US, we wanted to provide some statistics on the status of cases currently filed overseas.

As you may know,if you are a U.S. citizen or legal permanent resident who is married or engaged to an undocumented immigrant you may think you can easily legalize your spouse. This may be harder than you thought. There are times when your loved one will be deemed “inadmissible” and therefore unable to simply file through you for a green card. In such a situation it may be possible to file an I-601 Application for Waiver of Grounds of Inadmissibility for them. This consists of filing an I-601 immigration form and evidence of hardship.

So what is the current approval rates and processing times for I-601 applications:
1. at all overseas district offices; and
2. at the field offices within each district, specifically for those filed in Ciudad Juarez (CDJ).

According to AILA, good reports received on decreased processing times for I-601s adjudicated at the USCIS offices in Athens, Anaheim, Lima, Guatemala City, and Bangkok. Attorneys have also noticed a significant increase in processing times of triage cases at CDJ, Mexico.

Preliminary data for Forms I-601 in FY2011 are as follows:

Received: 23,124 (Includes reopened cases after I-290B)
Completed: 21,352
Pending end of year: 9,072
Approval Rate total: 84%
Approval Rate Bangkok District: 54%
Approval Rate Rome District: 50%
Approval Rate Mexico City District: 88%
Approval Rate Ciudad Juarez 90%
(Includes Mexico F.O., Monterrey F.O., and HQ Components)

Processing Times:

Percent of cases completed within 6 months (excluding time due to waiting on applicant – for example, to respond to RFE): 74% (Target was 70%) [Note that 73% were processed within 6 months actual processing time)

Percent of cases pending more than 6 months (excluding time due to applicant delay): 5%

This fiscal year, decreased the number of I-601s pending more than 6 months by 82%.

More updates will come shortly, tolearn more about I-601 Waivers, watch our videos here and a process video here.

The new Policy has been expected, but now it is official. The Border Patrol this month is overhauling its approach on migrants caught illegally crossing the 1,954-mile border that the United States shares with Mexico.

The U.S. Border Patrol has announced a change in the so-called catch-and-release-policy, whereby illegal immigrants from countries other than Mexico, captured at the U.S.- Mexico border were automatically released to await a court hearing. Very few ever show up for their court hearing in reality.

The Border Patrol now feels it has enough of a handle to begin imposing more serious consequences on almost everyone it catches, from areas including Texas' Rio Grande Valley to San Diego. The "Consequence Delivery System" -- a key part of the Border Patrol's new national strategy to be announced within weeks -- relies largely on tools that have been rolled out over the last decade on parts of the border and expanded. It divides border crossers into seven categories, ranging from first-time offenders to people with criminal records.

Punishments vary by region but there is a common thread: Simply turning people around after taking their fingerprints is the choice of last resort. Some, including children and the medically ill, will still get a free pass by being turned around at the nearest border crossing, but they will be few and far between.

The new strategy was first introduced a year ago in the office at Tucson, Ariz., the patrol's busiest corridor for illegal crossings. Field supervisors ranked consequences on a scale from 1 to 5 using 15 different yardsticks, including the length of time since the person was last caught and per-hour cost for processing. The Border Patrol has introduced many new tools in recent years without much consideration to whether a first-time violator merited different treatment than a repeat crosser.

It remains to be seen how this new policy will affect illegal immigrants entering the US, and the ability to help them become legal in the future.

We will keep you posted as we learn more about this policy. Read more here

Today was to have been the deadline to end a Department of Homeland Security​ program reviewing cases of undocumented immigrants in Denver who pose no security risk to the country.

Despite that, government officials acknowledged Thursday they will continue to review 7,800 cases in Denver involving nonviolent immigrants who came to the U.S. as children or who have strong familial ties — including lesbians and gays — to decide whether they should be allowed to stay or officials should press forward with deportation proceedings.

The pilot program, launched six weeks ago in Denver's immigration courts, will continue until every case is reviewed, said U.S. Immigration and Customs Enforcement spokeswoman Barbara Gonzalez.

"Some of these cases are extremely voluminous, with thousands of pages, and it takes time for attorneys to review," Gonzalez said of the ongoing review. "It is not a sprint. It is about being careful. We know we are making an impact on human beings' lives."

The only thing that will change is that immigration judges will again begin hearing cases of immigrants who are not detained. Under the pilot program, the immigration judges were only concentrating on immigrants who were detained to make sure they dealt with the highest-priority cases.

In the meantime, Sujey Pando, a lesbian married to an American citizen, is waiting on the status of her immigration case and is nervous because she is aware of what she believes is a deadline and hasn't heard a word.

Pando, 34, is from Mexico and legally married her longtime partner Violeta Pando in Iowa in 2010. Sujey Pando was brought to the Denver area as a child by her mother, then kicked out of the family home at 16 after revealing she was gay.

In 2008, she was pulled over in Adams County for not using a turn signal. She didn't lie to the officer about her undocumented status. She has been fighting deportation since.

"She is not a danger to her community or national security, and she is not a high-priority case for removal," said her attorney, Lavi Soloway. "More than most people, she really does meet many of the guidelines and has some very compelling and sad facts that are part of her case that need to be weighed in this process. We are concerned that they are not reviewing the file or giving her the consideration for administrative closure."

