Articles by CLINIC

It is necessary to respond to the globalization of migration with the globalization of charity and cooperation, in such a way as to make the conditions of migrants more humane. - Pope Francis

The response of the Catholic Church to the continued arrival of Central American children and families seeking protection in the United States has been tremendous.  Local dioceses and Catholic Charities programs have been on the frontlines helping to provide shelter, clothing, education, and critical legal and social services to migrant children from the moment they cross the border to their reunification with relatives across the country. While the faith-based and non-profit community continues to welcome unaccompanied children and arriving families, we can do more to assist and also must call on our local governments to respond with equal humanity and action.

There is substantial room for advocating that city and county governments step up and take action to welcome and protect unaccompanied children in our communities. Local governments can play a coordinating role helping to connect arriving children with existing community and public services. They can also adopt policies to expand access to much-needed legal representation, education, healthcare, and social services. Consider the following advocacy suggestions:

1. Create a task force

New York City created an interagency task force for city agencies to coordinate resources and formulate a citywide response to the rising number of unaccompanied minors coming to live in the area. The goals of the task force are to target outreach to schools and neighborhood with large Guatemalan, Honduran, and Salvadoran populations and provide information to families about school and health insurance enrollment, legal screenings and referrals.

2. Pass a resolution of welcome

The City Council of Columbia, South Carolina adopted a resolution welcoming every refugee child and unaccompanied immigrant child released to sponsors within the community. The resolution also calls on local, state, and federal leaders to work together to address the current child refugee crisis by immediately adopting comprehensive immigration reform.

3. Conduct community outreach

The New York City Mayor’s Office for Immigrant Affairs has teamed up with the city’s Department of Education and Department of Health and Mental Hygiene to provide direct services to children and families at the federal Immigration Court. Each day, during the court’s juvenile docket, city representatives are available to assist children and their guardians with school enrollment and English language programs, and enroll children in the state-funded public health insurance program.

4. Connect children with existing services

Cities and counties can play a coordinating or clearinghouse role in connecting service providers with children in need. The state of Maryland launched a bilingual website called “Buscando Maryland” which allows visitors to search by zip code for organizations that provide food, clothing, language, transportation, legal services, medical care, education, religious services, counseling, and recreation. This type of resource could be replicated at a city or county level.

5. Fund additional services

In response to community advocacy, the San Francisco Board of Supervisors passed an ordinance providing $2.1 million over the next two years to fund non-profit organizations to represent unaccompanied children and families on the San Francisco Immigration Court's expedited removal docket. City funding initiatives for legal services can also be collaborative efforts with philanthropists, as in the case of a recent $1.9 million joint initiative of the New York City Council, the Robin Hood Foundation, and the New York Community Trust.

6. Issue a call to action

In addition to taking actions themselves, city and county leaders can call on various constituents to volunteer time, donate money, or otherwise come to the assistance of unaccompanied children.  For example, the Attorney General of California has asked a number of large law firms to dedicate pro bono hours to represent children in their immigration proceedings.  The Mayor of Davenport, Iowa has announced his support for the state’s Caring Cities Campaign and called on city residents and social service agencies to provide housing for some of the children. 

By Ilissa Mira

Unlawful voting has serious consequences for noncitizens.  The BIA confirmed this in a precedent decision finding that a noncitizen is removable under INA § 237(a)(6)(A), regardless of whether the alien knew that he or she was unlawfully voting in violation of 18 USC § 611(a).  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015).

The Respondent in this case was a lawful permanent resident, who applied for an Illinois driver’s license and signed a voter registration form indicating that she was a United States citizen.  In her naturalization application and during her interview, she disclosed that she had registered to vote and had voted in a federal election.  Specifically, she voted in a local school board election on a ballot that included candidates for both local office and federal office.  The IJ found her removable under INA § 237(a)(6)(A) for unlawful voting and under § 237(a)(3)(D) for false claim to citizenship.  Respondent did not dispute that she had voted in a general election involving candidates for federal office and that she was not a U.S. citizen at the time she voted.  Instead, the case hinged on whether DHS was required to show that she intended to vote in violation of 18 USC § 611 or whether the act of unlawfully voting in a federal election was sufficient to make her removable under INA § 237(a)(6)(A).

Under 18 USC § 611, it is unlawful for any noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”  The Respondent argued that she was unaware that she was acting unlawfully by voting, and that DHS failed to meet its burden of proof because it did not show that she had specific intent to violate the law.  Relying on a prior Seventh Circuit decision, the BIA held that § 611 is a statute of general intent, which requires only that “the defendant performed the acts that the law forbids, understanding what he was doing.”  Kimani v. Holder, 695 F.3d 666, 699 (7th Cir. 2012).  Under this reasoning, it does not matter that the noncitizen is uninformed that it is unlawful for him to vote.  The act of voting alone is sufficient to violate § 611 and trigger deportability.  

The Ninth Circuit reached a different conclusion in McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), a case involving a lawful permanent resident who voted in a Hawaii state election and was subsequently charged with removability.  The Ninth Circuit found that the respondent in this case did not violate Hawaii law because she was unaware that she was not entitled to vote.  Noting that it was not bound by Ninth Circuit decisions, the Kimani court distinguished McDonald v. Gonzales, because it involved a state statute with different language, which unlike 18 USC § 611(a), required “proof of an alien’s knowledge that voting [was] forbidden.”  Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) note 4.

Limited exceptions to § 611 apply if the election is 1) held partly for some other purpose; 2) the noncitizen is authorized to participate in the election under state or local law; and 3) voting for such other purpose is conducted in way that allows the noncitizen to vote for a valid state or local purpose, but not the opportunity to vote for a candidate for federal offices.  18 USC § 611(a)(1)-(3).  Additional exceptions exist where the noncitizen reasonably believed at the time of voting that he or she was a U.S. citizen.  Id. § 611(c).

The BIA found that the statute requires all three criteria of § 611(a) to be met before the exception would be applied.  The respondent was unable to meet this requirement, although the election was “held partly for some other purpose,” because she could not demonstrate that she was authorized to vote in the local election and that voting for school board officials was held independently from the voting for federal officials.

This decision illustrates the importance of educating clients about who is eligible to vote and counseling them on the harsh penalties for unlawful voting.

By Brad Jenkins

On April 10, 2015, Attorney General Eric Holder issued an opinion and order that vacated his predecessor’s 2008 decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) vacated 26 I&N Dec. 550 (A.G. 2015).  The original opinion in Silva-Trevino announced a new framework for determining whether a conviction was for a crime involving moral turpitude.  The framework was controversial because, contrary to longstanding practice, it directed adjudicators to engage in a fact-based inquiry if the traditional approaches failed to yield a definitive answer.  Over the next six years, five different United States courts of appeals would reverse Matter of Silva-Trevino and order immigration adjudicators to employ the traditional analysis regarding whether a conviction was for a crime involving moral turpitude.  The resulting patchwork of rules throughout the country motivated the Attorney General to discard the Silva-Trevino framework in order to allow the Board of Immigration Appeals to establish a truly uniform national standard for this issue.

The Attorney General left undisturbed, for now, the substantive definition of a crime involving moral turpitude articulated in Matter of Silva-Trevino, but also in subsequent BIA cases: an offense involves moral turpitude if it entails “reprehensible conduct and some form of scienter.” 24 I&N Dec. at 706 n.5; see also Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013).

By Susan Schreiber

When you read the words "marriage fraud,” you probably think of a marriage entered into for purposes of obtaining an immigration benefit.  Such marriages, among other things, trigger  INA § 204(c) consequences,  i.e. a bar against petition approval where the  beneficiary has previously sought status  based on a fraudulent marriage or "has attempted  or conspired to enter into a marriage for the purpose of evading immigration laws."

What is the reach of this second clause of 204(c), which covers attempts or conspiracy to engage in marriage fraud?   That was the question at issue before the Administrative Appeals Office in a case involving an I-140 petition denied, in part, because of 204(c).  Matter of Christos, 26 I&N Dec.  537 (AAO 2015).  In Christos, the beneficiary of an I-140 petition had also filed for adjustment of status based on a completely fictitious marriage.  Although the I-130  was supported by a marriage certificate, the beneficiary later acknowledged that he had never met or married the petitioner.  When the petitioner's I-140 approval was revoked due to failure to demonstrate the requisite experience required for his labor certification, he appealed to the AAO.   In dismissing his appeal, the AAO affirmed the finding of insufficient evidence of experience.  But it also determined that the revocation was required because the beneficiary was subject to the 204(c) penalty.

In reopened proceedings, the beneficiary cured the evidentiary problems related to his I-140 petition and the AAO revisited its analysis of 204(c) as it applied to the facts of his case.  Taking a second look at the "attempt or conspiracy" language of the statute, the AAO concluded that, while an actual marriage is not required, there must be an attempt or conspiracy to enter into a marriage.  "An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration law, but is not, by such act alone, considered to have "entered into" or "attempted or conspired to enter into" a marriage for purposes of 204(c) of the Act"  Christo at 540.

As the AAO noted, the beneficiary still has to contend with immigration consequences flowing from his actions, which here indicate inadmissibility under INA § 212(a)(6)(C)(i) for a willful material misrepresentation in connection with seeking an immigration benefit.  This issue, however, will impact on the beneficiary when he seeks to apply for an immigrant visa or adjustment of status; it does not bar the approval of the I-140 petition.

The DOS has recently announced that it will start a pilot program involving persons applying for an immigrant visa at the U.S. consulates in Cd. Juarez, Mexico (CDJ) and Montreal, Canada.  The National Visa Center will be conducting its standard review of the forms and documents submitted by the applicant, including a review of the affidavit of support, civil documents, and police certificates.  If a case file is incomplete or lacks proper documentation, the NVC will send a checklist to the petitioner or designated agent indicating what changes are needed.  But after two reviews by the NVC, the agency will then forward the file to the consulate and schedule an interview, even if it still contains errors or omissions.  The NVC will then send the applicant an “assessment” letter evaluating the documentation that was submitted. It is the intention of the DOS that the applicant will use the assessment letter as a way to gauge whether problems may arise at the consular interview.  If the assessment letter indicates a document may be lacking, the applicant may wish to bring extra documentation or a new affidavit of support to the consular official.

By Jeff Chenoweth

Across the country CLINIC and its 260-plus affiliates strive to welcome newcomers who seek to reunite with long-separated family members, work for fair wages with dignity, and find legal protections in the United States from persecution in their countries of origin. Helping our country, state, or local community to be welcoming to immigrants isn’t always easy, but it is the right thing to do. Indiana is a case in point.

Indiana’s population of 6.5 million people comprises a modest, but rising, number of immigrants: 4.8 percent in 2013, up from 1.7 percent in 1990 and 3.1 percent in 2000. Thirty-five percent of Indiana’s foreign-born population includes naturalized U.S. citizens eligible to vote.  Latino and Asian populations are growing. Indiana hosts the largest number of Burmese people in the United States, most having arrived as refugees. Recent studies show the positive impact of immigration on Indiana’s economy.

Even so, Indiana, like some other states, finds it difficult to establish immigrant-friendly policies. Currently, Indiana does not offer in-state tuition to undocumented youth who have grown up in Indiana and graduated high school. The state does not offer driver’s licenses to undocumented immigrants. Indiana is one of the states suing the Obama Administration over President Obama’s executive action on immigration announced in November 2014.

Against this backdrop of demographic changes and political debates are a growing number of charitable nonprofits carrying out their mission to serve immigrants. CLINIC has played an important role in supporting those who welcome immigrants in Indiana.

CLINIC’s network has eight affiliates in Indiana, up from one ten years ago. CLINIC’s first affiliate was Catholic Charities of Fort Wayne-South Bend due to its increasing refugee resettlement program serving Burmese, Iraqis, and people of other nationalities. Since that time, seven more nonprofits have started providing immigration legal services and joined CLINIC. These include: La Casa in Goshen; Hispanic Connections of Southern Indiana in New Albany; Catholic Charities Diocese of Evansville; Lafayette Urban Ministries; La Casa de Amistad, Inc. in South Bend; Sisters of Saint Benedict Immigration Outreach in Ferdinand; and Catholic Charities of Indianapolis. Together, these immigration programs have 19 staff providing immigration legal services. At this time, CLINIC is consulting with Catholic entities in Gary to consider how to expand immigration legal services there. Thus, all corners and the center of the state have a CLINIC affiliate to serve immigrants.

CLINIC’s recent efforts helping Lafayette Urban Ministries (LUM) clearly illustrates how this need is being met. As written on its website: “Lafayette Urban Ministry is the Church in service to others. More than 40 congregations from 20 different faith traditions work together to bring compassion and justice to Lafayette’s needy children and families.”

Their story begins in 2012 when then-Senator Richard Lugar lost the Republican Senate primary. Susan Brouillette found herself out of a job after working for the senator for 20 years as a constituent case worker. In that position, Susan helped many immigrants with their immigration legal matters. LUM quickly hired Susan to conduct policy advocacy to benefit the poor and to start an immigration legal program. Susan reached out to CLINIC. She began attending CLINIC immigration law trainings to eventually seek authorization to practice as a non-attorney under Board of Immigration Appeals (BIA) accredited representative status. CLINIC gave Susan a “road map” on how to start and sustain a program. Susan and her colleagues dedicated many hours to training, organizational planning for policies and procedures, and developing case management forms used to serve immigrant clients. In June 2014, LUM gained authorization to practice and opened their office for services. It is the first and only charitable immigration legal program within a 60-mile radius.

