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DACA Processing Delays and Tips for Escalating Cases

In August 2016, USCIS announced certain Deferred Action for Childhood Arrival (DACA) cases filed between February 14, 2016 and May 14, 2016 have been delayed due to technical issues. USCIS officials advised these cases were placed on temporary hold while the technical issues were resolved. Case processing has now been fully restored. However, CLINIC has received dozens of reports of cases impacted by the processing delays, many resulting in lapses of Deferred Action’s protection from deportation and work authorization. Further, CLINIC received reports from representatives about issues escalating cases through USCIS’ National Customer Service Center. We have escalated the reported cases and customer service issues with USCIS.

Last week, USCIS updated its DACA Renewals page with new language and instructions for DACA recipients to guide their inquiries to the Online form at the Customer Contact Center. The posting reads:

Sept. 12, 2016 Update: USCIS’ current goal is to process DACA renewal requests within 120 days. If your renewal request has been pending more than 105 days and you have not heard from us, please feel free to contact us. Please contact us through the USCIS Customer Contact Center or by sending a message from your USCIS online account inbox.

 

Case Escalation

We outline the steps for case escalation, which can be used for any DACA case that has been pending for over 105 days, and offer tips below.

  1. Check the status of your client’s case (both the I-821D and I-765) via the online case status system: egov.uscis.gov/casestatus/landing.do.
     
  2. If the case has been pending for over 105 days, call the National Customer Service Center at 1-800-375-5283 using the prompts provided below:
    • For pending DACA cases:
      • Press 1 for English or 2 for Spanish;
      • Then press 2 for latest information on pending case;
      • Then press 1 to enter your receipt number;
      • Then after getting the status of your case you can choose 3 to talk to a Customer Service Representative.
    • For online queries, submit to the Customer Contact Center at: my.uscis.gov/account/needhelp.
    • CLINIC’s Tips on contacting the NCSC can be found at: cliniclegal.org/resources/articles-clinic/advocates-corner-tips-contacting-uscis. Please be certain to prepare before your call by having all the case details on hand and take notes during the call. Important items to note are call date and time, name or ID number for the USCIS Information Officer, and the service request number (SRMT).
  3. Let CLINIC know about your delay. The more information we have, the stronger a case we can make with USCIS.

 

CLINIC Affiliates: We can help!

If you are a CLINIC affiliate, use our webform to submit your problem to our advocacy department. We may be able to assist you individually.  If your client is in danger of losing their job due to a processing delay, please contact CLINIC’s advocacy department at Advocacy@cliniclegal.org.

 

Other tips on processing delays and escalating cases

File early! USCIS currently allows applicants for renewal to file within 150 -120 days of their DACA expiration date. CLINIC strongly recommends filing the renewal application as soon as possible within this timeframe.

Know before you file. Consult with your client before filing the renewal application to identify factors that may lead to delays in processing. Such factors include new criminal background issues such as an arrest or conviction that occurred after the initial DACA was approved and travel abroad on Advance Parole. If your client meets one of these factors, it will be important to file as early as possible (150 days before expiration) and inform your client that their case may be delayed.

Report Your Case Issues and Seek Assistance. If you have tried to escalate your case with USCIS, but have not seen progress, you may contact the CIS Ombudsman’s office to request assistance.

  1. Review Pre-submission Checklist
  2. Submit an electronic Form DHS-7001 through Ombudsman Case Assistance Online. When you submit your case assistance request, you should include as much detail as possible about your efforts to resolve the case with USCIS.
  3. The Ombudsman’s office automatically assigns a case number once submission has been completed with an acknowledgement email sent to the e-mail address provided on the form.

Don’t wait to escalate. Use your case management system or the USCIS case system to track cases and monitor the status of your clients’ pending cases. If the case is pending for 105 days, we recommend that you contact USCIS right away. Don’t wait to inquire on the day before your client’s EAD is about to expire.

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One year of CARA Pro Bono Project, thousands helped

“Women have suffered through so much but still smile. If you show them love, they show it back.”

Volunteer, CARA Family Detention Pro Bono Project

 

Spring 2016 marked the one-year anniversary of the CARA Family Detention Pro Bono Project with some impressive data to add a bit of hope to the still steady flow of immigrants across the border.

The project’s one-year statistics paint a powerful picture of the work being done by volunteers and the limited formal staff at CARA.

As the U.S. enters its third summer in which unusually high numbers of Central American families are crossing the border in search of safety, here are some stats that show how CARA has made a difference:

  • More than 8,000 families received help from a CARA volunteer attorney in starting the process of seeking asylum.
  • Of the families seen by CARA volunteers at the South Texas Family Detention Center at Dilley, Texas, 99 percent were released to their loved ones, while their cases work through the asylum process.
  • More than 700 lawyers, paralegals, translators, clergy, teachers, nurses and social workers volunteered their time at Dilley.

The project was born in response to a growing humanitarian crisis that erupted in 2014.

Amid a dramatic increase in the number of women and children arriving at the border from El Salvador, Honduras and Guatemala in 2014, Immigration and Customs Enforcement began putting families into detention centers located far from their U.S.-based families and far from towns where they might find lawyers to help.

In a little more than a year, hundreds of volunteers – attorneys, translators, teachers, social workers, medical professionals and others – have helped thousands of families begin the process of seeking asylum. The CARA staff and volunteers have also formally challenged the conditions at the detention centers, from inadequate medical care to coercion and lack of appropriate language services.

In addition, CARA staff and volunteers taught thousands of women about their legal rights and obligations, empowering them to advocate on their own behalf. In collaboration with the sponsoring organizations, CARA kept up public pressure against family detention. Regular news coverage about the families and events such as an Easter Monday prayer rally at the White House helped ensure the families in detention are not forgotten.

Volunteers are always needed to continue CARA’s work. To learn more, to find out how to donate or to make arrangements to volunteer, visit cliniclegal.org/CARA.

 

CARA is a joint project of CLINIC, the American Immigration Council, the Refugee and Immigrant Center for Education and Legal Services and the American Immigration Lawyers Association.

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Religious Workers to Face Significant Delays in Permanent Resident Processing

Miguel Naranjo

Miguel Naranjo, director of CLINIC’s Religious Immigration Service, has written a short analysis of the implications of the State Department’s May Visa Bulletin, released on April 12. 

International religious workers in the U.S. and abroad who are in the process of applying for permanent residence may experience significant case processing delays in the next several months, according to the State Department’s Visa Bulletin for May 2016.

In particular, nationals from El Salvador, Guatemala and Honduras may experience processing delays of their adjustment of status applications (permanent residence applications) after May 1, 2016. The bulletin reflected a retrogression of the priority dates for religious workers from those countries, back to January 2010.  United States Citizenship and Immigration Service will shortly announce the deadline for filing adjustment of status applications for people from those countries.

The number of religious worker immigrant visas (for certain countries) allowed under immigration laws, known as Certain Special Immigrants, has been nearly reached for this fiscal year. When the number is reached, the government cannot accept new applications for permanent residence. Applications currently pending will be placed on hold.

The Visa Bulletin also suggests that any forward movement on the priority dates is unlikely for the remainder of this year. Also, although the delay referenced in the bulletin is limited to the countries above, there is a high probability that India and Mexico will also be added to the list in the next several months. Thus, nationals from those countries may soon face similar restrictions.

While there has not been any significant increased demand for religious worker visas (R-1 visas or religious worker immigrant visas), the category Certain Special Immigrants also includes Special Immigrant Juveniles. The Visa Bulletin figures reflect an extremely high demand from juvenile applicants for permanent residence from El Salvador, Guatemala and Honduras as a contributing factor.

The delay will have a profound effect on international religious workers seeking permanent residence in the U.S. In addition, the situation compounds the hardship for religious worker “non-ministers” who are facing an end of their permanent residence program on Sept. 30, due to sunset provisions in the legislation, unless the program is extended by Congress.

At this point we cannot predict how long the delays will remain in place and if other countries will be added. We understand the hardship and difficulty this creates for your organization, your religious workers and the community that relies on their ministry and work. We know you will have a lot of questions. We are doing everything possible to address the matter within CLINIC’s Religious Immigration Services section and with the assistance of our Advocacy staff.

Finally, this does NOT change the R-1 Visa program. The R-1 Visa is separate from permanent residence and you are still able to sponsor religious workers for R-1 visas. As always, we greatly appreciate your support and we will work diligently to address the situation.

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Surge in SIJS Approvals Creates Backlog at Adjustment Stage

CLINIC’s Training and Legal Support staff has written a short analysis of the potential implications for your clients of the State Department’s May Visa Bulletin, released on April 12.

The State Department’s May Visa Bulletin gives a “final action date” of Jan. 1, 2010, in the EB-4 category for applicants from El Salvador, Guatemala and Honduras.

The bulletin said this is due to an increase in the number of recipients of Special Immigrant Juvenile Status who apply for adjustment of status. The bulletin also said that while State cannot determine yet for certain, there likely will not be any forward movement in the category for the remainder of the fiscal year.

SIJS is an immigration benefit given to children who have suffered abuse, abandonment or neglect by one or both parents. It provides a pathway to lawful permanent residence, pursuant to INA § 245(h). Children who have been approved for SIJS are able to take the second step and apply for adjustment of status once their priority date (the date they filed the I-360 petition) becomes current.

The availability of the documents is determined by looking at the fourth preference employment-based category (EB-4) in the monthly Visa Bulletin. Only about 10,000 visas are available in this category annually. Priority dates for this category have generally been “current,” or available, which allowed for the SIJS recipient to file for adjustment of status without any delay.

But given that the annual quota is likely to be reached before the end of the fiscal year, State set a cut-off date for SIJS recipients from El Salvador, Guatemala and Honduras who are seeking permanent resident status. SIJS recipients from other countries are not affected by next month’s cut-off dates, nor are people from those three countries whose adjustment applications are adjudicated this month.

Chart A in the Visa Bulletin, Application Final Action Dates for Employment-Based Preference Cases, shows whether a visa is available for a certain preference category for applicants from certain countries. If the category is not current, only applicants whose priority dates were before the date in the Visa Bulletin can be issued an immigrant visa, or in this case granted adjustment of status.

Chart B, Dates for Filing of Employment-Based Visa Applications, shows when people may apply for adjustment of status in a particular preference category. Applicants are eligible to apply for such auxiliary benefits as employment authorization and advance parole. Chart B “application filing dates” for the EB-4 category continue to be current for the month of May in all chargeability areas and for nationals of all countries.

But each month USCIS must decide whether potential applicants may rely on Chart B for filing purposes. USCIS has yet to say whether potential applicants may rely on Chart B numbers for the month of May. If it is allowed, SIJS recipients from El Salvador, Guatemala and Honduras, as well as those from other countries, would still be allowed to apply for adjustment of status and receive work authorization. But final approval of permanent residence for nationals from those three countries could not occur until their priority date in Chart A becomes current.

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CLINIC’s Comments on Immigration Forms and Regulations

N-400 (Application for Naturalization Form)

On November 11, 2015, CLINIC submitted comments to the U.S. Citizenship and Immigration Services (USCIS) in response to its proposals to change the Application for Naturalization Form (N-400) and related documents. CLINIC’s Advocacy and Capacity Building teams worked closely together to analyze and provide constructive feedback on the lengthy list of items set forth by USCIS for comment, including Form N-400, Form N-400 Instructions, guidance to the public about the naturalization process and requirements, and N-400 Online Form and process. CLINIC’s Advocacy team also reached out to affiliates to raise awareness of the proposed changes, listen to concerns about the current process, and to further our understanding of the impact of the proposed changes in the field.  CLINIC’s comments acknowledge the challenges faced by the 8.8 million immigrants living in the United States who are eligible for naturalization but have not yet applied. Our comments also raise up concerns from practitioners in the field who regularly provide direct services, naturalization workshops, and citizenship preparation.

While CLINIC applauded certain initiatives by the USCIS to address barriers for naturalization, including the implementation of credit card processing for payment of the naturalization fee, CLINIC’s comments mainly provided constructive feedback on the following:

  • Form length – CLINIC opposed the increased length of the form to 22 pages. CLINIC provided several recommendations to USCIS that would significantly reduce the length of the form while maintaining the integrity of the form and adjudicatory process.
  • Collection of Third Party Data – CLINIC opposed the collection of data through the proposed Form N-400 that is not directly connected to an eligibility factor.
  • Certifications and Statements – CLINIC opposes the proposed addition of lengthy and complex statements, certifications and acknowledgements for the applicant, interpreter and preparer.

In addition, CLINIC provided comments on the proposed USCIS Online Form, applauding USCIS’s transition to automation. CLINIC provided feedback and recommendations to USCIS about how the proposed online process may be improved to include more direct information about the availability of fee waivers.  In its comments on proposed changes to the Guide to Naturalization, CLINIC provided over a dozen suggestions on improving the clarity of language and instructions.  CLINIC’s comments were joined by several affiliates and partners. Overall, USCIS received 75 comments. We expect further developments on Form N-400 in the coming months.

I-130 (Petition for Alien Relative)

On December 14, 2015, CLINIC submitted comments to USCIS regarding changes to Form I-130, Form I-130A, and Form I-130 and I-130A Instructions. CLINIC’s comprehensive comments and suggestions focused on several key areas previously discussed in our summary of the proposed forms.

  • Clear Language - CLINIC commended USCIS’s efforts to use clearer language on forms
  • Form Length - CLINIC voiced concerns about the overall pace and volume of form changes proposed and provided specific suggestions for reducing the form length.
  • Public Engagement - CLINIC requested greater public engagement on substantial form changes

You may access the Forms, Instructions, Tables of Changes, as well as additional information, by visiting the Federal eRulemaking Portal site and entering USCIS-2007-0037 in the search box.

Draft “Extreme Hardship” Policy

On November 23, 2015 CLINIC submitted comments to USCIS regarding its proposed guidance interpreting the term “extreme hardship” as it is applied to certain waiver of inadmissibility applications. CLINIC’s comments and suggestions focused on several key areas previously discussed in our summary of the draft guidance.

  • Extreme Hardship through A Single Scenario - CLINIC commends USCIS on the proposed change that would allow an applicant to establish extreme hardship to the qualifying relative based upon a single scenario
  • Aggregate Hardship Consideration - CLINIC supports the established principle that hardship should be considered in the aggregate
  • Reclassification of 5 Extreme Hardship Factors - CLINIC supports the reclassification of the 5 extreme hardship factors and requests that USCIS keep education a stand-alone factor
  • Presumption of Extreme Hardship - CLINIC strongly urges USCIS to create a presumption of extreme hardship

Overall, CLINIC applauded the proposed guidance that, when implemented, is expected to improve consistency in adjudications and broaden the use of this critical program for families facing hardship and separation.  Comments to the draft guidance were due on November 23, 2015. You may access the Forms, Instructions, Tables of Changes, as well as additional information, by visiting the Federal eRulemaking Portal site and in the search box.

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Board of Immigration Appeals (BIA) Recognition and Accreditation Program

More than 20 years have passed since the Executive Office of Immigration Review (EOIR) last made substantive change to the rules and procedures governing the BIA Recognition and Accreditation Program (R&A) program. On September 16th, EOIR announced a new set of proposed changes. Recognizing the significance of the proposed extensive changes, CLINIC reported on the proposed rule in a free webinar on Sept. 21.

CLINIC also conducted a survey, requesting feedback on key issues raised for comment by EOIR. This feedback and the many questions and concerns raised by affiliate programs helped to prepare CLINIC, as we attended each of the three stakeholder meetings held by EOIR since September.

CLINIC updated our BIA R&A toolkit by adding a section dedicated to the proposed rule changes The new section includes links to webinars, a summary of the changes, key government links, as well as model comments and tips for organizations that planned to submit comments.

In addition to CLINIC’s outreach, our advocacy team organized and led discussions with national partners and other stakeholders, including World Relief, the American Bar Association, CARECEN, the International Rescue Committee and the New York Immigration Coalition. A second, free webinar lead by CLINIC and hosted by Immigrant Advocates Network had more than 300 participants.

These efforts culminated in the submission of CLINIC’s comments to EOIR on Nov. 17 and the subsequent submission of comments by CLINIC affiliates. The comments offered program-specific examples of how the proposed changes may affect service delivery and program performance.

According to the Federal Rulemaking Portal, EOIR received 64 comments to its proposed rule. A vast majority of the 42 publicly available comments are consistent with CLINIC’s recommendations and many directly reference and support CLINIC’s suggestions.

While we do not know what the final rule will look like, we are grateful for the opportunity to work closely with our affiliates and other stakeholders who presented comments or otherwise contributed to the development of our submission. Our advocacy is strengthened and informed by you.

CLINIC shared its comments to EOIR publicly so that the scope of the proposed changes is known and our perspectives are understood. Other comments may be found at: www.regulations.gov and more directly at this link

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Texas v. U.S. and the President’s Executive Action on Immigration Action

The Obama Administration appealed the 5th Circuit Federal Court of Appeals ruling from Texas v. U.S. to the Supreme Court on November 20, 2015.  Twenty-six states, initiated the legal challenge to stop the President’s 2014 administrative actions on immigration. The states opposing the administrative action argue that implementing the administrative action would pose an economic burden on states. The Supreme Court announced on January 19th, that it will take up the case which will likely be argued in April and decided by the last week in June.

While the outcome of the case is pending, CLINIC recommends that qualified legal immigration practitioners continue client screenings to assist those eligible for other immigration benefits. Please see CLINIC’s useful timeline on the President’s Executive Action on Immigration.

Please lets us know what advocacy and implementation planning is occurring in your community.

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Discussion of Enforcement Actions

From January 2nd- 4th, the Department of Homeland Security (DHS) conducted enforcement actions targeting immigrants who arrived to the United States after January 1, 2014, and had final orders of removal. DHS picked up 121 individuals in local communities in Georgia, North Carolina, and Texas. The individuals were identified by DHS as removal priorities according to the new Priority Enforcement Program, which was initiated by DHS Secretary Johnson’s November 20, 2014 memorandum.

While the individuals picked up by DHS had deportation orders, serious due process concerns have been expressed about these cases. CLINIC, through its partnership with the CARA Family Detention Pro Bono Project, was able to help receive stays of deportation from the Board of Immigration Appeals in twelve cases, affecting thirty-three women and children. The work of the CARA Family Detention Pro Bono Project has provided nationally recognized data and advocacy demonstrating the access to justice and process issues.

In response to the actions, CLINIC and USCCB wrote a letter to DHS Secretary Jeh Johnson, condemning the targeting of Central American women and children and urging an end to the practice. CLINIC staff attended meetings with DHS Secretary Johnson, DHS Deputy Secretary Alejandro Mayorkas, and Melissa Rogers, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships to advocate against future enforcement actions. There is concern and fear in communities about this enforcement action and future actions. CLINIC has put together a backgrounder explaining the recent actions and what to do in your community.

Please contact us with stories of local advocacy on this issue or stories of individuals affected by these actions in your community.

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Advocate’s Corner: Tips for Contacting USCIS

Jill Marie Bussey

Calling USCIS’s National Customer Service Center (NCSC) can be time consuming. Here are some tips on making your communications with the NCSC more productive.

Tip #1 - Check the USCIS online case status system and processing time reports before you call. Most calls to the NCSC are about delays in case processing. Before you call USCIS, use the USCIS Case Status Online tool to check that status of your case. All you need is the USCIS Receipt Number for the case. If you sign-up for an account, you may choose to receive updated case status information via email. 

Tip #2Check the USCIS processing times reports to see if your case is beyond processing time. USCIS publishes information about the processing times for its Service Centers and field offices. The processing time reports can be found on the USCIS website.

Tip #3 – Consider submitting your case inquiry online. USCIS offers an online, e-request system for submitting queries about cases that are beyond processing time. The system also permits you to report when USCIS correspondence has sent, including receipt notices and cards, but has not been received.  The online form requires several data points, including the type of case (form type), the address of the petitioner/applicant/beneficiary, date of birth, etc.  Responses to online queries are sent by email and typically received in seven to ten working days.

Tip #4 – If you decide to call USCIS, be advised of the following pointers for making a Service Request Management Tool (SRMT):

  • Make sure the caller is a representative with a G-28 on file or paralegal
  • Have key biographical data and case information ready
  • Prepare to be on hold for a long time or consider the call-back option
  • Be prepared to take notes, including the name and Agent ID of the Officer you speak with, the Service Request Confirmation Number, date/time/duration of the call, outcome and next steps

Download a sample sheet you can use.

Tip #5 – Hopefully, your first call to USCIS will lead to case resolution. If not, you may need to follow-up by contacting the NCSC. When following up, be sure to reference the Service Request Confirmation Number, USCIS receipt number, date of filing and communications, etc.

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What would you ask the National Visa Center?

CLINIC’s team regularly meets with the DHS, USCIS, ICE, Customs and Border Protection (CBP) and other related agencies to address problems faced by low-income immigrants and their representatives by resolving policy issues. As opportunities arise, CLINIC facilitates public engagement with key agencies. 

On October 7, 2015, CLINIC, in partnership with DePaul University’s College of Law, hosted a special engagement with Phillip Slattery, the Director of the National Visa Center (NVC). The NVC is part of the Department of State’s Bureau of Consular Affairs and handles the pre-processing of immigrant visa petitions before applicants are interviewed at a U.S. Embassy overseas.  Mr. Slattery briefed attendees on the NVC’s responsibilities and processes, recent and upcoming procedural changes, and customer services. A summary of this meeting will be shared with affiliates soon. Mr. Slattery and his team remain interested in feedback on how the NVC may better communicate with your offices and clients.  If you would like to raise a questions or provide input to the NVC, please contact CLINIC’s Advocacy team with an email entitled “NVC” at: advocacy@cliniclegal.org.  CLINIC looks forward to hosting additional engagements with the NVC and will advise local affiliates of opportunities in their area in the future. 

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New and Proposed Rules and Policy Guidance

Fee Waivers (Form I-912)

On July 9, 2015, CLINIC submitted a second round of comments concerning revisions to Form I-912 (initial comments were submitted in May). On August 6, 2015, USCIS met with advocates to discuss further. At that time, USCIS indicated that it had received sufficient feedback on the proposed revision and no further comments were to be collected. Although Form I-912 indicates that it expired May 31, 2015, the May 10, 2013 version or other previous versions may be used until a new version is issued.

Expansion of the Provisional Waiver Program

On July 22, 2015. USCIS published a proposed rule that would expand the current provisional waiver program in two significant ways: (1) allowing other immigrant visa applicants and (2) allowing Lawful Permanent Resident (LPR) parents and spouses to be “qualifying relatives”. At the present time, only U.S. citizen parents and spouses qualify. (For more information, read our article.) 

In preparing its comments to the proposed rule, CLINIC collected feedback from affiliates representing all regions of the United States. CLINIC submitted comments on September 18, 2015. CLINIC will continue to monitor the progress of this initiative and is now preparing for the release of policy memoranda that would define the extreme hardship standard.

Board of Immigration Appeals Recognition & Accreditation

On September 17, 2015 the Executive Office for Immigration Review (EOIR) announced a new proposed rule governing recognition and accreditation (R&A).  It also issued two final rules, each addressing various aspects of legal representation. The proposed rule is titled Recognition of Organizations and Accreditation of Non-Attorney Representatives. The two final rules are titled List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings and Separate Representation for Custody and Bond Proceedings.

On September 21, CLINIC staff hosted a webinar in which it presented each proposed change and explained the implications for nonprofit organizations. CLINIC is soliciting comments for each of the key areas of proposed change and is working actively with its network of affiliates and other national organizations to provide formal written comments to EOIR by the November 30th deadline.  CLINIC chairs the BIA R&A liaison group, a forum to discuss comments on the proposed rules. Please submit comments here.

USCIS Form N-400, Application for Naturalization

On Monday, September 28, USCIS announced the extension of a comment request period for proposed revisions to Form N-400. USCIS is requesting comments on its proposed updates to Form N-400, Form N-400 Instructions, Public-facing guidance, and USCIS's proposed online N-400 form.  Comments are due by November 12, 2015. (80 FR 58292, 9/28/15). 

Draft Extreme Hardship Policy Guidance for Waiver Applications

On October 7, 2015, USCIS circulated draft guidance interpreting the term “extreme hardship” and explaining how it should be applied to waiver applications. The proposed policy guidance is in draft form only and has not yet gone into effect.

The guidance would set forth, in greater detail and specificity, how adjudicators should weigh various hardship factors in a waiver application. For example, applicants would only have to establish extreme hardship to the qualifying relative if that family member were to relocate with the applicant or remain in the United States separated from the applicant, depending on which is more reasonably foreseeable.  Currently, the waiver applicant has to establish extreme hardship under both scenarios. 

In addition, the guidance lists five special circumstances that strongly suggest the existence of extreme hardship. One of the listed special circumstances is when the State Department has issued a travel warning with respect to a country or a region of a country.

Comments on the draft guidance are due on November 23, 2015. CLINIC will be preparing model comments and circulating them to affiliates. Please see the link below from USCIS to access the text of the draft guidance and contact us at advocacy@cliniclegal.org if you have any specific questions or comments.

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Administrative Advocacy

Jill Marie Bussey

DACA 3-Year Recall

In connection with the State of Texas v. U.S. litigation, USCIS recalled over 2,600 grants of Deferred Action Childhood Arrival (DACA) and work authorization in May 2015. USCIS increased its recall efforts dramatically following a Court Order issued on July 7, 2015. CLINIC’s response to the recall was comprehensive and collaborative, utilizing resources and the expertise of six departments: Advocacy, Capacity Building, Communications, Legalization, Operations and Training and Legal Support (T&LS). CLINIC efforts included creating a special webpage with recall resource materials; conducting a comprehensive webinar; establishing a special email address for affiliate queries; developing public outreach flyers in English and Spanish; sending over 8 email blasts to affiliates with updated recall information; coordinating with affiliates in impacted communities; providing individual case support; and engaging in direct public outreach through social media and other communications outlets.

CLINIC opposed the recall and any resulting terminations. Acknowledging the inevitability of the recall due to the Court Order, CLINIC focused its advocacy efforts on providing DHS and USCIS officials with constructive feedback on the implementation of the recall, providing information and support to affiliates, and outreach to the community. Over the course of three months, CLINIC worked closely with officials at DHS and USCIS to offer tangible feedback on the implementation of the recall with solid case examples that supported requests for recall process change and refinement. CLINIC took a lead role in each of the sixteen stakeholder calls held during the recall process.

Further, as co-chair of the Committee for Immigration Reform Implementation (CIRI) Advocacy Working Group, CLINIC’s Advocacy team led coordination efforts and communications to help inform, enhance and align advocacy efforts among CIRI. CLINIC worked closely with affiliates to support, advise, and assist them and their clients to understand and take necessary actions as well as to responsibly spread the word in the community.

CLINIC and its affiliates’ efforts throughout the summer helped result in 99.2 percent compliance with the recall. Of the 22 terminations of status issued, 12 were reinstated. As of today, all 3-year DACA grants and work authorization cards that were subject to the recall have been accounted for.

Enforcement Priorities

On June 17, 2015, DHS issued a list of Frequently Asked Questions (FAQs) relating to the new immigration enforcement priorities memo issued by the Obama Administration on November 20, 2014. Since the Priority Enforcement Program (PEP) was established on January 5, 2015, CLINIC’s Advocacy team and its partners have advocated for consistent implementation of these new enforcement priorities. In April, CLINIC joined over 100 immigrant advocates in sending a letter to DHS Secretary Johnson summarizing concerns based on lessons learned from the 2011 prosecutorial discretion initiative, providing examples of inconsistent application of the priorities, and offering recommendations.

Following the release of the FAQ, CLINIC provided a detailed analysis of the guidance and held a webinar for affiliates. While the FAQs clarify several key terms in the memo, notable issues remain unclear.

Please continue to share individual cases where ICE has failed to exercise prosecutorial discretion with CLINIC’s Advocacy team. If you have a case example of inconsistent application of prosecutorial discretion, please contact CLINIC’s Advocacy team with an email entitled “Prosecutorial Discretion Example” at: advocacy@cliniclegal.org.

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Family Detention Update

Ashley Feasley

Despite efforts by immigrant advocates to end family detention, the government’s practice of detaining immigrant mothers and their children continues. CLINIC has been especially active in the national fight to eliminate large scale family detention centers built in response to the increase of Central American families seeking refuge at the U.S./Mexico border during the summer of 2014. In late March 2015, CLINIC partnered to form the CARA Family Detention Pro Bono Representation and Advocacy Project with the American Immigration Lawyers Association (AILA), American Immigration Council (AIC), and Refugee and Immigrant Center for Education and Legal Service (RAICES). As part of the CARA Project, CLINIC has two contract lawyers on the ground at the South Texas Family Residential Facility (“Dilley”) located in Dilley, Texas. CLINIC, through the CARA Project, has been providing legal services and running a pro bono project for detained families within Dilley. CLINIC and CARA also train lawyers and Board of Immigration Appeals (BIA) accredited representatives, and lead advocacy and litigation efforts to challenge unlawful asylum, detention, and deportation policies.

Such advocacy activities have included submitting complaints to the Department of Homeland Security (DHS) Office of Civil Rights and Civil Liberties (CRCL) regarding inadequate medical care for detained mothers and children and access to counsel issues, and meeting with Jeh Johnson, DHS Secretary in a private meeting to discuss family detention concerns. CLINIC continues to advocate for an end to the inhumane practice of family detention with government stakeholders, participating in monthly White House Access to Legal Counsel meetings, Immigration and Customs Enforcement (ICE) NGO Working Group meetings, U.S. Citizenship and Immigration Services (USCIS) Asylum Working Group meetings, and DHS CRCL meetings.

On the ground, CLINIC staff members have had an extremely meaningful impact, serving approximately 5,000 women in preparation for their credible and reasonable fear interviews, in partnership with our CARA Pro Bono Project partners. Various CLINIC staff members have also travelled to Dilley to work in assisting the CARA Pro Bono Project.

Coupling the work of CLINIC and the CARA Pro Bono Project have been litigation efforts to end family detention by national advocates. In February 2015 advocates filed a motion to enforce the Flores Settlement on behalf of detained mothers and children in the U.S. District Court of the Central District of California. In April 2015, the U.S. District court issued at tentative ruling that family detention policies violate Flores. In July 2015, the U.S. District Court issued a court order requiring children no longer be detained long-term within the detention facilities.

In August 2015, the government argued that family detention was still necessary and the U.S. District Court responded that children must be released from family detention facilities and that the government must comply with the order by October 23, 2015. Currently, the government continues to imprison mothers and children, and the detained population has increased in Dilley since the issuance of the order from the U.S. District Court.

The family detention landscape continues to change. Moving forward, CLINIC will continue to work for an end to family detention and see that immigrant women and children receive meaningful access to justice. Part of this work on the ground will largely be through our partnership in the CARA Project. For more information about CLINIC’s family detention project, please visit our website. Consider volunteering your time or making a donation to support vulnerable mothers and children through the CARA Project.

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Big Changes to the Visa Bulletin and Eligibility to File for Adjustment

Charles Wheeler

The October Visa Bulletin contains an important change in the timing of when family- and employment-based immigrant visa applicants can apply for adjustment of status. Under the current system, family-based applicants in the preference categories can only apply for adjustment of status only when their priority date – the date their I-130 petition was filed – becomes “current,” or the visa number becomes “available,” as determined by the Visa Bulletin. Preference category applicants include the spouse and unmarried children of LPRs, and the married or unmarried sons and daughters and siblings of U.S. citizens. A priority date is current if it is before the date listed in the Visa Bulletin for the appropriate country and preference category. Under the new system, the agency is creating a separate “filing date,” which is several months before the “final action date.” The applicant will be allowed to apply for adjustment of status if his or her priority date is before the filing date.

So starting in October, Visa Bulletins will include two charts for family-based immigrants and two charts for employment-based immigrants. One is what we have been accustomed to and which defines when a visa is available for purposes of eligibility to be granted adjustment of status or an immigrant visa. This chart now designates “final action dates.” A second, and new chart, now includes another set of cut-off dates and is known as “filing dates.” This chart now determines when the person may file for adjustment of status and guides the State Department as to when to begin consular processing.

Take the following example. An LPR petitioned for his Mexican spouse, Maria, on February 27, 2015. The October 2015 Visa Bulletin final action date chart shows that those in the F-2A category from Mexico with a priority date before March 1, 2014 would be considered “current.” Under the system in place before October, only those who had a priority date before March 1, 2014 would have been allowed to file for adjustment of status. But under the new system, which includes a new “filing date,” Maria is allowed to file for adjustment of status much earlier. The filing date for Mexicans in the F-2A category, according to the October 2015 Visa Bulletin, is March 1, 2015. Since Maria’s priority date precedes that date, she is now eligible to file for adjustment of status.

This new system mainly affects applicants for adjustment of status. The National Visa Center is responsible for notifying the immigrant visa applicant and starting the consular processing stage. The NVC typically does this several months in advance of the priority date becoming current using internal guidelines as to when to start that process. The new system will more formally guide the NVC on when to initiate consular processing.  But the big change is that it will allow adjustment of status applicants to file their I-485 application and accompanying forms and receive auxiliary benefits, such as employment authorization and advance parole, much earlier than they would have under the current system.

The new system may affect adjustment of status applicants in a number of other ways. For example, all adjustment applicants currently need to include an affidavit of support with the adjustment packet. If the adjustment interview is not scheduled until the “final action date” becomes current, then more than one year may transpire. This may require updating the I-864 with current income and financial eligibility proof. But it may also allow those who needed to rely on a joint sponsor at the time of filing for adjustment to withdraw that I-864 and proceed simply with the petitioner’s updated affidavit of support.Since the adjustment applicant is allowed to work during that year-long period, and his or her income can be included as part of the total household income of the petitioner/sponsor, this may obviate the need to use a joint sponsor.

Another effect of this new system is to increase the number of potential applicants for adjustment of status. Under INA § 245(c), eligibility to file for adjustment of status for those in the preference categories requires nonimmigrants to have always remained in valid nonimmigrant status. As a result, preference immigrants who ever overstayed the period of time authorized on the I-94 entry document, worked without authorization, or dropped out of school if in F-1 status are ineligible to adjust under INA § 245(a). With the new “two-tiered” priority date system, it will be easier for certain nonimmigrants to remain in status until they are eligible to file for adjustment. Take the example above of Maria, who entered the United States on a B-1/B-2 visa (obtained presumably before her marriage) on April 15, 2015 and was allowed to stay for six months, or until October 15, 2015. Beginning October 1, 2015, she can file for adjustment until the time on her I-94 runs out, since she would not yet have violated her nonimmigrant status. Under the current system, she would have either overstayed her I-94 by the time the priority date became current, successfully obtained numerous extensions, or have left the country.

Another way this new system affects adjustment applicants relates to the Child Status Protection Act. The CSPA allows the beneficiary to use an adjusted age calculation on the day the priority date becomes current.  The adjusted age is calculated on that date by subtracting the number of days the I-130 petition was pending from the child’s biological age. Adding a new “filing date” for adjustment purposes does not affect the age calculation. But it does affect compliance with the one-year filing requirement. Those in the preference categories who are able to preserve their “under 21” child status through age adjustment calculation – and thus remain classified in the F-2A category or as a derivative – also need to file for an immigrant visa or adjustment of status (or file a Form I-824) within one year of the priority date becoming current. Under the new system, the child can apply for adjustment of status much earlier – in fact months before the priority date becomes curren t.Filing the I-485 before the priority date becomes current also satisfies the one-year requirement. This will ensure that more beneficiaries will satisfy the requirement and that fewer will be affected by subsequent visa retrogression.

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EOIR Announces Two Final Rules Relating to Legal Representation

Brad Jenkins

On September 16, 2015, EOIR also released two final regulations relating to R&A. The first rule changed the regulation relating to appearances before the agency to allow for separate appearances in bond proceedings and other proceedings conducted by EOIR. The second rule changed the process by which organizations and attorneys apply for, remain on, and are removed from EOIR’s “List of Pro Bono Legal Service Providers” (formerly the “Free Legal Service Provider List”).

The first change, “Separate Representation for Custody and Bond Proceedings,” will replace the current version of 8 CFR § 1003.17. Under the replaced regulation, while bond proceedings are separate and distinct proceedings from the underlying removal proceedings (with a separately created record of proceedings), the filing of Form EOIR-28 entered the representative’s appearance in all proceedings before the Immigration Court. If a representative entered his or her appearance for a bond hearing, he or she was required to submit a Motion to Withdraw in order to be relieved from the responsibility of future representation. Because withdrawal is in the discretion of the Immigration Judge, this regime prevented representatives from reliably engaging in bond-only representation. Under the new regulation, separate bond-only representation is expressly permitted. EOIR and its stakeholders, including CLINIC, are hopeful that this change will increase access to counsel for people in removal proceedings.