On Aug. 18, Homeland Security Secretary Janet Napolitano announced the shift in policy and said it would free the courts to deal with violent offenders and true threats to national security.

Critics of the plan say it is a back door to amnesty.

On Aug. 19, a Denver immigration judge decided to delay a decision on whether to deport Pando, citing the policy changes announced by Napolitano the day before.

Pando, a restaurant service manager, submitted volumes of evidence of her abuse as a child and teenager coming to this country to the immigration court. She also provided affidavits from family and friends about her commitment to her marriage and the community.

When her case was delayed in August, Soloway advised her not to add more paperwork to the file but changed his mind last week and submitted another 76 pages of affidavits and evidence to support her case.

"I do think that this case meets the criteria for being closed and Sujey and Violeta should be able to go to sleep (tonight) knowing the threat of deportation is not hanging over them," Soloway said.

Continue reading "Denver Pilot Project Carries On Despite Deadline on Immigration Cases" »

Attorney Ekaterina Powell from our law office has prepared the following article about the effects of prior deportations and unlawful presence on the possibility to immigrate to the U.S. Many Applicants come to our office to inquire about the consequences of prior deportations and periods of unlawful presence in the U.S.

There are two common scenarios.

The first scenario is usually similar to this: a foreign citizen had been previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then the foreign citizen gets married to a U.S. citizen. The U.S. citizen comes to our office to inquiry about the immigration process for the spouse and to find out whether there are any issues associated with the alien spouse’s prior immigration violations.

Another common situation: a foreign citizen has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. and enters or attempts to enter the U.S. illegally. Then that foreign citizen marries a U.S. citizen and tries to lawfully immigrate into the U.S.
Well, both of the above scenarios generally lead to a so-called “permanent bar” meaning that the foreign citizen is barred from the U.S. forever!

Unfortunately, the situations described above are very common. Families come to our office too late after a foreign citizen has already incurred a permanent bar. Had these foreign citizens sought immigration counsel’s assistance prior to entering/attempting to enter the U.S. illegally, they could have had a chance to immigrate to the U.S. lawfully in the first place without the fear of being permanently barred from the U.S.

The scenarios described above derive from Section 212(a)(9)(C)(i) of the Immigration and Nationality Act (INA) that provides that any alien who-
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,
and who enters or attempts to reenter the United States without being admitted is inadmissible.
The U.S. immigration law provides for a variety of waivers of immigration violations. However, for the situations described above, the waiver is available only after 10 years have passed since the date of the alien’s last departure from the United States, with certain exceptions. The waiver is called “Permission to Reapply for Admission” and is submitted via a form I-212.

Even aliens who are married to U.S. citizens or who have U.S. citizen children have to abide by this waiver period. As a result, families are forced to be separated for 10 years before they can apply for a waiver!

Luckily, not everyone is subject to the permanent bar in the situations described above. Timing of the deportation and reentry is of great importance. There are certain exceptions for aliens who entered the U.S. prior to April 1, 1997, the effective date of IIRIRA.

Effect of Previous Deportation

The Administrative Appeals Office (AAO) concluded in its 12/29/2011 decision that the applicant was not subject to a permanent bar, where the applicant was removed and subsequently reentered the U.S. illegally before April 1, 1997 and later concurrently filed I-485, Application to Adjust Status, and I-212, Permission to Reapply for Admission into the U.S.

The AAO confirmed in its recent decision that the permanent bar INA section 212(a)(9)(C)(i)(II) applies only to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the U.S. unlawfully any time on or after April 1, 1997.

Therefore, individuals who reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Though very limited, this exception provides relief for certain aliens who have been present in the U.S. for many years. These individuals do not have to worry about the permanent bar but may be subject to other bars, for which they have to file waiver applications in order to obtain lawful status.

Effect of Unlawful Presence

Any alien who has been present in the U.S. unlawfully for an aggregate period of more than 1 year and enters or attempts to reenter the U.S. illegally is generally permanently inadmissible.
It is important to note that an individual’s unlawful presence periods are counted in the aggregate, meaning that one year of unlawful presence can accrue during multiple stays in the U.S.

Timing of unlawful presence is of the essence. Any period of unlawful presence accrued prior to April 1, 1997 does not count towards the period of time needed to trigger the permanent bar.
Therefore, an individual who has accrued more than 1 year of unlawful presence before April 1, 1997, leaves the U.S. and then reenters/attempts to reenter the U.S. without being admitted, is not subject to permanent bar.

In the situations described above, however, the permanent bar is not the only problem. One immigration violation can trigger several other bars including, but not limited to, 3- and 10-year bars for unlawful presence or 5-, 10 and 20-year deportation bars, etc.

The issues of unlawful presence and previous immigration violations are complex and require careful analysis by an immigration counsel. If you or your family members wish to immigrate to the U.S. but are concerned about previous immigration violations, contact our office for assistance.

As Lawyers specializing in the I-601 Extreme Hardship Waivers, we are happy to report on the upcoming changes in the Waiver process as provided by AILA.

