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Unlawful Presence Bar Can Be Served In the US

July 23, 2014

Unlawful Presence Bar Can Be Served In the US

Author: New York Immigration Lawyer Alena Shautsova

Under the Immigration laws, if a person overstayed his/her visa or period of authorized stay, he or she would be inadmissible into the US for a period of 3 or 10 years depending  on the period of overstay if such a person leaves the US. The bar to entry triggers only when the person leaves the US, however for a long time the question was: does the person have to be outside the US to subsequently receive immigration benefits, or does the bar starts to run when the person leaves the US and continues to run even if the person somehow re-enters the US.

The question was answered in unpublished BIA decision Matter of Cruz, 4/9/14.  The BIA stated that “..if section 212(a)(9)(B) of the Act created inadmissibility for an alien who seeks or has sought admission to the United States (similar to section 212(a)(6)(C)(i) of the Act’s provision for the inadmissibility of an alien who “seeks” or “has sought” to procure admission or another immigration benefit by fraud or willful misrepresentation of a material fact), we might construe the statute as creating permanent rather than temporary inadmissibility. However, the statute simply states that an alien is inadmissible if he “seeks” admission within the pertinent period,  which is ambiguous language.”

It means that the bar of unlawful presence is a temporary bar which triggers when the person leaves the country and continues to run if the person re-enters the US without inspection and/or using misrepresentation.  This is an important decision because it illuminates need for an extreme hardship waiver if the time of the bar has passed.

New York To Issue IDs to Undocumented Immigrants

July 15, 2014

New York To Issue IDs to Undocumented Immigrants

Author:  New York Immigration lawyer Alena Shautsova

The story with identification cards for undocumented began when states started to refuse issuing Id’s to those who could not prove their immigration status  in the US. With time, some states opted out and passed local laws that allowed for different forms of identification for “illegal” immigrants: Illinois, Utah, Washington, Washington DC, Connecticut, New Mexico, and Maryland allow those who cannot show a visa to get state “ID-s”.

Surprisingly, New York, a pioneer in many innovations where nations and religions are blended like a mix of multicultural cuisines in  Manhattan, has not yet allowed its residents, even illegal ones, to enjoy the privilege of being able to identify themselves using a state plastic card.

New York City, tired of waiting for the State to move on the issue, decided to pass its own legislation that allows undocumented men, women and children to apply for and receive a resident ID. The Bill was in fact passed and signed by Mayor on July 10, 2014.  There is no information if such an ID will be recognized on Federal level, and if it will help to avoid state wide punishments for not possessing valid ID: for example, driving without a driver’s license.

It is however, a first step towards recognition that “illegal” and “undocumented” are not ghosts in our society, they would not just disappear one morning, and they, people who pay taxes and develop our economy deserve a little better than a five year struggle to pass an Immigration reform…

DHS Website for Students

July 9, 2014

DHS New Website For Students

“The Department of Homeland Security (DHS) launched an enhanced Study in the Stateswebsite Monday with four new features. The features enable the Student and Exchange Visitor Program (SEVP), housed within U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), to convey pertinent information to stakeholders about the international student process in a clear and interactive manner.

The new features include:

  • An interactive glossary
  • An “Ask a Question” section
  • An enhanced School Search page
  • A mobile-ready version of Study in the States

“Being an international student is a complex process that involves several government agencies, and the new Study in the States tools will help students and schools easily find the latest news, information, interactive guides and videos they need,” said SEVP Director Lou Farrell.

The revamped site also features streamlined navigation and a blog geared to international students and school officials. Users can translate the site into multiple languages.

The Study in the States website serves as an information hub for the international student community. It brings together the various federal agencies that play a role in implementing our student visa and exchange visitor programs, including ICE, U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP).

Study in the Stateswas launched by former Homeland Security Secretary Janet Napolitano in 2011, as part of a larger DHS initiative to enhance our nation’s economic, scientific and technological competitiveness by finding new ways to encourage the most talented international students to study and learn about expanded post-graduate opportunities in the United States. This initiative includes a focus on streamlining the student visa process, enhancing coordination among government agencies and keeping international students better informed about student visa rules and regulations.

