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Criminal Law, Deportation, Immigration To The USA, USCIS

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.

Immigration To The USA, USCIS

EOIR restored the 800 number database

May 21, 2014

EOIR restored the 800 number database

Author: New York Immigration Attorney Alena Shautsova

The 800 – database (1-800-898-7180) which was down since April 12, 2014 was restored according to the EOIR. It will still take time to restore the data, and it might be that some information was lost. However, hopefully, it will be possible again to use the 800 number to check the Immigration court hearing dates and case processing information.

Deportation, USCIS

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.

Immigration To The USA, USCIS

Adjustment of Status for VAWA self-petitioners

May 13, 2014

Adjustment of Status for VAWA self-petitioners

Author: New York Immigration attorney Alena Shautsova

VAWA self petitioners may adjust their status to permanent residency if their petition I -360 is granted. Those who are/were married to abusive US citizens may file the whole adjustment package together with the I-360 form. Those who abusive spouses are/were permanent residents have to wait until their priority date becomes current.

VAWA beneficiaries may adjust even if they entered the US without inspection. However, if they entered as K-1 fiance, and did not marry their K-1 petitioner, VAWA self petitioners would not be able to adjust. See KHANH NHAT THUY LE v. Holder, 5th Cir.

There is hope, however, if the K-1 fiance did marry the petitioner within the 90 days and then divorced him/her and subsequently applying for the adjustment of status under the Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). However, USCIS will require that the original petitioner executes I-864 affidavit of support, even if the K-1 holder and the petitioner are no longer married.

Discrimination, Immigration To The USA, USCIS

Students Must Have Education Regardless of Status

May 9, 2014

Students Must Have Education Regardless of Status

Author: New York Immigration Lawyer

“The Justice and Education Departments jointly issued an update of guidelines they published three years ago, reminding districts that they “may be in violation of federal law” if they turn students away because the children or their parents do not have immigration papers. The guidelines clarify what documents schools can and cannot require to prove that students live in their districts” New York Times.

Sadly, too many schools violate this policy. According to Attorney General Holder, reports the New York Times, the policy guidelines were based primarily on a 1982 Supreme Court decision, Plyler V. Doe, which found that schools cannot deny access to public education through the 12th grade on the basis of a student’s immigration status. That mandate and civil rights laws also require schools to make sure students are not rejected because of their parents’ legal status.

Immigration To The USA, USCIS

Marriage Based Citizenship: Red Flags At the Interview

May 1, 2014

Marriage Based Citizenship: Red Flags At the Interview

Author: US Immigration attorney Alena Shautsova

One of the ways to receive citizenship in the US is naturalization after the marriage to a US citizen. Prior to that, of course, a person has to become a permanent resident. However, the wait time for this particular category of applicants for naturalization is significantly lower: only three years, opposed to regular five years.

With that, however, the law requires to prove that the applicant for naturalization is still in vital marital union with the US citizen spouse. With the N-400 form, the applicant will have to produce not only copies of his green card and passport photos, but also evidence of bona fide marriage. By this time, the applicant will be producing this evidence for the third time pretty much: first when he/she was applying for conditional residence, then when he/she was applying for removal of the condition, and finally, when he/she would be applying for naturalization.

The evidence that should be produced are: copies of tax returns for the past 3 years; copies of utility bills; joint bank accounts; insurance policies; evidence of ownership of common property; birth certificates for common children. One would think that birth certificates of children in marriage is the most significant proof of the strong marital union. However, surprisingly, USCIS still will require utility bills and joint bank accounts statements… The logic behind such requests is puzzling, but, unfortunately, non-compliance with the request may lead to denial of the application.

One common pitfall that many applicants get caught at is failure to file joint tax returns. Another one would be having different residence addresses. Lack of commingling of assets is another “strong” evidence against the vital marital union finding. Finally, failure to mention all the children, including step children, may also lead to denial.

It is very common that an applicant had what he/she thought was a successful interview, but subsequently received a negative decision. That is why it is recommended that an applicant brings an attorney for the interview. If there is choice between paying attorney’s fees for the preparation of the application and for the interview attendance, choose an interview attendance. The mistakes on the application can be always corrected at the interview, but if something goes wrong at the interview, and there is no lawyer there to help, the case might get too lengthy and too expensive to deal with in the future.