Susan Brouillette says, “CLINIC guided us through the process of obtaining our accreditation and recognition from the Board of Immigration Appeals. With CLINIC's help, we were able to get BIA approval on our first attempt, which in turn allowed us to meet our internal deadline for opening our clinic. In addition, CLINIC has provided us with guidance on best practices to help us build a sound program and develop increased capacity.  CLINIC has also kept us informed and updated on legislative actions, policies, and immigration regulations. CLINIC has been an invaluable partner in serving the immigrant community in North Central Indiana. We are grateful to be a member of CLINIC and would be directionless without it.”

CLINIC is excited by the rapid increase in affiliates in Indiana and the growth of services delivered to low-income immigrants across the state.

Accreditation at Multiple Sites.  The decision reverses Board practice in the area of accreditation of staff at agencies with multiple locations. Formerly, it was enough to be accredited at one of an agency's several recognized sites in order to work under the accreditation privilege at any of the agency's recognized sites. Not any more. Now each staff member must be accredited at each site where he or she seeks to work as an accredited representative.

Summary. The two EAC decisions make more explicit the kind of immigration legal expertise the Board looks for from recognized agencies and accredited representatives. Most importantly, they require that agencies, in order to be recognized, have access to the support of an attorney or fully accredited representative.  While agencies may provide a limited range of services through partially accredited representatives, such agencies must have the support of an attorney or fully accredited representative, must be able to recognize issues they are not equipped to handle, and have a referral plan for complex cases.  The decisions leave unanswered, however, the important question of what constitute "nominal" fees, and what percentage of an agency's budget may be composed of fees for immigration services.

It's important to note that this new decision imposes a specific requirement of participation in a formal overview training in order to establish that the candidate for accreditation has the appropriate broad knowledge of immigration law. In the Board's view, an overview course on the fundamentals of immigration law and procedure "provides critical insights into the interconnectedness of immigration laws and the possible interaction of other areas of law with immigration laws...and alerts the proposed representative to the dangers of over-specialization, the value of referral to more expert representation, and the potential for unintended harm when legal advice is not supported by a broad knowledge of the law." Central California Legal Services, Inc., at 106.

What does this decision mean for your agency? First, make plans to ensure that all staff members whom your program plans to sponsor for initial accredited representative status attend some type of formal training on the fundamentals of immigration law. An application for accreditation will probably not be approved without it, even if the candidate has attended a number of trainings on specific immigration law issues. Second, when applying for staff accreditation, be sure to provide the information and documentation the Board wants to see to establish the candidate's training background. As detailed in the decision, this includes a list of the immigration courses the staff member has attended, the dates of the overview course and any other trainings, the providers of the trainings, the hours completed, the topics addressed at each training, and copies of any certificates of completion, where available. Third, plan for ongoing training for staff members after initial accreditation. This new decision notes that renewal requests should also provide documentation that the accredited representative has received additional formal training in immigration law since the most recent accreditation.

If you need to find an overview course on immigration law, CLINIC can help you, and you don't have long to wait. Check out our training calendar at http://cliniclegal.org/calendar to read about all upcoming CLINIC trainings.

 
Minyoung Ohm is a staff attorney with the Religious Immigration Services Section of CLINIC.  Prior to joining CLINIC, she was an associate attorney at Carliner & Remes in Washington D.C. and practiced immigration law in a variety of areas, including asylum, family-based visa petitions, and business immigration matters.  She graduated from the American University’s Washington College of Law in 2003. While in law school, she worked at Tahirih Justice Center providing immigration relief for survivors of domestic violence and served as a student advocate with the Washington College of Law’s Domestic Violence Clinic.  She has a B.A. in English and French from Wellesley College and is a member of the New York State Bar.
 
1.      How would you describe your time working for RIS?
 
I started working for RIS back in 2005, fresh out of law school.  Back then the religious immigration section was a whole lot smaller and the caseload was much less demanding.  I left CLINIC to work for a private immigration firm, then returned to CLINIC temporarily as a part time staff in 2008.  I ended up staying on and continued the work with RIS.  I’ve always felt that I am in a supportive environment where I can independently exercise my judgment and build my skills. 
 
2.      What inspires you to work in immigration? 
 
My grandfather was a pastor who came to the US many years ago and ministered to immigrant Korean churches in the state of Washington.  Back then the religious worker program was not in existence!  He really loved the US, calling it a blessed nation of God.  I really admired him and I often think it’s not a coincidence that I am working in religious immigration field.  As an immigrant myself who came to the US at age 13, I watched my parents and other Korean immigrants facing discrimination and obstacles despite the fact that they are legitimate immigrants who are hard working and wanted what’s best for their families.  I decided that I wanted to help these immigrants. 
 
3.      What do you enjoy most about working with RIS? 
 
My heart is really with providing direct legal services to individuals.   I enjoy interacting and advising RIS clients.   RIS clients are always so gracious and quick to express gratitude so they make my job rewarding.  
 
4.      Where did you grow up?
 
I grew up in Seoul, South Korea. My grandfather who eventually became a US citizen filed family petitions for all his grown sons and daughters. Our family, as a beneficiary of that petition, immigrated to the US and settled in Seattle, Washington.  I love the Pacific Northwest and I call Seattle my second home since I spent my teenage years there. 
 
5.      If you could go anywhere in the world, where would you go?
 
This is a hard question. There are so many places that I want to go but no time. Maybe I will fly to see my parents in South Korea and do a tour of Asia.
 
6.      What are your favorite things to do when you’re not at work?
 
Relaxing at home with my three little girls, of course!  We play games, do crafts, bake muffins, dance, or just talk, whatever they are in the mood for.
 
7.      What is your hidden talent?
 
I grew up playing the piano.  My mom is a talented singer and she was often called to sing in churches.  I was her dedicated piano accompanist for many years.  I also worked as a pianist for the church that I served in Seattle. I am now the dedicated pianist for my daughter whenever she plays violin at recitals. 
 
8.      What is the best advice you've ever received?
 
Quick to listen, slow to speak –  we all often do the opposite but it really helps me to be a better lawyer, mother, spouse, and friend.
 

By Tessa W. McKenzie

Our commitment to supporting newcomers is personal and at CLINIC, we are inspired by friends who have overcome numerous obstacles to become naturalized US citizens.  Saba Hailu is one such friend, who journeyed from aspiring citizen to new American.  Saba’s determination strengthens our resolve to ensure that the foreign-born have access to opportunities for citizenship and civic participation.

Saba arrived in the United States seven years ago as an asylee, fleeing political persecution in Ethiopia.  “I am free here,” Saba explains, “I have improved my life.”  Unable to find work in Ethiopia, Saba is now able to support her family, free from fear, and has built relationships in her community that make her feel at home in her new country.   Saba provides child and elderly care and those who work with her speak highly of Saba’s contributions.  Abeba Fesuh introduced fellow CLINIC staff member Laura Burdick to Saba over five years ago.

A true American in every way but legal status, Saba desired to become a citizen of the United States so she could vote, travel in and out of the country freely, and more fully contribute to her new home.  “I wanted to feel as American as I had been,” Saba explains. 

With English as her second language, however, Saba was nervous about passing the naturalization interview, and studied very hard in the months and weeks leading up to it.  When asked about her status as an Ethiopian asylee, Saba froze.  The United States Citizenship and Immigration Services (USCIS) Officer told Saba to come back when she was able to pass the English portion of the interview.  Disheartened, Saba feared her dream of U.S. citizenship might be out of reach.

“I want to thank Laura in a special way,” Saba says, “she offered her time to prepare me for a second interview.”  Laura reviewed civics questions with Saba, asked her to write short answers, and memorize questions to expect during her next interview with USCIS.  Many of the lessons occurred in the evenings after Saba’s babysitting commitments and were spent pouring over CLINIC resources designed to enhance English and civics proficiency.   

Rattled with anxiety on the day of her second naturalization interview, Saba was comforted by the presence of CLINIC attorney, Allison Posner.  “I am so thankful for Allison,” Saba says, “she gave me courage, smiled at me, and all of my fear was relieved.”  Allison helped educate Saba about her asylum case and with renewed self-assurance, Saba passed her naturalization interview with flying colors.

With new-found confidence, Saba is thrilled to have received US citizenship and explains, “I really feel American now!”  She is excited to share CLINIC resources like Citizenship for Us that Laura gave to her in preparation for the exam.  “I have two sons that will soon become citizens,” Saba says, “and I tell them, ‘Don’t be afraid, study hard, prepare yourself.  It’s possible!”

Saba’s story is a reminder that resources are needed to ensure that vulnerable newcomers may overcome various challenges to the naturalization process. CLINIC’s new study guide for the citizenship test is a free, online resource that explains the naturalization testing requirements and contains 13 study units on U.S. history and civics.    With citizenship resources like this and the dedication of friends and advocates like Abeba, Laura, and Allison, more aspiring citizens may join Saba as proud new Americans. 

*Tessa W. McKenzie is Public Education Officer at the Catholic Legal Immigration Network, Inc. (CLINIC)

By Martin Gauto

On March 4, 2015, the Center for Human Rights and Constitutional Law (CHRCL) and Public Counsel (both based in Los Angeles) reached an important agreement with the DHS that allows certain applicants for Special Immigrant Juvenile Status (SIJS) and SIJS-based adjustment of status to request that the USCIS reopen their cases. Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).  SIJS is an immigration benefit that allows children who have been the victims of abuse, abandonment or neglect to become lawful permanent residents.

Perez-Olano v. Holder was a class action lawsuit filed on behalf of immigrant children whose applications for SIJS or SIJS-based adjustment of status were denied because they either turned 21 or ceased to have a valid state court dependency order while their applications were pending.

This stipulation brings DHS into compliance with the 2010 settlement agreement reached in Perez-Olano v. Holder.  That 2010 settlement agreement created a crucial “age-out” exception that allows immigrant children found to be abused, abandoned or neglected to adjust their status to lawful permanent residence even when they turned 18 and aged out of a valid state court dependency order.  Having a valid state court dependency order is normally required.

DHS has not been consistently honoring this “age-out” provision of the Perez-Olano settlement agreement, and immigrant children were being denied adjustment of status solelybecause they turned 18 and no longer had a valid state court dependency order.

Under the terms of this new stipulation, DHS agrees to comply with the following policies:

• USCIS will not deny, revoke, or terminate an immigrant child's application for SIJS or adjustment of status if, at the time of filing the application: (1) the minor is or was under 21 years of age, unmarried, and otherwise eligible for SIJS status, and (2) the minor is the subject of a valid state court dependency order or was the subject of a valid dependency order that was previously terminated based on age prior to the filing of the application for SIJS or SIJS-based adjustment of status.
• Class members whose SIJS applications were previously wrongfully denied, revoked or terminated will not have to pay any additional fees for re-opening and re-adjudication of their previously denied applications.
• Upon reopening these cases, USCIS will approve those applications for SIJS classification or SIJS-based adjustment of status that are approvable on the basis of the existing record: that is, without the class members' submitting further evidence or information. If the reopened applications are not approvable on the basis of the existing record, USCIS must notify applicants that their applications have been reopened and request such additional evidence or information as the agency deems necessary.
• USCIS will forward notice of the agreement to its list of community-based organizations and stakeholders. USCIS must distribute the agreement and a policy memorandum to DHS officers, agents and employees who adjudicate applications for SIJS classification or SIJS-based adjustment of status, and instruct them to adjudicate pending and future applications for SIJS classification and SIJS-based adjustment of status in accordance with the agreement.

These policies apply to denied SIJS petitions or SIJS-based applications for adjustment of status that were filed on or after May 13, 2005.  Applicants or their lawyers have until June 15, 2018, to request that USCIS reopen the case.

By Sarah Bronstein

U nonimmigrant status is available to individuals who have been the victims of certain criminal activity in the United States.  In order to meet the eligibility requirements, the crime must fall under the definition set forth in INA § 101(a)(15)(U)(iii).  The INA definition lists 28 qualifying crimes and the attempt, conspiracy or solicitation to commit any of those crimes, and any “similar activity.”  Advocates have long argued that these listed offenses should be viewed as categories of offenses rather than specific required offenses.  It is important to remember that each state has its own way of labeling and defining criminal offenses.  In addition, practitioners have advocated that the “any similar activity” language should be viewed broadly.

On January 22, 2015, the Administrative Appeals Office (AAO) issued a decision interpreting qualifying criminal activity for U nonimmigrant status.  While not a precedent decision, this decision from the AAO gives an indication of its thinking on the issue of qualifying criminal activity.  In this case, the AAO reviewed the USCIS decision to deny the U nonimmigrant petition of a person who had been the victim of robbery under Texas Penal Code section 29.02.  In its denial of the I-918 petition for U nonimmigrant status, USCIS found that while the petitioner had established that he had suffered substantial mental abuse as a result of criminal activity, robbery under Texas law is not similar to felonious assault or any other qualifying crime.  On appeal, the petitioner asserted that he was the victim of robbery by assault, which is substantially similar to the qualifying crime listed in the statute as felonious assault.