The second change, “List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings,” will be codified at 8 CFR §§ 1003.61-66. It significantly changes the process by which organizations and individuals participate in the List of Pro Bono Legal Service Providers that is distributed to every unrepresented individual who appears before the Immigration Court. The regulations are intended to stem abuse of the List by attorneys who do not engage in a meaningful amount of pro bono representation and instead use the List to solicit fee-paying clients. The new regulations provide for three categories of participants: (1) organizations; (2) pro bono referral services; and (3) individual attorneys. Each category of participants has different eligibility criteria for placement on the List. Notably, organizations and individual attorneys must certify that they provide at least 50 hours of pro bono representation annually in each immigration court location for which they appear on the list. Further, organizations and attorneys placed on the list must document their compliance with the 50-hour pro bono requirement and provide the A-Numbers of those provided pro bono services. In addition to the minimum pro bono requirement, an individual attorney who wishes to be placed on the list must document his or her good faith efforts to provide pro bono legal services through an organization or pro bono referral service and persuade EOIR that the current level of services is inadequate to serve the community.

EOIR’s announcement of these changes, together with the proposed rule to reform the Recognition and Accreditation process can be found here: http://www.justice.gov/eoir/notice-eoir-publishes-rules

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EOIR Proposed Changes to Agency Recognition & Staff Accreditation

Jeff Chenoweth

The Executive Office for Immigration Review (EOIR) has proposed significant changes in the standards and procedure for obtaining agency recognition and staff accreditation (R&A) from the Board of Immigration Appeals (BIA). The agency placed the proposed rule on its website at http://www.justice.gov/eoir/notice-eoir-publishes-rules. Comments to EOIR are due on November 17, 2015.  CLINIC has analyzed the proposed changes and will be circulating model comments before submitting its comments to EOIR.  The following is a summary of the proposed changes.

EOIR asserts that the purpose of the proposed changes is to “promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations.” Tightening the eligibility standards and augmenting the application process will purportedly decrease the likelihood of the public being victimized by fraud or incompetence at the hands of unscrupulous practitioners. If implemented as written, however, the proposed changes would likely result in at least a temporary decrease in the number of agencies and staff currently listed on the roster based on agencies’ inactivity in immigration legal representation or inability to quickly meet the new R&A standards.

Transfer from BIA to OLAP

Administration of the R&A program would stay within EOIR but be transferred from the BIA to the Office of Legal Access Programs (OLAP).  OLAP was formerly called the BIA Pro Bono Project, which was established in 2000.  Its mission is to “improve access to legal information and counseling and increase rates of representation for persons appearing before the immigration court and the Board.” It has overseen the legal orientation programs (LOP) and has facilitated access to pro bono representation and self-help materials to persons in immigration proceedings. OLAP would be given authority to approve and disapprove requests for R&A, maintain the roster of recognized agencies and accredited staff, and terminate an agency or staff person’s recognition or accredited representative status.

Agency Recognition Qualifications

The current requirements for agency recognition are that the organization be: (1) a nonprofit religious, charitable, social service, or similar organization established in the United States; (2) charge only “nominal fees” and assess no membership dues for its services; and (3) possess adequate knowledge, information, and experience.

The proposed rule would add that the nonprofit agency have federal tax-exempt status. If the agency has not obtained that status at the time of seeking recognition, it may submit proof that it has applied for it. It might then be granted “conditional recognition” for a three-year period.  It would need to have obtained tax-exempt status in order to renew it recognition.

It replaces the nominal fee requirement with a more flexible analysis that looks more to the agency’s other sources of revenue and balances those against the income it receives from client fees.  It would require the agency to demonstrate that a “substantial amount” of its legal services budget comes from sources other than client fees, donations, and membership dues. Agencies would be requested to submit at least the prior year’s budget, the current year’s if available, or a projected budget if neither past nor current are available.  The purpose is so that OLAP can see all revenue sources, including grants and in-kind donations, including volunteer services. The greater the amount of funding derived from client fees, the more likelihood the agency would fail the “substantial amount” test. OLAP is authorized to grant waivers of the substantial amount requirement if the agency meets a “public interest” test, which would look to whether the agency operates in an underserved area or serves vulnerable or economically disadvantaged persons (e.g., mentally incompetent persons, unaccompanied minors, or VAWA applicants).

The rule bolsters the evidence needed to establish that the agency primarily serves low income and indigent clients. In order to receive and maintain recognized status, an agency would have to have at least one accredited representative on staff, although the agency may still apply for recognized status concurrently with staff accreditation.

Finally, the rule would identify the proof required for the agency to show it has “adequate knowledge, information, and experience.” The agency would need to describe “the services it intends to offer; the legal services to which it has access; staff qualifications and breadth of immigration knowledge; formal trainings attended by staff; and agreements with non-staff immigration practitioners or other organizations for consultations or technical legal assistance.”

Staff Accreditation Qualifications

The regulation would change the current requirement that the staff member possess “good moral character” to the more general requirement of “character and fitness.” This will necessitate a more comprehensive examination of the applicant’s “honesty, trustworthiness, diligence, professionalism, and reliability.” This in turn may require submission of a criminal background check and letters of recommendation.  No application will be approved if the staff member has been convicted of a serious crime, either in the United States or abroad. The applicant’s current immigration status will also be considered with the final regulations and possibly contain a requirement that noncitizens possess employment authorization and not be in immigration proceedings.

Applicants for accreditation must currently describe the nature and extent of their experience and knowledge of immigration law.  The proposed regulation would require them to possess “broad knowledge and adequate experience in immigration law and procedure.” This is not a change in the requirements.  Rather, EOIR is seeking more specificity about the applicant’s knowledge and experience.  The rule does not establish any minimum number of hours of training or describe the types of courses that should be attended. OLAP wishes to maintain flexibility in deciding whether the applicant has satisfied this requirement, though it may in the future develop “best practice” guidelines that set forth recommended education, trainings, internships, and testing.

Application Procedures

Proposed changes to the application process for initial or renewal R&A include the following:

  • Applications for staff accreditation will need to be filed on Form EOIR-31A
  • Applicants for R&A are no longer required to serve a copy of their applications to ICE but EOIR may seek ICE’s input if needed
  • Applicants for R&A must serve a copy of their application on the USCIS district office where the representatives offer or intend to offer services, and not just where the organization is located
  • OLAP may seek additional information regarding the agency or the staff member from third parties and new sources
  • Agencies with multiple offices would no longer have to submit separate applications for recognition of each physical office, but rather can request that OLAP extend the agency recognition to include a new office or location
  • Agencies will need to renew their recognition status every three years (except for those granted conditional recognition, in which case they must seek its first renewal after two years)
  • To renew agency recognition, the agency must also simultaneously have one of its staff receive accreditation either for renewal or as a first-time application
  • Applications for renewal of agency recognition must be filed on Form EOIR-31 and include documentary evidence that it meets the qualifications, including fee schedules, annual budgets, and reports
  • Applications for renewal of staff accreditation must be filed on Form EOIR 31A and contain evidence that the staff member has received formal training in immigration law and procedure commensurate with the services the agency provides
  • Staff will also be accredited for the same period as the agency, and will need to renew accreditation at the same time the agency seeks renewal of recognition status (i.e., accreditation will not exist independent of agency recognition)
  • New reporting and recordkeeping requirements are intended to provide OLAP with a means to monitor compliance with the R&A requirements.

The proposed procedural changes would be phased in for currently recognized agencies and accredited staff members.  Those agencies that have been recognized the longest would be required to renew their status earlier than those who obtained it more recently.

The proposed regulations also contain procedures for administratively terminating R&A and sanctioning agencies and staff. It would create a uniform disciplinary process for attorneys, accredited representatives, other practitioners, and agencies.

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Maryland Court of Special Appeals Clarifies Neglect Standard for Special Immigrant Juvenile Status Factual Assessments

Michelle Mendez

Jennifer Girard, Attorney
Catholic Charities of the Archdiocese of Washington Immigration Legal Services

On July 6, 2015, the Court of Special Appeals of Maryland issued the first reported decision in Maryland, In re: Dany G., confirming once and for all the standard of neglect applicable to cases seeking a Special Immigrant Juvenile Status (SIJS) factual predicate order. Catholic Charities of the Archdiocese of Washington Immigration Legal Services (ILS) paved the way for this decision favorable to minors who have been neglected.

Catholic Charities ILS attorney Jennifer Girard represented Dany, a minor from Guatemala, before the Circuit Court for Montgomery County on a guardianship petition and request for SIJS factual findings. In the record before the court, Ms. Girard documented that Dany was forced to quit school at the age of twelve to work in the fields because his parents were sickly and unable to provide for him, and that his agricultural work exposed him to herbicides. Comparing Dany’s life in Guatemala to his life in the United States, Ms. Girard was able to demonstrate that Dany was greatly benefitting from the support of his family and his ability to attend high school.  Nonetheless, the Judge held that the minor had not been neglected under Maryland law and refused to find that it was in Dany’s best interest to not return to Guatemala. The trial court stated, “I can’t say that because his father has arthritis and [Dany’s] been working, that that amounts to neglect. Certainly he was young when he started working. But I haven’t heard anything that amounts to these parents going off and leaving their child to fend for himself. … I can’t make that finding based on what I’ve heard today.” 

Ms. Girard felt that the Court had not appropriately applied the standard of neglect to this case, and was distressed at the thought that Dany who was thriving in the United States, would be forced to return to situation where had to perform hard labor and could not obtain an education. With the help of ILS Pro Bono Coordinator Jim Feroli, Ms. Girard was able to recruit pro bono counsel to appeal the decision to the Court of Special Appeals. On appeal, pro bono counsel Michelle Moodispaw raised two issues: (1) Did the trial court err in determining that the child had not been neglected under Maryland law, and (2) Did the trial court err in declining to find it would be in the child’s best interest not to return to Guatemala. The Court began the case analysis by embarking on a thorough discussion of the history and purpose of this immigration benefit. The Court stated that the state juvenile court does not grant SIJS status and instead makes factual findings that the minor meets certain eligibility requirements. Tellingly, the Court also noted that “Imposing insurmountable evidentiary burdens of production or persuasion is therefore inconsistent with the intent of the Congress. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), H.R. Res. 7311, 110th Cong. (2008) (enacted).”

The Court then discussed SIJS in Maryland courts noting that federal law does not define “abuse,” “neglect,” “abandonment,” “similar basis under state law,” and “best interest of the child” so the trial court must apply the Maryland definitions “without taking into account where the child lived at the time the abuse, neglect, or abandonment occurred.” Reviewing the trial court’s application of the neglect standard to this case, the Court found that the trial court had erred in its application of the standard and that alone warranted reversal of the trial court and remanding for further findings. The Court further suggested to the trial court that “We are also mindful that if parents in Maryland allow or force their child to leave school at the age of 12, this factor would lead to a finding that the child was neglected” especially when coupled with full-time dangerous employment and in light of compulsory public education in Maryland until the age of 17. As to the best interest finding that the trial court failed to make, “The trial court must decide whether [the minor’s] interests would be better served by remaining in Maryland, living with his aunt and cousins, and attending high school or if [the minor’s] interests would be better served by being returned to the same conditions he fled, namely, working long hours in dangerous conditions with little chance for obtaining an education.” The case is now pending as it awaits scheduling before the Circuit Court for Montgomery County.

In re: Dany G. is the first precedential decision in Maryland on this SIJS issue. In 2011, however, the Court of Special Appeals issued an unreported decision, In the Matter of Jimmy E., A Minor, in which it stated that “The appropriate standard to remember whether Jimmy was neglected while living in Honduras is whether, under the same facts, he would be considered neglected under Maryland law.” Whether it is In re: Dany G. or its predecessor, there is no doubt that the Maryland neglect standard applies to SIJS cases no matter where the neglect took place and that Maryland judges should not engage in cultural and country comparison assessments of the facts. “By issuing a published decision, the Court of Special Appeals has affirmed that abused, abandoned, and neglected immigrant children deserve the full protection of the child welfare laws of the state of Maryland,” said Ms. Girard.

Without the representation and escalation of this issue by Catholic Charities ILS, child welfare and immigrant rights advocates in Maryland would be limited to the unreported decision of In the Matter of Jimmy E., A Minor, which would result in inconsistent decisions among judges. This is not the first time that Catholic Charities ILS has spearheaded positive changes on behalf of immigrant minors in Maryland; the agency led the advocacy efforts to add a definition of a child as “an unmarried individual under the age of 21 years” meaning that Maryland Circuit Courts that have jurisdiction over custody and guardianship can make the necessary predicate order findings until the child reaches the age of 21 rather than the jurisdiction ending at the age of 18. See Md. FAMILY LAW Code Ann. § 1-201(a).

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Certain Deportees Can Return to United States

Martin Gauto

In August 2014, the American Civil Liberties Union (ACLU) reached an important class action settlement with Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) over unlawful and coercive voluntary returns, a form of deportation carried out by ICE or CBP without a hearing before an immigration judge.

Under the terms of the settlement agreement, there is a very short time period for eligible noncitizens to apply to return to the U.S. in the same status they had before they were pressured into taking voluntary return. The class application period opened on June 27, 2015 and will close on December 23, 2015.

To qualify as a potential class member eligible to apply to return to the U.S., one must be able to answer “yes” to all of these questions:

  • Were you removed to Mexico from Southern California anytime from June 1, 2009 to August 28, 2014?
  • Did you accept a voluntary return?
  • Did you waive your right to see an immigration judge?
  • Did you have a reasonable claim to remain in the U.S. at the time you accepted the voluntary return?
  • Are you currently in Mexico?

The last day to submit an application is December 22, 2015. For more information go to: www.misalidavoluntaria.org or contact Gabriela Rivera, ACLU of San Diego staff attorney and lead on the class implementation portion of the Lopez-Venegas settlement, at grivera@aclusandiego.org.

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Practice Advisory on Provisional Waivers

On November 20, 2014, President Obama announced a series of reforms modifying immigration policy (“Executive Action”). On the same day DHS Secretary Jeh Johnson issued agency-wide memoranda providing specific and more detailed information regarding the proposed changes. One of these memos concerned the agency’s plans to expand eligibility for the provisional waiver for unlawful presence. On July 22, 2015, the USCIS published a proposed rule expanding the program in two significant ways. This practice advisory offers strategies for practitioners representing clients in family-based immigration matters who may require a provisional waiver.

Who needs a waiver for unlawful presence?

Applicants for adjustment of status or an immigrant visa are subject to the grounds of inadmissibility. The most common ground is for those who have accrued “unlawful presence” that has been triggered by a departure from the United States.  The term “unlawful presence” is not defined in the statute or regulations, although the exceptions to unlawful presence are set forth at INA § 212(a)(9)(B)(iii).  Agency guidance on how this term is to be interpreted is included in the Adjudicator’s Field Manual, Section 40.9. Those who have accrued more than 180 days of unlawful presence but less than one year are subject to a three-year bar to admission. Those who have accrued a year or more of unlawful presence are subject to a ten-year bar.

This ground of inadmissibility, set forth at INA § 212(a)(9)(B), may be waived by applicants who can establish that their absence would cause extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse or parent. INA § 212(a)(9)(B)(v). Applicants who have accrued unlawful presence that has not been triggered by a departure and who are eligible to adjust status will not need to file a waiver. Those who will trigger the unlawful presence ground upon departing the United States to attend an immigrant visa interview may file a waiver upon being found inadmissible by the U.S. consulate.

What is the provisional waiver and who is eligible for it?

On March 4, 2013 the USCIS implemented a new program allowing for the provisional adjudication of waivers for those who would be attending a consular appointment at a U.S. consulate and would be triggering the unlawful presence ground of inadmissibility. Eligibility for the provisional waiver is limited to those who will be inadmissible due solely to unlawful presence. Final regulations implementing the program were published in 78 Federal Register 536 on January 3, 2013, and can be found in 8 CFR § 212.7.

The program allows the agency to adjudicate waivers of unlawful presence before the applicant departs the United States for the immigrant visa interview. The applicant applies for the waiver after paying the immigrant visa fee with the National Visa Center (NVC). If the waiver is approved, the USCIS notifies the NVC, which in turn will forward the approval notice to the consulate where the applicant will be interviewed for the immigrant visa. The applicant can finalize any processing with the NVC and travel abroad for the consular interview with the knowledge that there will likely be no delay in issuance of the visa. The waiver is approved on a provisional basis because the Department of State will still conduct its own investigation as to potential inadmissibility based on other grounds, as well as verifying eligibility for the underlying visa. If the applicant is determined to be inadmissible based on a ground other than unlawful presence, the provisional waiver will automatically be revoked. The immigrant visa applicant would then have to re-apply for the unlawful presence waiver, as well as for a waiver of any other ground(s) of inadmissibility identified by the consulate, assuming a waiver is available.

What are the proposed changes to the provisional waiver program?

The provisional waiver program is currently available only to immediate relatives (spouses, unmarried children under 21, and parents of U.S. citizens). To qualify, the applicant must be at least 18 years old.  The “qualifying relative” must be a U.S. citizen spouse or parent.  For that reason, few parents of U.S. citizen children over 21 will qualify for the provisional waiver because they will not have the qualifying relative.  The program is currently being utilized almost exclusively by the spouses of U.S. citizens.

The USCIS will be expanding eligibility for the provisional waiver program in two important ways. First, according to the proposed regulation, the agency will expand access to the program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.  This expansion will include preference category immigrants: adult sons and daughters of U.S. citizens, married sons and daughters of U.S. citizens, siblings of U.S. citizens, unmarried children (regardless of age) of LPRs, and spouses of LPRs.  It will also include beneficiaries of employment-based petitions, widows and other special immigrants, and diversity visa lottery winners. Second, the agency will expand the definition of who can be a qualifying relative to include LPR parents and spouses. Only persons scheduled for an interview with the U.S. consulate on or after the regulation is finalized will be able to take advantage of this expansion.

In addition, the USCIS will be issuing specific guidance defining the term “extreme hardship.”  The USCIS will be specifying the factors that should be considered, and these factors will likely include “family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.” If the waiver applicant demonstrates that certain factors are present, the USCIS will presume the existence of extreme hardship.  It is not clear whether this guidance will require a formal regulation or when the agency will issue it.

What other Executive Action changes may impact on waivers?

An expanded Deferred Action for Childhood Arrivals (DACA) program and a new Deferred Action for Parental Arrivals (DAPA) program that were scheduled to be implemented in 2015 have been enjoined by a federal court.  If that injunction is lifted and the programs are put into place, they will create new opportunities for people to adjust status through travel. Persons granted deferred action under either of these two programs will be eligible for advance parole. Leaving the United States under advance parole is not considered a “departure” for purposes of triggering the unlawful presence grounds of inadmissibility.  The Board of Immigration Appeals held this in a case involving two family-based adjustment applicants, Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012). The USCIS has been instructed as part of Executive Action to issue a memorandum clarifying that no one who departs and returns under advance parole will be viewed as having made a departure.  Persons who are paroled back into the United States are eligible to adjust status if they are immediate relatives.

In addition, Executive Action also expands eligibility for parole-in-place to the family members of those who enlist in the military. Parole-in-place is currently available to the parents, spouses, and children of those who are serving as active duty members of the U.S. Armed Forces, are current members of the Selected Reserve or the Ready Reserve, or previously served in the U.S. Armed Forces or Selected Reserve or the Ready Reserve. Parole-in-place is a status that provides those undocumented family members the right to reside in the United States and qualify for employment authorization. The status of parole also allows those family members who are immediate relatives eligibility to file for adjustment of status under INA § 245(a).

Therefore, there will be more persons eligible to adjust status, fewer people needing to consular process, and fewer needing to file a waiver for unlawful presence.

Are the approval rates for provisional waivers the same as for waivers for unlawful presence filed while abroad?

On April 29, 2015, the USCIS released statistics on the adjudication of Form I-601 filed after the applicant has left the United States, and for the provisional waivers filed on Form I-601A. From October of 2010 through January of 2015, the average approval rate for I-601s has been 79.6 percent and the average denial rate has been 20.4 percent. From March of 2013 through January of 2015, the average approval rate for I-601As has been 70.2 percent and the average denial rate has been 29.8 percent. The number of I-601s and I-601As that have been filed during those two periods is approximately the same. Therefore, the approval rate for I-601s is slightly higher, even though the same extreme hardship standard is applied.  Some have reasoned that it is harder to obtain approval of the provisional waiver because the hardship to the qualifying relative is prospective and anticipated rather than with the I-601 where the hardship is currently being experienced.

What should practitioners do now?

Practitioners representing persons in family-based immigration matters are now weighing the effects of Executive Action and considering the additional options available to their clients. Some may be eligible for DACA or parole-in-place now, which would allow them to qualify to file for adjustment of status if they are immediate relatives and travel on advance parole. Others may qualify for expanded DACA or DAPA upon the lifting of the injunction and implementation of those programs. The uncertainty about when or if these programs will ever launch, however, favors the pursuit of consular processing and waivers of inadmissibility rather than waiting for a possible opportunity to adjust status in the future.  Those who would not qualify for these programs and who must consular process should be eligible to apply for a provisional waiver once the USCIS issues a final regulation and implements the changes. 

When the provisional waiver program began, the USCIS limited eligibility to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. In the expanded program the USCIS is proposing to maintain that cut-off date for immediate relatives, even if they became eligible for the expanded program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date would be the effective date of the final regulation. Under the proposed regulation, those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program. Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.

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The End of Family Detention or Another Rabbit Hole of Litigation?

Michelle Mendez

On July 24, 2015, Judge Dolly Gee of the United States District Court for the Central District of California issued a long-awaited decision applying the Flores Settlement Agreement of 1997 to the minors currently detained in Dilley and Karnes City, Texas, and in Leesport, Pennsylvania.

The Flores Settlement Agreement of 1997 set the standards for the detention, release, and treatment of minors.  It resulted from a class action lawsuit challenging the way the Immigration Service processed, apprehended, detained, and released minors in its custody. The agreement required that the agency hold minors in the least restrictive setting appropriate to their age and special needs in order to ensure their protection.  It also required the agency to release them from custody without unnecessary delay to a parent, legal guardian, adult relative, or other proper adult. See 8 CFR §§ 236.3, 1236.3. The Flores Agreement made no distinction between minors accompanied or unaccompanied by a parent.

Fast forward to February 2015 following the closure of the temporary family detention in Artesia, New Mexico, the continuation of the Berks Family Residential Center in Leesport, Pennsylvania, and the designation of two new family detention centers in Texas: South Texas Family Residential Center and Karnes Country Residential Center. Flores counsel sought enforcement of the 1997 Settlement Agreement arguing that ICE had violated the agreement by detaining minors and their mothers in secure facilities that were not the least restrictive setting. They also argued that ICE had not complied with the minimum standards for short-term custody by subjecting them to cold temperatures in the CPB holding facilities (nicknamed “hieleras”). Government counsel argued that the Flores Settlement Agreement of 1997 only applied to unaccompanied minors and did not apply to minors accompanied by their parents or legal guardians.

Judge Gee agreed with Flores counsel that the Flores Settlement Agreement of 1997 applied to all children in ICE custody, even those accompanied by parents or legal guardians. Judge Gee, a 2009 Obama appointee who is the daughter of Cantonese immigrants, reasoned that because Flores requires release of a minor to a parent when a parent is available, that the parents and their children should be released together.  Immigrant rights advocates welcomed this decision as possibly the end to family detention. The government has 90 days to respond to Judge Gee’s decision explaining why her order should not be implemented. In the meantime, CLINIC’s contract attorneys based in Dilley, Texas, who are part of a four-agency CARA Pro Bono Project, report that hundreds of new mothers and their children continue to be detained and deported.

At the core of this legal battle was the difference between accompanied and unaccompanied minors – a topic that continues to mystify even the most seasoned immigration practitioners. The term “unaccompanied alien child” (UAC) means one who has no lawful immigration status in the United States, has not attained 18 years of age, and either has no parent or legal guardian in the United States or has no parent or legal guardian in the United States who is available to provide care and physical custody. See Homeland Security Act of 2002 § 462(g), 6 USC § 276(g), adopted by TVPRA § 235(g). Either ICE or CBP determines whether a minor is accompanied or unaccompanied at the time the minor is apprehended at the border. Once the UAC determination is made, only an affirmative act by the Department of Health and Human Services, ICE, or CBP can terminate a UAC finding. Releasing a minor from DHHS custody to a parent is not an act that affirmatively terminates UAC status. A parent or a third party obtaining a state custody order does not terminate UAC status. Nor does the minor’s turning 18. Practitioners should know the definition of a UAC because of the benefits this determination offers. For example, Asylum Offices have initial jurisdiction over asylum applications filed by UACs, even those currently in removal proceedings. This provides an additional opportunity to prove asylum eligibility, since the one-year filing deadline applicable to asylum applicants does not apply to UACs. See TVPRA § 235(d)(7)(A) and (B).

The Flores order is available at https://www.documentcloud.org/documents/2179157-flores-order.html. For more information on the CARA Project, go to https://cliniclegal.org/CARA

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Globalizing Charity: 7 Ways Your Local Government Can Help Unaccompanied Minors

Jen Riddle

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. 

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Retroactive Adoption Decrees Open Up Possibilities

Charles Wheeler

The BIA has held that an adoption is valid for immigration purposes – even if the child has turned 16 at the time of the final order – if the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015). The BIA held that since the effective date of the adoption decree was made retroactive to the date the petition was filed, when the child was under 16, that the adoption will be valid for immigration purposes.

In this case, the adoptive parents filed a petition to adopt a child when she was two months short of her sixteenth birthday.  When the court issued the final decree, she had already turned 16.  But the decree was made retroactive to the date it was filed when the child was under 16. In order for an adoption to be valid for immigration purposes, it must be finalized while the child was “under the age of sixteen.” INA § 101(b)(1)(E)(i); 8 CFR § 204.2(d)(2)(vii). If the BIA applied a literal interpretation of the statutory words, it would use the child’s biological age on the date of the final decree; if it applied a broader definition, it would apply her adjusted age on the retroactive date of the final decree.

The BIA decided to abandon its prior holdings on this issue and adopt a more expansive reading of the age requirement. It held that “we will no longer deny a visa petition where the adoption petition was filed before the beneficiary’s 16th birthday, the state in which the adoption was entered expressly permits an adoption decree to be entered retroactively, and the State entered such a decree consistent with that authority.” The BIA’s new interpretation opens up possibilities in those states that allow for nunc-pro-tunc or retroactive back-dating of the final adoption decree, provided the process was initiated before the child turned 16.

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Recent Decisions on Acquisition and Derivation of Citizenship

Ilissa Mira

The laws regarding acquisition and derivation of citizenship have changed frequently over the years, resulting in different requirements that must be satisfied in order for a U.S. citizen to pass citizenship on to children born abroad.

Two recently decided cases positively interpret statutory language to allow individuals to assert their automatic citizenship. 

Kamara v. Lynch, No. 13-70657 (5th Cir. 2015)

What does it mean to be in the legal custody of a citizen parent for purposes of deriving citizenship?  The Fifth Circuit addressed this issue in the context of INA § 321, the law that was in place in 1998 when Hamid Kamara claimed he derived citizenship after his mother’s naturalization.  Prior to the Child Citizenship Act of 2000, the law on derivation of citizenship provided that the naturalization of one parent would grant automatic citizenship to a child where the parents were legally separated and the child was in the custody of the naturalizing parent.  The parent’s naturalization must have occurred while the child was under 18 and the child must have been residing in the U.S. as a lawful permanent resident at the time of the parent’s naturalization.  INA § 321 (since repealed by the Child Citizenship Act of 2000).   

Kamara lived with his mother since 1991 and was a 16-year-old LPR when his mother naturalized in 1998.  His parents were divorced in Texas in 1990 but no child custody orders were made.  To demonstrate that he derived citizenship from his mother, the 5th Circuit Court held that Kamara need only prove he was in the “actual uncontested custody” of his U.S. citizen mother.  In so holding, the Court clarified a previous decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006), which requires the naturalizing parent to have “sole legal custody” only when a noncitizen minor’s parents have a joint custody order following divorce or judicial separation. 

The “actual uncontested custody” standard has been the law for decades and has been applied in the Second, Third, Seventh, and Ninth Circuit Courts.  Matter of M-, 3 I&N Dec 850 (CO 1950) set forth a two-step test for legal custody.  First, if there is a judicial determination of custody, then the parent to whom custody has been granted has legal custody for INA purposes.  Second, if no legal custody determination has been made, then the parent in “actual uncontested custody” is deemed to have legal custody.”  The Fifth Circuit held that under this rule, the question of “sole legal custody” arises only in cases where a formal custody order exists.  Since no legal custody order was entered in Kamara’s case, the Court found that the Bustamante-Barrera “sole legal custody” rule did not apply.  Though the court determined that Kamara’s mother had actual custody, the case was remanded to determine whether that actual custody was uncontested.

Morales-Santana v. Lynch, No. 11-1252-ag (2ndCir. 2015)

In Morales-Santana v. Lynch, the LPR petitioner raised a constitutional challenge to an acquisition of citizenship law that imposed more restrictive requirements on unwed citizen fathers as compared to unwed citizen mothers.  Morales-Santana was born abroad to an unwed U.S. citizen father and a Dominican mother.  His father legitimated him prior to his 18th birthday and the only issue as to his citizenship was whether his father met the physical presence requirement.  Under the Immigration and Nationality Act of 1952, the law in place at the time of Morales-Santana’s birth, a child born abroad to an unwed citizen mother and a non-citizen father has citizenship at birth as long as the mother had continuous physical presence in the United States or one of its outlying possessions for at least one year at some point prior to the child’s birth.  INA § 309(c) (1952).  In contrast, an unwed citizen father can transmit citizenship at birth only if he legitimates the child and was present in the United States or one of its outlying possessions prior to the child’s birth for at least ten years, with at least five of those years occurring after the age of fourteen.  See INA § 301(a)(7) (1952).  Morales-Santana’s father had lived in Puerto Rico for almost 18 years and was just days short of meeting the requirement of five years of physical presence after the age of fourteen.  The Second Circuit held that this disparate treatment based on  gender violates the Fifth Amendment’s guarantee of equal protection and that the proper remedy is to apply to unwed fathers the less burdensome standard that unwed mothers receive under § 309(c). 

The government argued that the different physical presence requirement for unwed men and women exists to ensure that children acquiring citizenship have an adequate connection to the United States.  However, the court found no support for the assertion that unwed mothers and fathers differed with respect to how long they should be present in the U.S. prior to the child’s birth to ensure that a parent has gained the values of citizenship and can pass them on to their children.   While the court recognized a difference between the way men and women can establish a biological parent-child relationship, it decided that a more stringent physical presence requirement for fathers does not provide any additional assurances that there is a biological relationship between father and child.  The court ultimately held that the statute’s gender based distinction on physical presence requirements is not substantially related to the goal of ensuring a sufficient connection between citizen children and the U.S. and remanded the case to the BIA to apply the less onerous one year continuous presence requirement.

This decision conflicts with that of the Ninth Circuit in Flores-Villar, 536 F.3d 990, in which the court upheld the constitutionality of the same law, despite the gender-disparate requirements.  In 2011 the Supreme Court upheld Flores-Villar in a 4-4 split.

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USCIS Proposes Expansion of Provisional Waiver Program

Charles Wheeler

The USCIS published a proposed rule in the Federal register on July 22, 2015 that would expand the current provisional waiver program in two significant ways. They can be accessed by going to this link: https://www.federalregister.gov/articles/2015/07/22/2015-17794/expansion-of-provisional-unlawful-presence-waivers-of-inadmissibility. The agency is allowing the public 60 days to comment on the proposed regulatory change. The provisional waiver program is currently open only to immediate relatives who, upon leaving the United States to consular process, will trigger the three- or ten-year bar for unlawful presence. It allows these immigrant visa applicants to file for a waiver of the unlawful presence bar in the United States prior to departing if they will be found inadmissible only for the unlawful presence ground of inadmissibility. To have the provisional waiver approved, they must establish that their U.S. citizen parent or spouse will suffer extreme hardship if the waiver is not approved.

The first way that the USCIS proposes expanding the provisional waiver program is to allow other immigrant visa applicants – in addition to immediate relative – access to it. This means that all other beneficiaries of family-based petitions (Form I-130) may apply for the waiver. This would include all preference-based categories (adult or married children of U.S. citizens; siblings of U.S. citizens; and spouses and unmarried children of LPRs).  It would also allow access to beneficiaries of approved employment-based petitions (Form I-140), VAWA self-petitions (Form I-360), widow(er) petitions (Form I-360), and special immigrants (Form I-360). It allows access to the derivative spouse and children in the above categories. And it also proposes expanding the program to diversity visa lottery winners. The selection of the person for the diversity visa program would be considered the functional equivalent of having an approved immigrant visa petition.

The second way that the USCIS would prose expanding the program is to allow LPR parents and spouses to be “qualifying relatives.” At the present time, only U.S. citizen parents and spouses qualify.

The USCIS limited eligibility in the current program to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. The proposed expanded program would maintain that cut-off date for immediate relatives, even if they became eligible for the program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date will be the effective date of the final regulation. Those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver under the proposed rule. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program. Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.

The proposed rule also included certain statistical information. For the first seven months of the program in 2013, the National Benefits Center approved 64 percent of the applications it adjudicated and denied 36 percent. During fiscal year 2014, the agency’s approval rate increased to 71 percent, which it maintained for the first four months of fiscal year 2015.

Practitioners are encouraged to submit written comments on the proposed regulation by September 21, 2015. CLINIC plans to submit comments and specific objections to the cut-off dates. Comments should be sent to Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, 20 Massachusetts Ave., NW, Washington, DC 20529. They may also be emailed to uscisfrcommet@dhs.gov. Whichever means you use, be sure to include the DHS Docket No. USCIS-2012-0003 in the correspondence. 

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DACA Clients with Three-Year Work Permits

Jen Riddle

During July, U.S. Citizenship and Immigration Services (USCIS) undertook a number of extraordinary actions to urgently retrieve approximately 2,600 three-year work permits it claims were erroneously issued or mailed to recipients of Deferred Action for Childhood Arrivals (DACA) and to replace them with two-year permits. These actions were an attempt by USCIS to comply with a February 16, 2015 injunction issued by a U.S. District Court in the Texas v. United States lawsuit challenging the expanded DACA program and creation of the Deferred Action for Parents of Lawful Americans and Lawful Permanent Residents (DAPA). 

These actions only impact a small percentage of the DACA recipients who received three-year work permits, including approximately 2,100 DACA recipients whose deferred action and work permits were approved right before the February 16 injunction but whose actual work permit cards were mailed after the injunction.  It also affects approximately 500 recipients whose permits were approved before the injunction, were returned to USCIS as undeliverable, and were sent again after the injunction. The remaining 108,800 DACA recipients who received three-year permits are entitled to keep them.

Through letters, phone calls, text messages, and home visits, USCIS reached out to this limited group of DACA recipients to request that they immediately return their three-year permits. USCIS threatened to take adverse action against those who failed to comply by July 30, 2015, including terminating the DACA grant and work authorization. These unprecedented actions by USCIS have caused significant concern and confusion among immigrants and their representatives. If you continue to have any questions about which DACA clients need to return their three-year permits and which do not, please consult this dedicated section of CLINIC’s website where we continue to post updates and resources on this issue: https://cliniclegal.org/resources/three-year-daca-eads.

CLINIC continues to engage in advocacy with USCIS on this issue based on the experiences of its affiliates who have consistently provided ongoing information and case examples to keep us up to date about developments on the ground. Please continue to keep us informed and ask case specific questions by contacting Advocacy Attorney, Jill Marie Bussey, at jbussey@cliniclegal.org.  Also, remember to sign up for CLINIC’s DACA listserv by sending an email to clinic_daca-subscribe@yahoogroups.com.

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Non-minister Permanent Residence Program Update (Sunset of Non-minister Program)

By Miguel A. Naranjo, RIS Section Director

The non-minister permanent residence program that includes religious brothers and sisters (religious vocations) and other non-minister religious positions (religious occupations) is scheduled to expire on 09/30/2015 unless it is renewed by Congress.  If past experience is an indicator, we have every reason to believe that the program will be extended as it has been renewed several times.  Typically, it has been timely renewed, causing no interruptions or delays in the processing of cases.  However, the sunset has also been allowed to expire in the past with the renewal not occurring until several months later.  If that occurs, cases currently still in process (pending) will be delayed and put on hold until the program is renewed.