An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident or fiancé(e) under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien's inadmissibility cannot be waived.

What was announced on January 6?

On January 6 DHS announced, in a notice to be published in the Federal Register on January 9 that it will be issuing new regulations for how unlawful presence waivers will be processed for certain immediate relatives who are filing immigrant visa applications abroad. Specifically, the new procedure will allow these individuals to file for a provisional unlawful presence waiver and await adjudication while in the U.S. If approved, they will still have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”

What is the current process and why is the change necessary?

Currently, many relatives of U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent residence (“green card”). In order to be granted permanent residence, these applicants are required to travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to re-entry for many applicants—specifically those who have been unlawfully present in the U.S. for more than 180 days.

Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601; see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from their family. To qualify, they must demonstrate that their U.S citizen or permanent resident spouse or parent would experience “extreme hardship” if the waiver is not granted. But under the current process, the individual can only apply for the waiver in the home country, after having had an initial interview at the consulate. The decision on the waiver, which is made by USCIS even though the family member is abroad, often takes weeks, months or even years to be completed.

What will the new process be?

The new procedure will allow certain immediate relatives—spouses, children and parents of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years.

Individuals will still need to meet the extreme hardship standard established in existing law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify the standard.

Who will be able to use the new process?

As announced in the January 6 notice, the new regulation will change the application process only for immediate relatives whose U.S. citizen spouse or parent would suffer extreme hardship if the bar is not waived.

Who is left out of the new process?

According to the January 6 notice, the new process will not apply to family members of lawful permanent resident petitioners. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These individuals will still need to apply under the existing procedure (departing the country first and applying for the waiver while abroad). There is no valid reason not to apply the same procedure to these individuals whose spouses and children face the same bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver adjudications.

When will the new regulations and process be implemented?

The new provisional waiver procedure has not yet taken effect. The notice issued on January 6 announces the government’s intent to issue a proposed regulation at a future date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a proposed regulation governing the waiver process and will invite public comment. The notice states that the new waiver process will not be implemented until a final rule is issued and the change becomes effective.

Under the current procedure, waiver applications are filed by individuals who have departed the U.S. and are applying at U.S. consulates abroad. However, those waiver applications are not
adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for processing waivers can be months or years. Processing these applications in the U.S. will save government resources at the consulates and reduce the costs of shifting cases back and forth between government agencies. We welcome the new proposed rules and look forward to speedier processing of current I-601 Waiver cases.

For more info on I-601 Waivers, click here and another I-601 Video here

This is a tough questions to answer isn't it? On a 1999 fishing trip, two bullies threw a third man into New Jersey's Sandy Hook Bay, knowing he couldn't swim. The drowning death of Michael Augulis was ruled an accident, and it stayed that way until a Lebanese immigrant came to cops with the truth seven years later. Police and prosecutors say the tip from Charbel Chehoud, who wasn't involved in the drowning, was so critical to solving the case, he should be allowed to stay in the United States. The feds disagree.

The S visa is granted to those who act as witnesses or informants to federal or state government agencies. The S visa holder is a person providing information regarding crimes and terrorism.

S visas are granted to individuals who possess critical and reliable information concerning criminal or terrorist organizations. Foreign nationals who are holders of an S visa are willing to share this information with federal or state authorities. S visas are also granted to individuals whose presence in the United States is critical to the success of a criminal investigation or prosecution.

The immediate family members of S visa holders are also eligible to receive clearance. The law gives law enforcement agencies the ability to investigate and prosecute certain types of criminal cases, including: domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offering protection to victims of such crimes. The law also helps law enforcement agencies to provide assistance to immigrants who are victims of crime.

Alongside the enthusiasm comes criticism from those who wonder why people who broke the law to be here should be granted legal status for doing what most citizens would do anyway. How many Americans are victims of violent crime and don't get much when the trial is over? What does the illegal immigrant get? A chance to live here as an American. Some say it's unfair to those people who wait abroad for years for visas that would allow them to immigrate legally.

Jersey City cops urged Immigration and Customs Enforcement to grant him a witness visa, but they must be requested by state or federal agencies.

Chehoud’s lawyer, Carla McBeath, has asked ICE to release him so he can appear in court, finalize his divorce and marry fiancee Veronica Garcia, 39.

While the federal government issues S visas, local law enforcement plays an indispensable role. Police officers must certify the application, confirming that the person has knowledge of the crime; and "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution.

The S Visa and other similar visas are important not only to facilitate the resolution of crimes, but also could be used a powerful tool by the government to prevent future crimes. The Immigrants are not getting a free ride, rather a new opportunity for a life in America, isn't this what our country is all about?

The cost of hiring illegal workers can be great, local bakery owners will have to pay a high price. A La Jolla, Calif., bakery, along with its owner and manager, were sentenced in federal court last week on charges stemming from a four-year probe by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) that the business hired illegal alien workers.

U.S. District Judge Thomas J. Whelan ordered The French Gourmet, Inc. to forfeit $109,200 in illicit proceeds gained from the illegal hiring practices and pay $277,375 for its felony conviction of employing more than 10 illegal alien workers in a 12-month period.