In analyzing this case, the AAO looked at whether robbery under the Texas Penal Code is similar to the qualifying crime of felonious assault.  The AAO did not take the approach of looking at whether robbery falls under the “category” of felonious assault.  The regulations define any similar activity as “criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.”  8 CFR § 214.14(a)(9).  The AAO emphasizes that in order to determine whether the Texas robbery statute is substantially similar to felonious assault, one must look at the language in the statutes involved, rather than the actual facts of the case.

In order to conduct this analysis, the AAO compares the definition of robbery under Texas law with the definition of felonious assault.  Because there is no one definition of felonious assault across the 50 states, and many states call such an offense by a different name, the AAO looks to the definition of aggravated assault in the Model Penal Code.  The Model Penal Code was developed in an effort to encourage states to adopt more uniform criminal laws.  While it is not binding on any one jurisdiction, it serves as a guide to generally accepted definitions of offenses. 

The AAO decision examines the language in the Texas Penal Code and the Model Penal Code.  Texas Penal Code § 29.02 states that a person commits robbery when “if, in the course of committing theft…and with intent to obtain or maintain control of the property, he:  1) intentionally, knowingly, or recklessly causes bodily injury to another; or 2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”  Model Penal Code § 211.1(2) states that “a person is guilty of aggravated assault if he:  (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempt to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.”  The AAO concludes that because the Texas statute involves causing bodily injury while committing theft and the Model Penal Code aggravated assault statute also involves causing bodily injury, these statutes are substantially similar.  The AAO therefore finds that the crime of which the petitioner was a victim was a qualifying crime for purposes of U nonimmigrant status eligibility.

The AAO remanded this case to USCIS for adjudication of the petitioner’s request for a waiver of certain grounds of inadmissibility.  USCIS denied the petitioner’s waiver solely because it denied the U nonimmigrant status petition without reaching the merits of the waiver request. 

While some advocates have stressed that practitioners should argue that the criminal activity involved in a particular case fits into one of the enumerated categories of crimes in the INA, this decision shows that the “any similar activity” language in the statute should not be discounted. In a case such as this where the crime involved does not clearly fall within one of the listed crimes, advocates may want to make both arguments.

Document Production

Q.  Can you please clarify whether refugees, because they are statutorily exempt from having to pay the I-485 filing fees, are eligible to file an I-131 and/or I-765 at no additional charge when filed concurrently with an I-485 application to adjust status? Please also clarify whether a refugee may file an I-131 or I-765 at no additional charge after the I-485 initial filing, but while the I-485 remains pending.

The fee rule notice published in the Federal Register on May 30, 2007 indicates that the higher fee ($1,070) for an I-485 Adjustment of Status Application includes as many EADs or Advance Parole documents as necessary while the I-485 application is pending.  The applications need not be filed concurrently, but they do need to be filed while the I-485 application is pending. 

Refugees need not pay the fee for the I-485 application, but are required to pay for the EAD and Advance Parole applications.

I-730

Q. If an I-730 application has been approved by Nebraska Service Center and then routed to the National Visa Center to continue its processing, what would normally happen when the petitioner takes no action in the Pre-Processing upon request for original documents?  Will the follow-to-join process continue and the case be sent to the designated U.S. Embassy or will it be returned to the Nebraska Service Center (NSC)? If returned to NSC, what will the Service do?

For these follow-to-join cases, when do you anticipate this Pre-Processing by the National Visa Center become a standard in all U.S. Embassies (at this time it still excludes Nairobi, Kenya)?

This question is best answered by the National Visa Center.

Q. If the petitioner of an I-730 Asylee/Refugee Relative Petition dies during the process of the case, can an attorney representing the surviving widow replace him on communications with USCIS by entering appearance through a new G-28 under her name, even when she was not the petitioner?

No, the petitioner cannot be replaced by the beneficiary.  An attorney can only represent the petitioner of the I-730.

Q. When calling the National Customer Service Center or National Visa Center, the operators only want to talk to the petitioner or attorney of record.  Would we still submit the G-28 without cover letter to NSC?
Q. For an I-730, only the petitioner is recognized as being represented with a valid G-28.  The G-28 does not apply to the beneficiary.  Information from INA § 204(l) on relief for surviving relatives can be found on the USCIS website.  There is no relief for beneficiaries outside of the United States. What would be the best way to channel communications to avoid the beneficiaries’ cases being abandoned?

Beneficiaries in the U.S. with a pending I-730 can see basic eligibility for benefits under INA § 204(l) at USCIS’s website.  USCIS may continue processing the petition if the beneficiary makes a written request.  There is no relief for beneficiaries outside of the U.S.

Q. Also, in situations like these, would it be possible to request expediting the process?

Beneficiaries in the U.S. with a pending I-730 can see basic eligibility for benefits under INA 204(l) at USCIS’s website.  There is no relief for beneficiaries outside of the U.S.

Q.  In order to request this relief on an Asylee Relative petition, the petitioner must have died while Form I-730 was pending and we should ask the USCIS office that has the petition to approve the petition despite the petitioner’s death.  If the petitioner died after the approval by Nebraska Service Center and the case been sent to NVC, but before the beneficiaries were interviewed at the US Embassy abroad, would USCIS consider this as “pending”?

 Benefits under INA § 204(l) apply only to beneficiaries that are in the U.S.  If the petitioner dies while the beneficiary is outside the U.S. the petition will be denied. 

Asylum Applications

Q.  Stakeholders report difficulties “fee-ing in” defensive asylum applications with the Nebraska Service Center. Individuals are following the pre-order instructions listed on the USCIS website at http://www.uscis.gov/sites/default/files/files/article/PreOrderInstr.pdf (including providing a valid Form G-28 where applicable), but have reported not receiving receipt notices and/or biometrics appointment notices.  Stakeholders also report that the applications have been erroneously forwarded to a USCIS asylum office.

Please confirm that the pre-order instructions on the USCIS website are accurate. Has NSC identified the source of these problems? What can individuals do to ensure that they receive a receipt notice and biometrics notice in cases they have already filed?

The USCIS website is accurate. However, the NSC’s Records Division did recently discover that some attorneys were filing Form EOIR-28 along with the I-589.  Therefore, those attorneys were not receiving the notices.  As a courtesy, the NSC will key in the EOIR-27 or EOIR-28 and send the attorneys a letter indicating that they should file Form G-28.  Duplicate receipt notices cannot be generated at this time.  Contact the NSC regarding missing ACS or biometrics appointment notices.

Q.  When the spouse of an asylee is included in his I-589 application and afterwards both of them are granted asylum in front of an Immigration Judge and receive separate approval letters.   Will she be considered a principal asylee on her own?  Or is she considered a derivative / beneficiary?  If considered a principal, would this allow her to file Asylee Relative Petitions (Form I-730) on her own?

Ordinarily, the person who filed Form I-589 is considered the principal asylee, and those family members listed on the form are derivatives.  If more than one family member files Form I-589, and each receives an approval letter from immigration judge, then each would be considered a principal asylee and can file their own asylee relative petitions. 

Q. How can we determine if a derivative asylee still holds that status if it appears that the principal has abandoned it through reavailment?  In some scenarios, we have seen principal asylee parents not adjusting status to LPR and traveling out of the U.S. without refugee travel documents.  If after such travel, the derivative returns to the United States, can they apply for Adjustment of Status based on their original derivative asylum status? Or would he be considered in a different status at the time of admission?

Reavailament is a possible ground of termination of asylum status, but asylum status continues until formally terminated.  Asylees described above would have issues attempting to return to US after such travel.  Derivative asylees could still apply for Adjustment of Status, assuming that they still qualify as derivatives.

Q.  We have recently seen a couple of adjustment of status cases for derivative asylees in which USCIS has issued Requests for Evidence requesting to submit a Form I-693, Report of Medical Examination and Vaccination Record. This is happening even when we’ve enclosed copies of the medical exam conducted overseas. According to the Adjudicators Field Manual (Chapter 23.6):

“(…) 2) Asylees . With limited exceptions, all asylee adjustment applicants must obtain full medical examinations and vaccination certificates as part of the adjustment process (see 8 CFR 209.2(d) and Chapter 23.3 of this field manual). Subject to your verification that a full report, with vaccination requirements, is contained in the alien’s file, the exceptions which are not required to submit medical examination reports are: … Persons who received derivative asylum status through the I-730 process and received a medical examination before being issued travel authorization by a consular officer. (Note: this does not apply to persons whose status was changed to derivative asylee based on an I-730 petition approved while the beneficiary was in the U.S.; such persons must submit medical examination reports as part of the adjustment process.).”  Please clarify.

Derivative asylees who completed a medical exam overseas do not have to repeat the whole exam if the overseas exam was completed within two years.  They may be required to submit the relevant parts of Form I-693 (parts 1 and 5).  Note that Form I-693 is only valid for one year.  If Form I-693 has expired at the time of adjudication, the applicant must resubmit parts 1 and 5. 

By Susan Schreiber

Hasim Husic, a native of Yugoslavia, entered the United States with a tourist visa, was subsequently granted asylum, and then adjusted to LPR status in 1998.  After being convicted of attempted criminal possession of a weapon in the second degree, Husic was placed in removal proceedings and charged with deportability for having a firearms offense and an aggravated felony offense.  When Husic sought to apply for adjustment with an INA § 212(h) waiver, the immigration judge found him ineligible, based on the provision of 212(h), which states that no waiver may be granted to an alien "previously admitted to the U.S." as an LPR if that individual was either convicted of an aggravated felony or does not have seven years of continuous lawful residence in the U.S. before being placed in removal proceedings.  Although Husic argued that this language didn't apply to him because he adjusted status after entering the United States, the immigration judge disagreed with him and found him ineligible for a waiver. After the decision was affirmed by the Board, Husic appealed to the Second Circuit, which had not yet addressed this issue.

On January 8, 2015, the Second Circuit became the latest court to reject the Board's analysis about LPR eligibility for an INA § 212(h) waiver.  Husic v Holder, Docket No.  14-607 (2nd Cir. 2015).  With this decision, the Second Circuit joins seven other circuits in finding that lawful permanent residents who were not initially admitted to the U.S. as LPRs are not subject to INA Section 212(h) aggravated felony bar.

What is the Board's position?  In two different decisions, two years apart, the BIA has upheld the applicability of the 212(h) LPR bar to all LPRs, regardless of status at entry.  Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of E.W. Rodriguez, 25 I&N 784, (BIA 2012).   The BIA's analysis of the statute, however, has now been rejected by 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 11th Circuits.  Only the 8th Circuit has deferred to the Board's position on this issue, finding that the provision is ambiguous and the Board's position is reasonable. Roberts v. Holder, 745 F.3d 928 (8th Cir.2014).  As the weight of authority goes against the Board's analysis of this issue, it remains to be seen whether this will trigger the Board to re-examine its position. 

More on Immigration Consequences of Crimes

By Leya Speasmaker

CLINIC introduces the Center for Immigrant Integration, a web-based portal for integration-related resources for programs offering charitable legal immigration services. The Center seeks to promote a more purposeful, focused and strategic approach to increase immigrant integration programming within its network. The Center will do this by introducing new opportunities to programs interested in promoting integration, highlighting best practices currently in place within our network, and partnering with organizations across the nation who are offering stellar resources for integration-related activities, such as ESL classes and tax assistance preparation services.

Below are some of the resources currently available on the Center for Immigrant Integration webpage:

• 12 Ways to Promote Integration in Your Community: Integration happens most successfully at the local level. Learn several easy ways you can encourage immigrant integration within your community.
• How to Offer Tax Preparation Assistance Services at your Agency: In preparation for the 2015 tax season, listen to this webinar to learn quick and easy ways to offer tax preparation assistance services within your own agency. Learn how offering tax assistance preparation services promotes immigrant integration within your community. Three different service delivery models are discussed and explored in depth.
• Intercambio: Uniting Communities, Boulder, CO:  CLINIC partners with Intercambio, a nonprofit organization in Boulder County, Colorado, to offer our network quality English as a Second Language curricula, as well as train-the-trainer materials for volunteer-based ESL programs. Intercambio offers seven levels of English as a Second Language, citizenship, English for Entrepreneurs, cultural training, computer literacy, financial literacy, and civics classes.
• Citizenship Test Preparation Program Self Assessment: Does your program offer citizenship test preparation services? Use this tool to assess the strength of the program and determine where services might be improved.

The Center for Immigrant Integration page also highlights model programs working on key integration issues. Two of these model programs currently operating within the CLINIC network are:

• Hogar Immigrant Services, Citizenship Test Preparation Program, Catholic Charities of the Diocese of Arlington, Falls Church, VA
• VITA Program, Catholic Charities San Antonio, San Antonio, TX

Finally, CLINIC has consolidated outside resources that will aid organizations interested in promoting immigrant integration start to offer additional services. Resources include tools and websites from other integration-focused organizations, governmental organizations, and independent research from university-based scholars. Stay tuned for exciting future resources, including a clickable map that will display the English as a Second Language, Citizenship test preparation, and tax preparation assistance services available in our network.