The RIS section has been informed that there is proposed legislation in Congress to extend the program.  However, several critical elements, such as when the legislation will be introduced and the amount of time the program will be extended, remain unclear.   Congress will soon be in recess and it is unlikely that there will be any legislative activity on this issue until the fall.  We have been regularly reminding our clients about this issue and will continue to keep everyone updated.  Please note that the sunset of this program is limited to permanent residence.  It does not affect the R-1 Religious Worker visa program, which is available to all qualified religious workers, nor does it have any effect on the minister program for permanent residence.

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USCIS Eliminates “Lawful Status” Requirements in Special Immigrant Religious Worker Program (Permanent Residence Program)

By Miguel A. Naranjo, RIS Section Director

On July 5, 2015, the U.S. Citizenship and Immigration Service (USCIS) issued a policy memo declaring that the “lawful status” requirements of the immigrant regulations for religious workers would no longer be considered when adjudicating the I-360 immigrant petition.  In addition, USCIS will amend Title 8 CFR Sec. 204.5(m)(4) and (11) and remove the lawful status requirements from the immigrant regulations for religious workers.  Prior to this change, to be eligible for permanent residence a religious worker needed to demonstrate that he/she had at least two years of experience (as a religious worker) and if that experience was gained in the U.S., the religious worker must have shown that he/she maintained lawful status (and work authorization) during that time.  With this announcement, the lawful status requirement is eliminated and USCIS will not deny religious worker I-360 petitions on this basis.

The lawful status requirements were first added to the regulations by USCIS in 2008 when the religious worker immigration program was undergoing major changes.  At that time, we immediately realized the potential problem this addition would create for religious workers seeking permanent residence.  We questioned the authority USCIS believed it had to change the prior immigrant regulations in such a significant way without any directive or consent from Congress.  No other employment-based immigration category has any similar requirements and we believed that religious workers were being treated unfairly as compared to other employment-based groups. 

Fortunately, we were not alone in this belief and other immigration practitioners began to challenge USCIS on this issue.  On April 7, 2015, the Third Circuit Court of Appeals in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015) found that USCIS went beyond its legal authority (ultra vires) when it added the lawful status requirements to the immigrant regulations for religious workers.  The court found the immigration statute on special immigrant religious workers was clear and unambiguous and that the changed regulations were inconsistent with the statute.  As a result of this decision and other similar challenges, USCIS issued this policy change eliminating the lawful status requirements.

Effective immediately, a religious worker who has any period of unlawful status and unauthorized work may be eligible to apply for permanent residence despite having these violations.  This new policy, however, is limited to the I-360 immigrant petition only and does not address the impact such violations may have at the adjustment of status stage (I-485 application) of the permanent residence process.   So while this change is a benefit for religious workers, there still may be issues related to immigration status which might prevent the religious worker from being granted permanent residence.  It is important to thoroughly review issues of unlawful status before beginning the permanent residence process in order to assess whether the religious worker would ultimately be able to gain permanent residence under this program.  If you have questions about this new policy, please contact your RIS Attorney directly or RIS Section Director Miguel A. Naranjo.

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Updates on USCIS Site Visits for Religious Workers

By Megan S. Turngren, RIS Attorney

An important part of the immigration process of sponsoring international religious workers to the U.S. involves a site visit from USCIS (U.S. Citizenship and Immigration Services).  This is required per the immigration regulations and is used to verify the elements of the petition filed by the sponsor (including sponsor and beneficiary information, work location, etc.).  These site visits may occur with advance notice or without any notice at all.  Also, a successful site visit is a prerequisite for the sponsor’s ability to file I-129 petitions for nonimmigrant religious workers via premium processing.

It is important to keep in mind the overall purpose of site visits.  Broadly speaking, it is to detect and deter fraud in obtaining immigration benefits.  Thus, visits are normally conducted by the Fraud Detection and National Security (FDNS) unit of the local USCIS field office.  Practically speaking, this means that all supporting information used to obtain the underlying I-129 petition is "fair game" for scrutiny and questioning on a site visit. 

Over the past few months, attorneys within the Religious Immigration Services (RIS) section of CLINIC have noticed greater scrutiny involving site visits and premium processing service (expedited processing).  Two of the primary issues are detailed below:

  • A site visit can be conducted either before or after an I-129 petition for a nonimmigrant religious worker is approved.  A “pre-adjudication” site visit is conducted after the petition is submitted but before a decision is made on the petition.  A “post-adjudication” site visit occurs after the petition has already been approved. 

Recently, USCIS has started enforcing the requirement that the petitioner have a “pre-adjudication” site visit conducted before the petitioner is eligible for premium processing.  This is problematic because over the past several years, USCIS has focused on “post-adjudication” site visits in lieu of “pre-adjudication” site visits.  USCIS indicates that a “pre-adjudication” site visit should be conducted at a sponsor’s headquarters when the sponsor first begins submitting petitions for foreign-born religious workers.  However, in practice, a site visit is not always conducted until after a petition is adjudicated.

If a religious organization has never had a “pre-adjudication” site visit but has only had a “post-adjudication” site visit, then the organization must be aware that they may not be allowed to use the premium processing service until a “pre-adjudication” site visit has been conducted.  This may be the case even if “post-adjudication” site visits have been conducted and the petitioner has previously successfully filed petitions via premium processing. 

If a petition for premium processing is filed and the premium processing request is rejected because the organization has not had a “pre-adjudication” site visit, it would be prudent to reach out to offices of U.S. Senators to request assistance in facilitating the site visit process.  They may be able to help move the process forward.  Please note that USCIS does not accept requests for a site visit to be conducted and will not act upon a request from the petitioner or attorney for a site visit.  Still, we have seen positive results when a Senator’s office is requesting that the site visit be conducted.

  • If the sponsor relocates to a new primary office space, then USCIS may no longer allow this sponsor to use premium processing until a NEW site visit has been conducted at the new office headquarters.  Therefore, a move across town can impede the ability to request premium processing on future cases even though the sponsor may have previously had numerous site visits and numerous cases filed for premium processing.  Please plan accordingly for any cases that need to be filed via premium processing when you are considering a move to a new location.

 

Preparing For Site Visits 

Sponsors should always be prepared for an unannounced site visit.  However, site visits are not exclusively physical inspections.  USCIS is also conducting visits by telephone and email.  Since the USCIS typically does not provide any advance notice, it is best practice to treat each day as a potential site visit day. 

As mentioned, the purpose of a site visit is fraud detection.  For a “pre-adjudication” site visit, the USCIS will primarily want to confirm that the petitioning religious organization is a bona-fide religious entity.  During a “post-adjudication” site visit, USCIS will also want to verify that the religious worker is in fact working at the location stated on the petition and that the religious worker’s stated duties and compensation information is accurate. If an inspector notes inconsistencies between the petition and what they see on their visit, they may deny a pending petition or revoke and terminate an approved petition.  Given this risk, we strongly advise our clients to expect questions about the underlying information on the I-129 petition.  Of course, it is important to remember that site visits should not be "fishing expeditions".  Questions should be limited to the specific foreign national and should also be confined to the legal requirements for R-1 status (and not other statuses or benefits). 

We have also been made aware of instances where USCIS has hired private contractors for site visits.  Because the contractors are presumably not experts at immigration law, clients should be prepared to deal with individuals with a less-than-complete understanding of the requirements of R-1 status.  Despite any frustration this may cause, it is important to be professional, respectful, and compliant with the representative's requests. 

Given the recent trend of site visits by phone and email, petitioners and beneficiaries should make sure they provide the most up-to-date phone number and email address when filing the I-129 petition.  In addition, since phone and email site visits may require responses to requests for information and/or documents within 3-5 business days, petitioners and beneficiaries should regularly check their phone messages and emails.  If the organization’s primary contact person or the beneficiary plans to be out of town, there should be a designated person to monitor calls, emails and handle physical visits in their absence.  Also, as an automatic rule, you should immediately contact your attorney whenever contacted by USCIS officers.

Since post-adjudication site visits occur after an I-129 petition for a nonimmigrant religious worker is already approved, one might not immediately recognize their importance.  However, it is important to remember that USCIS can revoke an approved petition.  Therefore, any type of site visit can affect whether the foreign-born religious worker can work in the United States.  Failure to fully appreciate the importance of a site visit can have serious consequences, not only for the foreign national but even for the sponsoring religious organization.

 

Best practices:

In order to prepare for a post-adjudication site visit, the petitioning religious organization should:

  • Assign a designated person at the petitioner’s headquarters as the “go-to” person for USCIS site visits.
  • nform reception staff and other personnel to direct the USCIS officer to the designated person.
  • Keep copies of all I-129 petitions, any updated immigration documents (i.e., new I-94s) and current religious organization documents (i.e., recent financial records), and maintain these copies so that they are easily accessible and identifiable in the event of a site visit.

 

During the site visit:

  • Always request the name, title, and contact information for the USCIS officer and ask for his/her business card.
  • Take detailed notes of all information and documents requested by the USCIS officer. 
  • Whenever possible, consult your attorney before providing information and documents to the USCIS officer.

 

You should prepare your office and/or parish (or other beneficiary work location) for the possibility of a USCIS site visit.  Please contact our office if you have any questions about this or how to best prepare.

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USCIS Proposes Expansion of Provisional Waiver Program

The USCIS published a proposed rule in the Federal register on July 22, 2015 that would expand the current provisional waiver program in two significant ways. The agency is allowing the public 60 days to comment on the proposed regulatory change. The provisional waiver program is currently open only to immediate relatives who, upon leaving the United States to consular process, will trigger the three- or ten-year bar for unlawful presence. It allows these immigrant visa applicants to file for a waiver of the unlawful presence bar in the United States prior to departing if they will be found inadmissible only for the unlawful presence ground of inadmissibility.  To have the provisional waiver approved, they must establish that their U.S. citizen parent or spouse will suffer extreme hardship if the waiver is not approved.

The first way that the USCIS proposes expanding the provisional waiver program is to allow other immigrant visa applicants – in addition to immediate relative – access to it. This means that all other beneficiaries of family-based petitions (Form I-130) may apply for the waiver. This would include all preference-based categories (adult or married children of U.S. citizens; siblings of U.S. citizens; and spouses and unmarried children of LPRs). It would also allow access to beneficiaries of approved employment-based petitions (Form I-140), VAWA self-petitions (Form I-360), widow(er) petitions (Form I-360), and special immigrants (Form I-360). It allows access to the derivative spouse and children in the above categories. And it also proposes expanding the program to diversity visa lottery winners. The selection of the person for the diversity visa program would be considered the functional equivalent of having an approved immigrant visa petition.

The second way that the USCIS would prose expanding the program is to allow LPR parents and spouses to be “qualifying relatives.” At the present time, only U.S. citizen parents and spouses qualify.

The USCIS limited eligibility in the current program to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. The proposed expanded program would maintain that cut-off date for immediate relatives, even if they became eligible for the program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date will be the effective date of the final regulation. Those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver under the proposed rule. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program.  Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.

The proposed rule also included certain statistical information. For the first seven months of the program in 2013, the National Benefits Center approved 64 percent of the applications it adjudicated and denied 36 percent.  During fiscal year 2014, the agency’s approval rate increased to 71 percent, which it maintained for the first four months of fiscal year 2015.

Practitioners are encouraged to submit written comments on the proposed regulation by September 21, 2015. CLINIC plans to submit comments and specific objections to the cut-off dates.  Comments should be sent to Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, 20 Massachusetts Ave., NW, Washington, DC 20529. They may also be emailed to uscisfrcommet@dhs.gov. Whichever means you use, be sure to include the DHS Docket No. USCIS-2012-0003 in the correspondence

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Matter of Z-Z-O: Tell Nostradamus Prophecies Are Now Facts

By Michelle N. Mendez

The Board of Immigration Appeals (BIA) reviews questions of fact and questions of law under different standards. Per 8 CFR § 1003.1(d)(3)(i) questions of law are subject to the “de novo” standard, while 8 CFR § 1003.1(d)(3)(ii) dictates that questions of fact are subject to a “clear error” standard. The “de novo” standard allows the Board to conduct its own independent analysis of any possible misstatements of fact, errors in analysis, flawed reasoning, or improper application of law. In contrast, the “clear error” allows the BIA that level of independent analysis only if the findings of the immigration judge are proven to be “clearly erroneous.” The difference between these two BIA standards of review highlights the importance of determining at the immigration judge level if an issue is one of fact or law. Determining if an issue is one of fact or law, however, is not always obvious or absolute, as the BIA recently reminded us in Matter of Z-Z-O, 26 I&N Dec. 586 (BIA 2015).

In Matter of Z-Z-O, the BIA considered the appeal of a Chinese national whose claim for asylum, withholding of removal, and protection under the Convention Against Torture was based on China’s one-child policy. These forms of relief were denied by the immigration judge. The respondent, a father, claimed past persecution because his wife suffered a miscarriage of their second child after family planning officials at his wife’s work forcibly investigated her pregnancy and caused her to fall down a flight of stairs. Though recognizing the tragedy of the miscarriage, the BIA disagreed that the incident constituted persecution of the father on account of a protected ground. 

The BIA found that the miscarriage did not occur with intent by the family planning officials and that the wife was never physically harmed. Since respondent’s experiences in China did not amount to past persecution, the respondent was unable to benefit from a presumption of well-founded fear of persecution. Had the respondent benefitted from this presumption, the burden of proof would have shifted to DHS to rebut the presumption that the respondent had a well-founded fear of persecution. Without the benefit of the presumption, that meant the respondent maintained the burden of establishing that he has a well-founded fear of future persecution on account of a protected ground upon his return to China.

A respondent claiming a well-founded fear of future persecution must show a subjectively genuine and objectively reasonable fear of future persecution. Because the assessment is one of future persecution, that assessment requires predictions and forecasting by the immigration judge. These have traditionally been viewed by the BIA as non-fact finding and thus not liable to the clear error standard of review. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); Matter of V-K-, 24 I&N Dec. 500 (BIA 2008). However, the majority of the U.S. circuit courts have held that an immigration judge’s findings regarding the likelihood of future events is a finding of fact that the BIA must review under the clearly erroneous standard. With this pressure from the U.S. circuit courts, the BIA acquiesced to the view that the immigration judge’s predictive findings are findings of facts to be reviewed only for clear error.  The BIA therefore and overruled its prior holdings under Matter of A-S-B, 24 I&N Dec. 493 (BIA 2008) and Matter of V-K, 24 I&N Dec. 500 (BIA 2008).

The BIA then specified that once the immigration judge’s predictive findings withstand clear error review, it would continue to review de novo the “legal determination” of whether an asylum applicant had established an objectively reasonable fear of persecution based on the immigration judge’s findings of what events may occur if the applicant returns to his/her country of origin. Applying this framework to Matter of Z-O-O, the BIA upheld the immigration judge’s factual findings: (1) after the respondent received the purported sterilization notice, he faced no reported harm when he returned to China following a trip abroad; (2) the authorities have not subjected the respondent’s wife in China to forced sterilization; and, (3) the authorities’ focus was the respondent’s wife, not the respondent. The BIA then held that “[b]ased on the Immigration Judge’s factual findings and the existing evidence of record, we conclude that he properly determined that the respondent did not satisfy his burden of showing that his fear of being sterilized by force, or of suffering other persecutory harm upon his return to China, was objectively reasonable.” In other words, the respondent did not meet his burden of showing a well-founded fear of future persecution. The judge had thus properly denied asylum and the BIA consequently denied the appeal.

Matter of Z-O-O reminds us of the importance of establishing a strong factual record of persecution before the immigration judge. The respondent’s testimony, expert testimony, reputable country conditions reports, and other documentary evidence are part of a strong factual record. Otherwise, we face the tough “clear error” standard of review before the BIA.

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Supreme Court Holds Drug Paraphernalia Offenses Do Not Always Trigger Removal

By Bradley Jenkins

On June 1, 2015, the Supreme Court ruled on a case relating to a state court conviction for drug paraphernalia – in this case a sock containing Adderall tablets – and whether that was sufficient to remove a lawful permanent resident. Mellouli v. Lynch, available at http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdfThe Department of Homeland Security issued a Notice to Appear (NTA) charging that Moones Mellouli was removable because he had been “convicted of a violation of…any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).”  INA § 237(a)(2)(B)(i). Mellouli argued that DHS could not prove the charge because the relevant documents did not show that he was convicted of any offense related to a federally controlled substance. He was able to make this argument because Kansas’s list of illegal drugs includes more substances than the federal list.  DHS argued that paraphernalia (which means items like needles, pipes, or containers that are used in connection with drugs) relates to all drugs in general, and that they did not need to prove whether the conviction involved a substance on the federal list. 

The Board of Immigration Appeals (BIA) ordered Mellouli’s removal based on its precedent in Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). Martinez-Espinoza was a previous BIA case that agreed that paraphernalia “relates to” all controlled substances with which the object can be used. Therefore, the Board held, DHS need not prove that any individual paraphernalia conviction relates to a federally controlled substance. The Supreme Court disagreed and found that Mellouli should not have been deported and that Matter of Martinez-Espinoza must be overruled.  In its decision, the Supreme Court emphasized that the INA specifically references the federal drug schedule. The Court held that the BIA was not free to ignore such a clear reference to federally controlled drugs.

The main lesson of Mellouli v. Lynch is that if a state punishes people for more types of drugs than federal law, then a drug paraphernalia conviction does not automatically trigger removal. Rather, DHS must prove, using the “record of conviction” only, that the paraphernalia conviction relates to a federally controlled substance. It should be noted, however, that if the noncitizen bears the burden of proof, Mellouli may not apply in the same way. Applicants for any immigration benefit, as well as anyone seeking re-entry into the United States, should not necessarily rely on Mellouli as a guarantee that their applications will be approved if they have a paraphernalia conviction.

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BIA Explains Implications of Matter of United Farm Workers Foundation

By Laura Burdick

In a March 20, 2015 conference call with community-based organizations, the Board of Immigration Appeals (BIA) answered some questions about the implications of Matter of United Farm Workers Foundation, its recent decision that agency staff members who are accredited at one recognized location of an agency are authorized to practice at any other recognized location of the same agency.  Under this decision, organizations no longer need to file a separate application for accreditation at each recognized location where a staff person will be providing legal services. They only need to inform that BIA in a letter (with proof of service to their USCIS District Director and ICE Chief Counsel) that the staff person will be practicing at additional recognized locations, and ask the BIA to add the person’s name to the roster at the other locations. 

 

Accreditation Expiration Dates

The BIA explained that it will apply the same accreditation expiration date to all locations where the staff person will be working.  In cases where the staff person has different expiration dates for accreditation at different locations, the BIA will apply the earliest expiration date to all locations.  This means that agencies with staff members accredited in more than one office location will need to apply for renewal of their accreditation by the earliest expiration date.

 

Concurrent Filing for Recognition and Accreditation

Prior to Matter of United Farm Workers Foundation, an application for agency recognition had to be accompanied by an application for staff accreditation, unless the agency had an attorney on staff.  However, the BIA explained that in cases where an organization already has a recognized location with accredited staff at that location and is applying for recognition of a new location, the organization may apply for only recognition if it plans to use the existing accredited staff at the new location.  In this situation, the organization should inform the BIA in its cover letter that the existing accredited staff member will be working at the new location and attach a copy of his/her grant of accreditation; the organization does not need to file concurrently for recognition and accreditation. 

CLINIC affiliates with questions about their BIA application or staff accreditation expiration dates may contact their Field Support Coordinator for assistance.

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Update on DACA (June 18, 2015)

By Jen Riddle and Jill Bussey

This month marks the 3-year anniversary of the Deferred Action for Childhood Arrivals (DACA) program. Since DACA launched in 2012, over 664,000 individuals have been granted temporary reprieve from deportation and a work permit.  All 50 states now permit DACA recipients to apply for driver’s licenses, following policy reversals in Nebraska and Arizona due to legislative action (in NE) and litigation (in AZ). 

However, despite the substantial benefits of DACA, only 748,000 of the more than 2.1 million estimated to be eligible have applied so far.  To view the latest statistics from the U.S. Citizenship and Immigration Services (USCIS), click here. A recent report from the Brookings Metropolitan Policy Program draws upon government statistics and field interviews to provide suggestions for strengthening DACA implementation locally and preparing to implement Deferred Action for the Parents of Americans and Lawful Permanent Residents (DAPA).  A Scholars Strategy Network report indicates that the greatest barriers for those who have not yet applied are a lack of financial resources for fees or legal services (43%) and a lack of evidence to demonstrate DACA eligibility (22%). These reports speak to the critical role that outreach and education continue to play in successful access to the program.

 

DACA Renewals

The number of DACA renewal applications filed has been much lower than expected; Only 243,000 DACA recipients have successfully renewed their DACA status so far  (which represents roughly 1/2 of the estimated 470,000 eligible to renew). In addition to the low numbers of renewal applications, there are continued reports of delayed USCIS processing of renewal requests. While official processing times for I-821D renewal applications are 3.5 months, many renewal applications are not being adjudicated within this timeframe, despite having been filed within the recommended window of 120 to 150 days prior to expiration.

On June 15, 2015, USCIS updated the DACA FAQs on its website that addressing DACA renewal (specifically questions 49-52). The changes include:

  • USCIS removed the language indicating that it would provide temporary extensions of DACA and employment authorization to renewal applicants who filed at least 120 days prior to expiration and experienced USCIS delays in adjudicating the renewal. In practice, USCIS had not been issuing temporary extensions but it is no longer mentioned as a possibility in the FAQs.   
  • USCIS confirmed that, while it still encourages renewal applicants to file within the 150-120 day filing window, it will accept renewal applications received earlier than 150 days. However, it warns that filing before 150 days could result in an overlap between the previous DACA validity and the validity of the extension.
  • USCIS clarified that the following factors may affect its ability to timely process DACA renewals: failure to attend a biometrics appointment; national security, criminality or public safety issues discovered during background check; travel abroad issues needing clarification or additional evidence; discrepancies in name or date of birth requiring clarification; and incomplete submissions requiring a Request for Evidence.
  • USCIS deleted Question 51 from the prior FAQs  (“How will USCIS evaluate my request for renewal of DACA?”). The deleted FAQ provided that an applicant would be considered for renewal if they met the Initial DACA guidelines and did not depart the U.S. on or after August 15, 2102 without advance parole; had continuously resided in the U.S. since submitting the most recent request for DACA that was approved up to the present; and had no felony, significant misdemeanor, or three or more misdemeanor convictions and did not otherwise pose a national security or public safety risk.  It is not clear why this FAQ was removed but CLINIC will update our network as new developments arise.

Advocates will continue to push for a temporary automatic renewal of DACA status in order to prevent gaps in employment authorization, which often result in lost jobs and other serious harm to DACA recipients and their families. In the meantime, clients should be encouraged to file renewal applications as early as possible. Once a renewal application has been pending for 105 days, a service request can be made with USCIS online or by calling the National Customer Service Center at 1 (800) 375-5283.  CLINIC continued to assist its network with initial DACA applications filed in 2012 and 2013 that remain pending with USCIS. The USCIS Ombudsman’s office is also able to provide case assistance for initial applications and renewal applications that have been pending with USCIS for more than 105 days.

 

Confusion Over Two-year v. Three-year EADs

One of the expansions to DACA announced by the President on November 20, 2014 was that employment authorization documents (EADs) for DACA recipients would be issued for three-year periods instead of two-year increments.  Starting in November and until the federal court injunction was issued on February 16, 2015, USCIS granted DACA approval notices and EADs with a three-year validity to an estimated 108,000 individuals. In order to comply with the court’s injunction, USCIS decided to halt the issuance of three-year approvals and EADs beginning February 17, 2015. However, this policy did not go into effect immediately.  USCIS continued to send three-year approvals and EADs after February 16 to an estimated 2,000 DACA recipients who should have received two-year documents.  To correct this error, USCIS has been sending letters to those mistakenly issued three-year EADs after February 16 asking them to return the documents so that they can be replaced with two-year EADs. 

Please advise DACA recipients to check the date of their DACA approval and EAD notice carefully. If a DACA renewal or initial application was approved with three-year validity after February 16, 2015, they should expect to receive a notice from USCIS that the three-year grant was issued in error and that a new EAD and approval notice bearing two-year validity will be issued. The notices issued by USCIS indicate the recipient should return the three-year documents.  CLINIC recommends that clients do so but only after the DACA grantee has received an updated two-year work permit and approval notice from USCIS. Note that USCIS has taken the position that any three-year DACA related document, including an EAD card, issued or produced after February 16, 2015 is subject to revocation. Please send examples of any USCIS revocation letters you believe were issued in error (i.e., in cases approved well before the February 16, 2015 injunction) to Advocacy Attorney Jill Bussey at: jbussey@cliniclegal.org

 

Reminder About Becoming DACA Eligible and Screening for Alternative Relief

While the expanded DACA program announced last November remains on hold as a result of the pending litigation in Texas, don’t forget that every day individuals “age in” to DACA eligibility by turning 15 years old.  Approximately 500,000 individuals are estimated to age-in to the 2012 DACA program in the decade following its launch (2012-2022). During CLINIC’s Convening in Salt Lake City last month, USCIS Director Leon Rodriguez advised that 80,000 age in to DACA each year. With outreach and education, individuals who are aging in to DACA have the potential benefit of advance knowledge of the requirements and how to gather evidence for successful applications.

In addition, those who would otherwise qualify for DACA but have not met the education requirement may become eligible by taking steps to enroll in a qualifying educational program. Please refer educators, counselors, and administrators in schools or adult education programs to the recording of CLINIC’s recent webinar about DACA and DAPA eligibility and ways to connect community members with trusted information and legal assistance.

Last but not least, the Center for Migration Studies data indicates that 14% of immigrants screened for DACA eligibility are eligible for another form of relief. When conducting outreach sessions or clinics, consider including provide legal screenings for other immigration relief.

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Federal District Court Denies Emergency Stay Request on Executive Action

On Tuesday, May 26, the Fifth Circuit Court of Appeals denied the government’s request for an emergency stay of the injunction issued by a Brownsville judge in February.  That injunction stopped implementation of the expanded DACA and the DAPA programs that were already set to begin. The district court found that the plaintiffs – 26 states – had standing to bring the lawsuit and it found that the government had violated the Administrative Procedures Act (APA) in failing to publish regulations before implementing the programs. The appellate court ruled that the plaintiffs were likely to prevail in the lawsuit and therefore denied the government’s request for a stay and its request to narrow the scope of the injunction.

 

CLINIC’s Response

In response to this decision, Jeanne Atkinson, CLINIC’s executive director, issued the following statement:

“We are disappointed by the decision of the 5th Circuit Court of Appeals to uphold a temporary halt of the implementation of President Obama’s administrative relief.   Not only does this news prolong the confusion experienced by eligible immigrants but it maintains an outdated system that compromises the unity of families and the prosperity of our communities.

The need for policies in line with our faith and our nation’s values remains.  We are resolved to move forward – advocating for a permanent fix to the immigration system and preparing community programs to ensure access to the legal process at hand.” 

 

The Basis of the Fifth Circuit Decision

The original district court based jurisdiction on the State of Texas’s claim that it would be required to issue drivers licenses to DACA and DAPA recipients and that it would spend approximately $130 more (per DACA/DAPA recipient) than it received in application fees to process them.  Additionally, that court ruled that it had jurisdiction to review the orders establishing DACA and DAPA and to apply the APA’s notice and comment requirements. On May 26th, the appellate court agreed, finding that the granting of deferred action under DAPA was more than a discretionary act not to enforce the deportation laws against a designated group of persons.  The grant of DAPA designates lawful presence and eligibility to federal and state benefit programs, the court reasoned, thus making it subject to review and APA requirements.

 

What’s Next

The government has already announced that it will not seek an appeal of the emergency stay denial.  Instead, the government will proceed with its appeal of the preliminary injunction.  Oral argument on that appeal is scheduled for July 10, 2015.  Many of the same arguments that the government raised in the stay request will be ruled on in that appeal. If the government is unsuccessful in its appeal of the preliminary injunction, it will likely take that to a higher appellate court, including the Supreme Court.

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Center for Immigrant Integration (May 2015 Updates)

CENTER FOR IMMIGRANT INTEGRATION

By Louise Maria Puck, Intern

CLINIC’s new Center for Immigrant Integration seeks to encourage and facilitate the development of immigrant integration initiatives throughout its network through the creation of resources and trainings and through the dissemination of best practices currently present in CLINIC affiliate agencies.

 

This month, the Center has several new developments.

 

New Resources!

Funding Available

The Paul & Daisy Soros Fellowships for New Americans Class of 2016 is now open.  Thirty outstanding New Americans will be awarded $90,000 toward their graduate school studies in the U.S. The thirty recipients will be selected for their potential to make significant contributions to U.S. society, culture, or their academic field. The most recent group of recipients is extremely diverse in terms of family heritage, fields of study and New American status. Applications are due on November 1, 2015.

New Blog Article

Read CLINIC’s overview of the Federal Strategic Action Plan on Immigrant & Refugee Integration and CLINIC’s involvement.

Affiliate Highlights

Learn about Project Hope, a CLINIC affiliate located in Archbold, Ohio and led by Sister Ellen Lamberjack. This program promotes immigrant integration by offering legal services, education on rights and responsibilities to newcomers, and by celebrating immigrants’ success with an annual reception for new citizens.

 

ESL Resources

New! The USCIS offers free training for adult educators, program directors, volunteers, and representatives from immigrant-serving organizations. These seminars are offered around the country and are designed to enhance the skills needed to teach U.S. history, civics for the naturalization process.

 

Looking for innovative ways to promote and encourage immigrant integration in the workplace? Learn more about the Building Skills Partnership, located in several California counties.

Outside Resources

Looking for resources on different approaches to writing about migration and integration? Many higher education institutions in both Europe and the U.S. focus on immigrant integration.

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Finally! BIA Gets It Right on 212(h) Bar for LPRs

By Susan Schreiber

In 1996, Congress amended INA § 212(h) to bar waiver eligibility for an alien with an aggravated felony conviction if that individual had "previously been admitted to the United States as an alien lawfully admitted for permanent residence..." Since then, the language of this so-called “aggravated felony bar" has been the subject of two BIA decisions and ten appellate court decisions.  The Board decisions, Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) and Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), interpreted this language as applying to all LPRs, including those who entered the United States EWI or in a nonimmigrant status.  The Eighth Circuit, finding the statutory language ambiguous, issued a decision deferring to the Board's interpretation.  Roberts v Holder, 745 F.3d 928 (8th Cir. 2014).  In contrast, nine appellate court decisions rejected this interpretation and viewed the language of 212(h) as not applying to those LPRs who adjusted status in the United States.  Only the First Circuit has yet to rule on this issue.

On May 12, the Board released a decision bowing to the weight of authority on this issue by holding that an alien who adjusted status in the United States and who has not entered as a LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction. Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015).  Now, only those who entered the United States as LPRs and thereafter are convicted of an aggravated felony are precluded from establishing 212(h) eligibility based on an aggravated felony.  The Matter of Koljenvic and Matter of E.W. Rodriguez decisions have been withdrawn.

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Intent is Irrelevant to Unlawful Voting

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.

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CLINIC Newsletter - May 2015 - VOL. XIX No. 5

The Five Most Common Mistakes in Completing the I-864

Immigration Law Updates

News From the Catholic Network

Center for Immigrant Integration

Technical Assistance and Trainings

  • Upcoming Trainings                                                                                                  

Visa Bulletin

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Question Corner - Marta's Choice (April 2015)

Marta is an LPR who is married with three children.  She is eligible to naturalize, but wants to know whether to proceed. She filed an I-130 petition for her husband, Pablo, and named their three children as derivatives.  The I-130 was filed on November 12, 2010 and was approved on April 13, 2011.  The F-2A priority date became current in September 2013, and everyone filed for an immigrant visa within one year. The eldest child, Diana, was born on November 24, 1992. Her middle sister, Luz, was born three years later, and her brother, Tomas, a year after that.  They all entered the country several years ago with nonimmigrant visas, but they have long since overstayed.  They have held off submitting the affidavit of support, so no consular interview has been scheduled.

What advice do you have for her?

 

Answer:

Marta is in a bit of a quandary.  If she were to naturalize, her husband, Pablo, would convert to immediate relative.  Since he entered with inspection, he would qualify to file for adjustment of status.  Therefore, he would not face the unlawful presence bar upon leaving the country to consular process.  If Marta were to naturalize, the three children would lose their derivative status, and she would need to file separate I-130s for them. The two younger children, aged 19 and 20, would also qualify as immediate relatives and thus could also adjust status.  But the eldest child, Diana, has already turned 21.  She is currently in the F-2A category based on her adjusted age and the Child Status Protection Act.  Her status is locked in, since she was under 21 using her adjusted age on the date the priority date became current.  If Marta naturalizes and files a new I-130 for Diana, it will be in the F-1 category, which is backlogged several decades for Mexicans.  Diana cannot consular process until Pablo has become an LPR.  In this situation, Marta’s naturalizing would allow her husband and two of her children to benefit immediately, since they would avoid the unlawful presence ground of inadmissibility, but it would work a great hardship on her other child.  The Attorney General has indicated that the USCIS will expand eligibility for the provisional waiver program, which would help Marta’s family should she choose not to naturalize, but the agency will have to publish a regulation and implement that change. There is no easy answer to this question.

 

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Attorney General Holder Vacates Matter of Silva-Trevino in its Entirety

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).

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10th Circuit Joins the Crowd: Another Rejection of the BIA’s 212(h) Aggravated Felony Bar

Carlos Jovany Medina-Rosales is an LPR who obtained his residency through adjustment of status in 2001.  Twelve years later, in 2013, he was convicted of grand larceny and was placed in removal proceedings in Tulsa, OK, charged with deportability for an aggravated felony offense.   Conceding the charge, Mr. Medina-Rosales sought to re-adjust, and to waive his inadmissibility under INA § 212(h). The immigration judge, however, found him ineligible for relief based on the Board's decision in In re Rodriguez, 25 I&N Dec. 784 (BIA 2012), which held that any alien convicted of an aggravated felony after becoming an LPR is ineligible for a waiver of inadmissibility, regardless of when or how that status was obtained. The BIA affirmed the immigration judge's decision and the case was appealed to the Tenth Circuit, one of the few circuits that had yet to rule on this issue.

In Medina-Rosales v Holder, No. 19-9541(10th Cir. 2015), the Tenth Circuit became the ninth circuit court of appeals to reject the BIA's analysis of the so-called "aggravated felony 212(h) bar." Under the terms of the statute, no 212(h) 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 United States before being placed in removal proceedings.   Concurring with decisions issued in the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, and 11th circuits, the 10th Circuit rejected the Board's analysis in Matter of Rodriguez, concluding that the 212(h) bar does not apply to an LPR who adjusted status in the United States.  Finding the language of 212(h) to be "clear and unambiguous," the court held that adjustment of status  is not an admission and that  “only persons who obtained LPR status before or when they entered the United States are barred from seeking a waiver" under this provision.  Medina-Rosales at 9.   With this decision, the count is now 9 to 1 against the Board's interpretation of the 212(h) bar, with only the 8th Circuit deferring to the Board's analysis. Roberts v Holder, 745 F.3d 928 (8th Cir.2014).  It remains to be seen whether this overwhelming rejection of the Boards' interpretation of the 212(h) bar may persuade the Board to revisit this issue.

 

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No Marriage Fraud Without a Marriage

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.

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Children under 15 Too Young to Commit Fraud

The DOS has amended the Foreign Affairs Manual to clarify that children under the age of 15 cannot act “willfully” and therefore cannot be found inadmissible for committing fraud or misrepresentation pursuant to INA § 212(a)(6)(C)(i). 9 FAM 40.63 N5.3 Minors. For aliens between the ages of 15 to 16, the consular officer will need to determine if the child was acting at the direction of an adult or whether the child was acting on their own. Aliens aged 17 and over are presumed to act willfully unless they can establish a lack of knowledge or capacity. It is not clear whether the agency will apply the same standard when assessing alleged false claims of citizenship. In those cases, the DOS has previously stated that the child must have the legal and mental capacity to be found inadmissible under that ground.

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New Pilot Program Assessment Letter for CDJ

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.

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Update on CSPA’s One-Year Filing Requirement

The Department of State (DOS) recently confirmed that it will accept payment of the immigrant visa fee as satisfying the one-year filing requirement under the Child Status Protection Act.  In order for a child in the preference category to retain the “under 21” age status, and thus remain in the F-2A or derivative category, he or she must has “sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability.”  INA § 203(h)(1)(A).  The USCIS and DOS have consistently held that this could only be satisfied by filing one of three forms: an I-485, I-864, or DS-230 (now DS-260).  This interpretation was upheld by the BIA, although a small exception was allowed for those who could show “extraordinary circumstances.” The USCIS seemed to allow for a change in policy by the DOS in a June 2014 agency memo defining and explaining the extraordinary circumstances exception.  The agency stated that the one-year filing requirement might be satisfied by simply paying the visa application fee rather than filing the DS-260. The DOS has confirmed that new policy at a Regional Economic Advocacy Conference held on April 13, 2015.