The company owner and president Michel Malecot, 59, was sentenced to five years of supervised probation after pleading guilty earlier this year to knowingly employing numerous illegal alien workers over an extended period of time. Malecot was also held liable to pay the total financial penalty of $396,575.

The French Gourmet has operated a restaurant, bakery and catering business for decades at 960 Turquoise St. in La Jolla. All three defendants pleaded guilty in October to having hired numerous illegal alien workers between 2005 and 2008, and continued to employ the unauthorized workers knowing the aliens did not have legal authority to work in the United States. The defendants further admitted to hiring and employing illegal alien workers continuously as early as 2003, despite being fined in the 1990s by the former Immigration and Naturalization Service (INS) for employing illegal aliens.

The pattern of illegal activity continued until May 2008 when agents from HSI searched the restaurant and arrested 18 illegal alien workers. The company and Kauffman admitted they repeatedly rehired illegal alien workers, even after the company received "no-match" letters from the Social Security Administration advising employees' names did not match the Social Security numbers reported by the company on its tax returns.

So bottom line is to make sure employers keep proper compliance. Employers can face stiff penalties for I-9 violations which include substantial fines and also debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. So how does an employer sort through the information and fully protect itself from fines?

Knowledge is the key to understanding the severity of these penalties. Penalties can include $250 to $3,000 for improper completion of the I-9 form. Improper completion, retention or making it available for inspection fines range from $100 to $1,100 for each I-9. Knowingly hiring or continuing to employ unauthorized workers fines range from $250 up to $11,000 per violation. Firms who show a pattern of hiring unauthorized workers are liable for criminal penalties of as much as $3,000 per employee and may be subject to six months in prison. Investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.

Depending on the state in which the company operates, this penalty can also include the suspension of license to practice within the state. So how can a business operate properly to protect itself?

All employers are required to complete an I-9 form of each new employee. This must be done within three business days of hire.

If you need more info about proper compliance, feel free to email us.

Next week, the Department of Homeland Security will roll out a pilot program intended to speed up the deportation of immigrants with criminal records by weeding out low-priority cases. It's a sensible plan, and one that could restore some sanity to a deportation system that wastes time with harmless immigrants and thereby allows dangerous ones to escape its attention.

Under the pilot program, teams of prosecutors in Baltimore and Denver will review all pending immigration cases in those cities and then decide whether to issue temporary reprieves to the elderly, students, children, victims of domestic crimes and those with a close relative who is a U.S. citizen. Reprieves would be limited to those without criminal convictions. If all goes well, the program would be expanded nationwide in January.

Until recently, government attorneys were required, with rare exceptions, to treat immigrants convicted of serious crimes with the same urgency as those who are merely here illegally. The new guidelines will allow them to place the high-priority cases — those involving criminals — on a fast track for a hearing before a judge. At the same time, this could help free up overburdened immigration courts by reducing dockets.

This isn't the first time the Obama administration has promised to implement reviews and prioritize. Last summer, Homeland Security officials pledged to evaluate about 300,000 deportation cases already filed in immigration court. So far, the results have been less than stellar. The American Immigration Lawyers Association released a report that found the new rules were applied unevenly. In San Francisco, for example, a 14-year-old boy facing deportation to Mexico because he brought a pellet gun to school received a last-minute reprieve, yet an undocumented immigrant with no criminal history was deported even though he too qualified for a stay because he had spent 22 years here and had a U.S.-born child.

Federal officials have shrugged off the results, saying the new rules are a work in progress. However, only Congress can provide a more concrete solution, by enacting legislation that both secures borders and offers a path to legalization for those already here. But the policy, if evenly and thoughtfully implemented, could introduce reason and proportion into a system too often lacking in both.

Sad Sad Story, but this is our reality. A talent illegal-immigrant student in Texas killed himself the day after Thanksgiving and left letters saying he felt trapped by his lack of opportunities.

High school senior Joaquin Luna, 18, of Mission, shot himself in the bathroom of his house on Friday. His brother Diyer Mendoza said Joaquin left letters telling of his despair at the chances of the federal Dream Act, which would legalize illegal-immigrant students and young adults, becoming a reality.

The purpose of the Development, Relief and Education of Alien Minors Act, also called the DREAM Act, is to help those individuals who meet certain requirements, have an opportunity to enlist in the military or go to college and have a path to citizenship which they otherwise would not have without this legislation. Supporters of the DREAM Act believe it is vital not only to the people who would benefit from it, but also the United States as a whole. It would give an opportunity to undocumented immigrant students who have been living in the U.S. since they were young, a chance to contribute back to the country that has given so much to them and a chance to utilize their hard earned education and talents.

Congress blocked the legislation last year when it fell five votes shy of the 60 needed for it to become a law. In July 2011, a state-level law in California was enacted, giving illegal immigrant students access to private college scholarships for state schools. In August, the state of Illinois authorized a privately-funded scholarship plan for children of immigrants both legal and illegal.

The sad death highlights the plight of hundreds of thousands of illegal-immigrant students who are caught between a decision their parents made when they were young and the realities of U.S. immigration law. We hope that the Government will create a path for legalization for such kids who by now became part of our society.