If you would like to offer any resources for this page, would like your program highlighted or included on our map, or would like to know more about how to develop an integration program and program performance measures, please contact Leya Speasmaker, Integration Program Manager, at lspeasmaker@cliniclegal.org. Please visit https://cliniclegal.org/resources/immigrant-integration regularly, as the website will continue to be updated.

By Minyoung Ohm

RIS Attorney

In September 2012, President Obama signed a bill extending the non-minister special immigrant religious worker program through September 30, 2015.  This law allows the non-ministers, such as religious sisters or brothers, or other lay religious workers in the religious vocation or religious occupation categories, to adjust to permanent resident status.  However this law is set to expire on September 30, 2015, unless the Congress introduces another bill to extend this non-minister provision and the President signs it into a law. 

 If this non-minister provision is not extended, those in R-1 religious worker status in the religious vocation or religious occupation categories will not be able to apply for permanent resident status.  This means that they will not be allowed to submit I-360 petitions or I-485 applications after the sunset date.  Also, they would not be able to obtain immigrant visas from U.S. consulates abroad.  The sunset date also applies to accompanying spouses and children of these non-minister special immigrant religious workers.  It is important to note that the sunset date does not affect the religious workers in the minister category and the ministers can continue to apply for permanent residence.

The non-minister special immigrant religious worker program was enacted in 1990 with a built-in sunset provision but it has always been extended through legislative action.  We hope that it will be extended again before the sunset date.  However, given the controversial climate surrounding the presidential executive action, we are unsure how quickly Congress will act on this provision.  

 In case there is a delay by Congress in reauthorizing this non-minister program, CLINIC attorneys suggest reviewing the case files of foreign religious workers to identify these non-ministers and begin the permanent residence process for them as soon as possible.  It would be best to put priority on those religious workers who have been in the U.S. for several years and will soon reach the maximum of five years allowed in R-1 status.   Please contact your CLINIC attorney with any questions regarding how the sunset provisions could affect your organization. 

Visit CLINIC's Administrative Relief Center

On November 20, 2014, President Obama announced executive actions to change immigration policy.  One of these reforms will expand the existing DACA program, first established on June 15, 2012 to provide deferred action and work permits to people who arrived in the U.S. as children and meet certain other requirements.  Other reforms fall into three main categories: (i) changes to immigration enforcement policy; (ii) expanding deferred action to certain parents of U.S. citizens and lawful permanent residents; and (iii) changes to our legal immigration system.  This FAQ focuses exclusively on changes to the existing DACA program described in a Memorandum by DHS Secretary Jeh Johnson entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (“Deferred Action Memo”).

How does the President’s executive action on immigration change the current DACA program?

The current DACA program was established on June 15, 2012 and provides deferred action and work permits for a two year period.  To be eligible, a person must meet the following criteria:

• Entered the U.S. prior to age 16
• Was under the age of 31 as of June 15, 2012
• Had no lawful status on June 15, 2012
• Graduated from high school; obtained a GED; or currently enrolled in school
• Had continuous residence in the U.S. from June 15, 2007 to the present
• Was physically present in the U.S. on June 15, 2012 and at the time of making the request, and
• Has not been convicted of a felony, misdemeanor, or three or more other misdemeanors; and is not considered a threat to public safety or national security.

The Deferred Action Memo made three changes to the existing DACA program: 

Eliminates the Age Cap

The current DACA program limits eligibility to people who were under the age of 31 as of June 15, 2012.  Going forward, this age restriction will no longer apply.  People who arrived in the United States before age 16 may qualify for DACA, even if they were over 31 as of June 2012. However, to apply for DACA with United States Citizenship and Immigration Services (USCIS), a person must be at least 15 years old, unless he or she is currently in removal proceedings or has a final removal or voluntary departure order.  The Deferred Action Memo does not change this requirement.

Adjusts the date-of-entry requirement

Current DACA guidelines require an applicant to prove continuous residence in the United States from June 15, 2007 to the present.  The new guidelines advance the continuous residence start date to January 1, 2010.

Extends deferred action and work authorization from two years to three years

Grants of deferred action and work permits will be for a three-year period, instead of two years.  This change became effective on November 24, 2014 for people who are approved for first-time DACA and DACA renewals on or after that date.

When will USCIS begin accepting applications under the new guidelines?

At this time, people cannot apply for DACA under the criteria announced in the new Deferred Action Memo.  USCIS will begin accepting applications no later than 90 days from the date of the announcement (by February 18, 2015).  USCIS will likely change the existing application form (Form I-821D) to reflect changes in the guidelines.  As with the current program, applicants will be required to pay a $465 application fee and undergo biometrics.  Visit www.uscis.gov and http://www.adminrelief.org/ for updated information.

If my client is eligible under the current guidelines, may he or she apply for initial DACA or renew DACA now?

Yes.  USCIS continues to accept initial and renewal DACA applications under the guidelines issued before November 20, 2014.  If your client qualifies for DACA under the original criteria, he or she does not need to wait until February 18, 2015, but may apply now.

My client is applying now for initial or renewal DACA.  If approved, for how long will deferred action and work authorization be granted?

The executive action extends the deferred action grant from two years to three.  This change is effective immediately.  In other words, for applicants with initial or renewal requests that were pending on November 24, 2014, USCIS will grant work authorization for a three-year period, rather than a two-year period. 

My client already renewed DACA before the President’s November 20, 2014 announcement.  How can my client get a new work permit valid for three years?

At this time, we don’t know what the process will be.  USCIS has announced that it is exploring how to extend two-year work permits already issued to DACA renewal recipients.  Visit www.uscis.gov and http://www.adminrelief.org/ for updated information.  In the meantime, two-year work permits issued under the previous guidelines continue to be valid through the expiration date indicated on the card.

Has the physical presence requirement changed?

The Deferred Action Memo does not directly address whether there will be a change to the current requirement that an individual was physically present in the United States on June 15, 2012.  The original physical presence requirement reflects the date the DACA program was first announced.  No guidance has been issued indicating that the physical presence date will change to reflect the date of the recent Deferred Action Memo - November 20, 2014.

Does the recent executive action change the existing criminal bars to DACA?

No, the criminal bars to DACA remain the same.  Guidance defining felonies, significant misdemeanors, and three or more non-significant misdemeanors (as they apply to DACA) are not changed by the executive action.    

My client may qualify for both DACA and DAPA.  What factors should we consider in determining which program to apply for?

Some people may qualify for both DACA and DAPA.  DAPA is a new deferred action program that benefits certain parents of U.S. Citizens or Lawful Permanent Residents who have continuously resided in the United States since January 1, 2010.  Guidelines for DAPA eligibility are set forth in the Deferred Action Memo.  Unlike DACA, DAPA does not include an education requirement.  Additionally, individuals may benefit from DAPA regardless of their age at the time they entered the U.S.  If your client qualifies for DACA under the original guidelines, she can apply now, rather than wait until May 19, 2015, which is the approximate date that USCIS will begin accepting applications for DAPA.

The ineligibility bars to DAPA are broader than those that apply to DACA, and cover both criminal offenses and immigration violations. Thus, individuals with certain immigration or criminal histories may be eligible for DACA but may be disqualified from DAPA.  Visit www.uscis.gov and http://www.adminrelief.org/ for more information on the DAPA program and the new DHS priorities for immigration enforcement.

Will parents of DACA grantees obtain any immigration benefits under the new policy?

The new deferred action programs do not provide immigration relief to the parents of DACA recipients.  Only parents of U.S. citizens and lawful permanent residents may qualify for Deferred Action for Parental Accountability (DAPA).

How will these changes impact a DACA recipient’s ability to travel on advance parole?

In Matter of Arrabally and Yerrabelly 25 I&N Dec. 771(BIA 2012), the Board of Immigration Appeals issued a precedent decision holding that travel abroad with advance parole is not considered a departure for purposes of the “three and ten year bars,” under INA Section 212(a)(9)(B)(i).  This case arose in the context of adjustment of status applications, and the USCIS Administrative Appeals Office (AAO) has since applied this analysis in several cases involving travel on advance parole by Temporary Protected Status (TPS) holders.  In practice, USCIS has also applied this analysis to DACA recipients returning to the U.S. under advance parole, although currently there is no formal guidance regarding this issue. 

In a memorandum entitled Directive to Provide Consistency Regarding Advance Parole (“Advance Parole Memo”), Secretary Johnson states that new written guidance will be issued clarifying that the Arrabally decision will apply in all cases where a person leaves the United States under a grant of advance parole.  The Advance Parole Memo does not make changes to the requirements that DACA recipients must meet in order to qualify for advance parole. Traveling outside of the United States can present other risks beyond the unlawful presence bars. DACA grantees should be screened for other grounds of inadmissibility, and should consult with an attorney before leaving the United States.

My client will be eligible for DACA once the new forms are released.  Are there things I can advise my client to do in the meantime to prepare?

Applicants will be required to pay a $465 application fee.  Advise clients to begin saving money now.  Clients can begin gathering documents to prove their identity and demonstrate they satisfy the education, date of entry, and continuous residence requirements.  Clients who have had prior encounters with law enforcement and/or immigration authorities should obtain their criminal records and information regarding their immigration history.  Advise clients not to travel abroad before they have obtained deferred action and advance parole.    

What if I have a client in immigration proceedings or in detention who meets the requirements for expanded DACA?

People who meet the new DACA guidelines may qualify for the program, even if they are in removal proceedings or are subject to a final order of removal.  The Deferred Action Memo directs Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to immediately identify people who meet the DACA criteria and refer them to USCIS for a deferred action determination.  This policy will apply to those who are currently in custody and those who are newly encountered.  ICE is also instructed to review pending removal cases and seek administrative closure or termination in cases where the person meets DACA eligibility guidelines.  People may then request DACA through USCIS.  

Under the current DACA procedures, people who are currently in immigration detention should identify themselves to their deportation officer, Jail Liaison, or local ICE Field Office Director.  For more information, visit ICE’s website at www.ice.gov/daca.

My clients are eligible for expanded DACA but worried they will be referred to ICE if the application is denied or if the DACA ends. What should I tell them? 

The information in a DACA request, including information about family members and guardians, will not be shared with ICE and CBP for the purpose of deportation unless the DACA applicant meets the criteria in November 2011 USCIS policy guidance governing the issuance of Notices to Appear (NTA).  According to the criteria, USCIS will refer an applicant to ICE in cases involving certain criminal offenses, a statement of findings substantiating fraud, or a threat to public safety or national security.

Many people fought hard for the creation of the DACA and DAPA programs.  Organizations and community members will continue to advocate for the extension of the DACA program.  Should DACA be terminated at some point, remind your client that people who are granted DACA are by definition “low priorities” for deportation.

CLINIC has accepted a new subscriber, UNO Federation Community Services, Inc. in Clearwater, Florida. Ralph A. Emmanuelli, Executive Director lists staff William Sanchez and Luiz Irizarry.

Question:

You just agreed to represent an F-2A beneficiary in her application for residency through consular processing.  You learn that she has a 20-year-old unmarried daughter who wants to immigrate as a derivative beneficiary. The priority date is current – in fact it's been current for almost two years.  The daughter will turn 21 in February.  Do you have any reason to worry about her aging-out, as long as she starts the consular processing in her case before her 21st birthday?

Answer: 

It's tempting to think that you don't have to worry about aging out in this situation, because the daughter is initiating the process of becoming an LPR before turning 21.  But the reality is that any preference immigrant needs CSPA protection if she or he will be over age 21 at the time of residency adjudication.

In this case, the daughter will be 21 in three months, and the CSPA will not protect her from aging out because she did not seek to acquire her residency within a year of the priority date being current.  Can anything be done to preserve her F-2A status?  In this case, it looks possible, because the three-month window should be enough time to request expedited case processing, so that the F-2A derivative daughter can go to her consular interview and return to the United States to enter with her immigrant visa before her 21st birthday.  Moral of the story: check whether any children immigrating in the preference categories who are close to aging out are also applying within a year of the priority date being current.  If not, you need to request that application adjudication be expedited so that the beneficiary can receive his or her residency status before turning 21.

By Susan Schreiber

If you represent conditional resident clients, you already know that they need to file either an I-751 joint petition or a waiver in order to retain residency status.  Under INA § 216(c)(4), one category of waiver eligibility applies to conditional residents who establish that their removal will result in extreme hardship. But what is the relevant time period for determining extreme hardship?   Can it include all hardship circumstances, including those arising after the initial two-year conditional residency period?  According to a recent Board of Immigration Appeals decision, the answer to that question is no.  In Matter of Munroe, 26 I&N Dec. 428 (BIA 2014), the Board ruled that the pertinent period for determining whether an individual's removal will result in extreme hardship is the two-year period for which that individual was admitted as a conditional resident. 

