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DMV Denial of License

October 21, 2014

DMV Denial of License

New York Immigration lawyer Alena Shautsova

Have you recently moved from another state and had difficulties getting NY driver’s license? Were you totally confused? Were you blamed you are not a US citizen?

It happened to my client: a born US citizen who has spent several years in a different state, and when she came back to NY and decided to apply for NY driver’s license and report a change of her address, a lady at the DMV Manhattan office told her that …. she needs to present “more proof” that she in fact was a US citizen… hmm

My client actually presented a social security card; different state ID card; a US birth certificate; bank statements from different banks and utility bills. According to the DMV point system table she had enough points to get her NYS driver’s license.  Nevertheless, the clerk told her to apply for a US passport and come back…

The question was: did the DMV clerks look at their own point table? Or is it just anther document issued to confuse everybody and make people’s life more difficult?

This client is a US citizen, and eventually, after visiting a different DMV  location, she was able to get her license.

Many non-citizens, however, experience the same issue. The government passed the Real ID act which requires the DMV offices to check for the lawful immigrant status before issuing an ID to the applicant. However, DMV clerks are not attorneys and often they lack training to ascertain if a person is in fact in lawful immigration status or status that allows a person to receive a state ID or driver’s license.  For example, another client of mine, an applicant for asylum was denied Chicago State ID because the clerk there decided that his documents showing pending case with the Immigration Court were not sufficient to prove authorized stay in the US…

At the same time, there are people without lawful immigration status who were able successfully to extend their 8 years DMV licenses even after the Real ID act…

Recently, New York City voted to issue Id-s to everybody, regardless of their immigration status.

Maybe, it is time to change the rules?

New Fingerprinting Procedure for Immigration Court

August 8, 2014

New Fingerprinting Procedure for Immigration Court

Author: New York Immigration Lawyer

All respondents in Immigration court have to make sure that the results of the   fingerprinting procedure are valid on the date of their Immigration court hearing. Expired results cause delays and adjournments and bring frustration to all participants of the process.

Currently, the Immigration court places the burden of notifying respondents about updating of the biometrics results on their attorneys. Until recently, the procedure required, that respondent submits the Applicant Information Worksheet (AIW)  to ICE OCC-NYC at the 11th floor window at 26 Federal Plaza, New York, NY.  ICE OCC-NYC would then forward the AIWs to USCIS, and USCIS would determine if an Applicant’s fingerprint checks were expired, and if expired, reschedule the Applicant for an appointment to be physically re-printed.

Effective August 11, 2014, the AIW has to be sent directly to USCIS to

U.S. Citizenship and Immigration Services

Attention: AIW

26 Federal Plaza – Room 3-120

New York, NY 10278.

USCIS requests the following on all AIW submissions:

 

1 – Respondent/attorney clearly indicate the next court date at the top of the AIW and, if possible, attach a copy of the EOIR notice indicating the next court date.

 

2 – Submit the AIWs to USCIS at least 60 days but no more than 120 days before the next merits court date.  USCIS will not entertain any AIWs for reprints if the next court date is more than 120 days out.

 

3 – USCIS will not entertain any AIWs for reprints if, according to their records, the fingerprints will still be valid at the time of the next court date.

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.

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!

 

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 convicted 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.

 

Expedited Removal and Asylum

May 15, 2014

Expedited Removal and Asylum

Author: New York Asylum Attorney Alena Shautsova

Expedited removal is a form of removal proceedings during which a person who is coming to the US is being deported by DHS without  seeing a judge. Such person is also called an arriving alien: a term of art in Immigration law that has its consequences.

Expedited removal from the U.S., a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, allows immigration officers to issue expedited removal orders against non-U.S. citizens, resulting in removals that, except in very limited circumstances, are carried out with no hearing or review by an immigration judge.  Under the statute, the procedure may be used against noncitizens, except those from Cuba, who have not been admitted or paroled into the U.S., have been in the U.S. for less than two years, and are determined to be inadmissible for either (1) having used fraud or misrepresentation to procure an immigration benefit or (2) lacking a valid visa or other entry document (two of the grounds of inadmissibility).

Most often, expedited removal is being used at the airports against people who are coming to the US on a non-immigrant visa but a CBP officer determines that this person is an intending immigrant who does not have an immigrant visa. Arriving aliens as they are called by the DHS are subject to mandatory detention. So, if a CBP officer determines that a B1/B2 holder is really intending to stay in the US indefinitely, this person will be detained.

Another common way when the DHS will use the expedited removal process is when a person is apprehended by the DHS officers within 100 miles from the border within the 14 days of the arrival into the US.  Of course, such a person is subject to the removal only if entered the country without inspection.

Subjects of the expedited removal cannot see a judge. They would be removed immediately, unless they express  fear of returning back to their home country or a fear of torture. At this point they would be referred to the Asylum Officer who should conduct a credible fear or a reasonable fear (in case a person has already been removed form the US on  a prior occasion) interview.  See 8 C.F.R. § 208.31(b) and 8 C.F.R. § 241.8(e).If the asylum officer determines that the subject possess the fear, then the person can be paroled into the US and freed from detention. If not, the person will be removed unless the judge overrules the officer’s determination. Id. § 208.31(g).

If the person passes the interview, a Notice to Appear will be issued and the bond will be established. Upon information, the current guidelines for the DHS states that the bond for those who are apprehended at the border should be $7,500. This determination can also be appealed to the judge.

Aliens who have been expeditiously removed are
barred from returning to the United States for five years. They cannot return to the US earlier than 5 years without granted application for permission to re-apply for admission.

 

Troubles with Immigration 800 number

April 23, 2014

Author: New York Immigration Attorney  Alena Shautsova

Have you tried to access your Immigration  case information via 800- number (1-800-898-7180)  recently and got conflicting information or did not get through at all?

Do not worry: you are not the only one. EOIR alert that it is currently experiencing a systems outage involving several computer applications including eRegistration and the telephonic case information system (the 1-800 phone number). EOIR hopes to have the situation resolved in the near future!

How can you get your information in the meantime? Try calling local Immigration court, go there or contact your attorney!

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

March 14, 2014

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

Author: Immigration attorney Alena Shautsova

There are two main ways a person may obtain US citizenship: by being born in the US or its territory and via naturalization. Naturalization is a process of conveying US citizenship on an individual who originally held a different citizenship or was a person with no citizenship at all.

It has been said that there is no distinction between US born citizens and those who received citizenship via naturalization. However, one major distinction between the two kinds of citizenship does exist:  the second kind can be taken away from an individual even if he or she has been in citizenship status for decades.

This happened to Hzim who originally received his citizenship in 1989. Even though for decades he held the title of US citizenship and traveled overseas, in 2011, the US Department of Homeland Security decided to “take back” his citizenship, saying that they made a mistake in 1989…

The mistake was that somebody in INS (Immigration and Naturalization Services (USCIS used to be called this way)) did not check all the requirements for Hazim’s naturalization and mistakenly believed Hazim’s father conveyed his citizenship to Hazim…. Even though there was no Hazim’s fault in it all, and even though he did not lie to the US government in any way, the Federal Court, 2nd District said it cannot stop Immigration authorities from taking Hazim’s citizenship away over twenty years later…

Of course, despite the fact that they are taking his citizenship away, Immigration promised Hazim that there are Other means of correcting the situation, but it seems that Hazim should not be the one paying for someone’s lack of qualification and expertise…

That is why it is strongly advisable that everybody who is applying for citizenship, consult with an Immigration attorney to make sure Hazim’s story would not repeat itself.

 

Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission.  (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art.  The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether  a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible.  A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino.  This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.