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CLINIC Helps Indiana Welcome Newcomers

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.

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Family Detention Update

 

By Michelle N. Mendez

On February 20, 2015 the U.S. District Court for the District of Columbia responded to the desperate pleas of detained Central American women and their children. The women had been found to have a credible fear of future persecution by an Asylum Officer or the Immigration Judge yet they remained detained on account of the U.S. government’s national security-based deterrence strategy of sending a message to other women and children considering fleeing to the United States for safety. The message? Think twice about coming to the United States for you may end up being indefinitely. But the court rejected this speculative reasoning writing “incantation of the magic words 'national security' without further substantiation is simply not enough to justify significant deprivations of liberty." The court enjoined DHS’s sweeping no-release policy as, among other things, a violation of the Fifth Amendment of the U.S. Constitution.

Immigrant rights advocates cheered the judge’s order and expected the women to undergo individualized consideration of whether they pose a danger or flight risk that justifies their detention. Given that most of the women and children were themselves victims of extreme violence, death threats, or rape and had every incentive to pursue asylum and related relief, it was difficult to see how these women and their children posed either a danger or a flight risk warranting their prolonged detention. However, on February 27th when the Department of Homeland Security at the Southern Texas Family Residential Center in Dilley, Texas began distributing bond determinations generally between $7,500 and $15,000 in response to the injunction, those expectations went unmet. The glimmer of hope evident on the women’s faces upon learning that a judge far away had ruled that they should have the opportunity to pay a bond quickly faded when they realized that DHS had set a bond at an amount that was the practical equivalent of the judge never having issued that decision in the first place. One woman prophetically remarked, “What is the point of the government setting bonds that we cannot possibly pay?”

Requesting review of the bond amount by the Immigration Judge was the next option. The Denver Immigration Court has jurisdiction over the women and children at the Southern Texas Family Detention Center so the women’s hearings are held over videoconference that provides a perhaps convenient barrier between the judges and ICE attorneys and the humanity of the women and children. In the first weeks following the injunction, the women argued that the Immigration Judge should lower the bond set by DHS and that a reasonable amount would be the statutory minimum of $1,500. One judge lowered bonds to $3,000, $6,000, and $7,500 in three cases. The higher bonds were not lowered further because, for the judge, the fact that many of the detainees had hired and financially supported a commercial smuggling ring suggested a connection to an enterprise that would allow one to flee easily within the United States. The judge’s logic was that a reasonable bond should not be less than the amount paid to the smuggling ring. Aside from the $3,000 bond, it was unlikely that the other two women would be able to post the bond amounts the Immigration Judge set. Those who are unable to pay the reconsidered bond have little choice but to face another eight months in detention awaiting their merits hearing. The only other option, and one the detention officers are willing to suggest, it to agree to a removal at government expense. Despite the injunction, the initial DHS bonds and the Immigration Judge’s review of these bond amounts are proving to be cost-prohibitive for most of these indigent women and children who sacrificed their life savings—and more—just getting to the United States.

The EOIR recently announced that the Miami Immigration Court will take jurisdiction over the Southern Texas Family Residential Center detainees. Advocates eagerly await the changes to come, if any, on bond review decisions.  However, the 2009 to 2014 asylum denial rate for Miami judges is fairly high, according to Syracuse University’s Transactional Records Access Clearinghouse’s records.

 

Michelle spent two weeks in San Antonio and Dilley, Texas during which she met with detained women and observed immigration hearings at the Southern Texas Family Detention Center.  She represented CLINIC in developing the new collaboration among AILA, RAICES, and American Immigration Council named the CARA Project to assist detained women and children and provide a “face” to the issue of family detention.

 

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BIA Issues Two Decisions on Recognition and Accreditation (2008)

By Jennie Guilfoyle

On July 3, 2008, the Board of Immigration Appeals (BIA) issued two precedent decisions on recognition and accreditation: Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), Interim Decision 3614, and Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), Interim Decision 3615. These represent a significant addition to the case law on recognition and accreditation. Prior to this, there were only five published decisions on this subject. The new decisions add more specifics to the Board's requirements for recognition and accreditation – most importantly seeming to create a requirement for technical support by an attorney or fully accredited representative – while leaving unanswered the important question of what constitutes a "nominal" fee.

Interim Decision 3614 ("EAC decision 3614") requires recognized agencies to have access to the expertise of an immigration attorney or fully accredited representative, who may either work for the agency or agree to a consulting relationship with the agency. The decision also eases requirements for immigration library materials, noting that Internet access is sufficient. The two decisions require that partially accredited representatives must have "broad" knowledge of immigration law, sufficient to recognize issues they are not equipped to handle themselves, as well as access to expert support. Further, an agency staffed only by partially accredited representatives must have a plan to refer clients it cannot help.

Technical Legal Support. EAC decision 3614 lays out a requirement – never before articulated in a precedent decision – for technical legal support by an attorney or fully accredited representative.  In order for the Board to consider that an agency has "at its disposal adequate knowledge...and experience," it must have one of the following: (1) an immigration attorney or fully accredited representative on staff; (2) an off-site immigration attorney or fully accredited representative who provides consultation (whether on a pro bono or paid basis); or (3) a partially accredited representative with "access to additional expertise" – the expertise of an outside immigration attorney or fully accredited representative. The access need not be in person; it may be by telephone or Internet.

CLINIC affiliates and subscribers, and affiliates of other national networks with attorneys who provide technical support, such as the Lutheran Immigrant and Refugee Service, the International Rescue Committee, and programs serving survivors of domestic violence with funding from the Office of Violence Against Women should be able to meet this requirement.  The Board has already recognized many agencies that are part of such networks and have only partially accredited representatives on staff; and apparently it will continue to do so. On the other hand, stand-alone programs without such attorney technical support will not, it appears, be granted recognition.

The Board also makes clear in the EAC recognition decision that agencies may not be recognized without at least a partially accredited representative with access to technical support on staff.  Agencies may apply concurrently for recognition and staff accreditation, but agencies without attorneys on staff should not apply solely for recognition. In the past, agencies hav applied for recognition and later for partial accreditation of staff members, but this is no longer possible for agencies without attorneys on staff.

Library Resources.  The Board notes that agencies are required at a minimum to have access to up-to-date copies of the Immigration and Nationality Act, the federal immigration regulations (8 CFR), as well as the Board's precedent decisions. Acknowledging that "access to adequate information may now be shown via electronic or Internet access to immigration legal resources," the Board indicates that internet access will now satisfy the library requirement.  The Board notes with approval the specific websites EAC had listed in its application; other applicants would be well served by listing the immigration websites it relies on.

While the decision implies that Internet access alone should be sufficient for the Board to grant recognition, CLINIC strongly recommends that agencies regularly purchase at least one general treatise on immigration law, such as Kurzban's Immigration Law Sourcebook, as well as treatises on the agency's specific area(s) of representation, such as family-based immigration and naturalization. CLINIC also recommends annually buying bound copies of the Immigration and Nationality Act and 8 CFR whenever possible, as hard copies are much easier to read and use.

"Full Range of Services." In the past few years the Board has denied recognition to a number of agencies for failing to provide a "full range of services," including removal defense. EAC decision 3614 appears to address this issue, acknowledging that recognized agencies may in fact provide a limited menu of immigration legal services. The Board notes, however, that in such cases agencies must be able to "discern" when clients need more help than an agency can provide, and must have a plan to refer such clients elsewhere.

Purpose of Recognition. EAC Decision 3614 also discusses the purpose of recognition and accreditation: to provide competent immigration legal help to low-income immigrants. The Board notes that it will only recognize agencies that provide direct immigration representation to individuals; it will not recognize agencies that merely provide "aid, education, and other services" to immigrants. In both decisions, the Board appears to want to ensure that recognized agencies provide "knowledgeable" representation.

Documenting the Recognition Application. In EAC Decision 3614, the Board specifies certain documents that it will look for in recognition applications. These are:

  1. Library resources. This requirement may be satisfied through Internet access. If you access the INA and 8 CFR through the Internet, make sure to clearly state that in your application. List other immigration-related websites you use. One useful website to list is the Immigration Advocates Network, www.immigrationadvocates.org, a free resource for nonprofit immigration legal providers.
  2. List of Services. The Board wants to see "a description of the specific immigration legal services [an agency] will provide." Programs that charge fees must submit a list of fees for each immigration service they provide; such a list should suffice for this requirement.
  3. Staff List. Provide a list of all local staff, along with a resume for any immigration attorney(s) on staff.
  4. Evidence of Arrangement with Outside Expert. An agency that will rely on an attorney or fully accredited representative who is not on staff for expertise will need to provide evidence of that arrangement.

 

An agency with a formal consultation agreement with an outside attorney should provide evidence of that agreement (via a letter or contract), along with the resume of the attorney.

An agency without attorney or fully accredited staff that is applying for partial accreditation for an employee must submit evidence that that employee will have access to an immigration attorney or fully accredited representative.  For CLINIC members and subscribers, this would be a letter from a CLINIC attorney describing the many forms of support CLINIC provides to its members and subscribers (e.g., trainings, webinars, and individual consultations via the attorney- of-the-day hotline).

Partial Accreditation. The Matter of EAC, Inc. decision on partial accreditation ("EAC decision 3615") sets forth a knowledge standard for partial accreditation: partially accredited representatives, even at agencies that provide limited services, must have a "broad knowledge of immigration law and procedure."  They must know enough about immigration law to discern when immigrants have complex issues they are not themselves equipped to handle so that they may refer such immigrants to other providers.

The decision details the sorts of documentation that help it determine whether an individual has the broad knowledge and/or experience in immigration law required for accreditation. These include a detailed resume, letter(s) of recommendation, and evidence of training. The training evidence should include a detailed description of what topics were covered.

The decision makes clear that extensive experience with immigration practice is not required where a candidate for accreditation has had sufficient training: "a proposed representative's experience with immigration law need not be fully commensurate with his or her knowledge to be considered adequate."  The Board has in the past granted partial accreditation to many people who gained their knowledge of immigration law through trainings, and this decision does not indicate that that will change.

While the decision does not specify how much training or experience are required for partial accreditation, the Board does note that the EAC candidate had worked under the supervision of immigration attorneys "since 1986" and had attended ten trainings at the New York Immigration Coalition within the past two years. Since those trainings are generally two to three hours long, that means about 25 hours' worth of training. This does not mean, however, that someone with, say, less extensive practical experience cannot be granted accreditation.

Full Accreditation. The EAC decisions make clear that the Board expects a lot from fully accredited representatives. Fully accredited representatives must be able to: advocate a client's position at a hearing in front of an Immigration Judge; present documentary evidence; conduct questioning of witnesses; prepare motions and briefs; and present oral arguments before the Board. This is a high standard (there are quite a few immigration attorneys who do not meet it).

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.

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BIA Releases New FAQ Sheet on Recognition and Accreditation (2013)

The BIA recently released a new FAQ sheet on the recognition and accreditation program, which is available here. This 27-page document addresses 91 questions and is divided into three sections on general information, recognition, and accreditation. This is an excellent new resource for programs seeking to apply for agency recognition and/or staff accreditation for the first time, add a recognized office location with accredited staff, or renew staff accreditation.  In this FAQ sheet, the BIA provides clarification and additional information on several aspects of the application:

  • On page 6, question R6 addresses the issue of how to demonstrate that an agency charges nominal fees.  In addition to the fee schedule, the BIA suggests including information on the agency’s fee waiver policies (when and for which applications the agency will waive its fees); any reduction in agency fees for additional family members or limit on the total charge per family; and what is included in the agency fee (USCIS filing fee, representation at the interview, document translation, etc.). The BIA states that it is helpful to provide as much information as possible.
  • In question R14 on page 9, the BIA states that any agreements with another organization or local immigration attorney for consultations and technical legal support should identify any fees charged for the assistance.
  • On page 9, question R16, the BIA discusses law library resources and states that an organization should have immediate access to basic resources such as the Immigration and Nationality Act, Title 8 of the Code of Federal Regulations, and BIA precedent decisions.  (Note: BIA precedent decisions are available through the EOIR Virtual Law Library.)
  • In question R30 on page 12, the BIA recommends separating concurrently filed applications. When an agency files for agency recognition and staff accreditation at the same time, the two applications should be submitted as two separate packets. Any materials that are needed for both packets should be photocopied.  Similarly, if more than one staff member is applying for accreditation, the BIA prefers a separate application packet for each person.
  • The BIA discusses training requirements on page 18, question A7 and requests a resume of the trainer or mentor who helped the applicant prepare for accreditation. Since the trainer or mentor often provides a letter of recommendation, CLINIC recommends simply including information about his/her background and qualifications in the letter.
  • On page 20, question A12 addresses trainings needed for accreditation.  The BIA states that core training includes training on employment-based and diversity immigrant visas, as well as an overview of the immigration system in the United States. At a minimum, CLINIC recommends that applicants take its new self-directed e-learning course on the fundamentals of immigration law, since the course provides a broad overview. This course is available at http://cliniclegal.org/self-directed.
  • In question A19 on page 21, the BIA discusses supporting documentation needed in the request to renew accreditation, and recommends including a copy of its last decision approving accreditation.

 

 

This new FAQ sheet has been added to CLINIC's BIA Toolkit on our website. CLINIC is in the process of updating the BIA toolkit to reflect this and other new information.

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BIA Addresses Training Requirements for Accredited Representatives (2013)

When does a legal worker have enough knowledge and experience in immigration law to qualify for accredited representative status? If you have listened to some webinars on immigration law topics, worked on cases under the supervision of an attorney or accredited staff, and perhaps attended a specialized training on citizenship or VAWA, is that enough? According to a new BIA decision, the answer is "no." A recognized agency's application for initial accreditation for a program staff member must show that the candidate recently completed at least one formal training course designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure. Matter of Central California Legal Services, Inc., 26 I & N Dec. 105 (BIA 2013).

The case before the Board concerned a candidate for accredited representative status who had represented clients in immigration matters for several years at her nonprofit agency, as well as attended various trainings on specific immigration law issues. Nevertheless, the Board denied the initial application for accreditation filed on her behalf, reasoning that the applicant was unable to show the "broad knowledge of immigration law and procedure" required by the Board's decision in Matter of EAC, 25 I&N Dec. 563 (2008). In that case, the Board held that an accredited representative must be "able to readily identify immigration issues of all types, even in areas where no services are provided," and possess "the ability to discern when it is in the best interests of the aliens served to refer those with more complex immigration issues elsewhere." Id. at 564.

Following the initial denial, the candidate for accreditation took steps to satisfy the EAC "broad knowledge" standard by participating in a two-day overview of immigration law course that addressed core concepts and procedures in immigration law. In fact, the course she took - Introduction to Immigration Law Practice: A Course for New Practitioners - was sponsored and conducted by CLINIC and addresses such topics as basic concepts in immigration law, interviewing and legal research, overview of family-based immigration, inadmissibility and deportability concepts and grounds, removal proceedings, naturalization and citizenship. The sponsoring organization then resubmitted the application for staff accreditation, and it was approved. The Board designated it as a precedent decision in order to establish the standard to be applied for all recognized agencies seeking accredited representative status for non-attorney staff.

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.

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Need Summer Help? Supply Priests and Immigration Law

By: Megan S. Turngren

RIS Attorney

 

At this time of the year, many of our clients are searching for supply priests to help with additional coverage during the summer months.  With many clergy members planning vacations, there is always a need for additional help between May and September.  However, it is always important to consider the immigration consequences of hiring foreign-born priests for even a short period of time.

The best practice is to plan in advance for any foreign-born priest to serve in the U.S.  Ideally, if the priest is abroad, there will be sufficient time to submit an I-129 petition and apply for an R-1 visa.  Many Archdioceses and Dioceses apply for R-1 status for certain foreign-born priests each summer.  Even though the priest may only serve in the U.S. for a few months, it is a win-win for both parties.  The employer knows that they have an authorized foreign-born priest who can help while other priests go on vacation.  The priest knows that he is maintaining his status and working as allowed by U.S. immigration law.  Also, if the priest only serves a few months each year, then the time that he spends in R-1 status may not count against his five-year maximum period of authorized stay in R-1 status.  This is the safest plan of action and the one that is most likely to result in adherence to immigration law.

Still, this time of year, we receive an influx in the number of inquiries regarding priests who are requesting to serve for a few weeks or months during the summer.  While their offer of service is much appreciated, it is important to always consider the immigration consequences of employing a foreign-born worker – even for a short period of time.  Failing to adhere to the immigration guidelines can negatively impact both the foreign national and the employer.  In just a few short weeks, an unauthorized foreign-born employee can cause far-reaching negative consequences on all current and future immigration applications filed by the Archdiocese or Diocese. 

So before you consider placing a supply priest on the weekly bulletin, please take a moment to consider these issues.

Does he hold R-1 status for another employer?

Perhaps the priest is serving in R-1 status for another Diocese.  If this is the case, then he is most likely not eligible to come serve in a different Diocese – even for a short period of time.  Immigration regulations are very stringent about where a priest can serve while he holds R-1 status.  There must be a change of employer petition filed before the priest can begin working for any new employer.

Is he attending school in F-1 status?  Is this his summer break?

If a foreign-born priest is attending school, then he is most likely in F-1 student status.  There are numerous restrictions on an F-1 student’s ability to work.  Before hiring him to celebrate Mass, it is important to verify his current work authorization.  Does he have Optional Practical Training (OPT)?  Does he have an Employment Authorization Document (EAD)?  He can always speak with the Designated School Official (DSO) at his school to verify his ability to work while attending school.  Be certain to obtain all necessary verification before he begins service.

Is he currently in B-1 or B-2 status?

If the priest has entered in B-1 or B-2 status, then there are specific limitations on what he can and cannot do while inside the U.S.  For example, he cannot solicit any funds while he visits the U.S.  This would include requesting donations to pay for his trip to the U.S.  The parish may provide him with a place to stay and food to eat but there can be no payment of Mass stipends. However, if he enters the U.S. in B-1 status to perform missionary work, he may receive an allowance or reimbursement for expenses incidental to his temporary stay.  Therefore, it is always preferential to request a B-1 visa for religious activity. 

Please remember that immigration regulations do not follow the requirements set forth in canon law.  In order to ensure that all parties are adhering to the immigration guidelines, it is crucial to view the service as employment under immigration law.  It may do a great disservice to the priest to provide for him canonically while simultaneously jeopardizing his immigration status.

In the event that you are uncertain about the immigration status of a specific priest you are considering hiring or have any other general questions about religious worker immigration, please take a moment to contact your RIS attorney to discuss the situation.  We are here to help you navigate the winding roads of religious worker immigration law.

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Staff Highlight: Minyoung Ohm

 
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.
 

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The Year of Consecrated Life-CLINIC’S Annual Board Breakfast

 

On Monday, March 9, 2015 CLINIC hosted its annual Board Breakfast at the Silver Spring Office.  In celebration of the Year of Consecrated Life, the Religious Immigration Services Section invited a few of our local clients to meet with the members of CLINIC’s Board and CLINIC Staff.  The breakfast was a success, with all CLINIC Staff, eight Board members, and twenty RIS guests in attendance.  The breakfast was followed by a presentation given by RIS Director, Miguel Naranjo, about the work of RIS and also the work of CLINIC as a whole. 

This is just one of the many ways RIS will be celebrating the Year of Consecrated Life.  RIS is featuring a client once a month on the CLINIC website and also welcoming clients to CLINIC staff meetings to share their vocational journey.  RIS will also be hosting an in-house training on Wednesday, August 12, 2015.  If you would like to help RIS celebrate the Year of Consecrated Life, please contact your attorney!

 

We are blessed to have spent the morning with our Board of Directors and clients of CLINIC's Religious Immigration...

Posted by Catholic Legal Immigration Network, Inc. (CLINIC) on Monday, March 9, 2015
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All in the (CLINIC) Family

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)

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USCIS Issues Revised Form G-28

By Jen Riddle

This month, USCIS published revised versions of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, and the accompanying instructions. Beginning on April 13, 2015, all applicants and representatives must submit the new version of the G-28 form (edition date: 3/5/2015). 

Notably, applicants will be able to inform USCIS how they would like to receive any case notices and secure documents. Part 4 of the new G-28 includes two boxes where applicants may request whether they would like USCIS to send notices on applications/petitions (receipt notices, biometric notices, approval notices, denials, notices of intent to deny, requests for evidence, including notices that include a tear-off Form I-94) either directly to them or to their legal representatives instead. Likewise, applicants may elect whether secure identity documents (such as permanent resident cards, work authorization documents, advance parole travel documents, naturalization certificates, and certificates of citizenship) should be mailed to them or to their representatives. USCIS indicates that it will still send courtesy copies of the two types of documents to the applicant. However, for applicants who file a victim protection request (such as T and U nonimmigrants and VAWA applicants), USCIS will send all notices and secure documents to the legal representative or person who signed as a preparer unless the applicant provides a different safe address.

These are changes that CLINIC advocated for with USCIS during the comment period on the proposed revisions last summer. The hope is that the option for an applicant to choose to have notices and identity documents mailed to a secure, permanent address will prevent the loss of such important paperwork. This option is of particular value to domestic violence victims who will be able to obtain important benefits documents without the risk of their abusers intercepting them in the mail as well as to immigrants who frequently move.    

For cases submitted with a G-28 before April 13, 2015, USCIS will continue to send notices to the legal representative on record and no action is required by either the representative or the applicant. There is no need for a new G-28 to be filed for these cases unless the applicant wants to request that secure documents be sent to the legal representative, change their legal representative, or withdraw their legal representative. If an applicant wants documents mailed to the representative, he or she should submit a new Form G-28 to the USCIS office where the case is pending indicating the change in mailing preference. Applicants with old G-28s on file who want to change their legal representative should submit a new G-28 signed by their new representative (that also indicates their mailing preferences). Finally, applicants who wish to withdraw their legal representative should send a letter to USCIS stating that they wish to continue their case without any representation. Click here to read USCIS guidance on filing the new Form G-28. 

Other minor additions and edits to the new G-28 form include:

  • Legal representatives and applicants who have previously established an account in the USCIS Electronic Immigration System (USCIS ELIS) are asked to provide their USCIS ELIS account number
  • Legal representatives are now asked for their fax number and mobile telephone number (if any)
  • Applicants are now asked for their daytime telephone number, mobile telephone number (if any) and email address (if any), and
  • The language of the form is edited to allow an individual being represented to identify himself or herself as a Requestor (in addition to the previous options of identifying as an Applicant, Petitioner, or Respondent).
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Stipulation Reached in Case for Abused, Abandoned or Neglected Immigrant Children

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.

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In-Country Refugee Processing: What Can You Do?

By Jen Riddle

 

Last December, the Department of State (DOS) launched its new Central American Minors (CAM) Refugee/Parole Program for parents who are lawfully present in the United States in a qualifying status to request that their children residing in El Salvador, Guatemala, or Honduras be admitted through the U.S. Refugee Admissions Program. Children found not to be eligible for refugee status but still at risk of harm may be granted parole on a case-by-case basis. To apply, qualifying parents must make an appointment with a DOS-designated refugee resettlement agency. Only designated resettlement agencies can file the Form DS-7699 Affidavit of Relationship. While legal service providers cannot assist clients in submitting the form, they can and should inform clients about the CAM program, help identify parents who appear to meet the eligibility criteria, and refer them to the appropriate resettlement agency.  Below are some specific suggestions of how your program can help.

Collaborate with the local refugee resettlement agency and other partners

If you haven’t already, meet with the resettlement agency in your area to find out how they prefer to receive referrals. If you are not certain which designated resettlement agency serves refugees in your county, consult the state-by-state directory located at http://www.wrapsnet.org (click on “CAM Program”). Does the resettlement agency conduct intake for the CAM program on certain days or times? Is there a particular staff member to whom potential applicants should be directed? Ask the resettlement agencies how you can make referrals in a way that helps them help applicants apply. Also, consider whether there is room for engagement or collaboration with your State Refugee Coordinator.

Educate your clients and the community

Make sure clients and community members understand that only a designated refugee resettlement agency can submit the form on their behalf and warn them against falling prey to fraud perpetrated by notarios or others who claim they can assist. You can customize this educational flyer that describes the program in English and Spanish. If your organization conducts DACA and DAPA information sessions, share resources about the program at those events.  Keep in mind that many Central Americans may not be familiar with the refugee resettlement program or the types of claims that our government recognizes as warranting refugee status. Consider also sharing information about the CAM program with social workers, city and county agencies, and social service providers that work with Central American immigrant communities.

Help identify those who might qualify for the program

Consider adding questions related to eligibility for the CAM program to your existing screening tools used during initial intake or at workshops. Can you search your data base for clients from El Salvador, Honduras, and Guatemala and reach out to them? Remember that while the parent does not need to be a national of one of these countries, the qualifying child does. Pay particular attention when working with clients who already have one of the qualifying types of lawful presence - LPR, TPS, parole, deferred action, deferred enforcement departure, and withholding of removal.  Remember that deferred action recipients include DACA grantees, those granted deferred action as VAWA self-petitioners and derivatives, and those awaiting U visa status. If you represent unaccompanied children, share information about the program with their sponsors and family members. Be sure to explain to interested parents that the minor children of their children can be derivative beneficiaries and that a legal spouse may also be able to accompany the child if he or she is found to have an independent refugee claim.

Don’t forget about the option of parole

Stay tuned for more information about implementation of the parole component of the program for applicants who are interviewed but found not to qualify as refugees. DOS has stated that such individuals may be paroled by DHS on a case-by-case basis for urgent humanitarian reasons or significant public benefit. However, very little information has been released about the process so far. As implementation of the program progresses, there will be children who attend in-country interviews but are denied refugee status. At that time, legal service providers may be able to assist the parent in submitting the requisite Form I-134, Affidavit of Support, and supporting documentation to USCIS.

 

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Qualifying Criminal Activity for U Status

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.

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SIJS and the “One or Both” Parents Language

By Michelle Mendez and Martin Gauto

 

Visit our Toolkit for Working with Unaccompanied Children

 

The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 broadened Special Immigrant Juvenile Status (SIJS) protections to cover those juveniles “whose reunification with 1 or both […] parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” Pub. L. No. 110-457, 122 Stat. 5044, Dec. 2008. Prior to the TVPRA of 2008, which took effect on March 23, 2009, the statute required that the juvenile be eligible for long-term foster care “due to abuse, neglect or abandonment.” This implied that the juvenile would only be eligible if he or she could not reunify with either parent. Pub. L. No. 105-119, 11 Stat. 2440 (November 26, 1997). In part because the regulations for the TVPRA of 2008 remain pending, the interpretation of the “1 or both” parents language has befuddled state court judges. Some states continue to issue the SIJS factual findings predicate order in sole-custody-based actions and other similar matters against the one offending defendant parent who inflicted the abuse, abandonment, or neglect. Meanwhile, other states refuse to issue the SIJS predicate order based on a strict interpretation of the “1 or both” parents language.

The Supreme Court of Nebraska was the first state appellate court to interpret the “1 or both” parents statutory language in the case of In re Interests of Erick M., 820 N.W.2d 639 (Neb. 2012). Relying on pre-TVPRA Administrative Appeals Office (AAO) decisions, the court held that the TVPRA “1 or both” language, which it found to be ambiguous, only intended to cover a child who has two problem parents. In other words, the court interpreted the “1 or both” language to require that neither parent be available for reunification.

Fortunately, the next state appellate court to interpret the statute disagreed with the Nebraska Supreme Court and held that under the TVPRA it suffices to have only one problem parent in order to be eligible for SIJS. The New York Family Court considered a case involving a juvenile who had requested the SIJS factual findings after another court had found the father had abandoned the child. In re Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012) The court considered In re Interests of Erick M. and held that “[a]lthough [the minor] was able to be returned to the custody of his mother . . . [t]he fact that [he] was returned to the care of his mother should not be determinative of his application for SIJ [status] findings.” (Id. at p. 851.). Therefore, the court interpreted the “1 or both” language as allowing SIJS protection when only one parent has abandoned, neglected, or abused the child. Though the court agreed with the Nebraska Supreme Court that the TVPRA’s “1 or both” language is ambiguous, the court also recognized the limited role the state juvenile courts play in these cases in which ultimately USCIS decides the juvenile’s eligibility for SIJS.

The Superior Court of New Jersey next tackled the “1 or both” parents issue in a case involving a juvenile from India who previously lived with his mother in deplorable conditions that had taken the lives of his two siblings and whose father had abandoned him. H.S.P. v. J.K., 87 A.3d 255 (N.J. Super. A.D. Mar. 27, 2014). While the Superior Court found that the juvenile’s father had abandoned him, the court interpreted the “1 or both” language to mean “both.” So in this case the fact that the mother had not abandoned, abused, or neglected led to the court’s affirmation that the SIJS predicate order was unwarranted. The New Jersey Supreme Court has since granted a petition for review in this case, so stay tuned for the final word on this interpretation in New Jersey. See H.S.P. v. J.K., 95 A.3d 258 (N.J. 2014).

California recently weighed in on this discussion when its Court of Appeal for the First Appellate District decided the case of In re Israel O., (Jan. 16, 2015, A142080) ___ Cal.App.4th ___. The appellate court held that the lower court erred in its interpretation of the “1 or both” language as prohibiting SIJ status findings if returning to a custodial parent remained feasible.  The lower court’s conclusion derived from heavy reliance on In re Erick M. The appellate court overturned this interpretation based on the recognition of the limited state role in this process, just as the court in In re Mario did.  The appellate court gave Chevron-like deference to USCIS materials that unambiguously stated that “SIJ eligible children” are those living “with a foster family, an appointed guardian, or the non-abusive parent” (italics added).  The court noted that the alternative interpretation of In re Erick M. could lead to the absurd result where “a juvenile with a safe and suitable home in the United States would face the prospect of deportation to the place where he or she may have experienced the abuse, neglect or abandonment that rendered reunification with the nonresident parent infeasible in the first place.”

Though not directly on point on the “1 or both” parent language, the Maryland Court of Special Appeals recently issued a reported opinion on an SIJS issue that is instructive. In this divorce and one-parent custody case, the trial court refused to issue the SIJS factual findings because it believed a separate hearing on the matter was required. The question before the appellate court became whether a circuit court, which is the “juvenile court” in Maryland, must enter factual findings regarding a child’s potential SIJS. Simbaina v. Bunay, Md. Ct. Sp. App. No. 01092 (Feb. 3, 2015). The appellate court held that the circuit court erred in not entering the factual findings needed for SIJS in the divorce and one-parent custody proceeding and remanded the case back to the circuit court to make its own independent factual findings regarding SIJS. The decision is replete with dicta borrowed from other state courts that have examined SIJS issues and recognized that “[w]hile they may split on the interpretation of the provisions of § 1101(a)(27)(J), courts around the country hear SIJ evidence in a variety of settings, including custody proceedings, adoption petitions and probate issues.”

By remanding the case back for SIJS factual findings in a divorce and sole-custody proceeding where only the defendant parent was the one alleged to have abused, abandoned, or neglected the juvenile, the Maryland Court of Special Appeals gave a nod to the more generous interpretation of the “1 or both” language. It bears mentioning that as of October 1, 2014, Maryland expanded the jurisdiction of its equity courts by adding a definition of “child” to mean an unmarried individual under the age of 21 years who filed a motion for SIJ factual findings pursuant to a custody complaint or a guardianship petition. See 2014 Md. Laws, Chap. 96 (amending Md. Code Ann., Fam. Law § 1-201).  With this plain language legislative fix that encompasses custody matters between two parents, Maryland is well-positioned to stave off restrictive interpretations of “1 or both,” present in In re Interests of Erick M.

The California Fourth Appellate District issued the latest decision in this line of cases, In the Eddie E. v. The Superior Court of Orange County, (Feb. 11, 2015, G0496370) ___ Cal.App.4th ___,  the appellate court strongly disagreed with the Erick M. decision by finding that the meaning of the word “or” in “1 or both” is unambiguous and rather intended to be disjunctive – that is, to designate separate categories. “[I]t is commonplace for statutes to provide alternative means of satisfying a condition using the disjunctive word ‘or.’ Here, the statute provides that a minor can satisfy the second prerequisite by showing that one parent is unfit, or by showing that both parents are unfit.  Since there is no ambiguity, the inquiry should end there.”  The opinion also confirms, much like sister courts in other states, that the role of state courts is not to weed out bad faith SIJS petitions and clarified that this role belongs to the federal government. Lastly, the appellate court made an additional important ruling on an issue that may become increasingly relevant-- that the death of a parent who had previously abandoned her child did not nullify that abandonment for purposes of SIJS eligibility. “That she died only cemented the permanent abandonment already in place. As recounted above, the purpose of the SIJ statute is to provide relief from abuse, neglect, or abandonment. The deleterious effects of abandonment are not allayed by the parent’s death.”

For many advocates, the “1 or both” TVPRA language is clear, especially given the overall generous intent of the other TVPRA amendments. However, many state juvenile courts find the language ambiguous. For those advocates in states where the appellate court has not yet analyzed the “1 or both” language, these decisions are worth reading to ensure adequate preparation for the inevitable moment when a state judge inquires.

 

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Minutes of February 12, 2015 NSC Teleconference on Refugee/Asylee Issues

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. 

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What to Expect When Expanded DACA Opens Again

By Ilissa Mira

A federal court decision issued on February 16, 2015 has temporarily blocked expanded DACA and DAPA implementation.  In response to this injunction, the Department of Homeland Security has suspended its original plans to accept expanded DACA applications starting February 18, 2015.  Despite this delay, the Department of Justice, legal scholars, and immigration experts believe that both expanded DACA and DAPA were created within the legal authority of the federal government and will be upheld.  What should legal providers expect when the application process resumes? 

On February 11, 2015, USCIS published updated Frequently Asked Questions (FAQs) and revised instructions to the Form I-821D.  The revised guidance, published before the anticipated expanded DACA opening, has since been rescinded.  Individuals who are eligible for DACA under the original guidelines may continue to apply for initial or renewal DACA using the current form I-821D and instructions.  Although the previous FAQs (dated October 23, 2014) remain in effect, the February 2015 revisions provide new information about how expanded DACA will eventually be implemented.  This article highlights some of the policies that will likely be in place for expanded DACA implementation.

 

Expanded DACA Guidelines

A November 20, 2014 memorandum by DHS Secretary Jeh Johnson announced three changes to the existing DACA program.  First, the expanded guidelines eliminated the original requirement that an individual be under age 31 as of June 15, 2012.  Second, the continuous residence period was changed.  Under the original guidelines, individuals must demonstrate continuous residence from June 15, 2007 up to the time of their request.  Under expanded DACA, the continuous residence period is from January 1, 2010 up to the time of request.  Finally, deferred action and work authorization under DACA are extended from a 2-year renewable period to a 3-year renewable period.

The February FAQs clarified that the other original DACA eligibility guidelines regarding age of arrival, physical presence, education, and criminal history will remain in place.  Immigration advocates sought to have the physical presence and lawful immigration status date changed from June 15, 2012 to November 20, 2014, the date on which expanded DACA was announced.  However, this suggestion was not adopted.

 

Application Grace Period

USCIS indicated that they will release an updated Form I-821D, which will change to reflect the expanded DACA guidelines.  USCIS responded to advocacy and agreed to continue accepting the previous version of the form for a 2 month period.  Presumably this would only apply to applicants who are eligible under the original 2012 guidelines.

 

Absences and Continuous Residence

Under the current DACA guidelines, any absence that occurs after August 15, 2012 without advance parole breaks continuous residence and bars DACA eligibility.  The February guidance moved this date, so that absences after January 1, 2014, without advance parole, break continuous residence.  Absences that occur between January 1, 2010 and January 1, 2014 may be acceptable if they are considered brief, casual, and innocent.  Additionally, any absences from the U.S. without advance parole would disqualify an applicant from DACA renewal.

 

Concurrent Advance Parole Requests

The February guidance allows applicants to submit a request for DACA and advance parole at the same time.  USCIS would first adjudicate the DACA application.  Then, if the DACA request is granted, the advance parole request would be adjudicated.  The requirements for applying for advance parole were unchanged.  Applicants would still have to demonstrate that their proposed travel is related to a qualifying humanitarian, education, or employment related purpose. 

 

Domestic Violence Significant Misdemeanors

USCIS noted that in evaluating whether an offense of domestic violence triggers the significant misdemeanor bar, the adjudicator should consider whether the applicant was also a victim of domestic violence as a mitigating factor.