How did the Board come to this decision?  In Munroe, the underlying case concerned a respondent who entered the United States in 1997 as a conditional resident.  Shortly thereafter she separated from her U.S citizen spouse, and then divorced him in 1999.  Over a period of time spanning nine years, the respondent submitted three separate I-751 waivers, with the last one submitted in 2008, while the respondent was in removal proceedings, and after she had remarried in 2007.  In this third I-751 application, the respondent sought a waiver based on extreme hardship, largely referencing circumstances relating to separation from her current husband and her three children born between 2001 and 2007.  USCIS denied the waiver, finding that the relevant time period for determining extreme hardship was limited to her conditional residence, which began in 1997 and terminated two years later in 1999.  Upon review, the  immigration judge disagreed with USCIS, finding that the relevant hardship period extended until August 2004, when the respondent's first I-751 waiver application was denied, which allowed for consideration of hardship as it related to separation from the respondent's eldest child.  The Immigration Judge granted the waiver and DHS then appealed the decision to the Board.

On appeal, the Board focused on the language of INA § 216(c)(4), which states that in determining extreme hardship, the DHS should "consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." Rejecting arguments that this language is subject to interpretation, the Board found that the statutory reference to "period of admission" clearly describes a set time frame that corresponds to the two-year period for which the individual was admitted as a conditionalresident alien.  In the Board's analysis, the fact that the DHS has statutory authority to terminate conditional residency early in some circumstances and to extend conditional residency while an I-751 application is pending, doesn't render the statutory language of 216(c)(4) uncertain.  "The period of time for which an alien "was admitted' remains the same 2-year period regardless of any subsequent actions by the USCIS. Therefore the statutory language is unambiguous and we must apply it accordingly."  The Board also noted that it's decision is in accord with decisions in the 6th and 9th circuits that have directly addressed this issue.  Hammad v. Holder, 603 F. 3d 536 (9th Cir. 2010);  Abdulahad v. Holder, 581 F.3d 290 (6th Cir 2009).

Based on the Munroe decision, the end date of the hardship period is the last day of the two-year period of an individual's admission as a conditional permanent resident. 

To read the full Board decision, click here:  http://www.justice.gov/eoir/vll/intdec/vol26/3817.pdf.

Download the PDF of These Talking Points

•  The administration’s decision will improve the lives of nearly 5 million people who are already here, building communities and supporting families.

The changes in immigration policy are wide-reaching, but also fairly complex. There is still a lot that is left to be determined but we do know that over 6 million people will be left out. As people of faith we know that each person matters and is sacred. We cannot have an underclass of people in our midst. We must work for a comprehensive reform of our immigration system.

• Administrative relief is no substitute for legislative reform.

We need a permanent fix to the immigration system that can only be achieved through bi-partisan Congressional action. Only Congress possesses the power to expand the President’s short-term solutions into a long-term immigration policy that is just and humane. We need laws that respect the dignity of the person, protect families, and adequately balance the right of the state to regulate migration against the natural right of an individual to migrate to provide for their family and seek better opportunities. Immigration reform should prioritize due process, offer a path to legalization for those already in the country, and promote humane enforcement that respects the dignity of the person.

• The U.S. immigration system is broken, does not serve the needs of the nation, and demands significant reform.

Current immigration laws do not provide an estimated 11 million undocumented immigrants access to legal status and a means to fully contribute to the American society.

• We have been waiting for common-sense immigration reform for far too long.

As members of faith communities and service providers concerned with the welfare of our neighbors, we can longer wait to end the human suffering caused by our current immigration system, including the separation of families.

• Inthe last six years, the US government has deported over 2 million of our neighbors.

That’s more than 1,000 deportations per day. These deportations have torn apart families and hurt communities.

• This is a matter of faith.

The Catholic Church is rooted in a history of migration. We are an immigrant church that embraces our call to ‘welcome the stranger among us. We are encouraged by Biblical teachings that remind us every human being is made in God’s image and that our treatment of our neighbor is a reflection of God in us.

• President Obama has the legal authority – and moral obligation – to stop separating families and protect undocumented families, within the limits of his authority.

 Every Democratic and Republican president since Dwight Eisenhower has taken executive action on immigration. This is an example of what the American people want from their elected officials — courage and action to solve tough problems. The President has exercised his broad constitutional and legal authority to prioritize the resources allocated by Congress for immigration enforcement. This was a moral decision that all people of faith and good will should support – including our members of Congress.

• We welcomethe end of the so-called “Secure Communities” program.

This was a failed strategy that made people afraid to report crimes and increased racial profiling. We hope that the new Prioritized Enforcement Program will be a model that follows due process and that states and localities will be able to choose whether or not to participate, in order to ensure trust between local police and communities.

In 1990, I was born in Mexico into a staunchly Roman Catholic family. When I was twelve years old, my immediate family illegally migrated to California.  We have lived there ever since.

From an early age I've hoped and dreamed of becoming a Catholic priest. Priesthood was often on my mind and in my prayers.  My Mom used to buy me communion wafers, so I could pretend celebrating Mass with my friends and cousins. The Catholic faith has always been part and parcel of my family's routine life.  Since I was a baby in my Mom's arms, I attended Sunday Mass. My Mom and Dad were always concerned that we had a Christian education.

Being an undocumented immigrant family brought additional family struggles.  Our Catholic faith as supported by our local parish showed me Our Loving Jesus in action. During my school years, I became more and more involved in my Parish, aware that the Lord was calling me to assist others in need.  Fortunately, I had the opportunity to meet some Missionary Servant priests who helped me to discern the Lord's call in my life.   These priests told me about the charism and the history of their Community, and this further prompted my interest.  At this time, I started to realize that the Lord had a special mission just for me. I sought further counsel to confirm exactly what it was.  In Compton, I began volunteering at Sacred Heart Church, which was staffed by the Missionary Servants.  I taught religious education and helped in other ministries. I was blessed with three mentors: Monsignor John S. Woolway, Father John Seymour, S.T, and Margarita Flores, M. Div.

After working in parish ministries for some time, I experienced a religious awakening.  The Good Shepherd really was calling me by name to study for the priesthood.  Who was I to put off The Almighty, so I immediately answered, “Where and when should I begin?”

Due to my illegal status in the U.S I was unable to pursue studies toward the priesthood here. After months of intense personal prayer and family consultation, I decided to leave my family and pursue my priestly calling outside the US.  This was a very difficult decision because I knew I would be barred from entering the U.S for ten years and my family would not be able to travel to see me.

In January 2010, I went to Costa Rica to begin my studies toward the priesthood with the Missionary Servants of the Most Holy Trinity.  There I spent two years and a half studying philosophy and working with the very poor.  I helped provide food and education for destitute communities.  It was an extremely humbling and valuable experience which helped confirm my determination to spend my life in service to others.  In July 2012, I left Costa Rica to enter the S.T. novitiate in Mexico.  The novitiate year is dedicated to prayer, reflection and further discernment. 

After my novitiate year and profession of vows of poverty, chastity and obedience, my Religious Community asked me to continue the theological studies in New Jersey, in order to be closer to my family.  But, as I mentioned before, I was barred from the United States because of my previous unlawful presence.  My Religious Community contacted CLINIC for legal assistance.  Our General Secretary connected me to a CLINIC attorney.  After some weeks of communication by email, in August 2013, the attorney began the Waiver and Student Visa process with the U.S. Embassy in Mexico City.  While I was waiting in Mexico City, I started my studies in theology and I worked with our mission in Chimalhucan, Mexico. My primary ministry in Chimalhucan was visiting families and forming Christian communities.

After months with no word from the U.S. Embassy in Mexico City, my superiors decided to send me to Colombia to continue the theological studies. But a near miracle happened: three days before traveling to Colombia, the U.S Embassy sent me an email asking for my Mexican passport to complete the waiver and visa process. You cannot image my joy and relief. It was an answer to prayer. I’m eternally grateful to my Community and CLINIC.  Without their legal assistance I would not be in the U.S studying theology.  Additionally I was able to travel to California during Spring Break to visit my family after nearly five years. Praise be God!

With sincerely appreciation to my Religious Community and CLINIC,

Br. Ramon Flores, S.T.

By Minyoung Ohm

RIS Staff Attorney

During the summer, I had the privilege of visiting one of CLINIC’s long-time clients, the Congregation of Sisters of Charity of the Incarnate Word, Houston, Texas.  The Congregation provides ministries to people with AIDS, the elderly, orphans and others through education, health care, social justice and literacy work within the United States, as well as Guatemala, El Salvador, Ireland, and Kenya.   I have prepared a number of R-1 petitions and visa applications for the Congregation’s foreign-born Religious Sisters so that they can enter the U.S. to perform ministries and pursue their religious vocation.   

When I arrived at the Congregation’s motherhouse, I was warmly greeted by the Congregation’s general secretary with whom I have been exchanging many emails and phone calls but I had never met face to face.  It was very delightful to speak in person and be introduced to the other members of the Congregation whose names were very familiar to me.  I was invited to have lunch with the general secretary and other Council members of the Congregation.  One of the Council members was a Religious Sister from Guatemala whose face I instantly recognized from the copy of her passport photo that I had in her CLINIC file.

Then I was given a tour of the Congregation’s motherhouse building, its chapel (so rich in history and pleasing to the eye!), the Council members’ offices, and the residence for the religious sisters.  Over the years, I have collected many photos, utility bills, deed, and other documents relating to the Congregation’s motherhouse in order to provide evidence of the Congregation’s bona fide religious activities to the United States Citizenship and Immigration Services (USCIS).  It was fascinating to see the actual building and the grounds, which were more beautiful than I had seen in the pictures.  I also obtained a better understanding of the daily activities for religious sisters who reside there. 

After the tour, I sat down with the Council members to discuss some pending issues regarding R-1 status and permanent residence plans for certain members of the Congregation.  I discussed the increased site visits by USCIS on religious organizations and foreign nationals, and addressed the Congregation’s leader’s concerns and questions regarding these site visits. I was also given several of the Congregation’s newsletters, which contained personal and moving stories of some foreign-born religious sisters who arrived in the U.S. and eventually professed perpetual religious vows with the Congregation.  (I prepared all of their R-1 petitions and visa applications.)

On the returning flight back home, I read these stories with much pleasure and interest.  One story was about a Sister who was born in El Salvador who received the desire to join the religious life at age of 17 and started the religious formation process right after finishing high school.  Another story was about a Kenyan Sister who grew up in the outskirts of Nairobi City but rose to be the first girl to be educated in her village.  When she chose the path of religious vocation, she faced some dubious feelings from her village neighbors who thought that joining a religious life was a waste but she overcame the challenges with prayers.  After reading these stories, I was reminded of the value that CLINIC brings to the religious communities here in the U.S. as well as the religious workers abroad.  I am grateful for the opportunity to serve these religious sisters and for having been a part of their journey. 

An LPR was convicted of a Nevada statute for possession of marihuana and placed into removal proceedings.  He was charged with violating INA § 237(a)(2)(B)(i), which is the ground of deportation for violating any controlled substance law.  That section contains an exception, however, for a “single offense involving possession for one’s own use of thirty grams or less of marihuana.”  The question before the Board was whether the IJ erred in applying the “categorical” approach set forth by the Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013),  which looks at the minimum conduct punishable by the underlying criminal statute, or whether the IJ should have applied a “circumstance-specific” analysis.  The Board found that its prior holding in Matter of Davey, 26 I&N Dec. 37 (BIA 2012), controls and requires the IJ to inquire into the factual circumstances surrounding the crime.  The government still has the burden of establishing that the respondent was convicted of a controlled substance offense and that his offense does not fall within the single possession of 30 grams for personal use exception. In establishing that, the government can offer any evidence that is reliable and probative.  The respondent would then be given an opportunity to rebut or challenge any of that evidence. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014).

The Midwest has a history as a gateway for immigrants even if not as heralded as port cities in the east and west.  Think of Chicago with its diverse ethnic population as early as the late 1800’s, especially among Eastern Europeans, that continues today with the largest Bosnian refugee population in the country.  Think also of Detroit, Motor City, at the turn of the last century when Ford Motor Company attracted immigrant workers from Southern Europe and the Middle East to build the earliest automobiles.  Detroit now has the largest Middle Eastern population in the United States, most recently welcoming tens of thousands of Iraqi refugees.

Indianapolis, albeit smaller than Chicago and Metro Detroit, is another Midwest city with a growing immigrant population.  Catholic Charities of Indianapolis is expanding the city’s welcome for many New Americans.  In recent years, Catholic Charities of Indianapolis has resettled over 500 refugees on an annual basis; people recognized by the U.S. government as requiring safety from persecution in their country of origin.  Other nonprofits in the city are welcoming more refugees, thereby increasing the number and diversity of the population.  In response to crises around the world – whether in Burma, Iraq, Syria, Somalia, or Democratic Republic of Congo - Indianapolis is giving a safe haven and a fresh start to some of the world’s most vulnerable persons.  Indianapolis also has a growing number of other immigrants, particularly Hispanics, who have arrived to join close relatives and work in jobs not easily filled.

While the city prospers with additional young workers paying taxes and refurbishing older homes, there is an accompanying need for affordable immigration legal representation.  This is particularly true for low-income wage earners who too easily fall prey to the wrong type of help by unauthorized practitioners or see highly priced, private attorneys as their only option.

