4th Circuit Rejects CIMT Test

Yesterday, the 4th Circuit Court of Appeals joined the 3rd, 8th, and 11th circuits in rejecting Attorney General decision in Matter of Silva-Trevino, 24 I&N Dec. 687, 688-90 (A.G. 2008). See Prudencio v. Holder, Jan. 30, 2012.

The 4th rejected the three-step procedural framework for determining whether a particular conviction is a crime involving moral turpitude because the third step:

allows an immigration judge to rely on documents of questionable veracity as "proof" of an alien’s conduct. These documents, such as police reports and warrant applications, often contain little more than unsworn witness statements and initial impressions. Indeed, these materials are designed only to permit a determination of probable cause. Further, because these submissions are generated early in an investigation, they do not account for later events, such as witness recantations,amendments, or corrections. To confer upon such materials the imprimatur of fact, even for the narrow application of removal proceedings involving questions of moral turpitude, accords these documents unwarranted validity.

The 4th declined to sanction the factual approach citing the Supreme Court: "the practical difficulties and potential unfairness of a factual approach are daunting." Shepard, 544 U.S. at 20; Taylor, 495 U.S. at 601.

The Silva-Trevino factual approach permits an Immigration Judge (IJ) to consider otherwise impermissible evidence to determine that a conviction is a crime involving moral turpitude with adverse immigration consequences attaching. Or in other words, if all else fails, throw in the kitchen sink.

This approach enables IJs to impose their own personal and political biases into legal determinations by re-litigating criminal cases in a vacuum, rather than objectively reviewing criminal statutes to determine what immigration consequences, if any, stem from a particular conviction.  The end result, individuals that are not deportable are being deported.

The reality is that the kitchen sink approach was created because the long established framework for determining whether Silva-Trevino's plea of no contest to “indecency with a child” is a crime of moral turpitude did not end in Silva-Trevino's deportation.  As a result, a new test was created that would procure the desired result.

As we learned in law school: bad facts make bad law. 

Thankfully, we have the Judicial Branch to reign in unlawful interpretations of the law as proscribed by Congress.

Score one for the rule of law.

Gingrich explains his immigration policy

Gingrich says that he will take a "whatever steps are necessary" approach to controlling the borders, and opposes blanket amnesty. Or in other words, he says the same thing that every other politician in Washington (Republican or Democrat) has been saying. Par for the course.

Republican Congressman Introduces Military Only DREAM Act Bill

Republican Congressman David Rivera (25th District of Florida) has introduced a military only version of the DREAM Act.  The legislation is tittled H.R. 3823: Adjusted Residency for Military Service Act, or ARMS Act, and provides a path to legalization for individuals without lawful immigration status that entered the United States as children.

Congressman Rivera describes the legislation as follows:  “This bill provides an opportunity for young people who have established long-standing ties in the United States, and who have a desire to serve our country, to fulfill their goals of serving in the military and achieving the American dream.  If these young people are willing to die for America, then certainly they deserve a chance at life in America.”

Here is the ARMS fact sheet:

The Adjusted Residency for Military Service (ARMS) Act will provide the opportunity to adjust the residency status of individuals who join the United States Armed Forces and meet certain criteria.

ARMS Act applicants are granted conditional non-immigrant status and are not subject to deportation through the Secretary of Homeland Security for five years if the individual filing:  

• Shows intent to enlist and get accepted into a branch of the United States Armed Forces 
• Obtained a high school diploma or an equivalent
• Arrived in the United States before the age of 16
• Maintained residence in the United States for the preceding five consecutive years
• Has demonstrated “good moral conduct” as defined by U.S. Code Title 8 Section 1227(a) 

The individual’s non-immigrant status will be revoked if he or she:

• Does not enlist and get accepted into a branch of the United States Armed Forces within nine months of having their status adjusted
• Fails to continue demonstrating “good moral conduct”
• Becomes a public charge as an individual who is primarily dependant on the government for subsistence
• Receives a dishonorable discharge or other than honorable discharge from the Armed Forces.

Following the initial five year conditional status period, the Secretary of Homeland Security shall extend the individual’s non-immigrant status for an additional five years if he or she:  

• Has served at least two years on active duty status, or at least four years reserved status, or was otherwise honorably discharged
• Continues to demonstrate “good moral conduct”
• Has maintained residence in the United States (absences for military service abroad are excused) Upon receiving the non-immigrant status extension, the conditional non-immigrant may file to have their status changed to permanent resident.  