 

DACA Renewal

The current FAQ indicates that renewal case status inquiries may be submitted after the case has been pending more than 105 days.  This language was omitted from the February update. 

 

Additional Guidance on DACA Termination

Current guidance simply stated that DHS has the discretion to terminate DACA at any time, with or without a Notice of Intent to Terminate.  The February FAQs provided examples of when DHS may terminate DACA, including: if the request was approved in error; the applicant committed fraud in the request for DACA; or the individual committed a disqualifying offense or otherwise poses a threat to national security or public safety.  Additional guidance states that in most situations, USCIS will issue a Notice of Intent to Terminate before issuing a final termination notice.  If ICE or CBP issues a Notice to Appear (NTA), the DACA grant automatically terminates as of the date the NTA was issued.  Traveling outside the U.S. without advance parole will also terminate a DACA grant automatically. 

 

Policy on G-28s and Group Processing

USCIS addressed whether attorneys and BIA accredited representatives must file G-28s in a group processing or workshop setting, where the legal service provider does not provide ongoing representation.  The current FAQs state that USCIS does not intend to initiate disciplinary proceedings against practitioners based solely on the failure to submit a G-28 in relation to pro bono services provided at group assistance events.  The February guidance additionally suggests that legal service providers should assess the nature and type of service provided to determine whether it is appropriate to provide potential applicants with a letter noting the limited extent of representation or whether the service provider should complete and sign the preparer section of the I-821D.    

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DAPA, Expanded DACA, and the Court Injunction

 

By Jen Riddle

The U.S. Citizenship and Immigration Service (USCIS) had planned to begin accepting applications for the expanded Deferred Action for Childhood Arrivals (DACA) program on February 18, 2015.  Unfortunately, DHS has temporarily delayed the launch of expanded DACA due to a federal court decision temporarily halting its implementation. The court’s injunction also temporarily blocked implementation of the new Deferred Action for Parents of Americans (DAPA) program that was slated to begin this May. While the federal government has announced it will challenge the court’s ruling before the Fifth Circuit Court of Appeals, we do not yet know what form this challenge will take or how long we will have to wait for a decision.  The Department of Justice, legal scholars, and immigration experts believe that the federal government had the legal authority to expand DACA and create DAPA through executive action and anticipate that the courts will ultimately uphold the legality of both programs.  In the meantime, what does this mean for your clients who were gearing up to apply for expanded DACA or DAPA and what can you tell them?

 

What is the lawsuit about?

The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged two aspects of the immigration initiatives that President Obama announced on November 20, 2014. Specifically, the states alleged that the expanded DACA and DAPA programs were created in violation of the law and will cause economic injury to the states that must finance the education, protection, and issuance of driver’s licenses to future recipients of deferred action under these programs.

 

What was the federal court’s decision?

On February 16, 2014, the federal district court in Brownsville, Texas issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA. The ruling did not find that these programs may be unconstitutional. Rather, the judge’s narrow holding found that the federal government might have violated procedural requirements under the Administrative Procedure Act by not using formal rulemaking procedures in creating these initiatives.

 

How did the Department of Homeland Security respond to the injunction?

On February 17, 2015, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a statement expressing his disagreement with the temporary injunction and confirming the Department of Justice’s intention to challenge the decision.  In the meantime, in order to comply with the injunction, DHS announced that it would not begin accepting applications for expanded DACA on February 18, as originally planned. DHS also indicated that it would temporarily suspend plans to accept DAPA requests until a court confirms that these programs are within the legal authority of the federal government.      

 

Does the injunction impact all executive actions on immigration announced by the President on November 20, 2014?

No, the injunction only impacts DAPA and expanded DACA. It does not block any other changes to immigration policies announced by the President last November and laid out through various DHS memoranda.  For example, plans to expand the use of provisional waivers of unlawful presence and the existing “parole in place” program for family members of the U.S. Armed Forces, issue guidance clarifying advance parole, and replace Secure Communities with the Prioritized Enforcement Program are unaffected by the court case. Likewise, the lawsuit does not impact the new immigration enforcement priorities that went into effect on January 5, 2015.

 

How soon can we expect a court to reverse the injunction and permit DHS to launch expanded DACA and resume preparations for DAPA?

This will depend on whether the federal government files an emergency motion with the Fifth Circuit to stay the temporary injunction or decides to file an appeal instead. If the Department of Justice (DOJ) files an emergency motion to stay, a decision could be issued within a few weeks.  That would allow the expanded DACA and DAPA programs to move ahead while the district court decides the case on its merits. If DOJ decides to await a district court decision on the merits and then appeal the decision to the Fifth Circuit, it could take several months for a decision. 

 

How does the injunction impact clients who want to apply for DACA?

The temporary injunction does not affect the original DACA program that was created in 2012. Anyone who meets the program’s criteria established in 2012 may continue to apply – both first-time applicants as well as DACA recipients who seek to renew their deferred action and employment authorization. However, clients who were hoping to apply for DACA under the expanded criteria announced on November 20, 2014 are not yet eligible to apply.  However, USCIS has stated its intention to begin accepting applications for expanded DACA as soon as the courts issue a favorable decision allowing for the program’s implementation.  Continue to check CLINIC’s website and the USCIS website for updates.

 

How should I advise clients who already have DACA and want to renew?

Clients granted DACA under the program’s 2012 criteria may continue to renew their deferred action and employment authorization using Form I-821D. Beginning November 20, 2014, USCIS began granting DACA and work permits to initial and renewal applicants in three-year increments. DACA recipients already granted three-year work permits may continue to use them. However, following the injunction, USCIS will revert to issuing two-year grants of deferred action and work authorization until a court overturns the decision.

 

What should I advise clients who want to apply for expanded DACA?

Clients who qualify for expanded DACAshould continue to gather documents necessary to show they meet the DACA criteria and save money for the $465 application fee. As soon as a court decision permits USCIS to launch the expanded DACA program, clients may apply.  Remember that USCIS will be releasing a new Form I-821D that reflects the November 20, 2014 changes to DACA eligibility.  While there will likely be a grace period during which the old I-821D will be accepted, you may want to hold off on completing the application form until USCIS releases the new one.  You may have heard that USCIS published revised Frequently Asked Questions and updated I-821D instructions on February 11, 2015 in anticipation of its plans to begin accepting applications for expanded DACA on February 18. Following issuance of the injunction this week, these two sets of guidance were removed from the USCIS website. For now, the previous FAQs and instructions remain in effect.  

It is also important to understand that the injunction did not affect the November 20, 2014 DHS Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants that reflects which groups of individuals U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and USCIS considers to be priorities for immigration enforcement.  The new Enforcement Priorities Memo went into effect on January 5, 2015 and remains in full force. If any DHS official seeks to detain, place into removal proceedings, deport, or take any other enforcement action against a prospective DACA client who does not fall into one of these priorities, you should request an appropriate exercise of prosecutorial discretion in your client’s favor. ICE and CBP should continue to identify individuals who might qualify for expanded DACA and refrain from taking enforcement actions against them.  Also, remember that clients may still request deferred action, more generally, under the process that has existed before DACA was created by submitting a request to the local USCIS office.

 

What should I advise clients who want to apply for DAPA?

Clients who may be eligible for DAPA should continue to gather documents necessary to show they meet the DAPA criteria and save money for the $465 application fee. The federal government anticipates that the court will ultimately uphold the legality of the DAPA program and DHS will continue to prepare for a timely implementation of DAPA as soon as that happens.  Depending on how long it takes for the injunction to be overturned by the district court or a higher court, DAPA may or may not be able to launch in May of 2015 as originally planned. However, clients should be prepared to file their applications as soon as the time comes. As discussed above, individuals who appear to be eligible for DAPA remain non-priorities for immigration enforcement, and should not be detained, placed into removal proceedings, or deported by DHS. Make sure that your clients understand the new enforcement priorities and are prepared to request prosecutorial discretion from ICE or CBP if they are apprehended.

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Frequently Asked Questions: DAPA, Expanded DACA, and the Court Injunction

Visit Our DACA Resource Center

The U.S. Supreme Court on June 23rd kept in place for now the lower court injunction that blocked implementation of the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The Court was not able to break a 4 to 4 tie, and therefore its decision will have no precedential effect.  Nevertheless, it means that the lower court injunction will likely continue in place until the Court hears the case again.

 

What is the lawsuit about?

The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged two aspects of the immigration initiatives that President Obama announced on November 20, 2014. Specifically, the states alleged that the expanded DACA and DAPA programs were created in violation of the law and would have caused economic injury to the states that must finance the education, protection, and issuance of driver’s licenses to future recipients of deferred action under these programs.

 

What was the lower court’s decision?

On February 16, 2015, the federal district court in Brownsville, Texas issued a preliminary injunction that blocked implementation of the expansion of DACA and the implementation of DAPA. The judge found that the federal government violated procedural requirements under the Administrative Procedure Act by not using formal rulemaking procedures in creating these initiatives.  This decision was appealed to the Fifth Circuit Court of Appeals, which upheld the lower court; that decision was then appealed to the Supreme Court.

 

Does the injunction impact all executive actions on immigration announced by the President on November 20, 2014?

No, the injunction only impacts DAPA and expanded DACA. It does not block any other changes to immigration policies announced by the President last November and laid out through various DHS memoranda.

For example, the lawsuit does not affect the following:

  • Expansion of the provisional waiver program that allows family members to waive the  unlawful presence bar before leaving the United States
  • Guidance clarifying what constitutes extreme hardship for those applying for waivers of certain grounds of inadmissibility (fraud, crimes, and unlawful presence)
  • The “parole in place” program for individuals with family members in the U.S. Armed Forces
  • Guidance clarifying eligibility for advance parole
  • Replacement of the Secure Communities with the Prioritized Enforcement Program, and
  • New immigration enforcement priorities that went into effect on January 5, 2015.

 

How does the injunction impact clients who want to apply for DACA?

The injunction does not affect the original DACA program that was created in 2012.  Anyone who meets the program’s criteria established in 2012 may continue to apply – both first-time applicants as well as DACA recipients who seek to renew their deferred action and employment authorization. However, clients who were hoping to apply for DACA under the expanded criteria announced on November 20, 2014 are not eligible to apply.

 

How should I advise clients who already have DACA and want to renew?

Clients granted DACA under the program’s 2012 criteria may continue to renew their deferred action and employment authorization using Form I-821D.  Beginning November 20, 2014, USCIS began granting DACA and work permits to initial and renewal applicants in three-year increments.  DACA recipients who were granted three-year work permits prior to the February 16, 2015 injunction may continue to use them.  However, following the injunction, USCIS reverted to issuing two-year grants of deferred action and work authorization until a court overturns the decision.

 

If my client received a three-year work permit, does he or she need to return it to USCIS?

This depends on the date your client’s initial or renewal DACA was approved.  Only three-year DACA approvals and work permits issued after the February 16, 2015 injunction were issued in error.  For those cases, USCIS has instructed DACA grantees to return the erroneously-issued three-year work permit and approval notice and has replaced them with an updated two-year work permit and approval notice.  DACA applicants who were approved on or before February 16, are entitled to keep their three-year work permits.  For more information, see the USCIS website.

 

What should I advise clients who want to apply for expanded DACA or DAPA?

Clients who qualify for expanded DACA or DAPA should also be screened for eligibility for other types of immigration relief.  Advise clients to continue gathering documents necessary to show they meet the criteria for expanded DACA or DAPA and to save money for the $465 application fee. Click here for a customizable checklist of documents for potential DAPA clients. Ask clients for any records related to prior immigration violations as well as records of any arrests, citations, jail time, detentions, and court proceedings.  If your client’s immigration history or criminal record history is not clear, consider filing Freedom of Information Act (FOIA) requests or FBI record requests so that you will have the information you need by time the programs are implemented.  Finally, remind clients not to leave the country without permission, not to seek advice from unauthorized practitioners, and to check back with you for updates on when expanded DACA and DAPA implementation may proceed.    

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) officers have been instructed to identify individuals in detention or removal proceedings who may be eligible for expanded DACA or DAPA, and to exercise prosecutorial discretion, which may include seeking administrative closure or termination of proceedings. However, we recommend affirmatively contacting an ICE officer or the trial counsel to request termination of proceedings or administrative closure using the protocols described on the ICE Executive Action website.  As part of requesting an exercise of prosecutorial discretion in your client’s favor, be prepared to argue that your client is not included in one of the enforcement priority categories. Finally, remember that clients may still request deferred action, more generally, under the process that has existed before DACA was created by submitting a request to the relevant DHS agency.

 

Resource updated 7/6/2016

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CLINIC and TODEC Double BIA Legal Capacity in Inland Empire

By Martin Gauto

One of CLINIC’s core functions is to boost legal capacity in underserved areas in the United States. An area experiencing a severe shortage in low-cost, professional immigration legal service providers is the Inland Empire (or the “IE” as it is known) region of Southern California.  It is home to over one million foreign-born persons. Fortunately, Training Occupational Development Education Communities (TODEC) is a service provider assisting newcomers with quality, charitable legal help in the IE.

A respected local organization, TODEC Legal Center engaged CLINIC through a capacity building project during 2014. TODEC, located in Perris, California, is a grassroots nonprofit organization that has been serving migrant communities in Riverside, San Bernardino, and Imperial Counties for decades. The group provides consumer education, advocacy, citizenship/naturalization, occupational, and remedial services.

In early 2014 CLINIC joined Ready California, a coalition of California nonprofit organizations dedicated to preparing for comprehensive immigration reform or administrative relief. As part of that effort, CLINIC was able to offer free legal training and consultation, helping TODEC and other nonprofit, non-attorney staff acquire authorization to practice immigration law through BIA recognition and accreditation. TODEC put seven people through the training and eventually submitted a BIA recognition application and accreditation applications for all seven people, including its Founder and Executive Director, Luz Maria Ayala. Community Programs Director, Luz Gallegos explains that due to the support of CLINIC’s Legalization Director Jack Holmgren and Field Support Coordinator Martin Gauto, “We are ready for Administrative relief!”

The BIA approved the recognition application and all seven accreditation applications in December 2014. This is a major achievement for CLINIC, TODEC, and the IE. Prior to these approvals there were only seven BIA accredited representatives in the entire region. Together CLINIC and TODEC doubled legal capacity in the area!

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Another Win for 212(h) Eligibility for LPRs Convicted of Aggravated Felonies

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. 

 

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BIA Concludes “Deadly Conduct” is a CIMT

By Sarah Bronstein

On January 8, 2015, the Board of Immigration Appeals issued a decision in Matter of O.A. Hernandez, 26 I&N Dec. 464 (BIA 2015), finding that the offense of “deadly conduct” under the Texas Penal Code is a crime involving moral turpitude (CIMT).  The analysis of CIMTs is an area of the law that has evolved significantly in the last few years.  This decision gives us one more indication of how the Board of Immigration Appeals is viewing CIMTs.

The Respondent in this case had been convicted of the offense of deadly conduct under Texas Penal Code section 22.05(a).  He was placed in removal proceedings and charged with a ground of inadmissibility under INA § 212(a)(6)(A)(i) for being present without permission or parole.  He was not charged with a crime-based ground of inadmissibility but he sought cancellation of removal for non-lawful permanent residents under INA § 240A(b)(1).  The Respondent’s application for relief from removal raised the question of whether he was barred from eligibility due to a conviction for a crime involving moral turpitude. 

Section 22.05(a) of the Texas penal code punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury.”  In analyzing this offense, the Immigration Judge followed the decision by the Attorney General in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  Matter of O.A. Hernandez, 26 I&N Dec. 464 (BIA 2015).  In doing so, however, the Immigration Judge did not get past step one in Silva-Trevino analysis which is to apply the categorical approach to determine whether moral turpitude is intrinsic to all offenses that have a realistic probability of being prosecuted under that statute.  Id. at 465 citing Silva-Trevino at 689-90, 696-98.  The Immigration Judge concluded that the offense of deadly conduct was categorically a CIMT.

The BIA noted that after the Immigration Judge’s decision in this case, the United States Court of Appeals for the Fifth Circuit reversed, in part, the Attorney General’s decision in Silva-TrevinoId. at 465 FN2.  The Fifth Circuit ruled that evidence outside the record of conviction cannot be used to determine whether an offense is a CIMT.  Id. citing Silva-Trevino v. Holder, 742 F.3d 197, 200-05 (5th Cir. 2014).  The BIA stated that neither it nor the Immigration Judge relied on evidence outside the record of conviction to reach its conclusion, however, and did not proceed beyond the categorical approach in analyzing the offense at issue in this case.

In analyzing this offense, the BIA stated that “moral turpitude is intrinsic to an offense that necessarily involves ‘reprehensible conduct’ committed with some form of ‘scienter,’ such as specific intent, knowledge, willfulness or recklessness.” Id. citing Silva-Trevino at 689 n. 1, 706 &n. 5.  In order for an offense that requires only recklessness to be a CIMT, the required state of mind must entail a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct.  Id. at 466 citing Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553-54 (BIA 2011).  In order to make this determination, the BIA looked to the definition of recklessness under the Texas Penal Code which provides that a person engages in reckless conduct if he or she is “aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  Id. citing section 6.03(c) of the Texas Penal Code.  The BIA concluded that the definition of recklessness under the Texas Penal Code matches the state of mind required for an offense of recklessness to be a CIMT under its case law.

The BIA next looked at whether the conduct punished in this statute constitutes “reprehensible conduct” as is required under Silva-Trevino.  The respondent argued that because the mental state required under the Texas statute is mere recklessness, the resulting harm must be more serious in order to find this offense to be a CIMT. Id.  In Matter of Leal, 26 I&N Dec. 20 (BIA 2012), aff’d, 771 F.3d 1140 (9th Cir. 2014), the BIA reviewed an Arizona statute which involves “recklessly endangering another person with a substantial risk of imminent death” and determined that this offense is a CIMT.   Turning to the Texas statute, which is not limited to conduct which creates a risk of imminent death, the BIA found that “a person who acts recklessly to place another in ‘imminent danger of serious bodily injury’ exhibits the same base contempt for the well-being of others as an individual who places another in ‘substantial risk of imminent death.’”  Id. at 467 citing Matter of Leal, 26 I&N Dec. at 25 – 26. 

After reviewing both the mental state and the type of harm required under the Texas statute, the BIA concluded that the offense of deadly conduct under the Texas Penal Code is categorically a CIMT.

 

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CLINIC’s New Center for Immigrant Integration

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:

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.

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USCIS Implements Haitian Family Reunification Parole Program

By Kristina Karpinski

On December 18, 2014, USCIS announced implementation of the Haitian Family Reunification Parole (HFRP) program for certain beneficiaries of family-based preference petitions filed on or before that date.  Under the program, eligible Haitians whose immigrant visas are expected to become available within approximately 18 to 30 months will be given an opportunity to receive parole to enter the United States.  Once in the United States, the parolees will be eligible to apply for an employment authorization document; when their priority dates become current, they may apply to adjust status to permanent residence.  The program is intended to expedite family reunification and aid Haiti in its continued recovery efforts following the devastating January 12, 2010 earthquake.

Participation in the HFRP program is available to Haitians who are:

  • In Haiti
  • The beneficiaries of an I-130 relative petition that was approved on or before December 18, 2014
  • Whose immigrant visas are expected to be available in approximately 18 to 30 months, and
  • Whose petitioning relatives in the United States have received an invitation from the National Visa Center (NVC) to apply for parole on their behalf.

Derivative spouses and children of the principal Haitian beneficiaries are also eligible to participate in the program.  Beneficiaries of immediate relative petitions are not eligible for the program since immigrant visas are immediately available to them.

The National Visa Center will begin sending written invitations to eligible petitioners on or after February 2, 2015.  The NVC will send invitations based on the date the immigrant visas are expected to become available so those cases with the earliest priority dates will receive invitations first.  The notice will instruct petitioners on how to file the Form I-131, Application for Travel Document, for each beneficiary with the required fee or a fee waiver request.  Participation in the program is voluntary and petitioners will be given a deadline by which they must apply on behalf of their relatives.  Petitioners who believe they are eligible to file should make sure the NVC has their current mailing address by contacting the NVC at asknvc@state.gov or calling (603) 334-0700.  Representatives can also contact the NVC at NVCattorney@state.gov

The Form I-131 and supporting documentation will be reviewed by the USCIS.  If the application appears approvable, it will be forwarded by the NVC to the U.S. Embassy in Port-au-Prince, Haiti.  USCIS or the Department of State in Haiti will interview the beneficiary to determine eligibility for the program.  Beneficiaries may also need to provide biometrics.  Decisions on the parole requests are discretionary and will be made on a case-by-case basis.  The beneficiaries in Haiti will need to undergo medical examinations and security background checks before parole is granted.  Additionally, beneficiaries must meet all eligibility requirements for the family-based immigrant visa (with the exception that an immigrant visa number is available) and be admissible to the United States. 

If parole is granted, beneficiaries will be issued a travel document to come to the United States.  Once in the United States, parolees can apply for an employment authorization document under 8 CFR § 274a.12(c)(11).  They will also be eligible to apply to adjust status to permanent residence when their priority date becomes current.  Should an immigrant visa become current while the I-131 is pending, beneficiaries can choose to continue with the parole request or decide instead to purse the immigrant visa.  If a beneficiary chooses to apply for the immigrant visa, the applicant will be required to pay all fees associated with that process and USCIS will not refund the fee for the parole request.

 

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Sunset Provisions Deadline Approaching

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. 

 

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Executive Action Expanding Parole in Place - Frequently Asked Questions

On November 20, 2014, President Obama announced executive actions to change immigration policy.  One of these reforms will expand the existing “parole in place” program for the spouses, children, and parents of members of the U.S. Armed Forces.  That program was officially recognized and implemented by a November 15, 2013 memo that described eligibility and filing procedures for parole in place.  This FAQ summarizes that memo and the proposed expansion.

What is parole in place? 

Parole in place is a status that allows undocumented family members of those who are in the U.S. Armed Forces the right to reside in the United States and qualify for certain benefits.  Those benefits include eligibility for employment authorization and, for some individuals, eligibility for adjustment of status.  The Department of Homeland Security paroles people into the United States for humanitarian reasons or significant public interest in cases where they would otherwise not qualify to enter with a visa.  Parole in place, on the other hand, is the term used by DHS when granting parole to people who are already physically present in the United States after an entry without inspection.   

Who qualifies?

The spouses, parents, and children of those who:

  • Are serving as active duty members of the U.S. Armed Forces
  • Are current members of the Selected Reserve or the Ready Reserve, or
  • Previously served in the U.S. Armed Forces or Selected Reserve or the Ready Reserve

Is the immigration status of the military member or veteran relevant?

In order to serve in the military one must be either a U.S. citizen or a lawful permanent resident (LPR).  Therefore, it is unlikely that the military member will not be in one of these categories. However, the memo is silent on the necessary immigration status of the military member.  Only the spouses, children, and parents of U.S. citizens – immediate relatives – can qualify to adjust status after being granted parole in place. If the military member is an LPR, the spouse, parent, or child would still benefit from parole in place by being granted permission to remain here and being eligible for employment authorization.

Does it matter if the applicant is inadmissible?

An applicant for parole in place does not have to show that she or he is not subject to the grounds of inadmissibility. However, while the grounds of inadmissibility do not apply, the grant of parole in place is discretionary.  Therefore, criminal conduct, prior immigration violations, or other adverse factors that are revealed through the application process could affect the decision.

How does the family member apply for parole in place?

Applicants need to file the following:

  • A completed Form I-131, Application for Travel Document with the U.S. Citizenship and Immigration Services (USCIS)
  • Evidence of relationship to armed forces member
  • Evidence of active duty membership or past membership in the U.S. Armed Forces, the Selected Reserve, or the Ready Reserve, such as copy of the service member’s military identification card (DD Form 1173)
  • Two identical, color, passport style photographs
  • Evidence of favorable discretionary factors (e.g. statement of hardship to the military service member, applicant’s participation in the community)

The application form and supporting documents should be sent to the USCIS district office having jurisdiction over the applicant’s address.  The USCIS website (www.uscis.gov) contains a map of the district offices nationwide. There is no filing fee. The applicant will then receive an interview appointment for the taking of biometrics. Practitioners report that it is not necessary to present extensive evidence to support the favorable exercise of discretion absent a significant adverse factor to overcome.

What is the processing time?

The USCIS district offices have not reported the processing times for parole in place applications.  Expect that it will take approximately three months to receive a decision.  But the processing times will vary depending on the district office.

Is the grant of parole automatic?

No, the grant of parole is discretionary. However, the USCIS memo notes that being the spouse, parent or child of an individual who is on active duty in the military or is a veteran “ordinarily weighs heavily in favor of parole in place.”  In addition, the memo notes that, absent a criminal conviction or other serious adverse factor, parole in place would generally be an appropriate exercise of discretion.

What about employment authorization?

After being granted parole, the applicant can request employment authorization under category (c)(11).  Individuals who qualify to adjust status and are ready to apply upon approval of parole can request employment authorization in conjunction with the application for adjustment.

If granted, for how long is the parole and employment authorization valid?

The parole and employment authorization will each be valid for one year.  The applicant will be allowed to apply for re-parole at the end of that period.

What if the application for parole in place is denied?

The USCIS memo does not address the issue of when enforcement might be pursued where an application for parole in place is denied.  However, according to the  November 2011 USCIS policy guidance, USCIS will refer an applicant to ICE for consideration of NTA issuance in cases involving certain criminal offenses, a statement of findings substantiating fraud, or a threat to public safety or national security.

Will everyone granted parole in place qualify to adjust status under INA § 245(a)?

If a person is an immediate relative – the spouse, unmarried child, or parent of a U.S. citizen – he or she is eligible to file for adjustment of status under INA § 245(a) after being “inspected, admitted, or paroled” into the United States. Those who entered the country illegally would satisfy that requirement if they are subsequently granted parole in place.  Without the status of parole in place, many would have to depart the country and consular process, thus triggering the unlawful presence ground of inadmissibility. If a person is in one of the family-based preference categories – adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs) – he or she would likely not qualify for adjustment of status after being inspected, admitted, or paroled.  This is because the person would also need to have always maintained lawful immigration status, pursuant to INA § 245(c). This restriction does not apply to immediate relatives.

How did the president’s executive action impact on parole in place?

A November 20, 2014 DHS memo directs USCIS to expand the parole in place program to encompass family members of U.S. citizens and lawful permanent residents who are not yet in the military but are seeking to enlist.  The memo also instructs USCIS to consider making deferred action available to family members of U.S. military service members and veterans who don’t qualify for parole in place because they were inspected and admitted to the U.S., although now out of status.  This would include, for example, family members who overstayed or violated a nonimmigrant visa status.

If a DAPA or DACA-eligible person is also eligible for parole in place, which benefit is better?

Parole in place provides very similar benefits as DAPA and DACA.  They all allow the person to reside in the United States without fear of removal and to work legally.  DAPA and DACA provide for three years of status and employment authorization, while parole in place must be renewed every year.  But if the main purpose of applying for one of these programs is to qualify to adjust status, then the person should simply apply for parole in place.  If that is granted, it would not be necessary to also apply for DAPA or DACA and then seek advance parole.

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Executive Action Expanding Deferred Action for Childhood Arrivals (DACA) Frequently Asked Questions

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.

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Network Affiliate Profile: Ryan Patterson from Catholic Charities of Oklahoma City

By Tessa McKenzie

CLINIC values the dedication and commitment to service demonstrated by our affiliate agencies in their work with their communities. We wish to highlight outstanding individual agency staff in a series of profiles appearing monthly.

 

Ryan Patterson

Assistant Director

Immigration Legal Services

Catholic Charities Archdiocese of Oklahoma City

First joining the team as a volunteer attorney, Ryan transitioned to employment with Catholic Charities of the Archdiocese of Oklahoma City in 2013 and currently serves as Assistant Director of the Immigration Legal Services Program.  Ryan attributes a strong interest in international issues and maintaining Spanish fluency that led him to his work impacting the lives of vulnerable immigrants throughout the western two-thirds of Oklahoma.

Consultations, representation, family petitions, and assistance to victims of trafficking are just a few services Ryan offers potential clients and he especially values the variety and quality of assistance provided by Catholic Charities.  “We wear so many hats,” Patterson explains, “It’s a broad cross section of cases every day.”  He is grateful to apply his legal expertise so diversely, yet, Ryan affirms that the people are what attract him most to this work.  “I love interacting with clients,” Patterson says, “I am interested in the person more than anything else.”  

A case Ryan found particularly moving is of a young man named Miguel.  Miguel, married with three children and one on the way, was in the midst of removal proceedings as the result of a minor traffic infraction after more than 15 years in the United States.  Miguel’s son suffers from a rare genetic disorder.  It was the hardship that Miguel’s son would have faced upon the deportation of his father that ultimately led to Miguel’s grant of Cancellation of Removal.  “It was this child, so dependent on the support of his parents and doctors to survive, who had the power to keep his family together in the end,” said Patterson.

He is quick to insist that he could not do his work without the incredible talent and dedication of the Immigration Legal Services staff including the strong support of Associate Director Margie Solis and Executive Director Patrick Raglow.

Whether working with unaccompanied minors or raising awareness of human trafficking and modern-day slavery in Oklahoma, Ryan and  the team at Catholic Charities are helping Oklahoma build a more welcoming community, following its mission of providing help, creating hope  and serving all.

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New Subscriber (December 2014)

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.

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BIA Agency Recognition and Staff Accreditations (December 2014)

CLINIC congratulates program staff and member agencies on receiving BIA accreditation and agency recognition.   

Catholic Charities of the Diocese of Monterey, San Luis Obispo, California, received agency recognition from the Board of Immigration Appeals Recognition and staff Alondra Ortiz  received partial accreditation  on 11-25-14.

Catholic Charities of the Diocese of La Crosse, Wisconsin received BIA recognition for their location in Wausau, Wisconsin on 11/3/2014.   Katherine Ann Rubin, Immigration Counselor, Catholic Charities of the Diocese of La Crosse, Wisconsin received first time partial accreditation on 11/4/2014 for the La Crosse location

Nathaly Perez, CLINIC Field Support Coordinator, received partial accreditation on 11/14/2014 as a volunteer with Hogar Immigrant Services of Catholic Charities of the Diocese of Arlington in Falls Church, Virginia.

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Government Launches Overseas Processing Program for Certain Central American Refugee Children

By Jen Riddle

The Department of State (DOS) recently launched its in-country refugee and parole program for children residing in El Salvador, Guatemala, or Honduras. Under this program, parents who are lawfully present in the United States (LPRs, parolees, recipients of TPS, DACA, deferred action, Deferred Enforced Departure, or withholding of removal) may request a refugee status interview for their children who are currently residing in El Salvador, Guatemala, or Honduras. Eligible children will be admitted to the country through the U.S. Refugee Admissions Program.  Minors who are not found to be eligible for refugee admission but who are still at risk of harm may be paroled into the United States on a case-by-case basis.  According to DOS, the program is intended “to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.”

Eligible parents interested in applying for a child must submit Form DS-7699. This form can be submitted only through a resettlement agency funded by the DOS Bureau of Population, Refugees, and Migration. While other agencies cannot assist clients in filing the form, they can inform clients about program, help identify those who appear to meet the eligibility criteria, and refer them to the closest designated resettlement agency by consulting the national directory.

Under the program, parents over age 18 may file applications for unmarried children under the age of 21, including biological, stepchildren, or legally adopted children, so long as they are nationals of and currently residing in El Salvador, Guatemala, or Honduras. Requests may also include: 1) the second parent so long as he or she is residing with the child abroad and married to the petitioning parent in the United States; and 2) the child’s unmarried children. After Form DS-7699 is filed, the child will be invited by the International Organization for Migration (IOM) to a pre-screening interview, and the petitioning parent will be contacted about submitting DNA evidence to confirm the biological relationship. Next, the Department of Homeland Security (DHS) will interview the child to determine whether he or she is eligible for refugee status and admissible to the United States. If so, upon completing the required security checks and obtaining medical clearance, approved refugees will travel to the United States where they will be eligible for the same support provided to all resettled refugees, including assistance from a designated resettlement agency.

Children (and any eligible parents) who are found not to qualify as refugees may be paroled on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Parole is temporary and does not constitute a permanent legal immigration status, but it does enable recipients to apply for employment authorization. Those granted parole will be authorized for an initial two-year period and may request renewal.

DOS anticipates that the number of Central American children (and parents) admitted to the United States through this new refugee program in FY 2015 will be relatively small given the estimated processing times for U.S. refugee admissions. Those admitted will be counted against the 4,000 cap for FY 2015 admissions from the Latin America and Caribbean region although, according to DOS, there is some flexibility to accommodate a higher number this year, if needed.

Key documents for the program are located here.  CLINIC will provide more information about its implementation in a free webinar on January 13, 2015. Click here to register.

 

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FAQ - Executive Action Expanding Parole in Place (Dec. 2014)

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On November 20, 2014, President Obama announced executive actions to change immigration policy.  One of these reforms will expand the existing “parole in place” program for the spouses, children, and parents of members of the U.S. Armed Forces.  That program was officially recognized and implemented by a November 15, 2013 memo that described eligibility and filing procedures for parole in place.  This FAQ summarizes that memo and the proposed expansion.

What is parole in place? 

Parole in place is a status that allows undocumented family members of those who are in the U.S. Armed Forces the right to reside in the United States and qualify for certain benefits.  Those benefits include eligibility for employment authorization and, for some individuals, eligibility for adjustment of status.  The Department of Homeland Security paroles people into the United States for humanitarian reasons or significant public interest in cases where they would otherwise not qualify to enter with a visa.  Parole in place, on the other hand, is the term used by DHS when granting parole to people who are already physically present in the United States after an entry without inspection.    

Who qualifies?

The spouses, parents, and children of those who:

  • Are serving as active duty members of the U.S. Armed Forces
  • Are current members of the Selected Reserve or the Ready Reserve, or
  • Previously served in the U.S. Armed Forces or Selected Reserve or the Ready Reserve

Is the immigration status of the military member or veteran relevant?

In order to serve in the military one must be either a U.S. citizen or a lawful permanent resident (LPR).  Therefore, it is unlikely that the military member will not be in one of these categories. However, the memo is silent on the necessary immigration status of the military member.  Only the spouses, children, and parents of U.S. citizens – immediate relatives – can qualify to adjust status after being granted parole in place. If the military member is an LPR, the spouse, parent, or child would still benefit from parole in place by being granted permission to remain here and being eligible for employment authorization.

Does it matter if the applicant is inadmissible?

An applicant for parole in place does not have to show that she or he is not subject to the grounds of inadmissibility. However, while the grounds of inadmissibility do not apply, the grant of parole in place is discretionary.  Therefore, criminal conduct, prior immigration violations, or other adverse factors that are revealed through the application process could affect the decision.

How does the family member apply for parole in place?

Applicants need to file the following:

  • A completed Form I-131, Application for Travel Document with the U.S. Citizenship and Immigration Services (USCIS)
  • Evidence of relationship to armed forces member
  • Evidence of active duty membership or past membership in the U.S. Armed Forces, the Selected Reserve, or the Ready Reserve, such as copy of the service member’s military identification card (DD Form 1173)
  • Two identical, color, passport style photographs
  • Evidence of favorable discretionary factors (e.g. statement of hardship to the military service member, applicant’s participation in the community)

The application form and supporting documents should be sent to the USCIS district office having jurisdiction over the applicant’s address.  The USCIS website (www.uscis.gov) contains a map of the district offices nationwide. There is no filing fee. The applicant will then receive an interview appointment for the taking of biometrics. Practitioners report that it is not necessary to present extensive evidence to support the favorable exercise of discretion absent a significant adverse factor to overcome.

What is the processing time?

The USCIS district offices have not reported the processing times for parole in place applications.  Expect that it will take approximately three months to receive a decision.  But the processing times will vary depending on the district office.

Is the grant of parole automatic?

No, the grant of parole is discretionary. However, the USCIS memo notes that being the spouse, parent or child of an individual who is on active duty in the military or is a veteran “ordinarily weighs heavily in favor of parole in place.”  In addition, the memo notes that, absent a criminal conviction or other serious adverse factor, parole in place would generally be an appropriate exercise of discretion.

What about employment authorization?

After being granted parole, the applicant can request employment authorization under category (c)(11).  Individuals who qualify to adjust status and are ready to apply upon approval of parole can request employment authorization in conjunction with the application for adjustment.

If granted, for how long is the parole and employment authorization valid?

The parole and employment authorization will each be valid for one year.  The applicant will be allowed to apply for re-parole at the end of that period.

What if the application for parole in place is denied?

