Category: Lawful Permanent Residence

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Board of Immigration Appeals Holds that Admission of Conviction Might not Trigger Stop-Time Rule

I have been an advocate of changing the Supreme Court’s decision that removal proceedings are civil and not criminal. The main reason being my argument is the fact that criminal law has infiltrated removal proceedings since the criminal grounds for removal have been expanded by Congress on several occasions.

One of the problems in removal proceedings is the definition of “conviction” for immigration law purposes. The common sense definition of the term does not apply in these “civil” proceedings, since a mere admission of enough facts makes you removable for immigration purposes. The consequences that come from such “conviction” are tremendous in the immigration context, including triggering the stop-time rule, a rule that would make a person ineligible for discretionary relief like Cancellation of Removal for non and lawful permanent resident.

The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the stop-time rule under Matter of K,I&N. Dec. 59 (BIA 1957).  Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow. However, I have used these decisions in court proceedings and they were very persuasive. 

I ask you to please comment and let me know what you think. Also, please feel free to add me or follow me on social networks. Thank you for following me.

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Eighth Circuit Upholds Denial of Adjustment of Status

Last week the Eighth Circuit upheld the Board of Immigration Appeals’ decision upholding the denial of an applicant’s adjustment of status application. Luis Garcia-Gonzalez was a native of Mexico and a lawful permanent resident. He was placed in removal proceedings for his 2005 conviction under 18 U.S.C. § 1962(d)  for racketeering. He was placed in removal proceedings for committing an aggravated felony. The immigration judge ordered his removal after sustaining the charge and denied his application for adjustment of status since he was inadmissible and the BIA upheld. 
In his petition for review he argued that the BIA and the immigration judge erred in ruling that he was ineligible for adjustment.  The court ruled that since Garcia-Gonzalez admitted to the essential facts of conspiracy, he was inadmissible and ineligible for adjustment of status

Activists are Fasting for Immigration Reform. What are you doing to make it a reality?

Did you know that for the past 21 days activists have been fasting on Capitol hill for immigration reform? The group called Fasting for Families has staged the fast to urge House Republicans to pass immigration reform that has been stalled in the House for months.  The group’s resolve has earned them a visit from President Obama and the first lady
I have to be honest, I do not totally support the Senate’s immigration reform bill. While it  has several good things in it, the fact that it has a prolonged road to citizenship is troublesome. I support a similar law to the one passed by President Clinton where out of status immigrants paid a penalty to gain permanent residence
I ask you to support the protesters, even by a simple prayer. 

Immigration Fraud and Proving your Marriage is Bona Fide for Immigration Purposes

I sometimes meet with potential clients who have entered into a marriage solely for immigration purposes. In other words the immigrant is marring a US citizen or lawful permanent resident just to receive his permanent residence in the United States. I usually do not accept these cases and warn the potential of the grave consequences of filing the petition. 
In 1986, Congress passed the Immigration Marriage Fraud Amendments Act to combat marriage fraud. Under the law, a person who applies for a benefit under the Act, whose marriage to a US citizen or a lawful permanent resident is less than two years old, receives conditional resident status for two years. The person should file to remove the conditions 90 days before the second years anniversary of his conditional status. The conditional resident could apply jointly with his spouse or for a waiver if the couple is no longer married. There are three waivers under the Act.
The Service has several fraud indicators. To show that the marriage is bona fide, the applicant must submit documentary evidence  including insurance policies, joint bank accounts, tax returns and leases. These petitions are so complicated and you should always hire an attorney. A denial could land you in removal proceedings.

Applying for an E1/E2 Visa

One of the options that investors and traders could have to open businesses and gain entry into the United States is to apply for an E1 or and E2 visa. E1 and E2 visas are treaty based visas that allow investors (E2) or traders (E1) to come to the United States, open businesses, and remain in the United States as long as their business is ongoing. For a list of countries whose nationals qualify for these visas visit this link 
There are some differences between the two visas. A trader is a person who is entering the United States to trade in goods and services, among other things. An investor is someone who is coming to the United States to invest his money in an existing or a new business
One of the drawbacks for the visas is the limited circumstances where the visa could lead to permanent residence. For example, a holder of these visas could qualify for an Eb-5 visa when their investment reaches $500,000 or $1,000,000. That is one of the reasons that lead me to consider an L1 visa, if the requirements are met. Please comment on this post if you have any questions. 