It will be very interesting to see what the Republicans in the House do with this.

Romney on Immigration: "Our problem is not 11 million grandmothers."

In Campaign Mode Obama Calls for Comprehensive Immigration Reform

In full-fledged campaign mode in his State of the Union address the Deporter-in-Chief once again dangled the immigration reform carrot.

Here is the footage:

Anyone buying it?

As I have said before, where is the leadership?  Why is this President unwilling to release a framework for immigration reform in order to garner public support?  Don't permit the do-nothing election-year Congress to continue to ignore the issue for the last quarter of your Presidency.  Shame both parties into taking action.  Release an actual plan for reform, and let the pollsters do their job. Let things happen.  Be the ball.  That's what a leader does.  

Mr. President, you weren't elected to stand in front of the American people to say that you are for something.  You were elected to effectuate Change. To do something.

It's time to show us the money.

Obama Administration Employs New Strategy to Combat Illegal Border Crossing

The Obama administration has introduced a new strategy for combating the flow of undocumented immigrants across our borders, and the strategy appears to be working.

Fox News Latino reports that the Border Patrol office in Tucson, Arizona has created a "Consequence Delivery System" that ranks offenders on a sliding scale of 1 to 5 using 15 different "yardsticks."  First time violators are treated differently than repeat offenders.  Factors for consideration include the amount of time that has elapsed since the last apprehension, as well as the cost to taxpayers for implementing penalties.

Color-coded, wallet-sized cards and posters were created advising agents how to proceed once an offender is taken into custody.  

Here are some examples of the penalties Border Patrol agents impose:

• First-time violators are typically charged criminally. After conviction, violators are flown to Mexico City, and given a one-way bus ticket to their hometown.
• Known smugglers are typically returned to Mexico for prosecution.
• Some individuals are transferred to a remote border city hundreds of miles away and then returned to Mexico.

All of the options are punitive in nature, and replace the previous practice of giving an encountered immigrant a bologna sandwich and orange juice before simply returning them to Mexico.  Apprehensions in Tucson have decreased by 80 percent since the new strategy has been implemented.

Click here to read the original source of this story.

Determination of Inadmissibility Reversed, Green Card Issued without a Waiver

I just received a Green Card approval on behalf of a client who is married to a United States citizen.  The client first came to us when in immigration court proceedings were instituted against him after he was taken into custody while mistakenly driving down a one way road that led to a border crossing.  He was engage to a United States citizen at the time he was encountered.

After the institution of proceedings my client married his fiancé.  I prepared and submitted the immigrant visa petition on his behalf, together with proof that the marriage was entered into for the right reasons, and obtained adjournments of the deportation proceedings in order to buy time to get the Green Card petition approved.

Upon approval of his wife’s petition I filed a motion to dismissal to enable my client to apply for his Green Card before USCIS rather than before the immigration court.  This motion was granted, and I then filed my client’s Green Card application with the New York district office, which had jurisdiction over his place of residence.  

At the scheduled marriage fraud interview my client was told that he needed a waiver to overcome inadmissibility.  USCIS mistakenly believed that he triggered a 10 year bar when he physically left U.S. soil without being admitted into Canada.  We received instructions from USCIS to file the I-601 within 30 days of receipt of the notice.

I successfully argued that a waiver was unnecessary because when encountered he was not an applicant for admission because he never effectuated a departure from the United States, making a u-turn on the bridge prior to ever leaving U.S. territory.  As such, he did not trigger either a 3 or 10 year bar under INA §§ 212(a)(9)(B)(i)(I) and (II), which would necessitate a waiver of inadmissibility.

USCIS agreed with my interpretation of the law, reversed their initial decision, and issued my client’s Green Card.  


He will be eligible to apply for his citizenship in three years.

Another Same Sex Spouse Faces Deportation due to Defense of Marriage Act

The love story began in April 1990 at a birthday party, which the couple describes as "love at first sight."  One worked at the Pennsylvania State System of Higher Education, the other a university student.  This first meeting turned into a whirlwind romance spanning decades and two continents. The couple ultimate wed in California in 2008, and now have four adopted children.

Unfortunately, there may not be a storybook ending for United States citizen Mark Himes and his French national husband Frederic Deloizy.  Despite the fact that the couple's marriage is valid in the State of California, Deloizy is ineligible to receive any immigration benefits from his United States citizen spouse, and as such he may be just one more faceless statistic in the Obama administration's 400,000 deportations per year mandate.