The USCIS memo does not address the issue of when enforcement might be pursued where an application for parole in place is denied.  However, according to the  November 2011 USCIS policy guidance, USCIS will refer an applicant to ICE for consideration of NTA issuance in cases involving certain criminal offenses, a statement of findings substantiating fraud, or a threat to public safety or national security.

Will everyone granted parole in place qualify to adjust status under INA § 245(a)?

If a person is an immediate relative – the spouse, unmarried child, or parent of a U.S. citizen – he or she is eligible to file for adjustment of status under INA § 245(a) after being “inspected, admitted, or paroled” into the United States. Those who entered the country illegally would satisfy that requirement if they are subsequently granted parole in place.  Without the status of parole in place, many would have to depart the country and consular process, thus triggering the unlawful presence ground of inadmissibility. If a person is in one of the family-based preference categories – adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs) – he or she would likely not qualify for adjustment of status after being inspected, admitted, or paroled.  This is because the person would also need to have always maintained lawful immigration status, pursuant to INA § 245(c). This restriction does not apply to immediate relatives. 

How did the president’s executive action impact on parole in place?

A November 20, 2014 DHS memo directs USCIS to expand the parole in place program to encompass family members of U.S. citizens and lawful permanent residents who are not yet in the military but are seeking to enlist.  The memo also instructs USCIS to consider making deferred action available to family members of US. military service members and veterans who don’t qualify for parole in place because they were inspected and admitted to the U.S., although now out of status.  This would include, for example, family members who overstayed or violated a nonimmigrant visa status. 

If a DAPA or DACA-eligible person is also eligible for parole in place, which benefit is better?

Parole in place provides very similar benefits as DAPA and DACA.  They all allow the person to reside in the United States without fear of removal and to work legally.  DAPA and DACA provide for three years of status and employment authorization, while parole in place must be renewed every year.  But if the main purpose of applying for one of these programs is to qualify to adjust status, then the person should simply apply for parole in place.  If that is granted, it would not be necessary to also apply for DAPA

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Question Corner (November 2014)

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.

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Government Mishandling of Citizenship Case: A Denial of Due Process?

By Debbie Smith

When does the government's "mishandling" of a citizenship case rise to the level of a constitutional violation such that a federal court may confer citizenship? In Brown v. Holder,  No. 11-71458 (9th Cir. August 18, 2014), the Ninth Circuit Court of Appeals held that Mr. Brown may be able to establish that he is a citizen of the United States if he can demonstrate in district court that the former INS’s mishandling of his citizenship case resulted in a violation of his due process rights.  The court transferred Mr. Brown's case to the district court to permit him to present evidence regarding his claim that he is entitled to U.S. citizenship.

The "Mishandling" Facts

Mr. Brown, a citizen of India, entered the United States as a lawful permanent resident in March 1977 at age 9 along with his parents.  His parents filed for naturalization in April 1983.  In his mother's naturalization application, she listed Mr. Brown as a dependent.  If both of his parents naturalized by Mr. Brown's 18th birthday on July 4, 1986, Mr. Brown would have derived citizenship through them.  Although Mr. Brown's father naturalized in November 1985, the INS lost his mother's naturalization application and required that she re-file a second application.  In February 1986, Mr. Brown's mother filed a second naturalization application and was interviewed on it.  However, she was not sworn-in and naturalized until a month after Mr. Brown's 18th birthday.  By that time, he was no longer eligible to derive citizenship.

Mr. Brown continued his efforts to naturalize.  In 1990, Mr. Brown went to the INS office to apply for naturalization or a certificate of citizenship and was informed that he did not need to naturalize because his parents were already U.S. citizens.  In February 1996, Mr. Brown filed a Form N-400 to apply for naturalization and was told that an application had been approved .  In July 1996, Mr. Brown inquired about naturalization again and received a computer print-out that stated "CASE CLOSED" and "NATURALIZED."   In December 2001, Mr. Brown applied for a certificate of citizenship on Form N-600.  Although INS rejected his application because he was over 18, he was given an INS computer print-out with the information "CASE CLOSED" and "NATURALIZED."  A month later, in January 2001, INS sent Mr. Brown a letter denying the April 1983 request for derivative citizenship because he had turned 18 before both parents naturalized.

Derivation Laws Affecting Mr. Brown

U.S. citizen parents transmit citizenship automatically to their lawful permanent resident children born abroad if certain conditions are met.  Derivation of citizenship laws have changed three times since December 1952.  The law that was in effect when Mr. Brown's mother listed him as a dependent on her N-400 in 1983 provided that legal permanent resident children under the age of 18 became United States citizens when both parents naturalized, or one parent naturalized and the other was a U.S. citizen at birth.  The only exceptions to the requirement that both parents naturalize was if (1) the second parent was deceased, or (2) the parents were legally separated, and the naturalizing parent had legal custody.  In addition, children must have been unmarried in order to derive citizenship. This rule, requiring the naturalization of both parents, remained the law until the effective date of the Child Citizenship Act, February 27, 2001.

The Child Citizenship Act provided that legal resident children under the age of 18 automatically derived U.S. citizenship if one of their parents was either born in the United States or naturalized. The Child Citizenship Act also required that the children must be unmarried and living in the U.S. in the legal and physical custody of the U.S. citizen parent.  

The Constitutional Claim

Mr. Brown contended that INS violated his right to procedural due process in rejecting his petitions for naturalization.  He argued that the government mishandled his mother's naturalization claim thereby preventing her naturalization until after his 18th birthday.  His mother's naturalization application had been pending for 2 1/2 years before she was informed that it was lost.  And her naturalization oath ceremony did not occur until her application had been pending a total of 3 1/2 years from the time of her original filing.  Mr. Brown also asserted that by telling him he was already a citizen, the government unlawfully prevented him from naturalizing on his own after he had turned 18. The court noted that Mr. Brown had a protected interest in being able to apply for citizenship -- both derivatively through his mother and independently as an adult. 

The court concluded that if Mr. Brown could show that INS "arbitrarily and intentionally obstructed his application," his constitutional right to due process would have been violated.  While the court did recommend what degree of government misconduct would constitute a due process violation in Mr. Brown's case, it acknowledged that there may be cases where egregious government conduct may result in the court fashioning an appropriate remedy.  The immigration statute provides that if the an individual claims to be a citizen of the United States, if there is an issue or dispute regarding material facts, the court of appeals should transfer the case to the district court.  Because the record in this case indicated factual disputes between the government and Mr. Brown, the Ninth Circuit Court of Appeals transferred Mr. Brown's naturalization claim to the district court for an evidentiary hearing.  At the district court hearing, the court will consider whether Mr. Brown's due process rights were violated and whether INS acted with a sufficient culpability or intentionality that the court should grant Mr. Brown's citizenship as a remedy.

The Brown v. Holder decision highlights the importance of obtaining a noncitizen's "A" file to review the complete history of the case – all prior applications and the government's response to them – before proceeding with the case.

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BIA Weighs in on Extreme Hardship Waivers for Conditional Residents

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.

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USCIS Updates DACA FAQs

By Ilissa Mira

The USCIS updated its DACA FAQs on October 17 and 23, 2014, providing additional information on their policy toward temporary EAD extensions and the education requirement for renewal applicants.  Previous versions of the FAQs stated that USCIS may provide temporary EAD and deferred action extensions if they encountered delays in processing timely-filed renewal requests.  The latest changes to the FAQ state that USCIS will not temporarily extend deferred action and EADs when the delay is caused by the requestor’s failure to timely file between 120 and 150 days prior to expiration.

Additionally, USCIS will not provide short term extensions where delays are determined to be the fault of the applicant, including where the request is incomplete or the applicant failed to timely file; where USCIS requests additional evidence of eligibility; or where USCIS is unable to complete background checks. 

The new FAQs also explicitly state that requestors may qualify for renewal even if they are not currently in school. 

The chart below shows changes to the FAQs.  New language is highlighted in italics:

New FAQ (Oct. 17)

Q49:  When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?

A49: USCIS strongly encourages you to submit your Deferred Action for Childhood Arrivals (DACA) renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice. Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.  If you have filed your renewal request at least 120 days before your deferred action expires and USCIS is delayed in processing your renewal request, USCIS may provide you with DACA and employment authorization for up to an additional 120 days.

Please Note:  USCIS will not provide any such short-term deferred action and employment authorization when USCIS is delayed in reaching a final decision on your renewal request because, for example: 1) of factors within your control (such as failure to file the renewal request within the suggested timeframe or filing an incomplete renewal request); 2) USCIS has not been able to complete your background check; and/or 3) your renewal submission contained evidence that you may not satisfy the DACA renewal guidelines and USCIS must send you a request for additional information or explanation.

Old FAQ:

Q49:  When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)? 

A49:  USCIS encourages you to submit your request for renewal approximately 120 days (or 4 months) before your current period of deferred action under the Deferred Action for Childhood Arrivals (DACA) process expires.  If you have filed approximately 120 days before your deferred action and Employment Authorization Document (EAD) expire and USCIS is unexpectedly delayed in processing your renewal request, USCIS may provide deferred action and employment authorization for a short period of time until your renewal is adjudicated.  However, if you file your renewal request more than 150 days prior to the expiration of your current period of deferred action, USCIS may reject your submission and return it to you with instructions to resubmit your request closer to the expiration date.

 

New FAQ (Oct. 23)

Q50: Can I file a renewal request outside the recommended filing period of 150 to 120 days before my current DACA expires?

A50: Yes, you may submit your renewal request outside of the recommended filing window.

However:

  • If you file before the recommended filing window (meaning more than 150 days before your current period of DACA expires), USCIS may reject your submission and return it to you with instructions to resubmit your request within the recommended filing period.
  • If you file after the recommended filing period (meaning less than 120 days before your current period of DACA expires), USCIS will not consider providing you with any additional short-term period of deferred action and employment authorization before reaching a final decision on your renewal request. This will be true even if your current period of DACA expires while USCIS is considering your renewal request. 

 

If you file after your most recent DACA period expired, but within one year of its expiration, you may submit a request to renew your DACA. If you are filing beyond one year after your most recent period of DACA expired, you may still request DACA by submitting a new initial request.

 

New (Oct. 23)

 

Q54.  If I am no longer in school, can I still request to renew my DACA?

A54.  Yes. Neither Form I-821D nor the instructions ask renewal requestors for information about continued school enrollment or graduation. The instructions for renewal requests specify that you may be considered for DACA renewal if you met the guidelines for consideration of initial DACA, including the educational guidelines and:

  1. Did not depart the United States on or after August 15, 2012, without advance parole;
  2. Have continuously resided in the United States, up to the present time, since you submitted your most recent request for DACA that was approved; and
  3. Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and are not a threat to national security or public safety.

 

 

 

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Update from Ciudad Juarez

By Susan Schreiber

CLINIC held its annual two-day family-based immigration law conference in El Paso, Texas on November 12-13, 2014.  In the afternoon of the second day, representatives from the consulate and USCIS spoke and answered participants’ questions.  On an optional third day, participants toured the U.S. consulate in Ciudad Juarez.  The following is a summary of updated information from the conference and the tour.

 

The Consulate and How to Contact Officers

Legal inquiries should be made on the special inquiry form located at ciudadjuarez.usconsulate.gov/feedback-form.html.  Fill out the form completely, include the IV case number (CDJ or MEP), use only the form to correspond, and do not include any attachments unless requested.

 

The USCIS Office

Mexico is in the Latin American and Caribbean District of the USCIS.  It has seven offices within that region.  It processes or investigates the following forms I-130, I-360, I-407, I-601 and I-212, I-730, and U/T visas (fingerprints only).  The office has an information window at the consulate.  To contact the office, send an e-mail to cdj.uscis@uscis.dhs.gov.

 

Information provided during the Q and A

Applicants may make any relevant claim related to why they are not inadmissible.  This includes persons potentially inadmissible for making a false claim of citizenship when they were minors.

The consulate makes no assumption that family members traveling together and entering the United States illegally are smuggling each other.  Officers try to determine the underlying facts before making a determination of 212(a)(6)(B) inadmissibility.  Tattoos are revealed almost entirely through the medical exam. Panel physicians are required to note any marks on applicant’s body, including tattoos.  The officer will make no assumption that an applicant is a member of a gang just due to wearing a tattoo.  The consulate follows an internal process: the information becomes available through the medical exam, the officer will ask the applicant questions regarding the tattoos, if officer believes further investigation is necessary, will refer t to fraud-prevention unit, which usually involves conducting another interview while applicant.

In order to take advantage of the CSPA’s opt-out provision, the applicant need only write a simple letter.  The second preference F-2B category is currently more favorable than the first preference for all nationalities except the Philippines.   So when the applicant’s petitioner naturalizes, the beneficiary will need to opt out of that automatic conversion. This opt-out benefit is also available to the unmarried children under 21 in the F-2A category who have derivative children.  They will automatically convert to the immediate relative category when their petitioner naturalizes unless they opt out.  They might want to opt out so that they can immigrate in the F-2A category with their derivative child.

If the principal beneficiary has received an immigrant visa at the consulate, has entered the United States as an LPR, and the derivative children or spouse want to immigrate, they should just contact the consulate’s Call Center and ask to schedule an interview.  The consulate will allow them to pay the immigrant visa fee and access the forms. They do not need to go through the National Visa Center.

Similarly, contact CDJ’s Call Center or send an email to re-activate a case that is still pending.   The consulate will re-schedule an interview using its local rescheduling system (SWIT)   In some cases, the applicant may not need to return for a second interview, but that would only be if the applicant’s first interview was within one year.  If it has been one year, the applicant would need to return to at least take an oath.

The consulate runs a report every day to determine which cases should be terminated for under section 203(g) due to failure to attend an interview or take action within one year.  The data base indicates when it has been longer than 12 months from the last communication.

During  FY 2014,  95 percent of applicants who had received provisional approval of their I-601A waiver were granted an immigrant visa.  Only about 400 cases out of 9,000 were denied based on discovery of another ground of inadmissibility, such as 212(a)(9)(C) or smuggling.

Applicants who are found inadmissible due to a health-related ground are advised as to when they may re-apply after “remission.”  In those cases, the applicant will first obtain new medical exam results and then attend a new interview.  The applicant may not need a second interview.

 

Tour of Medical Clinic

A new medical clinic recently opened in Ciudad Juarez, so that there are now three sites providing medical exam services.  Each clinic sees immigrant visa applicants on a walk-in basis between 6 and 11 a.m. from Monday through Friday, excluding Mexican holidays. 

The consulate sets the fees for all medical exams, and they are the same at each clinic.  These fees – $220.40 for adults, and $156.40 for children 14 and under – cover all services except vaccinations. 

In a tour of the Clinica Medica Internacional, clinic director Dr. Roberto Assael reviewed the various anti-fraud measures employed during the medical exam.  First, visa applicants appearing for a medical exam must show their current passports and are assigned a bar code, which is checked at each station in the exam process.  In addition, the clinic intake process includes taking a photo of the applicant and an index fingerprint, which is then checked by the medical staff conducting each procedure of the medical exam.  In the event that an applicant is asked to provide a urine sample, a clinic employee of the same gender as the applicant observes the applicant providing the sample through a one-way mirror.  These measures are taken to make sure that the visa applicant is the individual being examined or tested at all stages of the medical exam.

At the Clinica Medica Internacional, applicants waiting to be seen are seated in a large waiting room with four wall-mounted screens running a continuous video with information about the medical exam process.  A clinic staff person also circulates the room to answer questions about the medical examination and to caution applicants to not talk to coyotes – the individuals outside the clinic or consulate trying to persuade applicants to pay for services they don't need.  A second building has just been constructed to provide waiting room space for up to 1,000 individuals, so that the many family members who often accompany visa applicants will have an indoor space to wait. This new waiting area also includes computers and printers available for those receiving clinic services.

Men and women are examined in separate areas, with children typically accompanying their mothers to the women's examination area.  Before the exam, applicants are given gowns and told what clothing to remove, but no invasive procedures are included in the medical exam.  Ultra-violet lights present in the exam room are used to check for invisible tattoos. 

Visa applicants ages 15 and older are given an x-ray to screen for tuberculosis.  A chest x-ray is mandatory, even for pregnant women, because the protective covering used during the procedure protects against any exposure to radiation.  If other problems are detected from the x-ray, e.g. a nodule indicative of cancer, the applicant will be advised of this information and counseled to consult with a doctor for diagnosis and treatment.  In the event of a diagnosis of active tuberculosis, in-patient treatment is provided at no cost to the applicant.

In many instances, the clinic will not accept vaccination records from Mexico. According to Dr. Assael, these records are often fraudulent on their face because it is obvious that a multi-year history of vaccinations was noted on a single occasion.  For U.S. vaccinations, the clinic will accept a doctor’s letter detailing the vaccinations provided, as long as the letter includes a phone number for contacting the doctor for verification.

Visa applicants suspected of being inadmissible for substance abuse are referred to the psychologist for further screening. They may also be asked to provide a urine sample for drug screening.  According to Dr. Assael, this is a frequent occurrence, and will be indicated where the applicant admits prior drug use or a criminal record. A determination of inadmissibility for being a drug abuser or for having a medical or physical disorder with associated harmful behavior is based on the CDC diagnostic criteria contained in the DSM-5 (Diagnostic and Statistical Manual, Fifth Edition).  In the event that a visa applicant reveals information to the consular officer about drug use or a DUI that wasn't mentioned during the medical examination, the applicant will be required to return to the clinic to be interviewed by the psychologist.  In that circumstance, the applicant will pay an additional fee to speak with the psychologist.

 

Tour of the Application Support Center

All immigrant visa applicants must schedule an appointment with an Application Support Center (ASC) for biometrics and a photo before the consular interview.  In addition to the ASC located in the plaza adjacent to the consulate, there are 13 other ASC centers in Mexico, including one in every city in which there is a U.S. consulate.

Applicants should make their ASC appointment between one and seven days prior to the consular interview.  At the appointment, each applicant needs to present his or her passport, NVC appointment letter, and printed DS-260 confirmation page.  At the ASC adjacent to the consulate, the entire ASC appointment is usually completed within 8-10 minutes.  If an applicant schedules his or her consular appointment through the ASC, the applicant should print out the appointment letter and also bring a copy of any consulate correspondence directing the applicant to make an appointment.  Children under 7 years old do not have to appear at the ASC if a photo of the child is provided.

 

Tour of the Consulate

Visa applicants should check in at the waiting room adjacent to the consulate no more than 30 minutes before the designated appointment time.  At the time of the scheduled appointment, applicants are escorted to the consulate from the waiting room and go through security.  Items that are not permitted on the consulate grounds may be left in lockers available in the waiting room.

Each applicant receives a case number as he or she is admitted to the consulate, and the number is used by the consulate to track the time it takes to complete the appointment.  Once inside the consulate, each applicant appears before a document screener who makes sure that all required documents are in order, and then the applicant moves on to be interviewed by a consular officer who determines eligibility for the immigrant visa. Until recently, case numbers were projected on mounted screens to notify applicants about when to approach various windows for document screening and interview, but the consulate is no longer using that method.  Instead, the consulate is now employs a "snake system," and applicants are directed to wait in short lines in each section by staff monitoring the order of arrival of applicants.  This change was undertaken to make the document review and interview processes more efficient, by ensuring that each employee or officer move on to the next case as soon as an interview is completed.

Generally, only applicants may enter the consulate; family members may accompany applicants only when there is a specific need to do so. This may be appropriate, for example, when an elderly or disabled visa applicant needs assistance or an applicant is accompanied by young children and needs an additional caretaker.  Family groups are generally scheduled for interview together.  If this has not happened, an applicant may contact the Call Center to request that the appointment time be changed so that the family group can appear together.

The consulate has not been using the outdoor waiting areas because there is no need to do so,  given a lower volume of visa applicants.  Currently, most applicants complete the appointment in under two hours.  After visa approval, it can take one to two weeks for the visa to be issued.  If expedite processing is warranted, the applicant may request this at the time of document collection and review.

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Haitian Family Reunification Program To Be Implemented in 2015

By Kristina Karpinski

 The Department of Homeland Security (DHS) recently announced the Haitian Family Reunification Parole (HFRP) Program for certain Haitian beneficiaries of approved family-based immigrant petitions.  Under this program, eligible Haitians will be paroled into the United States up to two years before their priority dates become current, and will be allowed to remain in the U.S. until their immigrant visas are available. According to DHS, the program will be implemented in early 2015 and is intended to accelerate the ability of Haitians to safely and legally enter the U.S. to reunify with family.

Under the program qualified petitioners of approved I-130 relative petitions will receive an invitation from the National Visa Center (NVC) to apply for parole for their family members in Haiti.  The program targets only those preference category cases where the priority date is expected to be current within approximately two years.  Only petitioners who receive written notification from NVC may submit a parole request.  Decisions on the parole requests are discretionary and will be made on a case-by-case basis.  The beneficiaries in Haiti will need to undergo medical examinations and security background checks before parole is granted.  If parole is granted, beneficiaries will be issued a travel document to come to the United States.   Once in the U.S., the parolees can immediately apply for an employment authorization document, and once their priority dates become current they can apply to adjust status to permanent residence.

DHS anticipates that approximately 5,000 Haitians will qualify to pursue parole during the first year and expects it will be a multi-year program. USCIS plans to provide more information on the program, including processing details, by the end of this year.  CLINIC will provide more information on implementation once it becomes available.

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BIA Issues Three Decisions on Recognition and Accreditation (2014)

On November 20th, the Board of Immigration Appeals issued three precedent decisions concerning agency recognition and staff accreditation. The first decision, Matter of United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014) concerned an organization that applied for partial accreditation of a staff person who worked at five recognized office locations in California and Arizona. The organization submitted multiple applications.  The Board determined that agency staff members who are accredited at one recognized location of an agency are authorized to practice at any other recognized location of the same agency.  Organizations no longer need to file a separate application for accreditation at each recognized location where a staff person will be providing legal services. With this decision, the Board seeks to make it easier for recognized agencies with limited resources to respond to the needs of their community.

The Board’s rationale is that multiple accreditation applications are redundant and impractical, especially when the organization has already shown, through the approved recognition application, that it provides adequate supervision and resources for its representatives at each location. The Board also noted that it is difficult for organizations to manage multiple BIA renewal application deadlines at the different locations.  Under this decision, the Board states that “recognized organizations will be in a much better position to adapt to seasonal and temporary needs, respond to staffing exigencies, and otherwise relocate personnel to maximize service delivery to their low-income and indigent clientele.”

This decision is effective immediately, and we expect to see the BIA roster of recognized agencies and accredited staff updated accordingly. That roster can be accessed here: http://www.justice.gov/eoir/ra/raroster_orgs_reps_state_city.htm, This means that if your agency has two or more recognized office locations, staff members who are accredited at one location are now authorized to practice at all the other recognized locations. The full decision can be read here: http://www.justice.gov/eoir/vll/intdec/vol26/3821.pdf.

The second decision, Matter of Ayuda, 26 I&N Dec. 449 (BIA 2014), addressed the issue of nominal fees.  In this case, an organization applying for recognition submitted a fee schedule with fees ranging from a couple of dollars for simple services to over a thousand dollars for complex litigation.  The organization is located in the Washington, DC metropolitan area.  The Board approved the application and used the decision to update and clarify its interpretation of what constitutes nominal fees, and how it determines if a candidate for recognition charges nominal fees.

The Board stated in this decision that it makes the determination of nominal fees on a case-by-case basis, and this determination is entirely dependent on the circumstances of the organization seeking recognition. In determining whether an organization charges nominal fees, the Board considers geography, client demographics, availability of services, and local overhead costs for service providers. Other factors the Board will consider include the following: the type of clerical services offered; the type and scope of legal representation; the manner of delivery of legal services; the fees imposed, if any, for each service; the actual costs to provide the services in the applicant’s geographic area; and the organization’s policy for waiving fees, adjusting fees, and assessing fees.

According to the Board, “The fee structure must be true to the goal of providing competent low-cost legal services and may not be designed simply for the purpose of financially sustaining or serving the interests of the organization.”  The Board clarifies that any increases in agency fees after receipt of recognition must still meet the nominal fee requirement.

The applicant in this case demonstrated that its fees for basic services are modest; that it adjusts its fees using the Federal poverty guidelines; that it has a fee waiver policy, which is explained in the application; and that it has substantial support from grants and is not dependent primarily on client fees.

What does this decision mean for organizations that are in the process of applying for BIA recognition? The Board states that in order to demonstrate that it charges nominal fees, an organization should submit its budget, its sources of financial support, and its fee schedule. This is not new.  However, the Board goes on to say: “The applicant should also describe how it determines its charges for immigration legal services.” This is additional information that was not required in the past. Depending on the circumstances, the Board also will now expect applicants to submit “a sample retainer agreement, a written fee waiver and/or sliding scale policy, a sample client handout regarding fees and fee waivers, and clear statements of funding and financial support on appropriate letterhead.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3820.pdf.

CLINIC will ask the Board to update its Frequently Asked Questions, located at http://www.justice.gov/eoir/ra/RandAFAQsPrintableVersion.pdf, to further clarify the documentation requirements outlined in this decision. We will be monitoring our network’s BIA applications to determine how this decision is being implemented so we can advise our affiliates accordingly. 

In the third decision, Matter of St. Frances Cabrini Immigration Law Center, 26 I&N Dec. 445 (BIA 2014), the Board addressed the situation where a candidate for agency recognition is physically co-located, financially associated with, or otherwise attached to a for-profit organization. The Board denied the application for recognition in this case, finding that the organization did not hold nonprofit status and did not provide convincing evidence of its independence from its for-profit affiliate. The organization applied under the nonprofit status of another organization of which it claimed to be a division and was in the process of obtaining separate 501(c)(3) status. The organization shares officers and directors with its for-profit affiliate.

The Board in this case expressed concerns about conflict of interest and the possibility that the organization seeking recognition might be unduly influenced by its for-profit affiliate. In such cases, “The organization must affirmatively demonstrate that its immigration services are not part of a larger commercial enterprise and do not act as a loss leader for for-profit services or serve in any other way as a façade or conduit for a business venture.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3819.pdf.

If you have any questions about these three, new decisions or the BIA application process in general, please reach out to your Field Support Coordinator. CLINIC will update its BIA Toolkit, as needed to reflect these new decisions.

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Network Affiliate Profile: Mil Mujeres

Why is the mission of Mil Mujeres so important?

The mission of Mil Mujeres is very important because we provide direct legal services in the area of immigration law to low-income Spanish-speaking survivors of gender violence. In addition, we have also helped hundreds of victims of many other crimes in the United States. Our work has had an enormous impact in the Latino community.  We encourage people to report crimes, stop abusive situations, and help create secure communities. At the same time, we provide the opportunity to thousands of immigrants to obtain legal status in the U.S., opening doors for victims and their families to have a better future

 

Can you share a case that personifies the work of Mil Mujeres: 

A moving case that puts the work of Mil Mujeres into perspective is that of a Mexican woman named Julia.  Julia lived in poverty and worked as a maid to support her family.  While working, Julia fell in love with a man who promised her a better future and more money.  Thereafter, he introduced Julia to prostitution.  Unhappy with her life, Julia reached out to her boyfriend for help.  The man encouraged Julia to travel to the U.S. to work as a waitress.  After crossing the border and relocating to New York City, Julia found herself a victim of human trafficking, in the midst of an international network of prostitution.  

Several years later, Julia met a man who helped to free her from the pimps.  Unfortunately, Julia returned to prostitution after finding no other means to survive economically.  Arrested in the middle of a police investigation, Julia collaborated with law enforcement and regained her freedom with the help of staff at Mil Mujeres. 

Sadly, stories like Julia’s are not rare.  This video, featuring the case of another strong woman, illuminates the experiences of other Mil Mujeres clients:  https://www.youtube.com/watch?v=_SjGA-NteO8&feature=youtu.be

 

Mil Mujeres has seen extensive growth—to what do you attribute this growth?

We have been able to build capacity by strengthening our legal team with Board of Immigration Appeals (BIA) recognition and the accreditation of our staff.  Our legal team works extremely hard in providing high quality services.

Furthermore, the growth of the organization is the result of fruitful collaborations. We have been able to work with other organizations in the United States that provide services for victims of violence such as La Clinica del Pueblo, Empowerhouse, Family Place, SAFE, OLA, Bread for the city, among others. This network has been very helpful in Mil Mujeres’ community outreach.

Finally, we also have a community outreach program through which we talk to the community directly about their legal rights as victims of crime. Weekly, we make presentations aimed at explaining the benefits of U Visa, VAWA (Violence Against Women Act) and DACA (Deferred Action of Childhood Arrivals) in the consulates of El Salvador, Mexico, Honduras and Guatemala, located in the DC Metro area. 

 

How has CLINIC supported Mil Mujeres in expanding the provision of quality immigration legal services?

CLINIC has been critical for Mil Mujeres to expand the provision of quality legal services. Mil Mujeres' staff attorneys and paralegals have taken advantage of CLINIC legal trainings not only to have the necessary knowledge to handle our cases, but also to be able to obtain BIA accreditation. In addition, our legal team also uses the CLINIC legal support line in order to ensure the quality of our legal advice.

 

Are there elements of U.S. Immigration policy you would like to see change to better uphold the well being of abused immigrant women? 

Raising the annual U-Visa cap, and creating a process for U-Visa derivatives living outside the United States to obtain deferred action while their application is pending, as is currently done for the U-visa principal and derivatives who are living inside the United States. This is important because these derivatives outside the United States are young children who live in constant fear and danger while their application is pending.

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Talking Points on Executive Action on Immigration Reform

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.

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USCIS to Increase Number of Site Visits

As you may be aware, part of the immigration process of sponsoring international religious workers to the U.S. involves a site visit from USCIS (U.S. Citizenship and Immigration Services).  This is required per the immigration regulations and is used to verify the elements of the petition filed by the sponsor (including sponsor and beneficiary information, work location, etc.).  These site visits may occur with advance notice or without any notice at all. 

We have recently learned that USCIS plans to expand unannounced site visits to religious organization sponsors.  Thus, you should prepare your office and/or parish (or other beneficiary work location) for the possibility of a USCIS site visit.  Please contact our office if you have any questions about this or how to best prepare.

 

Preparing For Post-Adjudication Site Visits 

Since post-adjudication site visits occur after an I-129 petition for a nonimmigrant religious worker is already approved, one might not immediately recognize their importance. However, as discussed below, failure to fully appreciate a site visit can have serious consequences, not only for the foreign national but even for the sponsoring religious organization.

It is important to keep in mind the overall purpose of post-adjudication site visits. Broadly speaking, it is to detect and deter fraud in obtaining immigration benefits. Thus, visits are normally conducted by the Fraud Detection and National Security (FDNS) unit of the local USCIS field office. Practically speaking, this means that all supporting information used to obtain the underlying I-129 approval is "fair game" for scrutiny and questioning on a site visit. 

Petitioners should always be prepared for an unannounced site visit.  Site visits can be triggered by information in the petition, information from an outside source, or by just random selection. However, post-adjudication site visits are not exclusively physical inspections. Recently, we have confirmed with many religious organizations that the USCIS is also conducting visits by telephone and email. But regardless of the manner, one thing for sure is that site visits are on the rise. Since the USCIS typically does not provide any advance notice, it is best practice to treat each day as a potential site visit day. 

As mentioned, the purpose of a site visit is fraud detection. Typically, the USCIS will want to confirm that the petitioning religious organization is a bona-fide religious entity, that the religious worker is in fact working at the location stated on the petition, and that the religious worker’s stated duties and compensation information is accurate. If an inspector notes inconsistencies between the petition and what they see on their visit, they may revoke and terminate an approved petition. Given this risk, we strongly advise our clients to expect questions about the underlying information for their approved I-129. Of course, it is important to remember that site visits should not be "fishing expeditions". Questions should be limited to the specific foreign national and should also be confined to the legal requirements for R-1 status (and not other statuses or benefits). 

Recently, we've learned that the USCIS has hired private contractors for site visits. Because the contractors are presumably not experts at immigration law, clients should be prepared to deal with individuals with a less-than-complete understanding of the requirements of R-1 status. Despite any frustration this may cause, it is important to be professional, respectful, and compliant with the representative's requests. 

Given the recent trend of site visits by phone and email, petitioners and beneficiaries should make sure they provide the most up-to-date phone number and email address when filing the I-129 petition. In addition, since phone and email site visits may require responses to requests for information and/or documents within 3-5 business days, petitioners and beneficiaries should regularly check their phone messages and emails. As an automatic rule, you should immediately contact your attorney whenever contacted by USCIS officers. In case the petitioner or beneficiary plans to be out of town, there should be a designated person to monitor calls, emails and handle physical visits in their absence.

 

Best practices:

In order to prepare for a post-adjudication site visit, the petitioning religious organization should:

  • Assign a designated person at the petitioner’s headquarters as the “go-to” person for USCIS site visits.
  • Inform reception staff and other personnel to direct the USCIS officer to the designated person.
  • Keep copies of all I-129 petitions, any updated immigration documents (i.e., new I-94s) and current religious organization documents (i.e., recent financial records), and maintain these copies so that they are easily accessible and identifiable in the event of a site visit.

 

During the post-adjudication site visit:

  • Always request the name, title, and contact information for the USCIS officer and ask for his/her business card.
  • Take detailed notes of all information and documents requested by the USCIS officer. 
  • Whenever possible, consult your attorney before providing information and documents to the USCIS officer.

 

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The Immigration Journey of Br. Ramon Flores

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.

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RIS Attorneys Hit the Road!

This summer, several attorneys in the Religious Immigration Section of CLINIC had the opportunity to travel and meet with their clients.  The funding for this special endeavor was provided by a grant from the Open Society Foundation.  These trips provided the attorneys with the chance to meet with clients, provide information regarding religious worker immigration and the need for immigration reform, and also help to foster understanding of CLINIC’s mission.

 

Attorney Kate Kuznetsova

Ms. Kuznetsova visited the Oblate School of Theology in San Antonio, Texas in August.  Every year, the Oblate School of Theology runs a two -week acculturation program for their foreign-born priests and Ms. Kuznetsova was happy to be able to participate in this event.  She presented an Introduction to Religious Immigration to a group of approximately ten foreign-born priests from various countries including Zambia, Philippines, India, and Tanzania.  The priests are primarily serving in the Diocese of Salina, the Diocese of Fort Worth, the Diocese of Oklahoma, and the Archdiocese of Mobile. 

Additionally, in June, Ms. Kuznetsova visited a long-time RIS client, the Missionary Society of St. Paul of Nigeria in Houston, Texas.  While there, Ms. Kuznetsova was able to meet with the clients to discuss case issues.  The following day, she, along with RIS Attorney Minyoung Ohm, presented to a diverse group on Religious Immigration Law, F-1 Student Visas, and undocumented immigrants.  The audience included current RIS Clients, people from local seminaries, as well as other religious communities in the area.

 

Attorney Megan Turngren

In June, Ms. Turngren had the opportunity to travel to New England for a presentation at the Pastoral Center for the Archdiocese of Boston.  The presentation covered the basics of Religious Immigration Law, as well as important reminders for R-1 petitioners.  The crowd of attendees included representatives from many different departments in the Archdiocese, as well as members of several local religious communities.

 Jane Devlin, Special Assistant to Canonical Affairs in the Archdiocese, provided Ms. Turngren with a well-planned schedule and abundant hospitality while she was visiting the area.  Thanks to Ms. Devlin’s efforts to coordinate with many different groups, Ms. Turngren was able to have separate meetings with many different departments in the Archdiocese to address individual concerns regarding the immigration process for foreign-born religious workers.  Ms. Turngren appreciates the valuable time that each person took from their hectic schedule to attend the presentation and meet with her afterward.   

 

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Connecting with Clients

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. 

 

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TPS Extended for Hondurans and Nicaraguans

Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning January 5, 2014 and ending July 6, 2016.

Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register during the 60-day re-registration period that runs from October 16, 2014, through December 15, 2014. The USCIS encourages beneficiaries to register as soon as possible.

The extension allows currently eligible TPS beneficiaries to retain TPS through July 6, 2016. The Secretary has determined that an extension is warranted because the conditions in Honduras and Nicaragua that prompted the TPS designation continue to be met. There continues to be a substantial, but temporary, disruption of living conditions in Honduras and Nicaragua resulting from Hurricane Mitch.  Honduras and Nicaragua remain unable, temporarily, to handle adequately the return of their nationals.

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IJ Must Examine the Circumstances to Determine Marihuana Possession Exception

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).