Catholic Charities developed an agency-wide strategic plan that recognized this need.  In 2011, Catholic Legal Immigration Network, Inc. (CLINIC) invited Catholic Charities’ leadership to a one-day seminar on how to start and sustain a charitable-based immigration legal program that would augment its existing and highly successful refugee resettlement program.  Catholic Charities embraced the idea, began to follow CLINIC’s “road map” to build a program and joined CLINIC’s network, becoming one of its 250 affiliates in 46 states and over 330 cities, the largest network of its kind in the country.

CLINIC was able to facilitate Catholic Charities’ program development by raising funds for capacity building from the United States Citizenship and Immigration Services (USCIS) Office of Citizenship.  These funds for naturalization legal services and citizenship preparation classes were aimed at increasing the number of naturalized citizens in underserved communities.  Catholic Charities successfully competed nationally for the two-year funds through CLINIC and began implementing its legal and educational services for aspiring citizens. 

“Becoming an immigration legal representative at a Catholic nonprofit is one of the biggest surprises of my life,” says Tim Winn, Immigration Program Supervisor at Catholic Charities of Indianapolis.  Tim’s academic background prior to joining Catholic Charities was a degree in religious studies and art.  Refugee resettlement seemed like a worthwhile and intriguing job for someone looking to serve others.  “Working for several years with refugees and seeing their many talents but also needs, including legal services to reunite their families and become engaged citizens, inspired me to learn U.S. immigration law and how to be a competent and ethical legal representative.  I love what I do.”   Although Tim doesn’t have a law degree, he is an accredited representative who is authorized to practice immigration law and represent immigrants in administrative proceedings by the Department of Justice’s Board of Immigration Appeals (BIA).

Tim and his colleague, Flor Bickel – a native Spanish speaker who is also a BIA accredited representative – each successfully completed more than 40 hours of CLINIC immigration law and management training.  They were assisted by the talents of two attorneys from Neighborhood Christian Legal Clinic (NCLC) who offered legal supervision and direct services.  In addition, “Having Mike McCarthy as our Volunteer Coordinator has definitely increased our visibility and capacity to serve more people.  Our naturalization workshops joining would-be citizens with trained volunteers to complete Applications for Naturalization have been a big success,” says Tim.  The focus of their efforts is those seeking to become U.S. citizens and reunite with families. This continues to be the backbone of the program’s scope of services, aided by strong community partnerships with NCLC, two Burmese refugee community centers, Catholic parishes, libraries, Indiana University Maurer School of Law and volunteers. 

As Catholic Charities’ expertise and affordable services became more widely known, Flor became full-time, Tim became the Immigration Legal Program Supervisor following completion of his Master’s in Business Administration degree, and Christine Sego Caldwell was hired in 2014 as the program’s first attorney.  A second attorney is expected to be hired in the year.

Increased staff time, broader management and legal knowledge, and new services are capacity building benchmarks for a charitable immigration legal program.  As Tim states, “Legal support is very helpful to me because I run into complicated issues.  CLINIC’s training and technical support quickly help us solve problems and implement proven best practices used by more experienced charitable programs around the country.  With CLINIC’s experts and rich material I feel like I’m on the inside of my profession. I can see how my management of our limited financial resources and staff time have improved and made a positive and long-lasting difference in the lives of our immigrant clients.”

Tim, Flor, Mike and Christine plan to be busy this year helping more young people eligible for Deferred Action for Childhood Arrivals (DACA) – those who qualify for work authorization and relief from deportation because they were brought to the U.S. as minors in the care of their undocumented parents.  Renewal for the two-year status is up for the first time this year and new applicants are welcome to apply, including those who are aging into eligibility.  More students are attending citizenship classes at Level I and graduating into Level II as they ready themselves to take the citizenship test and Oath of Allegiance.  Refugees continue to be served with petitions to USCIS to reunify husbands, wives, and minor children separated by war, genocide, and political upheavals.  Also on the staff’s “to do” list is to prepare for comprehensive immigration reform when Congresses passes a bill that will hopefully make immigration in the U.S. more relevant to the nation’s labor force needs, humanize and add fairness to the system, and grant legal status to an estimated 40,000 undocumented immigrants living in Indianapolis and surrounding cities.

CLINIC is proud of what Catholic Charities of Indianapolis has done in a few, short years.  Positive capacity building outcomes like this one give CLINIC confidence to assist more nonprofits, Catholic and others, to build charitable immigration legal services. 

*Mr. Chenoweth is the Director of CLINIC's Center for Citizenship and Immigrant Communities

Laura Burdick

Syracuse, New York has a long history as an immigrant gateway city, and was home to many immigrants from Italy, Germany, Ireland, Ukraine, and Russia who arrived in the U.S. at the turn of the 19^th century.  More recently, Syracuse, through Catholic Charities and another local resettlement agency, has welcomed thousands of refugees from Burma, Bhutan, Burundi, and many other countries.  About 550 refugees were resettled in Syracuse last year by Catholic Charities alone.  Today, Catholic Charities of Onondaga County (Syracuse) houses its refugee resettlement and immigration program in a center that once served Italian and German youth.

While Catholic Charities’ refugee resettlement services have existed for many years, the immigration legal program is new, and has grown remarkably over the last three years since it was established.  The program now has Board of Immigration Appeals (BIA) recognition, several partially accredited BIA representatives, and a robust, state-funded citizenship initiative offering both legal and educational services.  BIA recognition and accreditation, the Department of Justice’s certification of nonprofit, legal immigration service agencies and staff, is critical for immigration legal programs.

Recognizing an unmet need for charitable legal immigration services in Syracuse, Catholic Charities applied to CLINIC in 2011 for capacity building funds, and was selected to receive a two-year grant.  With this grant, the agency proposed to start a citizenship legal program and a citizenship education program.  CLINIC administered the grant with flow-through funding from the U.S. Citizenship and Immigration Services Office of Citizenship and provided training and technical assistance.

Catholic Charities planned to house the immigration program within the agency’s refugee resettlement program and share some of the staff. The agency needed to apply for BIA recognition. Four staff members, including the program director, were designated to obtain BIA accreditation and began taking the required trainings. 

Catholic Charities already had a good relationship with the Syracuse School District, and planned to recruit students through the schools. Citizenship classes began in January 2012. The agency hired an experienced instructor to conduct the citizenship classes at its office, which is conveniently located in a neighborhood close to where the students live. The agency recruited volunteer tutors to assist with the classes.

At the conclusion of the grant in September 2013, Catholic Charities had well-developed citizenship education and legal services, and had served over 200 clients from 20 countries.  Catholic Charities was able to sustain and grow the legal services through a 2012 grant from the New York State Office for New Americans (ONA) that runs until 2015.  The grant funded Catholic Charities, in partnership with several other local service providers, to create and house a “New Americans Opportunity Center” that provides wrap-around services for immigrant integration. Catholic Charities also received a state grant in September 2012 to provide legal services to Cubans and Haitians.

Today, the legal program is staffed by six BIA accredited representatives, including the program director. Their accreditation greatly improves the agency’s capacity to serve immigration clients who speak these languages.  Staff focuses on assisting clients with citizenship, green cards, and family reunification applications.  Catholic Charities anticipates filing over 200 citizenship applications this year and a similar number of green card applications.  The agency has also made inroads with the immigrant population and is serving increasing numbers of Latino immigrants as word spreads about the immigration services.

The citizenship education program currently offers ongoing citizenship classes five days a week at the Catholic Charities office.  Level 1 and Level 2 classes are offered.  The classes have been taught by the same, experienced instructor since they began, and the instructor obtained BIA accreditation in February 2014. The program utilizes volunteers to provide support services such as child care and tutoring for students who need extra help.

When asked why she comes to work each day, Program Director, Felicia Castricone replies:  “I really admire the refugees for their resilience and strength.”

CLINIC is inspired by the efforts of Catholic Charities’ immigration program and looks forward to its continued growth!

*Laura Burdick is a Field Support Coordinator and manages CLINIC’s National Capacity Building Project

By Tatyana Delgado

The Board of Immigration Appeals (BIA) recently issued a landmark decision that impacts domestic violence victims who are seeking asylum in the United States.  Asylum applicants must show that the persecution they have or will face is on account of one of five protected grounds: race, religion, national origin, political opinion, or membership in a particular social group.  It is the last ground that has received the most interest and litigation.  

In Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” is a particular social group for purposes of obtaining asylum and withholding of removal.  While other domestic violence victims who belong to this particular social group have received asylum in the past, this is the first time that the BIA has issued a binding precedential decision.  To learn more about successful asylum cases involving domestic violence victims, review the Department of Homeland Security’s Supplemental Briefs in Matter of L.R. and Matter of R.A.

In Matter of A-R-C-G- et al., the lead respondent suffered at the hands of her husband while she was living in Guatemala.  On several occasions, the respondent’s husband beat her.  He also broke her nose and raped her.  The respondent contacted the police, but was told they would not get involved in a marital relationship.

The BIA found that the respondent suffered harm that rises to the level of persecution, is a member of a particular social group, and that the persecution was on account of her membership in a particular social group.  The BIA stated that members of the group share a common immutable characteristic, which is gender.  Marital status can also be an immutable characteristic in instances where the person is unable to leave a relationship.  In addition, the BIA found that the group has particularity and is socially distinct.  Social distinction depends on the facts and evidence presented in each case, including evidence related to country conditions.

The BIA remanded the case.  The Immigration Judge must now consider whether the government of Guatemala was unwilling or unable to control the respondent’s husband and issue a decision on her eligibility for asylum.

By Ilissa Mira

Los Angeles County has the highest number of unaccompanied immigrant children placed with sponsors in California.  Legal representation is key to whether these children prevail in immigration court.  For 15 years Esperanza Immigrant Rights Project has worked to ensure that children’s rights are protected.  Esperanza provides community education and direct legal representation to unaccompanied children in the Los Angeles Immigration Court’s jurisdiction and to those in local shelters awaiting reunification with sponsors around the country.  Through their Legal Orientation Programs (LOP) Esperanza helps children and their custodians understand the removal process, their rights under immigration law, and the available forms of immigration relief.  Esperanza also provides direct representation to children in removal proceedings and refers cases for pro bono assistance.

Staff conducts weekly Know Your Rights presentations and individual legal screenings for unaccompanied children housed in shelters and longer term foster care.  For example, Luis is one of these children and hopes to reunite with his aunt in New York.  After a group legal orientation, Luis, aged 14, met with a paralegal to discuss his case.  He looks younger than his age, but has experienced more than any teenager should.  He fled El Salvador because local gangs threatened to kill him if he refused to join.  His abusive father was known to gang members and also targeted.  Luis fears he will be killed if he returns to the violence in El Salvador.  He tries to act tough, but discussing his mother makes him emotional.  “She loves me a lot and I miss her,” he said, crying, “I try to be strong every day.”  As the number of unaccompanied immigrant children increased, so did the pace of the reunification process.  Advocates worry that some children will not be reached through LOP before being released to family or other sponsors across the country.

Without representation, children like Luis struggle to present valid claims in immigration court. The most common remedies for unaccompanied immigrant children are Special Immigrant Juvenile Status (SIJS) and asylum.  Esperanza finds that around 70 percent of the children they encounter qualify for one of those forms of relief.  SIJS is a complex application process requiring two steps.  First, a state court must determine that the child cannot be reunified with one or both parents due to abuse, neglect, or abandonment, and that it is not in the child’s best interest to be returned to his home country.  Second, the immigration application must be submitted to and approved by USCIS.  State court practice varies by jurisdiction and it remains a relatively new area for some courts.  In Los Angeles, family courts in particular may be unfamiliar with the process or reluctant to make findings.

Successful advocacy often requires educating courts about the SIJS process and addressing jurisdictional concerns.  Advocates argue that Congress tasked state juvenile courts with making discrete, factual findings because of their expertise in juvenile matters.  Additionally, state courts do not make immigration determinations.  USCIS ultimately decides whether to grant SIJS and permanent residency.  Esperanza has great success representing children in SIJS cases and continues to pioneer “one-parent” SIJS cases in family court.

Many children that Esperanza serves are survivors of gang-based or domestic violence and are eligible for asylum due to fear of persecution based on certain protected grounds.  Asylum interviews for unaccompanied children are now on an expedited schedule, meaning that children struggle to find legal representation and that attorneys have little time to prepare these cases, which require extensive research and documentation.  Esperanza holds pro se asylum workshops for those who cannot find representation.  During workshops children receive individual assistance with completing asylum applications and preparing for their asylum interview.  Given the high number of children, limited number of attorneys, and the expedited scheduling, it is a final attempt to give children a chance to present their case.

Esperanza remains dedicated to representing vulnerable immigrants with complex cases.  The state of California recently passed legislation to help organizations like Esperanza respond to the increased number of unaccompanied children.  California Senate Bill 873 allocates $3 million to assist nonprofits with experience representing children in removal proceedings, asylum, SIJS, and other common forms of relief.  The legislation also clarifies the state court’s jurisdiction to make the underlying findings that allow USCIS to grant SIJS status.  Advocates hope the new funding will help expand capacity to provide unaccompanied children with crucial legal services.

