Articles Posted in Immigration Hearings

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flagsApplying for immigration benefits involves a substantial amount of paperwork, and it requires close and careful attention to detail. While mistakes can cause delays and other difficulties in an application, outright falsehoods have far worse consequences. The Board of Immigration Appeals (BIA) affirmed a removal order last year based, in part, on a finding that the respondent falsely represented himself as a U.S. citizen. Matter of Richmond, Int. Dec. 3867, 26 I&N Dec. 779 (BIA 2016). A key question before the BIA was whether a person’s intent in making a false statement is relevant.

The Immigration and Nationality Act (INA) provides a lengthy list of grounds for inadmissibility, including health problems, criminal activity, and national security concerns. Prospective immigrants with a history of immigration violations may also be deemed inadmissible. This includes someone “who falsely represents, or has falsely represented, [themselves] to be a citizen of the United States for any purpose or benefit under [the INA] or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The words “purpose or benefit” are important.

According to the BIA’s ruling, the respondent in Richmond is a citizen of Trinidad and Tobago, who entered the U.S. on a nonimmigrant visa in May 2001. After a conviction for second-degree assault—which was later overturned on appeal—the Department of Homeland Security (DHS) brought removal proceedings. It alleged that he was deportable for overstaying his visa under 8 U.S.C. § 1227(a)(1)(B) and for a conviction of an aggravated felony under § 1227(a)(2)(A)(iii).

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visaThe Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.

A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.

The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.

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US_Embassy_in_Kabul_on_July_4th_2010.jpgConsular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.

The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.

In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
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Wedding cake of a same sex marriageAn immigration judge in Houston, Texas granted a reprieve to a Costa Rican man facing deportation based on the man’s marriage to a United States citizen. What makes this case unusual is that the man, David Gonzalez, is in a same-sex marriage. The judge’s decision is reportedly the first of its kind in Texas, and is part of a growing trend nationwide of immigration judges dismissing or deferring deportations based on same-sex marriage to a U.S. citizen. Despite the peace of mind Gonzalez must feel knowing he will not be deported, he still does not qualify for any particular immigration benefits, since federal law does not officially recognize same-sex marriages. This puts him in a sort of “twilight zone,” unable even to obtain employment authorization.

Gonzalez says that he arrived in the U.S. in 2000, coming from Costa Rica on a tourist visa in order to get away from an abusive former partner. He met Mario Ramirez, a U.S. citizen, about six years later. They got married in California in 2008 during the brief window when the state allowed same-sex marriage. They moved to the Houston area not long after that.

The government sought to deport Gonzalez for lacking legal immigration status, since he overstayed his tourist visa. The federal Defense of Marriage Act (DOMA), passed by Congress and signed by President Bill Clinton in 1996, prevented Gonzalez and Ramirez from obtaining an immigrant visa and green card for Gonzalez as the spouse of a U.S. citizen. DOMA prevents the federal government and its agencies from recognizing the validity of same-sex marriages. The decision by the Obama administration not to defend DOMA allows judges and other officials some leeway, but the law still prohibits nearly all benefits to same-sex couples that opposite-sex couples receive.

Now that Gonzalez has a reprieve, he still cannot obtain any affirmative immigration benefits. His marriage to Ramirez does not allow him to petition for an immigrant visa, and he cannot obtain a green card. In the case of opposite-sex couples, the spouse of a U.S. citizen can petition for an immigrant visa. U.S. citizen spouses are not subject to an annual numerical limit, so the waiting time is typically very short, as in weeks instead of years in many cases. While the immigrant spouse petitions for a visa, the citizen spouse can apply to adjust the immigrant’s status to that of a legal permanent resident, commonly known as a green card. Unless Gonzalez finds a different means of legal immigration, he may remain in the United States but cannot enjoy most of the benefits of legal immigration status. Perhaps most importantly, he has no way of obtaining work authorization.
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657696_55005379_01072012.jpgThe U.S. Supreme Court issued an historic rebuke to the Board of Immigration Appeals (BIA) last week over standards the BIA applies in certain deportation proceedings. Justice Elena Kagan, writing for a unanimous court in Judulang v. Holder, held that the standards make no sense: “We must reverse an agency policy when we cannot discern a reason for it.” The ruling confirms something immigration lawyers have known for years, and hopefully it will cause the BIA to apply more consistent standards in the future.