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Bar to Cancellation Applies to all Grounds of 212(a)(2)

The BIA recently clarified that a person is ineligible for cancellation of removal if he or she is inadmissible under INA § 212(a)(2)(B) due to convictions of two or more offenses for which the aggregate sentence were five years or more.  That form of relief is not available to those who were convicted of an offense under section 212(a)(2).  The question before the Board was whether multiple criminal offenses were meant to be covered in the statutory preclusion.  The BIA looked at the plain language and concluded that it was not ambiguous.  It concluded that “convicted of an offense under section 212(a)(2) encompasses all of the provisions of section 212(a)(2) and not just crimes of moral turpitude covered by 212(a)(2)(A).”  Matter of Pina-Galindo, 26 I&N Dec. 423 (BIA 2014).

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BIA Issues Decision Applying Categorical Approach and Moncrieffe Analysis

By Sarah Bronstein

In 2013, the U.S Supreme Court issued its decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which was significant in its reliance on the traditional categorical approach to determine whether an offense has crime-based immigration consequences.  The categorical approach involves an assessment of the conduct punished under the statute of conviction rather than an analysis of the facts of the case.  Since then, advocates have been watching the BIA to see how it would apply Moncrieffe in its decisions.  On September 22, 2014, the BIA issued its decision in Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), giving us another glimpse into the BIA’s interpretation of Moncrieffe. 

The Respondent in this case, Mr. Ferreira, was a lawful permanent resident who pled guilty to a drug trafficking offense under Connecticut law.  When he was placed in removal proceedings, he was charged as deportable under INA §§ 237(a)(2)(A)(iii) (aggravated felony) and (B)(i) (controlled substances).  Both of these grounds of deportability refer to drug-related crimes as defined in section 102 of the Controlled Substances Act (21 USC §§ 801, et seq.).  Mr. Ferreira filed a motion to terminate arguing that under the categorical approach, the government had not met its burden to establish removability because Connecticut’s statutes regulated two substances (benzylfentanyl and thenylfentanyl) that were not covered in the federal Controlled Substances Act.  Mr. Ferreira argued that because the Connecticut statute was broader than the federal statute, it did not necessarily punish conduct that was an offense under the Controlled Substances Act as is required by Moncrieffe to establish crime-based immigration consequences.

The BIA, while applying Moncrieffe and the categorical approach, came to a different conclusion. The BIA reiterated that Moncrieffe and the categorical approach require “looking not to the facts of a prior criminal case, but to ‘whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding’ removal ground.”  Matter of Ferreira, 26 I&N Dec. at 418 (BIA 2014) (citing Moncrieffe v. Holder, 133 S. Ct. at 1684 quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 186 (2007).  In order to do this, the respondent must show “a realistic probably, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.”  Id. at 419.  The BIA concluded that while the realistic probability test is sometimes overlooked when determining removability, it is part of the initial inquiry an Immigration Judge must make when applying the categorical approach.  Id. at 419. 

The BIA concluded that in order to consider whether Mr. Ferreira’s case should be terminated, the court must apply the realistic probability test.  Applying the realistic probability test in this case requires determining whether Connecticut actually prosecutes individuals in cases involving benzylfentanyl and thenylfentanyl.  The BIA found that because this analysis involves fact-finding, the case must be remanded to the Immigration Judge for application of the realistic probability test.  Upon remand, both parties may submit evidence as to whether or not Connecticut in fact charges individuals with crimes relating to these two substances. 

This case gives an indication that when analyzing cases under Moncrieffe and the categorical approach, the BIA will likely place an emphasis on the realistic probability test.  CLINIC will continue to monitor the case law on this issue and provide updates as they occur.

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Update on DACA (October 2014)

By Ilissa Mira

The Ombudsman’s Office met with CLINIC and other immigration advocates to discuss developments regarding DACA and reports from the field.  This article provides updates on a variety of issues related to DACA eligibility and adjudication.

USCIS Statistics

As of June 2014, USCIS had received a total of 712,064 initial DACA requests.  According to the Ombudsman, 63,697 initial DACA requests remain pending.  Of those, 7,357 cases have been pending over a year.  The processing time for DACA requests is 6 months. However, background checks, fraud investigations, and requests for evidence (RFEs) toll processing times until the issue is resolved.

At the end of August, USCIS had received 74,581 renewal requests.  By September a reported 113 DACA approvals had been terminated since the start of the program.  Of those, 68 were issued NTAs related to criminal convictions or public safety issues.

Common RFEs

USCIS reports that the top issues triggering RFEs are continuous residence, current enrollment in a qualifying education program, and proof of presence on June 15, 2012.  In particular, non-qualifying education programs remain a concern for USCIS, especially with regard to online high school and home schooling programs.

Advocates have raised two common scenarios resulting in RFEs and denials:

1) Applicant is currently enrolled in college but has a high school diploma from an online program.  On his DACA request, the applicant indicates he is eligible as a high school graduate though he could also qualify based on current enrollment in school.  Based on the fact that the high school diploma is not from a program of demonstrated effectiveness, USCIS issues an RFE and ultimately a denial.

 2) At the time of request, applicant indicated DACA eligibility based on current enrollment in an education program and is unaware that the online program is not qualifying.  She later enrolls in a qualifying program and submits proof in response to an RFE.  Her request is ultimately denied because she cannot demonstrate that she was currently enrolled in a program of demonstrated effectiveness at the time she originally applied for DACA.

In these cases, USCIS requires that the applicant demonstrate eligibility at the time of filing.  However, applicants may re-file if they later become eligible through enrollment in a new, qualified education program.  For many, it remains difficult to identify whether specific online or home school programs will be recognized by USCIS.

 

Pending DACA Renewal

DACA recipients are encouraged to file renewal requests 120 to 150 days before their current period of deferred action and employment authorization document (EAD) expire.  Though USCIS has indicated that individuals who apply within this time period may receive a brief DACA extension if USCIS experiences processing delays, no process for requesting this extension has been announced.

Renewal applicants with approaching EAD expirations report that National Customer Service Center representatives are unwilling to open service requests on cases that have been pending for less that the posted DACA processing time, which is currently six months.

 

Requesting Ombudsman Assistance

The Ombudsman provides individual case assistance to those applying for immigration benefits and makes recommendations to USCIS on improving services to the public.  Advocates may contact the Ombudsman for case assistance, particularly with the following situations:

  • RFEs and denials based on failure to demonstrate current enrollment in/ high school diploma from a qualified education program
  • Template denials that do not adequately explain the basis of denial
  • Administrative errors
  • Systemic issues requiring a higher level of review, such as inappropriate exercise of discretion, the misapplication of evidentiary standards, or failure to apply stated USCIS policy.

The Ombudsman accepts requests for assistance where a case is ripe for intervention.  Advocates should first try to resolve case concerns with USCIS.  Cases must be at least 60 days beyond the processing time.  For DACA renewals, contact the ombudsman after the case has been pending for 75 days.

To make a request for case assistance, submit an electronic Form DHS-7001.  To expedite a request, indicate on the form that the applicant is facing an immediate adverse action, an emergency, or other significant hardship, caused by an action/inaction/delay in processing by USCIS, or a problem that could not be resolved through USCIS.  DACA renewal applicants should also indicate their EAD expiration date.  After the request is submitted, a case number will be issued via email.  In urgent matters advocates should also email Ombudsman staff directly with the case number and specifically request the case be expedited so that the inquiry is removed from the general queue.

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Advocacy Update: NSC Teleconference on Refugee/Asylee Issues

On October 9, 2014 the Nebraska Service Center held a teleconference on refugee/asylee issues.  The following is a summary of the discussion.

 

I-765

Q. Can a refugee who has been to immigration court for a felony charge, but has not been removed from the U.S. because his homeland refuses to admit him, apply for authorization to work?   The latest official word on his documents is “voluntary departure.”

A. To determine eligibility for work authorization, USCIS must have evidence of current immigration status. Eligibility will depend on the outcome of any proceeding an individual is in. Each individual should receive a copy of the court order at the proceeding. It they did not or have lost it you can file a FOIA request with EOIR.

 

Q. The I-765 instructions have been revised as of 8/6/14.  Not quite sure if this part has changed, but page 1 indicates that refugees should file their I-765 with either a copy of their I-590, approval letter, or I-730 approval notice.  Our project has never had a refugee client who was given a copy of their I-590 form from overseas (we have gotten them through FOIAs, however),  and only infrequently have we seen any approval notices from overseas refugee processing (sometimes clients will have a copy of their “transportation letters” which indicate they have been approved for entry as refugees).  Then, it is not until page 6 in the “Required Documentation” section that a copy of the I-94 is mentioned in general for all applications.  These instructions would seem to be confusing to refugees.  We have regularly tried to encourage USCIS to either delete the page 1 reference to “paroled as a refugee” since we don’t believe that any persons now enter the U.S. in this status – this status was used for a time prior to the official passage of the Refugee Act of 1970.  The problem is that many Cuban parolees who try and do the I-765 on their own typically opt for this provision and then have their applications denied because they don’t have that status.  Can there be some clarification added to this section on page 1?

A. This was more of a comment than a question but, in general, information that is forwarded to Headquarters is for verification purposes. An I-94 will do for verification but so will an I-730. For more questions email: scopsscata@dhs.gov.

 

I-131

Q. Are there any instances in which a Form I-131 Application for Refugee Travel Document can be waived?

A. Regulations do not allow for a waiver of the Travel Document.

 

Q. Can I-131’s be adjudicated for someone with withholding of removal, and if traveling out of the U.S. (to a different country than the country of origin) will the applicant be able to re-enter the United States in the same status?

A. Anyone currently in any removal proceeding must file an I-131 to get authorization for parole.

 

Q. Follow up questions: What happens if individuals are still waiting for a Travel Document and it has been well outside the regular processing period? Is there a way to expedite it? Will a person’s criminal history stop them from getting approved?

A. If a person has proper status they are eligible for a travel document. Typically, criminal records do not bar them. The only thing that can bar them is if they are in any proceeding. Because some of them do take a long time, you can submit a request to expedite through the customer service center.

 

I-730

Q. Who adjudicates Form I-290B, Notice of Appeal or Motion, submitted in relation to Form I-730, Refugee/Asylee Relative Petition? Is it the Nebraska Service Center or the Administrative Appeals Office?

A. A decision on Form I-730 cannot be appealed, but you can file a motion to reopen. The NSC will adjudicate I-290B for an I-730 that was adjudicated at the NSC.

 

Adjustment of Status

Q.  I understand that USCIS has reverted to issuing RFEs in asylum adjustments that require nunc pro tunc asylum filings, avoiding the need for clients to re-file their I-485 adjustment applications.  For cases that were issued denials, went through the nunc pro tunc process, and are re-filing their I-485 applications, will applicants be forced to re-pay the fee or will an exception be made in these instances?

A.  In November 2012 the policy was changed to facilitate the nunc pro tunc re-filing. The adjustment fee for refilling is due with the application even if an individual is asking for a waiver. Any other problems individual have should be address to headquarters. Email: scopsscata@dhs.gov

 

Q. We continue to receive two approval notices for almost all adjustment filings (this may not be specific to refugees/asylees).  Is it possible to prevent this from continuing?

A. Approval notices are automatically produced.  The NSC asks organizations to give examples of instances of duplication so that they can look into it. Since this has been happening for years and submitting the actual or copies of approval notices would be too much, just provide the receipt number so that the NSC can pull up the notices and see what was happening.

 

Q. What, if any, position does the NSC have on the issue of refugee applicants who are Hispanic and prefer to drop their second last name at the green card stage (meaning that the I-485 is prepared with just one last name; the double last name is listed as an other name on the G-325)?  One of the local CIS offices (which ends up getting a lot of Cuban Adjustment Act cases referred by the NBC) has indicated that there is supposedly a CIS policy that if a Cuban, for example, is born with two last names, that this is their legal name.  As a result, if they want to drop their second last name on their green card, they would need to have an official court document showing a name change.  This issue, in general, however, does not seem to be consistent among service centers and local offices.  Is there a national policy on this issue – and if not, what position does the NSC take?

 A. Based on the regulations, any applications must use an individual’s full legal last name. If individuals wish to change their name, including dropping a last name, they must show official documentation reflecting a name change.

 

Q. We have some asylee-based adjustment of status (I-485) cases that were filed at NSC.  We received notices that those cases were being transferred to NBC.  Can you clarify what role or function NBC has in the processing of these adjustment applications?

A. Some I-485 applications and interviews are sent to NBC. Those that are will be adjudicated by NBC.

 

TRIG

Q. In August 2014, USCIS posted six new policy memos regarding discretionary exemptions for certain terrorism related inadmissibility grounds for material support to certain groups – mainly from Eritrea and Ethiopia.  Is NSC at liberty to indicate what other organizations are in the process of being considered for similar exemptions?  

A. Any questions on current use or future extensions of TRIG policy need to be sent to scopsscata@dhs.gov.

 

RFEs

Q, Is it possible for the Service to send RFEs to both the Representative and the Applicant/Petitioner?  It would be helpful if this could be done.

A. NSC will elevate this issue to headquarters for a policy decision and will get back to people.

 

G-28

Q. Our organization has recently received a number of notices relating to NSC cases that we are not handling and have never submitted G-28s for.  Is anyone else having those problems?  If we do continue to get notices for cases that are not our cases, should we mail them back to the PO Box 82521 address? 

 A. NSC was not aware of the issue and would like people to provide specific case numbers and send them to ceo.nsc2@uscis.dhs.gov.

 

AR-11

Q. When an AR-11 change of address form is filed online for an individual with a pending I-589, the system rejects the receipt number.  Is the new address transmitted to the appropriate asylum office?

A. If an address change is received, the system will update, but only if an address change is allowed. If not, the request will be sent to the office that has that case number. There the address will be changed if it is possible to do so.

 

Q. In the scenario when an asylum applicant is a minor, and his/her EOIR case has been administratively closed so that he/she could pursue his/her asylum claim with CIS, and then he/she changed address - will the AR-11 filed online be sufficient information of his/her change in address for both the EOIR and the CIS?

A. USCIS is not automatically updated with AR-11. It will require a manual update. Address change requests to USCIS should be done by calling the National Customer Service Center (NCSC) at 800-375-5283.

 

Q. Our organization has had a number of cases where we have received NCSC confirmations of address changes prior to the production of green cards, but then the green card is sent to the old address.  Fortunately, the tracking information with link to the USPS site tells us what zip code it is/has gone to, but clients have had to go to their old address to track down and catch their green card.  What can be done to ensure that new addresses are in the system short of calling NCSC after each online address change?

A. Green cards are sent to individuals from a distribution center with the address that they currently have. In the event that the card is sent back to the distributor it will be forwarded to a new address if it has been updated. Cards will be held for one year or until a new address is provided.

 

Lockbox

Q. Lockbox scanning issues:  While the lockbox used for refugee I-485s seems to be operating better than some of the other lockboxes, some of those  other lockbox systems seem to have a problem with scanning.  We assume that that lockbox staff (who are employees of contractors, correct?) are doing the scanning before the file is sent either physically and/or electronically to the service center that will work on the case.  The problems seem to be that some scanners are not scanning all pages, resulting in a return of the application packet for allegedly “missing” pages.  In addition, some lockboxes seem to be unable to scan front and back sides, so if a G-28 is on the front and back side, one side does not get scanned.  What is the system-wide procedure for scanning applications and does it differ by lockbox?

A. The Records Department confirmed with JP Morgan that the scanners scan double sided pages and they are not expected to miss pages. Any examples of missed pages should be sent to ceo.nsc2@uscis.dhs.gov.

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Serving Immigrant Children in Texas

By Tatyana Delgado

With over 6,000 unaccompanied children released from juvenile detention facilities to sponsors in Texas from January through August 2014, many legal service providers have shifted into high gear.  Over 3,000 unaccompanied children have been released to parents, relatives, or other caretakers living in Harris County, Texas, which includes Houston. 

In response to recent guidance from EOIR Headquarters, immigration judges in Houston are setting first master calendar hearings for unaccompanied children within 21 days of the date of filing of the Notice to Appear.  In many cases, children are receiving two to four week continuances.   During this time, children are expected to secure counsel and determine which forms of immigration relief they intend to pursue.  In addition, the Houston Asylum office is scheduling asylum interviews for unaccompanied children promptly after receiving asylum applications. 

The St. Frances Cabrini Center for Immigrant Legal Assistance at Catholic Charities of Galveston-Houston is responding to children’s legal needs by offering a wide range of services.  Maria Mitchell, the Cabrini Center’s legal co-director and pro bono counsel, has mentored dozens of pro bono attorneys handling cases for children.  The Cabrini Center is continuing to expand its pro bono attorney network as it continues to identify children who are eligible for special immigrant juvenile status, asylum, and other forms of immigration relief. 

Aimee Maldonado, the supervising attorney for the Cabrini Center’s unaccompanied children program, and a dedicated team of attorneys, staff the detained and non-detained juvenile dockets at the Houston Immigration Court on a regular basis.  The legal team conducts Know Your Rights presentations and legal screenings of children detained in juvenile shelters.  They also represent children released to sponsors in Houston and surrounding areas, and match pro bono attorneys with children.  The legal work is demanding and challenging, but these expert attorneys handle cases with a great deal of professionalism.  

In San Antonio, collaboration among nonprofit organizations and pro bono attorneys has helped meet the legal needs of many immigrant children and their families.  Juan Castro, the Caritas Legal Services Director at Catholic Charities of San Antonio, and Jonathan Ryan, the Executive Director of the Refugee and Immigrant Center for Education and Legal Services (RAICES) spearheaded joint efforts to provide legal services to families who were detained at the Joint Base San Antonio - Lackland.  The Lackland facility recently closed, but a new facility, the Karnes County Residential Center opened in Karnes City, Texas.  Karnes houses women and their children.

ICE recently announced that a new family detention facility in Dilley, Texas, which will have capacity for 2,400 detainees, is expected to open in December 2014.  The devoted staff at Caritas Legal Services and RAICES plan to continue to partner on efforts to serve children and their families in San Antonio and surrounding areas. 

 CLINIC is continuing to engage in advocacy, providing training, and supporting organizations that are handling cases for unaccompanied children.  We encourage CLINIC affiliates to send any questions related to unaccompanied children to uac@cliniclegal.org.   CLINIC affiliates may also join the CLINIC unaccompanied children listserv by e-mailing: clinic_uac-subscribe@yahoogroups.com.

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EOIR Releases Guidance on Expedited Court Procedures in Unaccompanied Children's Cases

By Sarah Bronstein

On September 10, 2014 Chief Immigration Judge Brian M. O’Leary issued a memorandum to all Immigration Judges entitled “Docketing Practices Relating to Unaccompanied Children’s Cases in Light of the New Priorities” (hereafter EOIR Docketing Memo).  This memorandum was issued in response to concerns raised by CLINIC and other agencies working on unaccompanied children’s issues at a meeting with the Executive Office for Immigration Review (EOIR) on August 18, 2014. 

Since July of this year, EOIR has implemented expedited docketing procedures in response to the increased numbers of unaccompanied children apprehended along the southern border. Immigration courts have been instructed to schedule unaccompanied children’s cases for a first master calendar hearing within 21 days of the filing of the Notice to Appear with the immigration court.  As these “rocket dockets” were rolled out across the country, advocates became increasingly concerned about due process protections, the large numbers of children appearing unrepresented, and the granting of very short continuances to find counsel and prepare the cases.  Advocates raised a number of concerns about the rocket dockets at the August 18th meeting, but the EOIR Docketing Memo focused on three issues:  continuances to find counsel; continuances for other reasons as the case proceeds; and appearances by custodians. 

Continuances to Find Counsel

The Notice to Appear is the charging document in immigration court.  Removal proceedings begin when the Notice to Appear is filed by Immigration and Customs Enforcement (ICE) with the immigration court.  The scheduling of the first master calendar hearing within 21 days of the filing of the Notice to Appear makes finding counsel prior to the first hearing very challenging.  As a result, many children are appearing at their first master calendar hearing without representation.  In the EOIR Docketing Memo, O’Leary clarifies that the expedited scheduling of unaccompanied children’s cases does not prevent the Immigration Judge from exercising his or her discretion to grant a continuance to find counsel. He also states that the length and number of continuances granted to obtain counsel will vary case by case and will depend on factors including the availability of local counsel, both private and pro bono.

Continuances for Other Reasons

Unaccompanied children’s cases are very complicated and time consuming to prepare.  Many children seek Special Immigrant Juvenile Status (SIJS) – an immigration benefit available to children who have been abused, abandoned or neglected.  Applying for SIJS requires obtaining a court order making certain findings from a state juvenile court.  The application for SIJS, the I-360, must then be filed with and adjudicated by U.S. Citizenship and Immigration Services (USCIS).  The length of time these cases take to prepare varies, but it is generally at least a several-month-long process before the Immigration Judge even has jurisdiction to act on an SIJS case.

Advocates informed EOIR at the August meeting that there were reports from around the country of instances where Immigration Judges were giving very brief, two-to three-week continuances in cases where SIJS was identified as the form of relief being sought.  In response to those concerns, Chief Judge O’Leary states in the EOIR Docketing Memo that in spite of the expedited scheduling of unaccompanied children’s cases, Immigration Judges continue to have discretion to reset the case for good cause. Chief Judge O’Leary specifically gives the example of a child seeking SIJS and indicates that the length of time needed to proceed in state court varies depending on the jurisdiction.  He states that several months may be necessary to complete the state court portion of the case in many jurisdictions.  He also asserts that appropriate time needs to be given to USCIS to adjudicate the I-360.  In light of this, he stresses that several continuances or administrative closure – the mechanism for placing a case on hold while an event outside of the control of the Immigration Court is occurring – may be needed. 

Appearances by Custodians

Unaccompanied children in the custody of the Office of Refugee Resettlement are often released to family members or family friends.  These individuals, including parents, are called “sponsors” or “custodians.”  Advocates reported to EOIR that Immigration Judges were asking children appearing in court without an adult why a parent or other custodian was not present.  In response to the children stating that the custodian was fearful to come to court because of their immigration status, some Immigration Judges were ordering the custodian to appear in court at the next hearing and giving assurances to the child that the custodian did not need to fear being taken into custody or placed in removal proceedings if he or she appeared in court.  O’Leary stresses that it is not appropriate for Immigration Judges to order the custodian to appear in court and to make assurances that the custodian will not be taken into custody if he or she does so.  O’Leary clarifies that such decisions are in the sole purview of ICE and are outside of the Immigration Judge’s control. 

CLINIC continues to monitor and engage in advocacy on the implementation of the rocket dockets across the country.  If you have concerns about how the rocket dockets are proceeding in your immigration court, please send us an email detailing the issues you are seeing at clinicuac@cliniclegal.org.

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Obama Announces In-Country Refugee Processing for Central American Children

By Ilissa Mira

On September 30, 2014, President Obama announced a plan to allow certain children from Honduras, Guatemala, and El Salvador to apply for refugee status within their own countries.  In fiscal year (FY) 2014, over 68,500 unaccompanied children fled violence in Central America, undertaking a long and dangerous journey to the United States.  As a response, in-country processing is aimed at stemming the surge of unaccompanied children by offering a safer alternative to traveling north alone.     

Under U.S. immigration law, the term “refugee” generally refers to an individual outside their own country, who is unable or unwilling to return because of persecution on account of their membership in a protected class.  However, the president has the authority to designate countries whose nationals may be processed for refugee status within their home countries.  Establishing in-country processing in Honduras, Guatemala, and El Salvador would allow certain lawfully present relatives in the United States to request refugee resettlement for children in these three countries.  According to White House officials, this process would provide a legal way for children to join relatives in the United States without making the arduous trip across Central America and Mexico.  A decrease in unaccompanied children arriving in the U.S. would reduce the burden on the immigration court system and the need for detention facilities. 

Despite the humanitarian justification, some immigration advocates are concerned about the program’s effectiveness.  The plan would require children in immediate danger to remain in unsafe circumstances while awaiting processing in their home countries.  It could also serve as a rationale for denying valid claims from those with no choice but to leave home.

The program was outlined in a memorandum to the State Department capping worldwide refugee admissions to 75,000 for FY 2015.  Four thousand of those admissions will be allocated to Latin America and the Caribbean, lowered from 5,000 admissions allotted to the region in FY 2014.  An additional 2,000 may be added to any regional ceilings where the need arises.  In-country processing will also be available to persons in regions such as Eurasia and the Baltics, as well as Cuba and Iraq.

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Cambia tu Vida, New York

Claudia Ornelas

On March 2, 2014 I had the pleasure of taking part in the Cambia tu Vida Campaign media launch in New York City and experiencing the excitement brewing as community, religious, and government leaders gathered to promote naturalization as a benchmark of integration.

The Cambia tu Vida Citizenship Campaign (“Citizenship: It Changes Your Life/Citizenship: Change Your Life”) is a national campaign to encourage lawful permanent residents (LPRs) to become citizens. To date, the Catholic Legal Immigration Network, Inc. (CLINIC) has successfully launched Cambia tu Vida in Dallas, Los Angeles, Miami, and now New York City.

For the campaign in New York, Catholic Migration Services (CMS), the Diocese of Brooklyn, and the Catholic Legal Immigration Network, Inc. (CLINIC) partnered to encourage immigrants to reach the dream of citizenship. Immigrants have shaped New York’s fabric and contribute to the vitality and vibrant spirit that defines this city. We aim to help New York’s 684,000 legal permanent residents further integrate, contribute to their communities, and find continued stability by applying for citizenship.

Speakers and attendees at the launch included Senator Charles Schumer, Bishop Nicholas DiMarzio, Father Patrick Keating, City Councilwoman Julissa Ferreras of Queens, Representative Grace Meng of Queens, City Council Speaker Melissa Mark-Viverito, Kelly Marie Fay Rodriguez of AFL-CIO’s Immigration and Community Action, and Assemblyman Francisco Moya. One by one,  representatives stood at the podium, addressing the crowd about the importance of naturalization. With compassion and empathy, each spoke about immigration from personal experiences, because they had immigrant parents or grandparents, had served and worked with immigrants, or represented immigrant communities in their diverse districts.

Bishop DiMarzio, for example, spoke about his grandparents.  His grandfather became a citizen after 45 years in the United States and his grandmother resided in the country for 75 years before filling out naturalization applications. Bishop DiMarzio expressed understanding of why many LPR’s wait to apply for naturalization and emphasized the benefits of citizenship. “As a citizen, he explained, “you can vote, you can go all over the world, you are protected by the U.S. government and you have other benefits you don’t have as a permanent resident. We are here to help.”

Immigration is personal; it  impacts all of us. That message resonated throughout the Cambia tu Vida launch. In immigration there is no “us” and “them.”  As many speakers expressed: we are all in this together, we are here to help, and we are part of this community.

As City Council woman Julissa Ferraras expressed, “This is our home!” And what better way of honoring our home than by taking the opportunity that citizenship offers of further participating in our communities.

As a first generation immigrant myself, I felt empowered by the energy of the crowd and the voices of government and religious leaders.  As advocates, being a part of Cambia tu Vida brought us together to further shape New York’s legacy of immigrant-driven community engagement.

CLINIC is proud to have partnered with CMS to launch the campaign in New York, and we hope to bring the Cambia tu Vida initiative to other cities.

Catholic Migration Services will host two “mega workshops” on April 5th and April 26th designed to process thousands of naturalization applications free of charge, excluding federal fees, as part of the New Americans Campaign and Cambia Tu Vida campaign. All eligible Legal Permanent Resides are encouraged to attend.

For more information on Cambia tu Vida Citizenship Campaign visit:  http://cambiatuvida.us/

To view the Cambia tu Vida public service announcements, click here:  https://www.youtube.com/user/cliniclegal

*Claudia Ornelas is Communication Officer at the Catholic Legal Immigration Network, Inc. (CLINIC)

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Celebrating U.S. Citizenship

Rommel Calderwood

As we celebrate our country’s birthday and independence on the Fourth of July, many of us will contemplate what it means to be Americans.  Being an American for the foreign-born goes beyond the ability to vote in elections or obtain a U.S. passport.  Many immigrants already feel American at heart long before they take their first step to becoming naturalized U.S. citizens – a pre-requisite to vote and obtain a passport.  Many of them have integrated into their communities long before – going to weekly church services, volunteering in their children’s schools, and paying their taxes. 

While many “green card” holders have called the United States home, often for decades, they nonetheless face numerous challenges that prevent them from fulfilling their dreams of becoming U.S. citizens.  Only 700,000 or just eight percent of the 8.5 million eligible lawful permanent residents (LPRs) naturalize each year.  Nearly 50 percent of LPRs who were surveyed cited the high cost of filing an Application for Naturalization, lack of English proficiency skills, and scarce information about the low-cost immigration and test preparation services available in their communities as some of the reasons for not naturalizing. 

CLINIC and its affiliate network understand the challenges that many aspiring citizens face, and as such, CLINIC has supported its network of nonprofit immigration legal services with over $7 million in flow-through funding to serve low-income LPRs across the country and help them navigate the complex naturalization process.  As one of the founding organizations of the New Americans Campaign (NAC), CLINIC works with its national network partners, foundations, local affiliates, and federal government agencies to promote the importance of U.S. citizenship and to break down the barriers that prevent many eligible LPRs from taking the crucial steps on their journey to becoming new Americans. 

CLINIC is proud to be a part of the NAC and other initiatives that have helped LPRs to realize their American dreams.  Through the NAC, CLINIC has provided nearly $2 million in flow-through funding to its affiliate partners in Charlotte, Dallas, Detroit, Houston, Los Angeles, New York, and Miami.  Additionally, CLINIC supports over 100 partners, including legal-service providers, businesses, faith-based groups, community leaders, and universities across the country by providing free trainings, resources, and best practices on naturalization and citizenship.  Since the NAC’s founding in July 2011, it has helped over 100,000 LPRs across the country with their naturalization applications and has covered $85 million in legal and application fees for low-income immigrants and their families.

CLINIC applauds the U.S. Conference of Mayors (USCM) for overwhelmingly passing Citizenship Now, a resolution that seeks to compel the U.S. Citizenship and Immigration Services and U.S. Department of Homeland Security to make policy changes that will help increase the number of eligible LPRs who naturalize.   The USCM recognizes the “melting pot” of immigrants who have enriched our nation with their diverse cultures, languages, and ideas.  CLINIC welcomes new opportunities to continue helping the many LPRs start their journey to U.S. citizenship and ensuring that they attain the same opportunities that generations of immigrants before them enjoyed that allowed them to prosper in this great nation.  As we celebrate the Fourth of July in the days ahead, let us remember the motto of the United States, E pluribus unum – "From many, one."    

*Rommel is the Project Coordinator for the New Americans Campaign

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Catholic Charities of Indianapolis Expands its Welcome to New Americans

Jeff Chenoweth

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

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A Radical Experience: Archdiocese of New York Creates a “One-Stop-Shop” for Immigrant Integration

Since its inception two hundred years ago, the story of the Archdiocese of New York is an immigrant story – a tradition which continues today. For more than 30 years, the Archdiocese of New York has provided services to the foreign-born, including refugee resettlement and immigration legal services, through Catholic Charities Community Services (CCCS). As the immigrant and refugee population in the area has grown and changed, so has CCCS.

In the mid-2000s, CCCS added four new service locations in Manhattan, the Bronx, Staten Island, and Westchester County and opened a dozen outreach sites in the lower Hudson Valley to serve seven counties north of New York City.

They also added new services in these locations. With funding from the state, they established the New Americans Hotline to provide general immigration legal information and referrals. In addition, counselors and lawyers with CCCS began working together to help unaccompanied children in regional facilities through “Know Your Rights presentations,” individual legal consultations, and friend of the court appearances for the children’s deportation proceedings.

In 2012, the Archdiocese of New York responded to an ongoing need for greater immigrant integration. CCCS acquired the International Center, a separately incorporated nonprofit agency with a long history of providing educational services to the foreign-born, and folded it into its existing array of services. The Center uses its network of 150 volunteers to offer 40 English, counseling, and acculturation classes to 1,000 students on a monthly basis. The addition of the Center helps CCCS provide more holistic services to the refugees and immigrants they serve. For example, immigrants hoping to qualify for Deferred Action for Childhood Arrivals (DACA) status can easily access the Center for enrollment in English as a Second Language (ESL) instruction, which in turn helps them qualify for DACA and promotes their self sufficiency.

Because of the addition of the Center and growth in services, CCCS’ leadership, particularly Monsignor Kevin Sullivan, Executive Director, decided to consolidate five departments serving the foreign-born into a central location and a unified program called Immigrant and Refugee Services.  This program has 58 staff with legal, advocacy, instructional, and case management skills.  

The new location provides a large waiting area, critical to meet the demand for services. On Thursdays, CCCS holds walk-in intake where an average of 80 new clients appear for an opportunity to receive legal consultations and resettlement assistance.  In addition, the new space is large enough for separate classrooms,  a networking area for immigrants, and a large conference space.  Staff and clients have expressed exclusively positive feedback and excitement about the new program and location, with its one-stop-shop experience and more dynamic, holistic resources.

The new structure will undoubtedly better position the Archdiocese of New York to plan and respond to immigration reform when a new law is eventually passed by Congress.

In a recent interview, Mario Russell (pictured here), Director of Immigrant and Refugee Services, said, “This is a radically new experience for us.  CCCS has always done this work but never has it been delivered in this consolidated manner. Now we can offer all of our services, from outreach, intake, program enrollment, and receipt of immigration benefits, all in one place. People who come for help here have wide and varied needs.  It is our mission to do our best to meet them and this unified approach is a strong step in this direction.”

CLINIC congratulates the Archdiocese of New York and CCCS for its bold move.  Imagine the impact the Archdiocese of New York and CCCS will have in the next 30 years!

 

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

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Celebrating Citizenship

Rommel Calderwood

Each year on September 17, we come together as a nation of immigrants to celebrate Citizenship Day. This is an opportunity to reflect on the meaning of being a U.S. citizen and recognize the many lawful permanent residents (LPRs) in our communities who are on their journey to becoming U.S. citizens.

Since the founding of our nation, the United States has inspired people of every heritage and faith to travel to our shores.  One thing these immigrants have shared is a hope for freedom and a more prosperous future. These values are inscribed in the Constitution, signed on September 17, 1787.

The path to U.S. citizenship, however, is not always smooth.  For many LPRs, the journey to successful naturalization is often harrowing and riddled with twists and turns that are confusing to navigate.  Not only do LPRs face the high costs associated with securing legal assistance and filing a Form N-400 Application for Naturalization, but they also confront perplexing legal questions that might result in a deportation order.  Not surprisingly, only a fraction - 700,000 or just eight percent - of the 8.5 million eligible LPRs naturalize each year. 

CLINIC advocates for policies to help vulnerable LPRs overcome these hurdles.  CLINIC has addressed issues to USCIS concerning the new Form N-400 and the N-648 medical certification for disability exceptions.  CLINIC has also supported its affiliates with over $7 million in flow-through funding to provide citizenship services to LPRs around the country.  As one of the founding organizations of the New Americans Campaign (NAC), CLINIC has provided nearly $2 million in flow-through funding to its affiliates in Charlotte, Dallas, Detroit, Houston, Los Angeles, New York, and Miami, alone.  Through these efforts, CLINIC and its partners have helped over 100,000 LPRs with their naturalization applications and covered $85 million in legal and application fees for low-income immigrants and their families. 

CLINIC and its network are dedicated to ensuring that LPRs will reach the final step in their journey to U.S. citizenship.  For more information on the New Americans Campaign and the ways the CLINIC network is joining together celebrate citizenship year round, visit:  https://cliniclegal.org/new-americans-citizenship-campaign

*Rommel Calderwood is the Project Coordinator for the New Americans Campaign

Photo from the Department of Labor
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Fourteen CLINIC Affiliates Receive USCIS Funding for Citizenship Services

FOR IMMEDIATE RELEASE

Contact: Maura Moser, Director of Communications

(301) 565-4830 or Email: mmoser@cliniclegal.org

Silver Spring, MD (September 19, 2014) - The Catholic Legal Immigration Network, Inc. (CLINIC) congratulates 14 affiliates that received funding through the United States Citizenship and Immigration Services (USCIS) Fiscal Year 2014 Citizenship and Integration Grant Program.  Twenty-five percent of the 40 primary grantees are CLINIC affiliates.   

USCIS announced the awards, totaling nearly $10 million, yesterday.  Forty organizations in 24 states and the District of Columbia received funding.  These highly competitive, two-year grants will support citizenship classes and naturalization application assistance for 22,000 permanent residents.  This is the sixth year that USCIS has provided funding for citizenship assistance.