A new Obama administration policy to avoid deportations of illegal immigrants who are not criminals has been applied very unevenly across the country and has led to vast confusion both in immigrant communities and among agents charged with carrying it out.

Since June, when the policy was unveiled, frustrated lawyers and advocates have seen a steady march of deportations of immigrants with no criminal record and with extensive roots in the United States, who seemed to fit the administration’s profile of those who should be allowed to remain.

But at the same time, in other cases, immigrants on the brink of expulsion saw their deportations halted at the last minute, in some cases after public protests. In other instances, immigration prosecutors acted, with no prodding from advocates, to abandon deportations of immigrants with strong ties to this country whose only violation was their illegal status, a sign that they were following the June memo from ICE.

For President Obama, the political stakes in the new policy are high. White House officials have concluded that there is no chance before next year’s presidential election to pass the immigration overhaul that Mr. Obama supports, which would include paths to legal status for illegal immigrants. Even still, immigration authorities have sustained a fast pace of deportations, removing nearly 400,000 foreigners in each of the last three years.

With Latino communities taking the brunt of those deportations, Latino voters are increasingly disappointed with Mr. Obama. White House officials hope the new policy will ease some of the pressure on Latinos, by steering enforcement toward gang members and convicts and away from students, soldiers and families of American citizens.

In a June 17 memorandum, John Morton, the director of Immigration and Customs Enforcement, laid out more than two dozen factors that its agents and lawyers should weigh when deciding whether to exercise prosecutorial discretion to dismiss a deportation. The memo called for “particular care and consideration” for veterans and active-duty troops, elderly immigrants and minors, and those brought here illegally as children.

In August, the homeland security secretary, Janet Napolitano, announced additional measures to put Mr. Morton’s guidelines into effect, including a review of all deportation cases — about 300,000 — currently in the immigration courts, with the aim of closing cases that do not meet the administration’s priorities.

In a report released Wednesday, the American Immigration Lawyers Association and the American Immigration Council collected 252 cases from lawyers across the country who had asked Mr. Morton’s agency, known as ICE, to exercise prosecutorial discretion to spare immigrants from deportation. “The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives,” the report found.

“This is a classic example of leadership saying one thing and the rank and file doing another,” said Gregory Chen, director of advocacy for the lawyers association. The report found that training for immigration officers on the new guidelines had been lacking.

Officials at the Homeland Security Department acknowledge the policy’s slow start. Mr. Morton’s June guidelines were followed by a three-month lull, when resistance grew among agents in the field. In late September, Ms. Napolitano and Mr. Morton went on the offensive to press the policy, and since then Mr. Morton has been on the road inaugurating training programs.

“Like any major change in enforcement policy, this is a work in progress,” Mr. Morton said by telephone from Miami, where he was joining in a training session. “I have been handling much of the initial explanation myself, because I feel so strongly about it.”

Officials say they need time to transform federal agencies accustomed to cut-and-dried immigration enforcement, with any illegal immigrant a target for deportation. Ms. Napolitano says immigration agents must become more like other police officers, using “sound prosecutorial practice” to follow priorities. Those priorities are to deport convicted criminals, serial violators of immigration law and recent border crossers, officials said.

Continue reading "Deportations Under New U.S. Policy Are Inconsistent" »

We all have been reading about The Obama administration changing the federal immigration enforcement strategy, in ways that reduce the threat of deportation for millions of illegal immigrants.

The changes focus enforcement on immigrants who have committed serious crimes, an effort to unclog immigration courts and detention centers. A record backlog of deportation cases has forced immigrants to wait an average 459 days for their hearings. But recent statistics paint a slightly different picture.

U.S. Immigration and Customs Enforcement Director John Morton said today his agency deported nearly 400,000 individuals during the fiscal year that ended in September, the largest number of removals in the agency’s history.

Morton announced the Fiscal 2011 numbers in Washington, saying about 55 percent of those deported had felony or misdemeanor convictions. Officials said the number of those convicted of crimes was up 89 percent from 2008.

Authorities could not immediately say how many of those crimes related solely to previous immigration violations. Individuals can be convicted of a felony for returning to the U.S. or being found in the U.S. after being ordered by the government to leave.

The Government said it is focusing its resources on criminals, recent border crossers, those who repeatedly cross the border and those people the department considers fugitives.

If you have acquired one year of unlawful presence after April 1, 1997, leave the United States, and then attempt to enter the country illegally, you are subject to the permanent bar. The same is true if you are successful in reentering the Unites States illegally. The permanent bar means that you will never be able to reenter the United States legally. There is a waiver available, but only after you have stayed outside the United States for ten years. Therefore, if you have been living illegally in the United States for more than one year, you should not leave and attempt to return illegally.

This is interesting. An illegal immigrant who filed a civil lawsuit over the ownership of a $750,000 lottery ticket has won the right to stay in the country to fight his legal battle. His lawyer, successfully sought a deferred action on Cua-Toc’s removal order from the U.S. Department of Homeland Security. The deferred action allows Cua-Toc to temporarily remain in the U.S. to have his day in court.