By Kelly Kidwell Hughes, Advocacy Intern

As migrant children arrived at our southern border, CLINIC, the United States Conference of Catholic Bishops (USCCB), and Catholic Charities USA, sponsors of the 2014 National Migration Conference, brought 400 people to Capitol Hill on July 10 to advocate on behalf of immigrants. Advocacy Day participants met with senators and representatives to share their experiences and call for just immigration policies. The day included 256 scheduled meetings with members of Congress from 40 states. Some participants also had the opportunity to meet with members of Congress in leadership positions, such as House Speaker John Boehner, Rep. Becerra, Rep. Conyers, Rep. Gowdy, and Sen. Franken.

Advocates discussed comprehensive immigration reform, human trafficking, and the needs of refugees. They also addressed the plight of unaccompanied children fleeing violence in Central America.  Advocates urged a compassionate response in line with Catholic teaching, to include:

• Robust funding of services for migrant children and their families
• Addressing the root causes of migration, including poverty and violence
• Fair immigration proceedings that allow children the opportunity to make their claims heard, and
• Placement of families and children in community settings rather than detention.

Participants said the meetings gave them the opportunity to share their views and learn more about the political process.

“It was nice to see part of how [U.S. politics] works and be able to participate in it,” said Clayton Boeyink, who works with Catholic Charities in Des Moines. “We were well-received and had good conversations. I was able to get across what I was hoping to say.”

Advocates also had the opportunity to network with other faith-based service providers. Boeyink appreciated the knowledge, skill, and passion of the other advocates. 

During the afternoon, the Senate Appropriations Committee held a hearing on President Obama’s emergency request for additional funding to address the growing number of children arriving at the border. Many Advocacy Day participants attended the hearing and saw senators in action. Click here for a webcast of the hearing.

If you would like more information on Advocacy Day, contact Allison Posner at 301-565-4831.

By Kelly Kidwell Hughes, Advocacy Intern

Special Immigrant Juvenile Status (SIJS) allows undocumented minors who have suffered abandonment, neglect, or abuse by a parent to become lawful permanent residents.  To qualify, the child must have an order from a juvenile court demonstrating that he or she is dependent on the state and cannot be safely reunited with parents.  Federal law allows children under the age of 21 to qualify, but many potential beneficiaries between the ages of 18 and 21 are left out.  Their state courts only have jurisdiction over children younger than 18, so they cannot obtain the necessary court order to apply to USCIS.

Michelle Mendez, an attorney with Catholic Charities Immigration Legal Services of the Archdiocese of Washington, encountered many Maryland children unable to obtain Special Immigrant Juvenile Status because the state’s juvenile courts did not have jurisdiction over children once they turned 18.  “We found ourselves representing many minors at risk of ‘aging-out’ and then meeting even more minors who had lost the opportunity to obtain the SIJS factual findings predicate order solely because they had reached the age of 18,” Mendez said. To fix the problem, Catholic Charities partnered with various government and non-profit organizations to push for a state bill to expand the jurisdiction of Maryland’s juvenile courts by changing the Maryland Family Law definition of a “child” to include unmarried individuals younger than 21 (rather than 18).

The bill, H.B. 315 was backed by a diverse coalition including the Maryland Legal Aid Bureau, the Maryland Office of the Public Defender, the Homeless Persons Representation Project (HPRP), family law attorneys, and child welfare representatives.  Mendez was able to garner support from diverse allies by portraying the bill a child welfare measure, rather than an immigration bill. “For the Maryland Public Defender, we emphasized the importance of a responsible adult in the lives of teenagers to keep them on the right track,” she said. “For the HPRP, we highlighted the cases where these minors were thrown out of the house once they turned 18. Then, we explained that the bill would help curb homelessness by allowing a judge to order a guardian or custodial parent to be responsible for the minor until that minor turns 21. This would allow teenagers more time to learn English, integrate, become acquainted with American society and, as a result, decrease their potential for homelessness.”

The bill passed in Maryland’s legislature without any opposing testimony, was signed into law in April, and goes into effect in October. New York has passed a similar bill, and other states are considering the issue. For advocates who would like to champion similar legislation, Mendez advises partnering with a legislator who has a track record of success and the respect of peers. “Keep your efforts as low-key as possible, and do not involve the media or any group who will divulge your bill to a wider audience,” she said. “Less is more with this type of bill. Many of us will want to reach out to traditional immigration allies, but those allies will often bring with them anti-immigration opposition.” Mendez also said it was important to carefully select individuals to testify in support of the bill.  “They should represent different ethnic backgrounds to note the diversity in the class of beneficiaries,” she said. “We had a uniformed Marine Sergeant testify who, to no avail, sought to be the guardian of his 20-year-old sister who survived the earthquake in Haiti but was orphaned as a result.”

If you would like more information about seeking Special Immigrant Juvenile Status, visit USCIS’s website about the program. USCIS has also released a new resource about Special Immigrant Juvenile Status specifically for juvenile courts.  For advocacy strategy assistance on this or any other state measure relating to immigration, including the development of resources specific to your state or campaign, please reach out to CLINIC’s State and Local Advocacy Attorney Jen Riddle at (301) 565-4807.

Redirect To

By Peggy Gleason

Regardless of what legalization program is eventually enacted and implemented, applicants will need to submit supporting documents to establish that they qualify. What documents are likely to be needed? What is the best way to organize them? How should clients now be counseled on ways to gather these documents? By looking at the prior legalization under the Immigration Reform and Control Act (IRCA) of 1986, and at the current proposals, we can estimate what may be required once a new legalization program is enacted.

• Basic Elements. Most legalization proposals require proof of identity, continuous physical presence/ residence in the United States, and employment history. The time period over which applicants need to prove these elements will depend on the final version of the statute. Date and manner of entry to the United States are also likely to be facts that applicants will have to establish.
• Warning. While continuing to plan for the day when legalization is implemented, it is necessary to warn clients once again that no legalization exists at this moment. They should not pay fees to anyone to file an application. Nonetheless, clients
  can be advised that should legalization pass, it is best to be prepared with an organized set of documents.
• Save that Piece of Paper. Immigration practitioners are accustomed to helping their clients gather documentation since most immigration applications require supporting proof. Many immigrants have already learned to become hoarders of documentary records, as well. They have learned through personal experience that the Immigration Service or some other government entity may ask them to prove where they have been during a given period time, what they have been doing, and whether they paid taxes while doing it. Those who have not learned this yet need to be counseled.

Download the Full Report (PDF)

Back to CLINIC's CIR Resource Page

By Debbie Smith

Following the implementation of the November 15, 2013 USCIS memo on parole in place, parole applications for the parents, spouses, and children of veterans and active military members have increased dramatically.  In addition to providing authorization to remain in the United States, parole in place offers the parolee the opportunity to adjust status under INA § 245(a), if otherwise eligible.  In a CLINIC newsletter earlier this year, we discussed the requirements and procedure for parole in place requests based on the USCIS memo.  Six months after issuance of the memo, it is useful to examine several applications for parole in place and consider the fact scenarios and forms of evidence submitted as part of a successful request.

Pre-Memo Parole Request

Before the November 15, 2013 memo established USCIS policy on parole in place for the close family of military members, there was an informal parole in place process that DHS Secretary Janet Napolitano referenced in her August 30, 2010 letter to Congressperson Zoe Lofgren.  Unfortunately, the pre-memo policy did not directly address whether parole in place protection was available to the family of military veterans.

In August 2013, several months before the November 15th memo, Vimala Mangoli, an attorney at Catholic Charities Diocese of Palm Beach, Florida, filed a request for parole in place for the spouse of a disabled veteran.  Vimala's case involved a noncitizen spouse who entered the United States without inspection and married a U.S. army veteran.  The U.S. citizen spouse had served in the U.S. Army for 18 years, was in his late 50's, and was 80 percent disabled. 

Analogizing the waiver standard to this parole in place application, Vimala presented evidence of the medical and psychological hardship that the veteran spouse would face if the noncitizen were not permitted to remain with him in the United States.  The documents submitted included medical records demonstrating the veteran's disability, and declarations of the veteran, the applicant, and other family members stating that the applicant was the veteran's caregiver and provided crucial nursing care to the veteran spouse. In addition, Vimala provided evidence that the applicant had no criminal record, was active in community affairs, and was a volunteer at the local church. 

Because the facts of the case involved a veteran, not an active military member, Vimala requested clarification of this issue.  The November 15th memo incorporated family members of veterans in the parole in place policy and Vimala's client was granted parole in place following the issuance of the memo. 

Post-Memo Parole Request, Air Force Service Member

After implementation of the formal parole in place policy on November 15th, Sandra Becerra, immigration counselor at Catholic Charities CYO in San Mateo, California, has filed several successful parole in place applications.  Her most recent request involved the undocumented mother of an active duty member of the U.S. Air Force.  The U.S. citizen military member, a 23-year-old woman who enlisted in the military at age 18, is stationed in Germany and often transports wounded soldiers back to Germany from Afghanistan. While married to another active duty U.S. military member, she relies on her mother for assistance with medical issues, emotional support, and financial problems.  The military member also experiences heightened stress levels due to the fear that her mother will be removed from the United States.

In support of the parole in place application, Sandra submitted declarations from the applicant and her military member daughter and son-in-law, medical records related to the daughter's health problems, support letters from family and friends concerning the applicant's good moral character, and contributions to the community.  Additional evidence included U.S. State Department reports regarding safety concerns in Mexico and a copy of the November 15th memo.

The parole application was filed by mail with the Field Office Director on March 25, 2014. The integrated cover letter and exhibit list was five pages long. In response to the application, USCIS generated a Form I-797C indicating that the case had been received on April 9, 2014.  A biometrics appointment was scheduled and completed, and the parole request was approved on April 29, 2014.  The USCIS approval letter contained information regarding the need to schedule an INFOPASS in order to pick-up the parole document.  The applicant obtained her parole document on May 8, 2014.

Post-Memo Parole Request, U.S. Marine

In another parole in place application filed on January 13, 2014, Sandra requested parole in place for the undocumented mother of an 18-year-old young man, a U.S. Marine.  The military member enlisted in the Marines at age 17 and depended on his mother's support to meet the challenges of military service.  His mother cares for his seven-year-old U.S. citizen brother and lives with his 21-year-old sister.  Worried that his mother would be deported to the drug-related violence in Michoacan, Mexico, the he feared that his job performance in the Marines would be affected. 

The evidence in support of the parole application consisted of declarations of the military member and his mother, birth certificates of the applicant's U.S. citizen children, letters attesting to the good moral character and community involvement of the applicant, evidence that the applicant was a victim of crime, and reports concerning the conditions of drug violence in the applicant's home state of Michoacan.  The application was approved on February 12, 2014, less than one month after it was filed.

Post-Memo Parole Request, U.S. Army Veteran

On December 30, 2013, Sandra filed an application for parole in place for the undocumented spouse of a U.S. Army veteran who served in the army for three years and was deployed to Iraq.  While in Iraq he was exposed to small arms fire, which, along with other serious combat experiences, resulted in Posttraumatic Stress Disorder (PTSD).  He was honorably discharged, but still suffers from anxiety and hearing and memory loss.  The veteran's spouse is actively involved in assisting her husband and coping with his PTSD.  Having been a couple for more than ten years, the veteran counts on his wife to care for their two young children, manage the family finances, and support his rehabilitation.

The evidence provided in conjunction with the parole application included declarations of the veteran and the applicant, birth certificates of the couple's children, proof of the receipt of veterans benefits, a letter from the a Veterans Administration support center, a letter from a clinical psychologist at the Veterans Administration, a letter from the veteran's employer, information about PTSD, and a report from the Department of State concerning the dangers of travel to Mexico.  The parole application was approved on February 12, 2014 and an application for adjustment of status was filed shortly afterward.  An adjustment interview has been scheduled for June 9, 2014.

Parole in Place Adjudications

The discretionary, case-by-case adjudication process requires representatives to fully document the parole request.  The well-prepared parole applications that Vimala and Sandra submitted resulted in grants of parole.  As the parole in place program continues, we will be able to evaluate how much documentation is enough.

Questions remain regarding whether the parole in place policy will include the widows and surviving relatives of U.S. military members.  While the parole in place memo does not expressly include family members in this situation, family members who would otherwise be eligible for adjustment of status as a widow or 204(l) beneficiary should not be barred from this parole program.

By Laura Burdick

CLINIC has unparalleled success in creating charitable immigration legal programs.  These programs help meet the current need for services in their communities, and will help meet the much greater, anticipated need in the future when comprehensive immigration reform passes. 

One example of CLINIC’s work in this area is its national capacity building project funded by the U.S. Citizenship and Immigration Services (USCIS) Office of Citizenship.  The goal of this two-year project concluded in December 2013, was to build the long-term capacity of local affiliate agencies to provide high quality, comprehensive citizenship preparation services to Lawful Permanent Residents (LPRs). Through this project, CLINIC provided technical assistance and funding to four local affiliate agencies to establish new programs in English as a Second Language (ESL)/citizenship education and/or naturalization application assistance.  The four local agencies were Catholic Charities of Indianapolis, Ind; Catholic Charities of Los Angeles, Calif.; Catholic Services of Syracuse, N.Y.; and Catholic Charities of Worcester, Mass.