Mark and Frederic's marriage faces the prospect of destruction, not because of the "broken immigration laws," but due to the Obama administration's continued enforcement of the Defense of Marriage Act (DOMA) in the immigration context. In fact, if Frederic were a woman there would be nothing to worry about, and the Green Card process would be fairly straight forward.  

DOMA prohibits the Federal recognition of same-sex marriages, further providing that States are not required to recognize same sex marriages.  DOMA was signed into law in 1996 by a Democrat (President Bill Clinton) who is a proponent of gay rights.  Democrat Barack Obama continues to enforce DOMA against immigrants married to United States citizens.  This enforcement continues despite the fact that both the President and his Attorney General have stated that it is unconstitutional, and that it should not be enforced in Federal Court.  

To paraphrase: With Democrats like these who needs Republicans.

The painful irony is that even Dick Chaney openly opposes DOMA, making him more progressive than either Clinton and Obama on the issue.  Only now that the President is seeking reelection has Obama's view on gay marriage "evolved."  It seems pretty clear to me that Obama's evolution is in spoken word, and not in deed.

More disappointments from the Lipservicer-in-Chief.

Thankfully, CNN.com has given this couple a voice so that the Obama Administration will be shamed into doing the right thing. It is an election year after all.

Click here for the source for this story.

Determination of Inadmissibility Reversed, Client to be Admitted without a Waiver

I was just able to convince U.S. Customs and Border Protection (CBP) that my client, an undergraduate student and citizen of Canada, is not inadmissible to the United States, and does not need a waiver to be readmitted as a student.  

The basis for the initial determination of inadmissibility was that he was charged with a theft offense in the State of Pennsylvania.  Most convictions for theft offenses constitute a crime involving moral turpitude that render an individual inadmissible.  That being said, I convinced CBP that my client was not convicted of any offense, theft or otherwise, that would preclude his readmission as an F-1 Student. 

In doing this I provided proof that in lieu of a conviction my client was admitted into Pennsylvania’s Accelerated Rehabilitation Program (ARD).  The ARD rehabilitation program allows prosecutors to avert a trial and defendants to ultimately earn a dismissal of criminal charges upon the satisfactorily completion a probationary program.  In support of my argument I provided case law from the Board of Immigration Appeals that set forth that participation in the ARD program is not a conviction for immigration purposes as it does not mirror the definition of conviction as set forth in 8 U.S.C. § 1101(a)(48). 

CBP conferred with the lawyers in Office of Chief Counsel who agreed with my interpretation of the law, and my client is subsequently determined to be eligible for admission to the United States to resume his studies without the need for a waiver.  I received this determination in less than 10 days.

Visa Bulletin For February 2012

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	22DEC04	22DEC04	22DEC04	22APR93	22MAY97
F2A	08JUN09	08JUN09	08JUN09	08MAY09	08JUN09
F2B	15OCT03	15OCT03	15OCT03	01DEC92	01NOV01
F3	01DEC01	01DEC01	01DEC01	01JAN93	22JUL92
F4	08SEP00	08SEP00	08SEP00	15MAY96	01NOV88

*NOTE: For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08MAY09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08MAY09 and earlier than 08JUN09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	01JAN10	C	C
3rd	22FEB06	01DEC04	15AUG02	22FEB06	22FEB06
Other Workers	22FEB06	22APR03	15AUG02	22FEB06	22FEB06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

For February, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	32,000	Except: Egypt  21,000 Ethiopia  21,500 Nigeria 16,000
ASIA	23,900
EUROPE	22,000	Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)	7
OCEANIA	775
SOUTH AMERICA, and the CARIBBEAN	775

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	35,800	Except: Egypt 26,000 Ethiopia 26,000 Nigeria 17,500
ASIA	27,000
EUROPE	26,500	Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)	7
OCEANIA	925
SOUTH AMERICA, and the CARIBBEAN	925

D. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (monthly)

Worldwide dates:
F1: three to five weeks
F2A: one to two months
F2B: three to four weeks
F3: one to three weeks
F4: up to one month

EMPLOYMENT-based categories (monthly)

Employment First:  Current

Employment Second:

China and India:  Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low.  This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit.  Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off.  Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.  

Employment Third:

Worldwide: up to one month
China: up to one month
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

Employment Fourth:  Current

Employment Fifth:  Current

Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.