Deportation, also known as removal, is the process of expelling a foreigner from the country. Because it can be tough to fight your case when you're no longer living in the United States–and because deportation can cause tremendous stress to you and your family–you should ask to have your deportation postponed while pursuing all legal avenues. This postponement is called a stay of deportation or stay of removal. A stay is a temporary suspension of an action. When we talk about a stay of deportation or a stay of removal, it means that the judge or court has postponed a scheduled deportation.

Different government agencies are involved in the immigration process. Each agency handles requests for a stay of deportation differently. Typically, a stay of deportation would be requested while you are appealing your case. An appeal occurs when you ask a higher court to review the decision of a lower court in hopes that the higher court will decide that the lower court made a mistake in its decision.

In this case, the reason for stay is due to the Civil action relating to the lottery ticket, and this a creative way on the part of the lawyer to get the client to stay and wait for the case to be adjudicated.

Read the story here

Using a little-known government program, the United States Department of Homeland Security (DHS) has pushed nearly 160,000 immigrants — many with deep ties to the United States — through an expedited deportation process, sometimes without adequately informing them of their right to a day in court. Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. We see this everyday in our practice as well.

The U.S. has deported more than 160,000 immigrants, the vast majority of whom had no legal representation — and signed documents they may not have understood — under a program that carries severe penalties should they reenter the country. According to the National Immigration Law Center and professors at Stanford Law School and Western State University College of Law, immigrants often signed the so-called stipulated removals because they believed it was the only way to avoid prolonged detention. But by agreeing to the removal order, immigrants can be barred from returning to the U.S. and be subject to criminal prosecution for illegal reentry.

According to a new report, the program, which began nearly a decade ago and dramatically expanded in 2003, has been encouraged by U.S. Immigration and Customs Enforcement (ICE) officers at various levels of the organization. According to documents reviewed by the authors of the report, field offices were encouraged to use the program to boost deportation numbers and given incentives to increase the number of stipulated orders of removal signed by detainees in their jurisdictions.

The authors of the report made many recommendations to improve due process protections for immigrants facing removal, including issuing procedures for using interpreters where needed and allowing detainees to attend legal rights presentations before they are offered the removal option. Let us hope changes will be coming soon.

We wanted to be the first to report of an alarming trend that we just learned about last month. Over the past month we received calls from family members of detained individuals who were picked up coming into San Diego via domestic flights from NYC, Miami and Atlanta. Most of the individuals were here on expired visas, but with no criminal records. Until now, Immigration officials were not looking for individuals moving in the US on internal flights without a special reason.

We also learned from a TSA official, and from a Delta employee, that the government is acting on a tip connected to a drug enforcement operation from the above referenced destination. We feel that this may be also related to Immigration enforcement at the same time.

In the past, increased border vigilance in Arizona has caused a spike in human smuggling traffic moving through Los Angeles International Airport, but not through San Diego's Lindbergh Field.

The Border Patrol has long had a presence at Lindbergh Field, and agents can sometimes be seen near security checkpoints and in other parts of the airport. The airport investigations will continue until further notice, we will keep our readers informed as new information becomes available.

Attorney Andrew Desposito of our office wrote this brief commentary on the split in courts across the country with their application of Padilla v. Kentucky

The U.S. Supreme Court case Padilla v. Kentucky (2010) was an important ruling for many aliens facing deportation. In that case, the U.S. Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The problem with the ruling is that the U.S. Supreme Court failed to clarify whether this decision could apply retroactively with regards to direct and collateral appeals. The main concern is whether the decision announced a new constitutional rule and should not be applied retroactively, unless an exception applies, or whether it is not a new constitutional rule and could therefore be applied retroactively. This distinction has been critical for many Circuits in its decisions on whether to apply Padilla to other cases in their jurisdictions.

Recently, the Seventh Circuit held that Padilla does not apply retroactively. The Court concluded that because Padilla announced a new constitutional rule, that unless there is an exception to retroactively applying the case, Padilla will not apply to cases already resolved on appeal. The Tenth Circuit has also held that Padilla does not apply retroactively for the same reason. In addition, the Third District Court of Appeal of the State of Florida has sided with the Seventh and Tenth Circuits on the issue, leaving it open for the Eleventh Circuit to make a decision on the case if it goes up on appeal to that court.

While these Circuit Courts have decided against applying Padilla retroactively, other district courts have applied the case retroactively. The State Court of Minnesota Court of Appeals concluded that Padilla applies retroactively under an old rule of constitutional law. The Minnesota Court concluded that Padilla falls under the Constitutional rule under Strickland v. Washington. The court decided that Padilla was an extension of Strickland regarding the rules of ineffective assistance of counsel. The Strickland rule states that: (1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different. The Minnesota court determined from the majority decision in Padilla that the Strickland rule was being extended by this recent decision. The State Court of Texas First Court of Appeals also ruled that Padilla applies retroactively on the same grounds.

Although the Fifth and Eighth Circuit Court of Appeals have not weighed in on the matter, with cases being decided in their jurisdictions (Texas and Minnesota), it is only a matter of time until those Circuits decide whether to follow their Sister Circuits in not applying the rule retroactively, or deciding that Strickland must be applied. It will be interesting to see how the other courts decide on the matter, and whether the U.S. Supreme Court will then have to step in and make a final ruling on the application of Padilla as a constitutional rule of law.