CLINIC conducted a formal program evaluation, analyzing the effectiveness of the capacity building and technical assistance activities and the gains achieved by the local affiliate agencies. The evaluation noted that all four of CLINIC’s local affiliate agencies are now authorized to provide immigration legal services and all are staffed by Board of Immigration Appeals (BIA) accredited representatives. Through this project, CLINIC helped 12 staff at three agencies obtain accreditation (three applications are still pending but are expected to be approved shortly).  All four programs now have well-developed, sustainable citizenship education and legal programs that meet the benchmarks identified by CLINIC for quality and professionalism.

Many of the clients served by this project were refugees or immigrants who have special challenges in the naturalization process such as low income or low levels of literacy and formal education. To date, CLINIC’s local affiliate agencies provided citizenship education services to 952 students (86% of their collective goal of 1,110 students) and prepared and submitted 1,288 citizenship applications (125% of their collective goal of 1,030 applications).  Furthermore, 873lawful permanent residents (LPRs) successfully naturalized under this project, and the overall pass rate across all four sites on the citizenship test was 94%. Collectively, the project served LPRs from more than 50 countries, with the highest numbers from Mexico, Burma, El Salvador, Guatemala, and Liberia.

CLINIC greatly appreciates the Office of Citizenship’s generous support for this project.  We hope to have more opportunities in the future to do naturalization capacity building work and to apply the promising practices and lessons learned in this project.

For more outcomes from the Citizenship and Integration National Capacity Building Project and resources for enhanced program management, visit:  https://cliniclegal.org/about-us/programs/center-citizenship-and-immigrant-communities/citizenship-and-integration-national

*Laura Burdick is a Field Support Coordinator and manages CLINIC’s National Capacity Building Project

By Jack Holmgren

The Los Angeles Public Library (LAPL) has created Citizenship Corners in all of its 70+ branches.  These are special display areas in the library packed with United States Citizenship and Immigration Services handouts and information on the citizenship process as well as other material to help people apply.  Responding to the success of this initiative, LAPL staff are taking a serious look at offering assistance with orientation and screening for citizenship.  After participating in a statewide conference for non-traditional immigration legal service partners in Fresno this July, LAPL staff met with Martin Gauto, Field Support Coordinator for Southern California and Jack Holmgren, California Legalization Director, to begin planning this next step.  LAPL is inspired by other libraries such as the Hartford, CT library that have received Board of Immigration Appeals Recognition and Accreditation.  CLINIC is working hard to bring new players into the immigration and naturalization service mix to supplement the substantial but inadequate resources that exist now.  Current Deferred Action for Childhood Arrivals (DACA) and naturalization demand require additional trusted actors in the community to provide services and the local library is an obvious example.

*Pictured above (left to right):  Cheryl Collins, Director, Branch Library Services, Joyce Cooper, Senior Librarian, Martin Gauto, CLINIC Field Support Coordinator, and Melissa Potter, Director of Adult Services

*Jack Holmgren is California Legalization Director at the Catholic Legal Immigration Network, Inc. (CLINIC)

By: Megan S. Turngren

With multiple agencies issuing different immigration paperwork for the R-1 process, it can often be difficult to understand the importance of each document.  However, even though it may seem complicated, it is always very important to note the expiration dates of the I-129 approval notice, the R-1 visa, and the I-94.  In many cases, these three items will each have different expiration dates.  This discrepancy is due to the fact that each of these documents is issued by a different government agency. 

The R-1 process begins by filing an I-129 petition with the United States Citizenship and Immigration Services (USCIS).  For a religious worker, the immigration process always begins with USCIS.  Once this petition is approved, a foreign national is issued an approval notice. 

Then, the foreign national will take this approval notice, along with other supporting documentation, to a visa interview at a consulate outside the United States.  The United States consulates and embassies around the world are actually operated by the Department of State (DOS), which is a separate section of the U.S. government. 

When the visa is approved, there is often confusion regarding the expiration date of the visa.  Most people assume that the visa would be valid for the entire time period of the I-129 approval notice.  However, since these two steps are done by different government agencies, there is no guarantee that the visa will be valid for the entire time period issued in the approval notice.

The actual expiration date of the visa is determined by the Department of State’s visa reciprocity schedule.  The reciprocity schedule is in place to provide similar treatment for foreign nationals coming to the United States as U.S. citizens are granted when they travel abroad.  This means that the fee and time period authorized for a foreign national to obtain an R-1 visa should be similar to that offered to a U.S. citizen religious worker traveling to the foreign national’s country of citizenship. 

It is important to remember that the visa reciprocity is based upon the foreign national’s country of citizenship.  The visa time period does not change based upon where the foreign national applies for a visa.  For example, Mexican nationals are only issued R-1 visas for one year.  If a Mexican national applies for an R-1 visa in Canada, he or she will still only be issued a visa for one year.  The question is not where the visa is applied for but where the foreign national holds citizenship. 

Then, after entering the United States, the foreign national will be issued an electronic I-94 by Customs and Border Protection (CBP).  This is the third government agency involved in the religious worker’s journey to the United States.  The I-94 issued may have a separate expiration date from both the I-129 approval notice and visa. 

However, the I-94 should be issued for at least as long as the I-129 approval notice.  Sometimes, this can create confusion because a CBP worker may only issue an I-94 through the expiration of the visa.  Again, while many are allowed a R-1 visa for the full 30 months, some foreign nationals are issued shorter visas.  This means that a Mexican national could potentially be issued an I-94 that is only valid for one year due to the expiration date on his or her visa. 

In the event that the I-94 is issued for a shorter period of time than the initial I-129 approval notice, the foreign national should make plans to immediately visit a CBP Deferred Inspection Site to have the I-94 corrected.  It is important to check the hours and location for the individual offices on the CBP website.  Also, it is a good practice to call ahead to ask if there are specific times when a person can come to have an I-94 amended.  This will help to prevent a wasted trip to the local office.   

Please remember that it is important to keep track of the expiration dates for both the visa and the I-94.  The two items do not serve the same purpose and are not interchangeable.  The visa allows a foreign national to enter the United States.  The I-94 actually serves as proof that the foreign national is in lawful R-1 status.  If a nonimmigrant religious worker (“R-1”) leaves the United States, he or she cannot reenter without a valid visa.  Alternatively, even if a foreign national has a visa that is valid for several years, he or she can only legally remain in the United States through the expiration date of the I-94.  However, this issue comes up more frequently with visitors (“B-1 / B-2”) than it does with religious workers (“R-1”).

If you are unsure about the expiration dates of your immigration paperwork, we are happy to provide guidance.  Please contact Religious Immigration Services to set up a consultation so that we can answer your questions regarding these important expiration dates and how they can affect you.

In order to determine the visa reciprocity schedule for each country, please visit the Department of State’s visa reciprocity website.  This link provides information regarding the fees and the time period allowed for different types of visas. 

For information regarding deferred inspection, including a list of deferred inspection sites, please visit the Customs and Border Protection website.

If you represent U visa and U status applicants, you already know that immigration judges have no jurisdiction over applications for U status or for applications for adjustment of status under INA § 245(m).  By statute, USCIS has exclusive jurisdiction over theses applications, including waivers of inadmissibility under INA § 212(d)(14), the waiver provision that exclusively applies to the U status applicants.

A recent decision in the 7th Circuit, L.D.G. v. Holder, No. 13-1000 , (7th Cir. 2014), opens the door for immigration judge jurisdiction over non-immigrants waivers under INA § 212(d)(3).  In L.D.G., a respondent in removal proceedings sought a continuance while she pursued U status. Because the applicant was also inadmissible on multiple bases, including crime-based inadmissibility, she filed an application for a waiver, which was denied by USCIS, resulting in the denial of U status.  The respondent then asked the immigration judge to independently consider her application for a waiver of inadmissibility and the judge determined that he lacked jurisdiction to do so.  On appeal, the Board upheld the decision of the immigration judge, and L.D.G. appealed to the Seventh Circuit.

The court's decision notes that there are two inadmissibility waiver provisions under INA § 212(d) that are potentially available to U status applicants and only one of them limits jurisdiction to USCIS.  By statute, only USCIS may grant the special waiver under § 212(d)(14) available to U applicants, but the inadmissibility waiver at § 212(d)(3)(A) vests the authority to waive inadmissibility to the Attorney General, which includes immigration court as part of the Department of Justice.  Reviewing the statutory language, the court concluded that 212(d)(14) and 212(d)(3)(A) waivers "can and do co-exist, and...the IJ has jurisdiction to grant a waiver of inadmissibility to a U visa applicant..."  As a result, the court remanded the case back to the IJ to consider the respondent's application for a waiver.

By Debbie Smith

There have been significant changes to and delays in the processing of Freedom of Information Act (FOIA) requests at the three DHS sub-agencies over the past months.  On March 12, 2014, USCIS and ICE implemented an online FOIA request system, joining CBP in offering a web-based FOIA procedure.  The online request system is intended to improve the FOIA processing.  Nonetheless, the online CBP FOIA procedure continues to experience the same serious delays that plagued the paper-filed FOIA process.

Benefit of FOIA

The Freedom of Information Act, 5 USC § 552, generally provides that any person has the right to request access to federal agency records or information except to the extent the records are protected from disclosure by any of nine exemptions contained in the law or by one of three special law enforcement record exclusions.  FOIA requests provide a mechanism to obtain individual immigration case files and offer one of the few means of discovering vital information about previous immigration applications, immigration arrests, orders of removal, and other immigration-related information.  However, lengthy delays in processing CBP FOIA requests have harmed noncitizens seeking to determine whether a CBP stop was an expedited removal or a turn-around at the border.

New USCIS and ICE Online FOIA Requests

The March 2014 DHS announcement provides a link to the DHS FOIA request submission form.[1] The submission form is relatively short and contains seven basic questions.  In the first section of the request, the section called "DHS Component," a drop-down menu asks whether the FOIA request is directed to USCIS, ICE, or another DHS sub-agency.  The "Contact Information" portion of the request asks for information regarding the person making the FOIA submission, including information regarding whether the requester is asking for his/her own records.  If the request is made by the individual seeking his/her own records, the requester must declare under penalty of perjury that the information is correct and provide an electronic signature.

In the "Description" section, the requester must describe the records and provide the name, A-number, and date of birth of the individual whose records are sought.  The "Agreement to Pay" section asks for the amount of fees that the requester is willing to pay.  In the "Requester Category" portion of the submission, the requester must identify whether he/she is seeking information for personal use or whether he/she has an institutional affiliation, such as a representative of a news media.  Most FOIA requests will be submitted on the basis of a request for information for personal use.  If the requester is seeking a fee waiver, an explanation of the fee waiver is required in the "Fee Waiver" section.  Finally, in the "Expedite Processing" section of the form, the requester may request expedited processing based on one of four possible reasons.  

The online FOIA submission form does not contain a place to attach a G-28.  The Assistant Center Director for the USCIS FOIA Division indicated that DHS may add the capacity to up-load a G-28 and other forms to the FOIA online submission at a later date.  For now, an attorney or accredited representative seeking a document on behalf of a client must use the existing FOIA submission form and USCIS may notify the representative if other information is needed.

USCBP FOIA Processing Delays

In a March 6, 2014 AILA Liaison call with CBP, the agency stated that the current processing time for a FOIA request is 10 to 12 months.  The CBP website includes a link to check the status of previously submitted FOIA request.  New FOIA requests may be submitted online. [2]

Although federal agencies are required to respond to a FOIA request within 20business days,practitioners report that it is virtually impossible to obtain a timely response to a CBP FOIA request.  These unreasonable delays affect potential applicants for adjustment of status, consular processing, and provisional waivers because they must determine the nature of a CBP stop before submitting an application.

A requester has the right to file an administrative appeal for USCBP's failure to respond to a FOIA request. The FOIA appeal may be submitted online or by filing an appeal at:  FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, Washington, D.C. 20229.

US-VISIT FOIA Request

Another avenue for obtaining information regarding immigration arrests at the border is through a FOIA to US-VISIT, currently called OBIM.  In order to obtain information from US-VISIT, the individual should complete a fingerprint card, G-28, Form G-639, and include the individual's name, date of birth, country of nationality, and A-number and Social Security number, if applicable.  This information should be sent to OBIM FOIA, 245 Murray Lane, SW, Washington, DC 20598-0628.

Tracking FOIA Delays

It is important to track cases where DHS does not timely respond to FOIA requests.  When you submit a FOIA, whether an online or a paper-filed FOIA, DHS will issue a case number.  Print a copy of the online FOIA and the case number you receive upon filing.  One way to organize your FOIA requests is to keep an additional copy of the request and case number in a separate FOIA file by filing date.  If you file an appeal of the FOIA, keep a copy of the appeal also.  Several immigrants’ rights organizations are concerned about the significant delays in CBP FOIA applications and are interested in tracking these delays for possible litigation.

[1] http://www.dhs.gov/dhs-foia-request-submission-form.

[2] https://foiaonline.regulations.gov/foia/action/public/request/publicPreCreate