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Both use the Student and Exchange Visitor Information System (SEVIS) to protect national security by ensuring that students, visitors and schools comply with U.S. laws. SEVP also collects and shares SEVIS information with government partners, including CBP and USCIS, so only legitimate international students and exchange visitors gain entry into the United States.

HSI reviews potential SEVIS records for potential violations and refers cases with potential national security or public safety concerns to its field offices for further investigation. Additionally, SEVP’s Analysis and Operations Center reviews student and school records for administrative compliance with federal regulations related to studying in the United States.”

How to Renew DACA status

July 2, 2014

U.S. Citizenship and Immigration Services (USCIS)  reminds DACA renewal applicants that individuals requesting deferred action for childhood arrivals (DACA) must submit two passport-style photographs with their Form I-765, Application for Employment Authorization. This is required for both initial and renewal DACA requests. The photographs should be in color and taken within 30 days of filing the DACA request. For more information, please review the Form I-765 Instructions on www.uscis.gov.

 

RECEIVED NOTICE TO APPEAR: WHAT IS NEXT?

July 1, 2014

Notice to Appear: What is Next?

Author: New York Immigration Attorney Alena Shautsova

Notice to appear (the “NTA”) is a charging document in Immigration. It outlines the main charges or allegations the government is presenting to deport or remove a person from the United States. Under INA § 239(a)(1) (2012), an NTA should include: the nature of the proceedings, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of the law, the charges against the noncitizen and the statutory provisions alleged to have been violated. An NTA can be served personally or via regular, first class mail. It does not have to be served via certified mail. It is also may be served on an attorney of record.

A person may be charged with either inadmissibility under INA 212 or deportability under INA 237. A person will be charged with inadmissibility if he or she was not admitted into the US or paroled. A lawful permanent resident with a certain criminal convictions coming back form a trip abroad may also be charged as an arriving alien under inadmissibility ground(s). It is very important to check if the grounds of the removal are stated correctly: it will determine the burden of proof on the alien, and possible defenses.

Another important element of the NTA is time and place of the proceedings. Often, the time and places are outlines as TBD (to be determined); it means that the NTA was just issued and an Immigration Court has not yet docketed the case for its calendar. The government shall provide at least 10 days from the service of the notice and before the start of the removal proceedings so that the person can find an attorney.

NTA basically starts the removal proceedings; after it is filed it is possible to ask the Immigration court to change venue or terminate the proceeding. However, before the NTA is filed, the court lacks jurisdiction to make decisions on any motions.

The charges in NTA have to be examined closely and the charged person should seek representation as soon as he or she was served with the NTA. Sometimes, a person may know that the Notice would be issued. In such a case, he or she shall contact an attorney ASAP to discuss possible defense options and strategy.

A person whose case is filed with the court, will have to appear before an Immigration Judge. Failure to appear will result in a removal order issued against the person and possible 5 year bar to apply for any immigration benefits.  The first hearing in Immigration court is called a Master hearing; it is usually very short and during it  the court and attorneys decide how they will be proceeding with the case: what defenses and application an alien will file; what documents the government would like to see;  what is the time frame of filings, etc.

Contact an Immigration attorney if you have questions regarding Notice to Appear: 917-885-2261.

 

 

 

 

 

TPS: Children Have to Qualify Independently From Parents

June 23, 2014

TPS: Children Have to Qualify Independently From Parents

Author: New York Immigration Lawyer Alena Shautsova

TPS or Temporary Protected Status allows its beneficiary to stay and work in the US for the period of time designated by the US government.  Currently, TPS was announced for the following countries: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

Those who would like to receive TPS have to satisfy certain requirements, including being physically present in the US on a special date, designated by the government.  For each of the countries, the date is designated separately. It does not matter if the potential beneficiary entered the US illegally, all what matters: the person must physically be in the US and must remain in the US for a certain period of time.

The question arose in the Matter of DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014) if parent’s physical presence can be imputed to the unemancipated (dependent on parents) children. The argument was not baseless, because for some time the courts held that in fact, parents’ physical presence in the US may be imputed (or counted in)towards physical presence of children, even if in fact, children were not  in the US. However, this argument was in essence “closed” by the U.S. Supreme Court in Holder v. Martinez Gutierrez , 132 S. Ct. 2011 (2012).