BIA Rules that Unlawful possession of Ammunition by a Felon is Aggravated felony

Last week, the Board of Immigration Appeals (BIA) ruled that the unlawful possession of ammunition by a felon under 8 USC 922(g) is an aggravated felony under the Act. In Matter of Oppedisano,  26 I&N Dec. 202 (BIA 2013), a native of Italy was admitted to the US as a permanent resident on September 9, 1973. Id. He was convicted of unlawful possession of ammunition by a convicted felon under 8 USC 922(g) in 2012 and sentenced to probation for 5 years and fined $15000. Id. at 203. He was placed in removal proceedings and charged as an aggravated felon under 101(a)(43)(E)(ii) and was ordered deported by the immigration judge.
Upon appeal, Oppedisano argued that his conviction was not an offense under 101(a)(43)(E)(ii) since it did not relate to a “firearms offense” since the parenthetical in the section created a limiting clause. The Board reasoned that the offense related to a firearms offense since the quotations did not limit the offenses for which an alien could be deported.  Id. at 204. The Board added that Congressional, ascertained from the language of the statute, was not to limit the offenses under the section since it did not use restrictive language in the law. Id. The Board upheld the removal order for these reasons.
   

Motions to Reopen Removal Proceedings Under Vartelas

Congress passed an overhaul of immigration law in 1996. These changes became known as IIRIRA, short for the Illegal Immigration Reform and Immigration Reform Act of 1996. One of the most important changes in that law was the changes in relief available for lawful permanent residents. One of the most prevalent forms of relief before the law was the availability of the INA 212(c) waiver, a form of relief that waived almost all forms of criminal convictions. The Supreme Court ruled in INS v. St. Cyr that the relief was retroactive, in other words it was still available for aliens who entered into criminal pleas before 1996, relying on the availability for that form of relief in immigration court. Another change was the change in the definition of “admission” under the Act. 

In  Vartelas , the main issue was whether the pre-IIRIRA definition of “admission” still applied to lawful permanent residents with pre-IIRIRA  convictions, when returning from a casual trip abroad. Vartelas  was a permanent resident who was classified as seeking admission after his return to the United States from a short trip abroad, because of a 1994 conviction. Vartelas  argued that the definition of “admission” under IIRIRA did not apply to him and the pre-IIRIRA definition should apply. Pre-IIRIRA, courts used the Fleuti doctrine, where a lawful permanent resident returning from a casual trip abroad was not classified as an applicant for admission.  In ruling that Vartelas  was not an applicant for admission, the Supreme Court ruled that the Fleuti doctrine was applicable to Vartelas’  case since IIRIRA’s definition of admission was not retroactive. Thus, the court reversed the removal order and remanded the case to the circuit court. 
The case can be used to reopen removal proceedings where the IIRIRA definition of “admission” was applied to cases where the alien pleaded guilty to a criminal charge before IIRIRA. The case should be reopened at the last court which had administrative control. You should contact an experienced immigration attorney to help you reopen your removal case if you believe that the case could help you. 

USCIS Issues Guidance on Implementation of the Supreme Court’s DOMA Decision

USCIS has issued guidance on the implementation of last week’s Supreme Court decision striking down the Defense of Marriage Act. The guidance tells adjudicators to treat same-sex couples the same as heterosexual couples in immigration petitions. This guidance came after Secretary Napolitano directed USCIS yesterday to treat the petitions equally.
This comes on the heels of the approval of the first adjustment of status petition for a same-sex couple in Ft. Lauderdale, FL.  This is great news!!!!

Are you Ready for the H1B Filing Season? Why Acting Fast Could Increase Your Chances of Getting an H1B Visa.

Are you ready for April 1, 2013? On that day, an immigrant hoping to acquire an H1B visa, will be able to apply for one of the 65,000 visas that will be available for fiscal year 2014. This year, with the recovering economy, moving fast might increase your chances of being one of the lucky few that will get one of these visas. If you are a holder of a Master’s degree, you will be able to apply for the 20,000 held specifically for applicants with these degrees, which are not counted towards the quota.

So what is an H1B visa? An H1B visa is a visa that allows an applicant, hoping to fill a “specialty occupation”,   to work in the United States. The visa is limited in duration and might lead to an application for permanent residence in the future. A “specialty occupation” is one that requires at least a Bachelor’s degree or its equivalent. Applicants who do not hold a BA, could still qualify, if they have experience equivalent to that degree. There are also some minimum salary requirements that an employer must meet for its employee to  receive the visa.

If employers are worried about filing in time for their employees, the employer will be able to apply through premium processing. Premium processing will lead to the adjudication of the application within two weeks. There is an extra fee that the employer must pay for this service.

If you are an employer or employee interested in filing for an H1B visa, please contact the attorneys at Tucker & Ludin at 727-572-5000 or visit www.tuckerludin.com