It is tempting to imagine that the Department of Homeland Security (DHS) has adopted a kinder and more just approach to its immigration enforcement mission. After all, the department announced in recent days that it will henceforth focus its enforcement efforts on “high priority” immigration cases; that is, those cases involving serious criminals and individuals who are a threat to public safety or national security. While this is a welcome, long overdue announcement, we must keep in mind that there are still DHS enforcement policies in place that are in dire need of repair.

For instance, according to a story in the New York Times earlier this month, U.S. immigration agents stationed along the U.S.-Mexico border have taken to detaining and sometimes arresting unauthorized immigrants as they try to leave the United States and return to Mexico. In other words, after pouring billions of dollars into immigration enforcement programs to make the United States as unwelcoming as possible to unauthorized immigrants, the Obama Administration has decided to make their departure just as difficult and to torment them as they leave. This policy is as nonsensical as it is cruel.

To be fair, the Administration is snaring unauthorized immigrants as it attempts to do what previous administrations have not: stem the flow of drug money and guns from the United States to Mexico, into the waiting arms of drug cartel leaders. But this neither explains nor justifies why immigration agents are arresting immigrants who have no connections to drug money or gun smuggling—and who are leaving the country. As the Times notes, even some vehemently anti-immigrant groups oppose this practice on the grounds that it slows, and perhaps even discourages, the departure of unauthorized immigrants from the country. In a surreal moment last year, the president of the nativist organization Americans for Legal Immigration issued a statement saying that:

“This is about the only situation we would ever advocate that our immigration laws be waived. We want to encourage the illegals to leave America on their own and thus we ask Obama to provide them safe passage out of America.”

When questioned about its illogical policy, the Administration resorts to a generic law-and-order explanation. An anonymous “administration official” told the Times: “We’re not trying to discourage anyone from leaving, but we do want to send the message that there are consequences for breaking immigration laws.”

As Greg Siskind points out in the AILA Leadership Blog: “Bad policies have consequences, as well. Unfortunately, everyone seems to have figured this out but the officials carrying out the bad policy.” Apparently, the Obama Administration doesn’t see the irony of making it hard for unauthorized immigrants to leave the county after expending so much time and effort telling them to leave the country.

A couple weeks ago, Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.

The protesters were arrested peacefully after they sat down on the White House sidewalk, following a rally where demonstrators denounced the Obama administration for deporting more than one million immigrants in the last two years.

In a letter to Mr. Gutierrez on Monday, Mr. Obama rejected his proposal to suspend deportations of illegal immigrant college students with clean criminal records. Last week, Mr. Gutierrez and three other House Democrats had sent a letter to the president requesting the suspensions and also asking him to take executive measures to make it easier for illegal immigrants married to American citizens to remain in the United States.

Mr. Gutierrez said he decided to go ahead with the protest after receiving Mr. Obama’s response. “It didn’t disappoint me as much as I was saddened,” Mr. Gutierrez said in an interview after he paid a $100 fine and was released by the police. He was arrested in May 2010 in a similar protest.

In his letter, Mr. Obama argued that immigration authorities had succeeded in increasing the numbers of convicted criminals among immigrants who are deported, while deporting fewer immigrants who lack legal status but have not been convicted of any crime. In 2010, Mr. Obama wrote, 51 percent of deportees were convicted criminals, while 49 percent had noncriminal violations. Two-thirds of the noncriminal deportees had either committed multiple violations of immigration law (which is generally a civil offense) or had been caught at the border soon after crossing illegally, Mr. Obama wrote.

On Monday, in a speech at a meeting of the N.C.L.R., or National Council of La Raza, a Hispanic civil rights organization, the president appealed to Hispanic leaders, including Mr. Gutierrez, to help him pass a broad overhaul of the immigration laws by focusing pressure on Republicans.

“I need you to keep building a movement for change outside of Washington, one that they can’t stop,” said Mr. Obama, referring to Republican lawmakers. While his reception at the Latino gathering was generally enthusiastic, when the president said he could not unilaterally cancel student deportations, groups of students stood up from the audience and chanted, “Yes you can!”

The partisan conflict over immigration policy was on full display on the Hill on Tuesday. At a Senate Judiciary subcommittee hearing convened by Senator Charles Schumer, a New York Democrat, top executives from Microsoft and Nasdaq OMX appealed for more flexible visas for immigrants with technology and science skills, warning that the United States is losing the global competition for talented entrepreneurs who can lift the economy.

But at a House Judiciary subcommittee hearing convened by Representative Lamar Smith, a Texas Republican, the president of an immigration agents’ union, Chris Crane, delivered scathing criticism of the administration, saying officials are pandering to immigrant groups at the expense of public security. Mr. Crane, president of the union of employees of Immigration and Customs Enforcement, said ICE agents broadly rejected recent measures by agency leaders to allow some immigrants to avoid deportation.

“Law enforcement and public safety are no longer a priority at ICE,” Mr. Crane said. “Politics are the priority at ICE.”