As such, the BIA answered the question in negative, and two daughter of the TPS holder were denied TPS and put in the removal proceedings.

The consequences of this decision cannot be underestimated. Under the TPS regulations, there is no dependent status, meaning that if parents receive TPS, their children cannot do so with them. Now, it also became clear, that children must independently qualify for the TPS, and this, of course, will negatively reflect on family unity.  Please note, that at the same time, children may qualify for SIJS if a Family court issues an order appointing a guardian or custodian who can be even undocumented parent!

 

VAWA I 485 Process

June 18, 2014

As per AILA:  all VAWA-based I-485 applications will continue to be routed from the Vermont Service Center to the NBC for background checks before being forwarded to the appropriate field office for adjudication. For cases in which biometrics have been taken, the NBC will order the required background check. Once the background check has been completed, the NBC is supposed to forward the A-File to the field office within 30 days.

Asylum Law Updates From BIA

June 13, 2014

Asylum Law Updates from the BIA

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence,without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.

US Supreme Court Reversed 9Cir Regarding Aged Out Dependents

June 9, 2014

US Supreme Court Reversed 9Cir Regarding Aged Out Dependents

 

The Court reversed and remanded the Ninth Circuit’s decision in De Osorio v. Mayorkas, holding that the Child Status Protection Act (CSPA) under INA §203(h)(3) is ambiguous and that a court must defer to the BIA’s narrow interpretation in Matter of Wang. Essentially, the Court found that in order to “automatically convert” to a new visa category, aged-out children must continue to have a qualifying preference relationship with the initial petitioner.

How to Overcome Denial under the Adam Walsh Act

May 28, 2014

How to overcome Adam Walsh denial

Author: New York Immigration lawyer Alena Shautsova

Adam Walsh Act enacted on July 27, 2006 [PL 109-248, Title IV] prohibits United States citizens and Lawful permanent residents who have been convicted of certain sexual offenses against a minor from petitioning family members, unless in the “unreviewable discretion” of the Secretary of DHS, the USC or LPR poses no risk to the beneficiary. The same provision applies when a USC would like to petition his/her fiance.

Examples of offenses include: offenses involving the use of minors in prostitution; offenses against minors involving sexual contact; offenses involving the use of a minor in a sexual performance; and offenses involving the production or distribution of child pornography. The Immigration laws very broadly define “Sexual abuse of a minor.” Please note  sexual abuse of a minor is also an aggravated felony under the Immigration laws.  Examples of aggravated felonies under NYPL are: use of a child in a sexual performance in violation of 263.05; sexual misconduct under 130.20).

Examples of crimes that are not aggravated felonies: knowingly engaging in sexual intercourse or oral sexual conduct with person under 18; parents consenting to child’s sexual performance.

A felony conviction is not necessary, as a misdemeanor sexual abuse conviction is sufficient for finding of an aggravated felony under the Immigration law (for example: NYPL 130.60(2) conviction is an aggravated felony).

If after family petition was filed, USCIS found that Adam Walsh Act is applicable, the only way for the petitioner is to demonstrate to the satisfaction of the USCIS that he/she does not posses threat to the beneficiary or that he/she was not convicting of the qualified crime. The burden lies on the petitioner to show that the crime is not the one covered by the Adam Walsh Act. It means that almost in every case a very detailed and difficult analysis of the conviction is necessary. See Matter of INTROCASO, 26 I&N Dec. 304 (BIA 2014).  It is important to know that under the recent BIA decision, Adam Walsh Act has retroactive effect: it applies for convictions that took place before the statute’s enactment as well as to those occurred after its enactment .

To demonstrate that the petitioner posses no risk to the beneficiary, the petitioner must present a very strong record of rehabilitation: probation report; reports by a treating doctor; evidence of community service… Under the recent BIA decision, Matter of ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014), the BIA lacks jurisdiction to review the “no risk” finding. It means that the application has to be impeccable.

A petitioner who has criminal convictions should consult with an Immigration lawyer prior to starting “immigration case” for his/her relatives. A mistake and lack of knowledge may cause deportation/removal of the family members and their permanent inadmissibility. If  you have questions regarding Adam Walsh Act, please call New York Immigration attorney Alena Shautsova at 917-885-2261.