Immigration To The USA, USCIS, Visas

I-94 electronic record

April 29, 2014

I-94 electronic record of admission

Author: New York Immigration lawyer Alena Shautsova

For a very long time the record of inspection and admission, I-94 form was issued on paper, and was the only proof of alien’s legal admission into the U.S. The form looked like a card, the paper used for it was white, and soon enough many practitioners started to refer to it as the “white card.” Even though, the CBP, should maintain records of everybody who entered the country from a specific point in time, in practice, to restore someone’s I-94 if it got lost, is almost impossible if the information on form I-102 (form that is used to restore the lost I-94 card) does not match completely the CBP records and/or a copy of the admission stamp is not attached…

Recently, Department of Homeland Security decided to switch from paper to electronic record of all arrivals. Now, instead of paper I-94, a person’s information is recorded electronically. A person can (or should be able to ) retrieve information regarding his/her past travels from the CBP database using their website.

Unfortunately, sometimes the new system does not work. In this case, the website directs the person to go to the nearest CBP differed inspection office for help…

Here is the link to the website with questions and answers regarding the new I-94 process: https://i94.cbp.dhs.gov/I94/request.html

The bottom line that it is still a good practice to keep copies of your passport with travel admission stamps throughout your “immigration life” in the U.S. Store them both in paper form and electronically, and hold on to the old I-94 by all means!

Immigration To The USA, USCIS

Affidavit of Support Form I 864

April 25, 2014

Affidavit of Support Form I 864: what does it entail?

Author: Immigration attorney Alena Shautsova

Affidavit of Support Form I 864 must be filed in almost all cases of family based immigration. The law requires the intended immigrant to produce proof that he or she will not become a public charge.

Usually, I-864 is filed by the person who is petitioning for the family member. However, when the petitioner’s income is not sufficient under the guidance (form I-864P), then a joint sponsor whose income is sufficient can help. In this case, however, the joint sponsor’s income by itself must be sufficient. It is not usually permissible to combine incomes of the principal and joint sponsors.

Many, however, a confused as to the obligations that stem from the signing of I-864 form. The form is actually a three way contract between the immigrant, the signing party and the US government. The agreement states that the signing party undertakes an obligation to provide support to the immigrant for the whole time while he or she is going to live in the U.S. in permanent resident status. The law lists five circumstances when the sponsor’s financial obligation terminates: (1) the sponsored immigrant becomes a citizen of the United States; (2) the sponsored immigrant has obtained forty (40) quarters of coverage under Title II of the Social Security Act; (3) the sponsored immigrant ceases to hold LPR status and departs the United States; (4) the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; or (5) the sponsored immigrant dies. Id. § 213a.2(e)(2)(i)(A)-(E). The Form I-864 presently makes explicit that “divorcedoes notterminate your obligations under this Form I-864.”

Further, this contractual obligation can be enforced in any State or Federal court. Very often it is being enforced in connection with divorce proceedings. It is important to remember that obligations under the I-864 are separate from any obligations and restrictions that the couple might outline in prenuptial or post-nuptial agreements. See Toure-Davis v. Davis, MD Dist Court. 8:13-cv-00916-WGC. As explained in the decision, a party seeking enforcement of the contract must submit an affidavit specifying failure to provide support for each year, and explaining how he or she was able to support herself/himself.

Deportation, Immigration To The USA

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!

Immigration To The USA, USCIS

US Supreme Court Rejects Arizona Appeal in Immigration Cases

April 23, 2014

The US Supreme court declined to review the ruling that barred police from arresting people who harbor those living in the United States illegally.

The provision was struck by the 9th Circuit last year as an unnecessary one because there is Federal law imposing punishment for harboring illegal immigrants. If the State law provision was allowed, it would authorize the State police to enforce the law.

http://abcnews.go.com/Politics/wireStory/court-hear-arizona-appeal-harboring-ban-23405416?utm_source=AILA+Mailing&utm_campaign=fa4213cde3-AILA8_4_22_14&utm_medium=email&utm_term=0_3c0e619096-fa4213cde3-290719465