Many groups are feeling the pressure that has come from the enforcement policies of the Obama administration. While those within the agency feel there needs to be more strengthening on the law enforcement side, Congressman Gutierrez's arrest demonstrates how law enforcement is not directed at the right individuals. Comprehensive immigration reform is still necessary to protect and keep those in the U.S. who contribute to our society.

Ekaterina Powell from our office brings us up to date with this recent development. Aliens who have controlled substance convictions are generally deportable and ineligible for adjustment of status (with certain exceptions for simple possession of 30 grams or less of marijuana).

Whenever an alien enters a guilty plea or nolo contendere or admits sufficient facts to warrant a finding of guilt, for which the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty, the alien becomes deportable and inadmissible. See definition of conviction in 8 U.S.C. section 1101(a)(48)(A).

This definition of conviction leaves most of the aliens with simple possession convictions out of luck. These individuals cannot apply for adjustment of status through their immediate relatives U.S. citizens and may be deported from the United States even after years of being in lawful permanent resident status. The length of time that has passed since the entry of judgment does not matter for immigration purposes. Thus aliens that had drug convictions adjudicated years ago would be treated the same way for immigration purposes.
Prior to July 14, 2011, in 9th Circuit, aliens who had their first simple drug possession convictions expunged under state rehabilitative statutes, qualified for relief: the immigration consequences of their first simple drug possession convictions were eliminated pursuant to Lujan-Armendariz v. I.N.S., 222 F. rd 728 (9th Cir. 2000).

Generally, rehabilitative relief is expungement or other withdrawal of plea
after successful completion of probation, such as, in California, under Deferred Entry of Judgment, Penal Code 1203.4, or Proposition 36.

On July 14, 2011, the Ninth Circuit, sitting en banc, withdrew from the Lujan-Armendariz decision and held that "rehabilitative relief" will no longer eliminate a first
conviction for simple possession drug offense (Nunez-Reyes v. Holder, 7/14/11).
Under Nunez, aliens with first simple possession drug convictions that were expunged under state rehabilitative statutes will be ineligible for adjustment of status and will be deportable.
It is worth noting that Nunez applies only prospectively. The Court held that “[f]or those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens convicted after the publication date of this decision, Lujan-Armendariz is overruled."

Therefore, according to the Court’s ruling in Nunez, aliens who were convicted before July 14, 2011 will be treated under Lujan, will receive the benefit of state rehabilitative laws and will have their conviction eliminated for the immigration purposes allowing some forms of relief, and the aliens convicted after July 14, 2011, will not receive these benefits.

Thus, in immigration proceedings under the jurisdiction of the 9th Circuit, for aliens who had only one simple possession drug conviction and whose conviction was expunged upon successful completion of probation or drug diversion program pursuant to a state rehabilitative statute, the immigration consequences of such conviction will be eliminated if the conviction occurred before July 14, 2011.

Even though the new 9th Circuit ruling has drastically changed the long-established precedent, it does not apply to aliens convicted before the date the case was published. These aliens will still be able to take advantage of the earlier 9th Circuit precedent, set forth in Lujan.

A New York judge released Dominique Strauss-Kahn from house arrest Friday, after prosecutors presented evidence questioning the credibility of the hotel maid who accused the former International Monetary Fund chief of sexual assault.

The alleged victim, a 32-year-old immigrant from Guinea, admitted to prosecutors that she lied about the specifics of her whereabouts following the incident, the details of an asylum application and information she put on tax forms.

According to a New York Times report, the 32-year-old hotel maid may be linked to drug dealing and possible money laundering. The unidentified woman also lied to investigators about previously being raped in her native Guinea.

Asylum is relief for a foreign national to remain in the U.S. under legal status because the foreign national has suffered past persecution in his home country or country of last habitual residence, or because the foreign national has a well founded fear of future persecution in his home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group.

If she lied in the Asylum application, she could loose her current US status. The Asylum evidence in the file could be useful for Strauss-Kahn's defense lawyers. We will keep following this case:))

In line with what we heard at the National Immigration Law Conference Last week, John Morton, the head of Immigration and Customs Enforcement, said the deportation program would continue to expand as planned in order to be operating nationwide by 2013, despite criticism from many police chiefs and from the governors of Illinois, New York and Massachusetts, who sought to withdraw their states.

In a fix likely to have broad practical effect, Mr. Morton issued a memorandum that greatly expanded the factors immigration authorities can take into account in deciding to defer or cancel deportations. Agents are now formally urged to consider how long an illegal immigrant has been in the United States, or whether the immigrant was brought here illegally as a child and is studying in high school or college.

Under Secure Communities, tens of thousands of immigrants who were here illegally but had not been convicted of any crime were detained by local law enforcement and swept into deportation proceedings. Until now, once immigration agents in the field had started a deportation, government lawyers had little authority to decide which cases were worth pursuing in immigration court. Many immigration violations are civil, not criminal, offenses.

In the Secure Communities program, fingerprints of everyone who is booked into jail are checked against F.B.I. criminal databases, as has long been routine, and also against Department of Homeland Security databases, which record immigration violations.

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