At issue was the applicability of a type of waiver that “excludable” immigrants could request from the Attorney General. “Excludability” or “inadmissibility,” briefly stated, refers to an immigrant found to have never had legal status to enter the U.S., while deportability describes an immigrant whose legal immigration status is stripped by a court. The Immigration and Nationality Act (INA) sets out separate, sometimes overlapping, grounds for excludability and deportability.

Joel Judulang appealed his deportation order after the BIA held that he was not entitled to a waiver. He had come to the United States from the Phillipines as a child in 1974, and has resided here since then. He was charged as an accessory to a homicide and pleaded guilty to manslaughter in 1988. He later pleaded guilty to a theft-related crime in 2005, at which time the Department of Homeland Security (DHS) began deportation proceedings. DHS argued that the manslaughter conviction made Judulang deportable, as it fit the definition of an “aggravated felony” involving a “crime of violence.” The immigration court ordered him deported, and the BIA affirmed.

Judulang argued that he should qualify for a waiver under section 212(c) of the Immigration and Nationality Act. That section allowed people found to be excludable to request a waiver from the Attorney General. The BIA is an agency of the U.S. Department of Justice and is empowered to make or review decisions on granting 212(c) relief. The BIA has held for years that 212(c) also applies in deportation cases. Congress repealed 212(c) in 1996, but it still applies in cases, like this one, where the criminal offense leading to deportation occurred before 1996. The BIA has long applied a standard it calls “comparable grounds,” meaning that a deportable immigrant may only qualify for 212(c) relief if their particular ground for deportation has a similar counterpart in the list of grounds for excludablity. This is the standard challenged by Judulang and addressed by the Supreme Court.
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1330873_27868463_01022012.jpgA study conducted under the supervision of a New York federal appellate judge has revealed harsh criticisms of many immigration attorneys among New York judges, according to a recent New York Times report. Judge Robert A. Katzmann directed a group of lawyers and researchers in surveying judges and reviewing government data in order to assess legal representation available to immigrants in deportation proceedings. The results, which will be published in the Cardozo Law Review, underscore the importance of choosing an immigration lawyer carefully. While the judges offer scathing reviews of many immigration attorneys, the study found that people who proceed in a removal case without an attorney fare far worse.

Researchers surveyed immigration judges in five courts in New York City and the northern suburbs, asking for their impressions of the quality of legal representation in their courts. They first noticed how few immigrants even have legal representation. For the period fro October 2005 to July 2010, they found that only seventy-three percent of immigrants in deportation proceedings who were not in detention had legal representation, while only twenty-three percent of detained immigrants had attorneys. As for rates of success, they found that sixty-seven percent of immigrants with attorneys prevailed in their cases during that time period, while only eight percent of pro se immigrants did so.

A major factor affecting immigrants’ ability to obtain legal counsel is the tendency of immigration authorities to move detainees around. Immigration officials in New York often send detainees to facilities in other states, often across the country, while their cases are still pending in New York. New Jersey often takes in detainees from New York. The research team’s chairman, Peter Markowitz, noted that many attorneys cannot travel to see their clients if they are detained outside of the region, even if the client has only been moved from New York City to New Jersey. The numbers bear this out: only twenty-one percent of detainees in New York City and twenty-two percent in Newark had lawyers.

Judge Katzmann blames lawyers who lack familiarity with immigration law and potentially take advantage of vulnerable clients. Federal immigration laws are extensive and complicated, and the immigration legal system is a world unto itself, unfamiliar to lawyers who do not regularly practice there. People needing the assistance of an immigration attorney should closely examine the attorney’s experience with immigration law and knowledge of the system. Knowledgeable, skilled immigration attorneys do exist.
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