Ten CLINIC affiliates received a grant from USCIS:  

  • Catholic Charities of the Diocese of Santa Rosa, CA;
  • Catholic Charities of the Diocese of Stockton, CA;
  • Catholic Charities of Northeast Kansas;
  • Catholic Charities of San Bernardino and Riverside Counties, CA;
  • Catholic Charities of Santa Clara County, CA;
  • Catholic Migration Services, Inc. of Brooklyn, NY;
  • City of Littleton, CO;
  • Ecumenical Ministries of Oregon (Portland);
  • Hartford Public Library (CT); and
  • Hispanic Unity of Florida, Inc. (Hollywood).

In addition, four CLINIC affiliates received USCIS funding through partnerships with primary grantees:

  • Catholic Charities of Cleveland, OH;
  • Catholic Charities of the Archdiocese of Milwaukee, WI;
  • Catholic Charities of Central Florida (Orlando); and
  • Catholic Charities of Tennessee (Nashville). 

CLINIC is committed to providing technical assistance to expand citizenship services for lawful permanent residents (LPRs) and will continue working with network grantees to build program capacity for integration services.

Jeanne Atkinson, Executive Director of the Catholic Legal Immigration Network, Inc., explains, “USCIS’s Citizenship and Integration Grant Program provides critical financial support for our affiliates providing legal and social integration services.  Immigrant integration is vital to building stronger families and stronger communities.” 

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The nation’s largest network of nonprofit immigration programs, CLINIC supports more than 260 affiliates located in 46 states, the District of Columbia, and Puerto Rico. For more information on CLINIC’s efforts to promote the delivery of high-quality services to immigrants, visit www.cliniclegal.org.

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An Immigrant Gateway Continues to Welcome and Inspire: Catholic Charities of Syracuse, New York

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 19th 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

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State Department Updates Fee Schedule

The Department of State recently published an interim final rule changing the fees that it currently charges for certain nonimmigrant and immigrant visas, in addition to other forms and services. 79 Fed. Reg. 51247 (August 28, 2014).  The agency is authorized to establish fees for consular services and to set them based on the cost of the services it provides.  The agency recently completed a fee review using its activity-based Cost of Service Model. The new fee schedule took effect on September 12, 2014.  The agency will accept comments from interested parties until October 21, 2014. The following are the forms and services affected by the change:

Application

Current Fee

New Fee

E visa applications

$270

$205

K visa applications

$240

$265

Family-based immigration visa (IV) applications

$230

$325

Affidavit of support review by NVC

$88

$120

VAWA and other I-360-based IV applications

$220

$205

Employment-based IV applications

$405

$345

IV security surcharge

$75

$100

Returning resident special IV applications

$275

$180

J-1 waivers o foreign residency requirement

$215

$120

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Landmark Asylum Decision for Domestic Violence Victims

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.

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New BIA Decision Employs Supreme Court Moncrieffe and Descamps Holdings

By Susan Schreiber

Last year, the Supreme Court decided two cases impacting significantly on the assessment of the immigration consequences of criminal offenses. First, in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), the Court held that a Georgia marijuana possession with intent to distribute offense was not an aggravated felony when the statute of conviction covered some conduct (social sharing of marijuana) that fell outside the definition of a drug trafficking aggravated felony offense. In making this decision, the Court employed the traditional "categorical approach" to assess crime-based immigration consequences, which involves comparing the elements of the statute of conviction to the "generic" federal definition of the offense.  Under this approach, the underlying facts of the offense are not relevant; the analysis focuses on whether the statute of conviction covers only conduct that falls within the corresponding federal definition.

A few months later, in Descamps v U.S., 133 S.Ct. 2276 (2013),  the Supreme Court held that unless a statute is divisible, the adjudicator must use the categorical approach and may not go beyond the language of the statute of conviction to determine if it falls within the federal definition of the offense.  Descamps also clarified that a statute is divisible only when the elements of the offense are set out in the alternative in the statutory text.   As formulated in the Descamps decision, an element of a crime is a fact that must be proven by jury unanimity and beyond a reasonable doubt.  Where jury unanimity is not required on which "alternative means" were used to commit an offense, the statute is not divisible and the adjudicator  may not consult the record of conviction.

The Board of Immigration Appeals has finally issued a precedent decision applying the Moncrieffe and Descamps analyses to assess when a conviction falls within a crime-based removal ground.  In Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), decided on July 24, 2014, the Board relied on these two Supreme Court decisions to determine that a lawful permanent resident convicted of a Utah felony discharge of a firearm statute was not deportable for an aggravated felony crime of violence but was deportable for a firearms offense.  In reaching this decision, the Board made the following conclusions.

First, under Moncrieffe, the categorical approach requires a focus on the minimum conduct that has a reasonable probability of being prosecuted under the statute of conviction to determine if it is a match with the federal definition of the ground of removal.  Since the Utah statute in question can be violated by conduct that involves recklessness, it is not categorically a crime of violence under 18 USC § 16(a) or (b) because reckless conduct would not involve the deliberate use of violent force or the disregard of a substantial risk of the deliberate use of violent force.

Second, under Descamps, a statute is divisible only (a) if it lists multiple discrete offenses set out in the alternative, and (b) at least one, but not all, of the listed alternatives is a categorical match with the federal definition.  Relying on Descamps, the Board found that the immigration judge could not look beyond the language of the statute to determine whether the offense was committed with intentional, knowing or reckless state of mind unless DHS, with the burden of proof, could show that Utah law requires jury unanimity regarding the required mens rea for conviction.  As the Board noted, if Utah law does not require unanimity, "then it follows that intent, knowledge and recklessness are merely alternative ‘means’ by which a defendant can discharge a firearm, not alternative ‘elements’ of the discharge offense."  Since DHS did not provide evidence of the statute's divisibility in this regard, the Board found that the immigration judge could not consult the respondent's conviction record to determine which mental state he possessed. The Board also withdrew from its broader divisibility analysis in Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), under which a statute was considered divisible, regardless of its structure, whenever its elements could be satisfied either by removable or non-removable conduct.

Third, under Moncrieffe, a state firearms statute that contains no exception for "antique firearms" is categorically overbroad with respect to deportability under INA § 237(a)(2)(C) only if the respondent demonstrates that the state statute has, in fact, been successfully applied to prosecute antique firearms offenses.  In the Board's view, the "reasonable probability" language of Moncrieffe required the respondent to establish that either he was prosecuted for discharging an antique firearm or that someone else was so prosecuted, and in the absence of such proof, the statute of conviction would not be found overbroad.  The Board noted that it was clarifying its prior holding on this issue in Matter of Mendez-Orellana,  25 I&N 254 (BIA 2010), where the Board had only referenced defeating the firearms ground of deportability where the respondent shows that he personally was prosecuted for an antique firearms offense.

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Esperanza Immigrant Rights Project: Protecting Unaccompanied Children

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.

 

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Update on Unaccompanied Children and Families (August, 2014)

By Sarah Bronstein, August 2014

 

The issue of unaccompanied children and families arriving at the U.S. - Mexico border continues to be of major concern.  The latest figures issued by U.S. Customs and Border Protection (CBP) show thus far in fiscal year 2014 (from October 1, 2013 – July 31, 2014) that 62,998 unaccompanied children have been apprehended along the southern border.  This is a 100 percent increase from fiscal year 2013.  During the same period of time, 62,856 members of families have been apprehended.  This is a 471 percent increase from fiscal year 2013. 

Detention of Unaccompanied Children

The Office of Refugee Resettlement (ORR), a branch of the Department of Health and Human Services, is the federal agency responsible for the care and custody of unaccompanied children.  Under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, unaccompanied children must be transferred to ORR custody within 72 hours of their arrest.  For several years, ORR has operated temporary shelters throughout the United States to house children while ORR caseworkers sought to reunify them with family members or family friends in the United States.  In response to the dramatic increase in numbers of children apprehended by CBP, ORR opened three large facilities housed on military bases:  Joint Base San Antonio – Lackland in San Antonio, TX; Fort Sill Army Base in Oklahoma and Port Hueneme Naval Base in Ventura, California.  ORR announced at the beginning of August that due to slightly decreasing numbers of apprehensions, it would phase out the use of these three facilities over the next eight weeks.  Advocates had raised significant concerns about the conditions in which children were held at these facilities and the difficulty in gaining access by attorneys and legal workers due to security procedures at these military facilities.  There have been reports that ORR plans to open another large facility to house unaccompanied children in the El Paso, Texas area, but those are thus far unconfirmed.

Detention of Families

In a change in policy, Immigration and Customs Enforcement (ICE) has begun detaining families apprehended at the border, rather than releasing them from custody to appear for removal proceedings at a later date.  ICE opened a family detention center in Artesia, NM in July and on August 1st opened a second family detention center in Karnes City, TX.  Advocates report serious due process concerns regarding the way in which cases are being handled in Artesia.  Concerns have been raised about how credible fear interviews are being conducted.  These interviews determine whether the adult family member will be given the opportunity to have her asylum claim heard before an immigration judge.  Other problem areas include hearings being conducted remotely via video teleconferencing and lack of access to counsel.  Two CLINIC staff members are currently in Artesia assisting with efforts to develop a pro bono representation project there.  We will provide an update on the situation in Artesia in the next issue of the newsletter. 

The Use of “Rocket Dockets”

Another significant development is the implementation of expedited removal proceedings, so-called “rocket dockets,” for unaccompanied children and families who have been recently released from custody.  Rocket dockets have been rolled out in immigration courts across the country during the past few weeks.  Advocates report that children and families are being given as little as three days notice of their court hearing date, severely limiting their ability to find counsel.  Advocates also report continuances (periods of time in between hearings) being granted for very short periods of time – in some instances as little as a week – to find an attorney. 

Expedited hearings for children and families are gaining national attention.  On July 22nd, Dana Leigh Marks, President of the National Association of Immigration Judges, sent a letter to Sen. Harry Reid, U.S. Senate Majority Leader, and Sen. Mitch McConnell, U.S. Senate Minority Leader, expressing serious concerns about immigration judges’ caseloads and the use of expedited procedures in children’s cases.  On August 14th, CLINIC and a number of other Washington, DC area organizations sent a letter to the Immigration Judges in Baltimore, MD, requesting a meeting to express their concerns over the use of rocket dockets.  CLINIC is looking for information to be used for advocacy purposes about how the rocket dockets are being used around the country.  If you have information about the rocket dockets in your area, please contact us at UAC@cliniclegal.org.

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CLINIC, USCCB, and Catholic Charities USA Host Advocacy Day

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.

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U.S. Department of State Updates Foreign Affairs Manual Guidance

By Ilissa Mira, Training and Legal Support Attorney

The Office of Visa Services (Visa Office) within the Department of State’s Bureau of Consular Affairs issues advisory opinions in nonimmigrant and immigrant visa cases adjudicated at U.S. consulates.  Advocates and applicants may send email inquiries to LegalNet@state.gov to request case-specific responses regarding the interpretation or application of immigration law in visa cases.  On April 23, 2014 and May 7, 2014, DOS updated the Foreign Affairs Manual at 9 FAM Appendix E, 800, to include information on LegalNet’s purpose, scope and inquiry processing. The highlights of this new FAM section are summarized below. 

 

Purpose and Scope of LegalNet

The new FAM guidance sets forth the scope of inquiries that LegalNet will accept for review.  According to the FAM, LegalNet provides substantive responses only to the following categories of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The new guidance describes inquiries to which LegalNet will not provide substantive responses, including:

  • Questions from anyone other than an applicant or representative of record
  • Requests to review factual determinations made by U.S. consular officers
  • Requests for case status updates
  • Questions that are general, speculative, or hypothetical in nature
  • Legal questions in cases where the consular officer has not yet reached a final determination of the applicant’s eligibility for a visa (except in T, U, diversity and adoption visa cases, and CSPA and VAWA cases)
  • Request for explanations of visa revocations or cancellations, and
  • Request regarding a case that is still being processed at the National Visa Center.

 

Requirements for LegalNet Inquiries

Inquiries submitted to LegalNet should refer to only one case per email.  Additionally, the subject line of the email should include: 1) the applicant’s full name; 2) the post processing the case; 3) the National Visa Center case number for immigrant visa cases; 4) the applicant’s passport number and/or USCIS receipt number for nonimmigrant visa cases; and 5) the citation to the relevant statute or regulation at issue.

The body of the email should include the principal applicant’s full name as it appears in the applicant’s passport, the applicant’s date of birth and the applicant’s pace of birth, as well as the location of the pending or denied visa application, the applicant’s visa classification, and any refusal code.

Representatives should attach a signed G-28 and copies of all previous correspondence with the post.

 

Processing LegalNet Requests

LegalNet will provide notice that the inquiry was received and is being processed within seven days of receipt. The timeframe for substantive responses depends on the complexity of the matter and availability of essential information.  However, if no substantive response from LegalNet is received within 30 days, send a follow-up email to LegalNet.       

 

When to Use LegalNet

Consular officers have absolute authority to issue or refuse visas.  However, an advocate may seek an advisory opinion on legal issues that he or she believes were decided in error.   A favorable advisory opinion may persuade a consular officer to rescind a visa refusal.

Consider using LegalNet when you are unable to resolve a disputed legal issue with the consulate and its supervisory channels.  This might include cases where a consular officer misapplies the law and finds an applicant inadmissible.  For example, advocates have sought advisory opinions on erroneous determinations that a client engaged in smuggling or has a disqualifying conviction.  In one case, an advocate sought review of a visa refusal based on aiding and abetting smuggling under INA § 212(a)(6)(E)(i).  At a young age, the applicant had entered the U.S. with his uncle, cousins, and the help of a paid coyote.  Each person paid their own share of the fee.  While the facts were not disputed, the advocate argued that it was a misapplication of law to conclude that his client had smuggled the relatives who had accompanied him.  After receiving a favorable advisory opinion, the applicant was eventually issued a visa.

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Rules, Laws and Remedies for Unaccompanied Immigrant Children

By Debbie Smith

 

Daily media reports catalogue the exodus of children from Central America and Mexico and the U.S. response to this humanitarian emergency.  The conditions in the children's home countries, the apprehension and detention of the children upon their arrival in the United States, and the children's legal rights in the United States are subjects worthy of lengthy reports.  (See A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System by the Center for Gender & Refugee Studies and Kids in Need of Defense; Children on the Run by the UNHCR).  This article will provide an overview of these issues and focus on the children's legal rights.  However, proposed legislation to limit the existing safeguards for the children and new interim rules to expedite the adjudication of the children's cases may make the protections available today unavailable tomorrow.

Conditions in Home Countries - Why Are Children Fleeing

In the aftermath of the Central American civil wars of the 1970s and 1980s, the Northern Triangle countries – El Salvador, Guatemala and Honduras – today experience some of the world's highest homicide and crime rates.  With murder rates 90.4 per 100,000 people, Honduras is currently the world's most deadly country.  A child is safer in Afghanistan or Iraq than Honduras.  A UNHCR report points to "violence in the region by organized armed criminal actors, including drug cartels and gangs or by State actors" as one of the primary reasons for the children's flight.

In his testimony to the House Judiciary Committee on June 25, 2014, Bishop Seitz explained that poverty alone does not account for the increase in the number of unaccompanied children coming to the United States from El Salvador, Guatemala and Honduras.  While neighboring Nicaragua is poorer than some of the sending countries, its own children are not traveling to the United States in significant numbers.  Rather, Nicaragua is receiving some of the children fleeing El Salvador, Guatemala and Honduras.

Finally, the legacy of the United States support for the military in Central America during the civil wars, its unwillingness to grant asylum status to refugees from the Northern Triangle, and its practice of deporting gang members back to their home countries cannot be overlooked in understanding the pervasive conditions of violence and drug activity in this region.

Definition of an Unaccompanied Minor - Who is an Unaccompanied Child

The immigration statute defines who is a child in INA § 101(b)(1).  Under the INA, a child is an unmarried person under age 21.  Title 6 of the U.S. Code (“Domestic Security”) defines an "unaccompanied alien child" as a person who has no immigration status in the United States, is under the age of 18, and has no parent or legal guardian in the United States who is available to provide physical care and physical custody. 6 U.S.C. § 279(g)(2).  Children without immigration status who enter the United States with a parent or other closely related adult are not considered to be unaccompanied children.  The protections that accrue to unaccompanied children do not apply to those who enter the United States with a parent or closely related adult.

 

Rules and Laws Governing Unaccompanied Children

What is the Flores Settlement, the Orantes Injunction, the Homeland Security Act of 2002, and the TVPRA

 

The Flores Settlement

 In the 1980s immigrants' rights organizations challenged the government's treatment of unaccompanied children.  Children were detained in prison-like settings where they were placed in cells with unrelated adults of both sexes and were vulnerable to abuse by guards and other prisoners.  As a result of a lawsuit, the Flores Settlement Agreement established a policy for the detention, treatment and release of unaccompanied children.  Fundamental to the Agreement is the notion that a favored policy is the release of children from detention.  The Flores Settlement required the government to provide basic humane detention conditions, including food and drinking water, medical assistance, toilets and sinks, adequate temperature control, proper supervision and separation from unrelated adults.  Despite the Flores Settlement, unaccompanied children continue to be subject to appalling confinement conditions.  See June 11, 2014 complaint (below).

 

The Orantes Injunction

 The Orantes injunction, based on a class-action lawsuit filed in 1982 on behalf of Salvadorans in immigration custody, provides certain procedural protections to Salvadorans in detention.  The injunction requires the government to: 1) ensure that class members have access to counsel and to private attorney-client communications while in detention; 2) allow class members to receive and possess legal materials; 3) give class members adequate access to law libraries; 4) give class members access to writing materials; 5) refrain from using coercion when processing class members; 6) give class members a specific advisal of their rights; and 8) make telephones available to detained class members.  In November 2007, the court affirmed that these provisions of the injunction continued to apply to Salvadorans in immigration detention. 

 On July 17, 2014, counsel for the Orantes class obtained a court order granting plaintiffs’ lawyers access to the Nogales, Arizona processing center to interview Salvadoran children held in detention.  The court noted that as of July 11, 2014, there were 968 unaccompanied children housed at the Nogales center, of whom 330 were Salvadoran.

 This most recent order demonstrates the continued relevance of the Orantes injunction protections to the treatment of unaccompanied Salvadoran children.

 

The Homeland Security Act of 2002

 The Homeland Security Act of 2002, codified in 6 U.S.C., created the Department of Homeland Security (DHS), defined "unaccompanied alien child," and delegated the coordination and care of unaccompanied children to the Department of Health and Human Service (HHS).  The Office of Refugee Resettlement (ORR), within HHS, operates about 100 short-term shelters throughout the United States for unaccompanied children.  ORR recently opened temporary shelters to accommodate the increased detention of unaccompanied children.  The temporary shelters are at Joint Base San Antonio Lackland (Texas), Naval Base Ventura County-Port Hueneme (California), and Fort Sill (Oklahoma).

 Under the statute, HHS also is responsible for maintaining and publishing a list of legal services available to unaccompanied children, collecting statistical information on unaccompanied children, and reuniting children with their parents abroad if possible.

 

TVPRA

 The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, the TVPRA, extended and modified certain programs to prevent and prosecute human trafficking and protect the victims of trafficking and slavery.  It also set forth requirements for the treatment of unaccompanied children and created substantive and procedural changes for unaccompanied children seeking relief from removal.  Some of the protections available under the TVPRA apply to all children regardless of their country of origin.  But most of the critical safeguards of the TVPRA affecting unaccompanied children deny those protections to unaccompanied children from Mexico or Canada (“contiguous countries”).  Thus under the TVPRA, unaccompanied children are treated differently depending on whether they are nationals of “contiguous countries” (Mexico and Canada) or nationals from any other country (“non-contiguous countries”). 

 The TVPRA protections that are available to unaccompanied children who are not from Mexico or Canada include safeguards regarding apprehension, transfer, and other procedural and substantive benefits.  Under the TVPRA, children who are nationals of “non-contiguous” countries must be screened within 48 hours of arrest, transferred to ORR custody within 72 hours, and permitted to apply for relief without being subject to expedited removal. Similarly under the TVPRA, HHS is required to ensure that “non-contiguous” unaccompanied children have legal counsel for all proceedings "to the extent practicable" and consistent with the immigration statute.  HHS is also required to work with the Executive Office for Immigration Review (EOIR) to ensure that custodians of unaccompanied children receive legal orientation presentations, that children are placed in safe and secure placements, and that independent child advocates are appointed where needed.  All of these procedural and substantive safeguards apply only to the unaccompanied children who are nationals of “non-contiguous” countries – they do not apply to unaccompanied children from Mexico or Canada.

 On the other hand, the TVPRA also clarified the definition of Special Immigrant Juvenile status (SIJS), and provided protections to unaccompanied children applying for asylum whether those children were nationals of “contiguous” or “non-contiguous” countries.

 

Apprehension and Detention - What Happens When Children Arrive

Children arriving at the border of the United States, whether at an official port of entry or through a land border without permission, are screened by CBP to determine whether they fall within the definition of “unaccompanied alien children” (See above).  Children meeting this definition are treated differently with respect to their apprehension and detention, depending on whether they are nationals of Mexico and Canada or children who are nationals of any other country.

Children From Mexico or Canada

Unaccompanied children entering the U.S. without permission who are nationals of contiguous countries, Mexico or Canada, are screened by CBP officers to determine whether they: 1) have a possible asylum claim; or 2) are potential victims of trafficking and 3) are able to make an independent decision to voluntarily return to their home country.  Unaccompanied children who have a possible claim of asylum or trafficking must be evaluated for possible relief in the United States. After finding that children have a possible claim – or if no evaluation of the three criteria can be made within 48 hours – CBP is required to immediately transfer the children to the ORR for custody. There they will be processed as if they are from non-contiguous countries.

 However, children who do not meet the criteria for protection are returned to their home country "voluntarily."  The "voluntary return" does not subject the children to removal proceedings and the negative consequences of deportation. DHS must notify the appropriate Mexican or Canadian consular official and permit the consular official to visit the detained children.  Often the consular official will coordinate the return of the children in conjunction with the home country's child welfare agency.

 

Children from All Other Countries

 Unaccompanied children who are nationals of non-contiguous countries cannot be immediately returned to their home country.  After children are apprehended, they are taken to a CBP short-term detention facility for processing.  CBP has been criticized for placing children in sub-standard facilities and for failing to provide them with humane treatment.  A recent formal complaint filed by a coalition of immigrants' rights organizations on June 11, 2014, stated that children were held in unsanitary, overcrowded, freezing-cold cells, and subjected to physical and sexual abuse.  In addition, June 2014 news reports noted the warehousing of children at a CBP facility in Nogales, Arizona where the environment had the "feel of the livestock areas at a state fair."

 Under the TVPRA, CBP is required to transfer children who meet the definition of "unaccompanied child" to the custody of ORR within 72 hours of their arrest by CBP.  Children in ORR custody may be housed in four kinds of detention facilities -- from least restrictive settings to jail-like settings.  The type of custody setting must be based on the children's best interests, the least restrictive setting possible, and security risks.  Children found to be eligible for reunification with an adult sponsor in the United States may be released to a parent, legal guardian, family member, or other responsible adult.  If release is not possible, ORR is responsible for coordinating the placement of children in licensed care facilities or foster care.

 Children in ORR custody are placed in removal proceedings and must be provided access to counsel "to the greatest extent practicable."  ORR is required to "make every effort" to utilize the services of pro bono counsel to represent children in removal proceedings without charge.  On July 9, 2014, immigrants' rights organizations filed a lawsuit,  J.E.F.M. v. Holder, charging that the Fifth Amendment due process clause and the Immigration and Nationality Act’s provisions mandating a "full and fair hearing" before an immigration judge require the government to provide children with legal representation in their deportation hearings.

 

Immigration Remedies for Unaccompanied Children  

SIJS

Some unaccompanied children may be eligible for Special Immigrant Juvenile Status (SIJS) assuming they are screened-in to the United States.  Under the INA § 101(a)(27)(J) and the TVPRA, SIJS allows children who have been declared dependent on a state juvenile court and for whom the court determines that it would not be in the children's best interest to be returned to their home country and to be reunited with parents due to abuse, abandonment, or neglect to apply for legal residency. In order to be eligible for SIJS, children must be under 21 at the time of filing the I-360 petition for SIJS, unmarried at the time of the adjudication, and inside the United States at the time of filing the I-360 petition.

Asylum

Section 235(d)(7) of the TVPRA instituted additional protections for unaccompanied children applying for asylum.  Unaccompanied children are not subject to the requirement of filing an asylum application within one year of entering the United States.  Also, an asylum officer, rather than an immigration judge, has initial jurisdiction over any asylum application filed by unaccompanied children.  In addition, for purposes of asylum as well as other forms of relief, the child's status and developmental needs should be taken into account.  This provision applies to unaccompanied children who are nationals of non-contiguous countries.  It also applies to unaccompanied children who are nationals of contiguous countries, Mexico and Canada, provided that CBP finds that the children have a possible asylum claim. However, serious concerns have been raised about CBPs screening of possible asylum claims.

Other Forms of Relief

Legal remedies available to adults are available to unaccompanied children who meet the eligibility requirements for the relief.  Family-based immigrant petitions, U and T visas for victims of crimes and trafficking, VAWA self-petitions or VAWA cancellation of removal, and Temporary Protected Status are all forms of relief that should be considered in cases involving unaccompanied children.

The plight of unaccompanied children fleeing violence and danger in Central America and Mexico mandates that the protections afforded by the TVPRA continue unchanged and that other avenues of relief be offered to address the needs of this vulnerable population.

 

 

 

 
 
 
 
 
 
 
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BIA Issues Three Decisions Examining the Adam Walsh Act

By Sarah Bronstein

The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) includes three immigration provisions that impose restrictions on the ability of U.S. citizens and lawful permanent residents to petition for family members if the U.S. citizen or LPR petitioner has certain criminal convictions.  Three recent decisions by the Board of Immigration Appeals address various aspects of Section 402(a) of the Adam Walsh Act, which amended INA §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i).  That section of the law precludes a U.S. citizen or LPR from filing a family-based petition if he or she has been convicted of a “specified offense against a minor” unless the Secretary of Homeland Security determines that the petitioner does not pose a risk to the beneficiary.  These three decisions were all issued on May 20, 2014 and signal an expansive interpretation of this provision.

 

BIA Lacks Jurisdiction to Review DHS’ “No Risk” Determinations

If the petitioner has been convicted of a specified offense against a minor, the petition will be denied unless USCIS determines that he or she does not pose a risk to both the principal and derivative beneficiaries.  Section 111 of the Adam Walsh Act defines a “specified offense against a minor” as any of the following offenses committed against a person under the age of 18:

(A) an offense (unless committed by a parent or guardian) involving kidnapping;

(B) an offense (unless committed by a parent or guardian) involving false imprisonment;

(C) solicitation to engage in sexual conduct;

(D) use of the minor in a sexual performance;

(E) solicitation to practice prostitution;

(F) video voyeurism as described in 18 USC  § 1801;

(G) possession, production, or distribution of child pornography;

(H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and

 (I) any conduct that by its nature is a sex offense against a minor.

 

On February 8, 2007, Michael Aytes, Associate Director for Domestic Operations at USCIS, issued an interoffice memorandum titled “Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006.”  In that memo, Mr. Aytes set forth “beyond a reasonable doubt” as the standard the petitioner must meet to demonstrate that he or she does not pose a risk to the beneficiary.  In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the petitioner argued that the “beyond a reasonable doubt” standard was not established in either the statue or the regulations and that USCIS did not have the authority to raise the standard of proof to the level usually reserved for criminal proceedings.

The Board found, however, that it did not have jurisdiction to review matters such as USCIS’ assessment of whether the petitioner posed a risk to the beneficiaries.  The Board held that the language in the statute indicates that Congress intended DHS to have the sole authority to establish a framework for USCIS adjudicators to make “no risk” determinations.  The statute states that the bar to petitioning a family member shall not apply if the Secretary of Homeland Security, “in the Secretary’s sole and unreviewable discretion,” determines that the petitioner does not pose a risk to the beneficiary.  The Board further elaborated that this framework includes the standard of proof to be used.  Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014).

 

The Petitioner Bears the Burden to Show He or She is Not Ineligible Under the Adam Walsh Act

In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the Board reviewed the issue of how determinations should be made as to whether a crime is a “specified offense against a minor” and who bears the burden in such cases.  The BIA reasoned that the petitioner has the burden of establishing that he or she is eligible to file a visa petition for a family member.  The BIA stated that demonstrating eligibility includes a showing that the petitioner is not ineligible under the Adam Walsh Act.  Therefore, the BIA held that the burden must remain with the petitioner to demonstrate that he or she is not ineligible under the Adam Walsh Act.


Circumstance-Specific Approach to Analyzing Adam Walsh Crimes Is Permissible

The second issue the Board addressed in Introcaso was how to determine whether a particular offense is a “specified offense against a minor.”  The petitioner argued that the determination should be made by using the categorical approach – an approach often used in analyzing the immigration consequences of criminal convictions.  According to the categorical approach, the analysis should focus on the elements of the offense at issue, not the facts underlying the charge.  USCIS argued that the Adam Walsh Act permits an investigation into the facts surrounding the charge to make this determination.

The Board concluded that the language and structure of the Adam Walsh Act necessitate a “circumstance-specific” inquiry into the age of the victim and the conduct that gave rise to the offense.  In reaching this conclusion, the BIA analogized Adam Walsh cases to those at issue in the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009).  In Nijhawan, the Court looked at the definition of an aggravated felony, which includes an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.”  The Court concluded that “the loss to victim” requirement should be analyzed using a circumstance-specific inquiry allowing the fact finder to review the record of conviction.  If the record of conviction, which includes the charging document, plea agreement and judgment of conviction, is not conclusive, the fact finder may review other reliable documents or evidence.  Matter of Introcaso, 26 I&N Dec. at 308 (citing Nijhawan v. Holder, 557 U.S. at 34–36). 

The BIA cited the first five listed offenses in the definition of a “specified offense against a minor” which are kidnapping, false imprisonment, solicitation to engage in sexual conduct, use in a sexual performance, and solicitation to practice prostitution to demonstrate the need to engage in a circumstance-specific inquiry.  The Board reasoned that because these offenses are not limited to offenses against minors, the age of the victim can only be determined through the record of conviction or other reliable evidence.  Id. at 309.  The Board further reasoned that the last two crimes in the definition of “specific offense against a minor” – criminal sexual conduct involving a minor and conduct that by its nature is a sex offense against a minor – also necessitate a circumstance-specific inquiry into the conduct at issue in the case.  The Board found that the use of the word “conduct” in these two crimes suggested that it was the facts underlying the case that are relevant to the determination rather than the elements of the offense in the particular criminal statute involved.  Id. at 310 (citing United States v. Mi Kyung Byun, 539 F.3d at 992 (9th Cir. 2008)).

 

Applying the Adam Walsh Act to Pre-Enactment Convictions Does Not Have Impermissible Retroactive Effect

The issue in Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014), was whether the immigration provisions of the Adam Walsh Act may be applied to a conviction that occurred before the law was enacted without it having an impermissible retroactive effect.  In writing the statute, Congress did not address whether the provisions of the Adam Walsh Act were to be applied retroactively.  The Board cited the Supreme Court in Vartelas v. Holder for the proposition that where a statute addresses dangers that arise after its enactment, it does not operate “retroactively.”  Matter of Jackson and Ernadio, 26 I&N Dec. at 317 (citing Vartelas v. Holder, 123 S.Ct. at 1489–90 & n. 7).  In Vartelas, the Court listed statutes that prohibit people convicted of a sex crime against a victim under age 16 from working in jobs with frequent contact with minors as examples of laws that address dangers that arise after enactment and therefore do not operate “retroactively.”  The Board found that the immigration provisions of the Adam Walsh Act operate in the same way in that they address the potential for future harm on the part of people convicted of a specific offense against a minor.  The BIA concluded that because the Adam Walsh Act addresses dangers that arise after enactment, applying the statute to convictions that occurred before enactment does not have an impermissible retroactive effect. 

In all of these cases, the outcome is that the family members of these U.S. citizens or lawful permanent residents will not be able to immigrate to or obtain status in the United States. 

These cases highlight the importance of conducting careful screening, not only of the beneficiaries in family-based cases, but also of the petitioners.

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Updates from the Vermont Service Center and the National Visa Center

By Kristina Karpinski and Susan Schreiber

On May 20-21, CLINIC conducted a two-day family-based immigration conference in Manchester, New Hampshire.  The training included two panels where officers from the Vermont Service Center (VSC) addressed family-based immigration issues, VAWA self-petitions, and applications for U status.   On May 22, training participants visited the National Visa Center (NVC) in Portsmouth, New Hampshire and had an opportunity to address questions to NVC Director Kimberly Kelly and NVC staff about consular processing. Highlights from the VSC panel presentations and the meeting with NVC staff are described below.

 

VSC Updates on Family-Based Immigration

VSC Staff and Petition Processing

The VSC currently has approximately 1,000 federal employees including 600 adjudicators.  New adjudicators have mentors and coaches and must do a certain number of cases before they can adjudicate cases on their own. Adjudicators receive form-specific training and will generally work with that form for at least six months before taking on adjudication of a new form.

Cases are processed by adjudicators in receipt order.  All petition denials are reviewed by a supervisor regardless of form type.  If an approved petition is inappropriately routed for adjustment of status instead of consular processing, this may be corrected by contacting the National Customer Service Center.

DNA Testing

A petitioner may decide to submit DNA evidence proactively, without waiting for a request for more evidence of relationship. Petitioners pursuing DNA evidence after RFE issuance should notify the VSC if the test results are still pending by the RFE response date. The VSC cannot extend the RFE deadline but will generally delay making a decision until after the DNA results are received.  DNA results must come from an accredited lab and the petitioner’s A# or the petition receipt number should be given to the lab at the time of testing. Where DNA evidence is not submitted and the petition is denied for lack of evidence of relationship, the petitioner may consider submitting DNA test results in connection with a motion to reopen or an appeal.

Stepparent/Child Petitions After Death of Biological Parent or Divorce

A petition based on stepparent/child relationship may be approved where the relationship between the step and biological parents has ended if there is evidence that the stepparent and stepchild have an ongoing relationship.  Such evidence may include school records, permission slips, insurance records, tax returns, and other evidence showing financial and emotional ties between the stepparent and the stepchild.

Petition Returns

The VSC receives petition returns on a monthly basis from the NVC based on a variety of reasons, including suspect relationship (particularly in marriage and fiancée cases), and deceased petitioners and beneficiaries.  Returned petitions are assigned to an adjudicator for review, and may result in issuance of an RFE.  VSC adjudicators reviewing petition returns do not consult social media sites. There is no time frame for petition return adjudication. 

Adam Walsh Act

The VSC Adam Walsh team was formed in 2008 and since then has reviewed approximately 2,500 cases.  After a petition is forwarded to the team, the file is reviewed by an officer to see

if it is properly documented to show the relationship between petitioner and beneficiary. Once that is established, a Notice of Intent to Deny is sent to the petitioner, who may either seek to prove that underlying crime was not a specified offense against a minor, or that the petitioner poses no risk to the beneficiary. The approval rate for petitions subject to Adam Walsh protocols is exceptionally low.  Of 601 cases reviewed last year, the VSC panelists estimated that fewer than 10 were approved.

I-751 Petitions 

The current processing time for I-751 cases is about six months. Applicants submitting late joint I-751 petitions need to assert good cause based on reasons other than simply forgetting to file.  This may include circumstances that triggered forgetting to file, like illness, death in family, marriage of son or daughter, or other major life events.

A joint petition may be converted to a waiver case without filing a new I-751 where the change is based on divorce or death of the petitioner spouse. Where the applicant wishes to apply for a battered spouse or hardship waiver after first filing a joint petition, the VSC cannot process that change.  VSC recommends that applicants in this situation ask the VSC to forward the case to the field office, which can respond to this request to change the basis of the I-751 application.

If an I-751 application is approved before VSC has been notified of a change in circumstances impacting on the approvability of the petition, applicants should notify the VSC to reopen and correct the adjudication.  This may happen, for example, where an applicant is divorced while an I-751 joint petition is pending and VSC approves the petition before receiving notification of the divorce.

USCIS is no longer scheduling random interviews for I-751 petitions; cases scheduled for interview are those needing additional proof of the bona fides of the marriage. If an I-751 application is approvable as filed, an interview will not be scheduled.

VSC Updates on VAWA and U Visa Cases

VAWA Petitions

The I-360 petition will be updated soon to include all eligible self-petition categories. VSC does not track self-petitions by category of eligibility, but officers stated that they are seeing more self-petition cases based on abused parents of U.S. citizens than cases of abused sons and daughters filing between the ages of 21 and 25.

The VSC speakers confirmed that an aged-out VAWA derivative is a considered a self-petitioner and may file for adjustment even if the principal self-petitioner does seek to adjust status. 

USCIS is in the process of consolidating guidance on VAWA self-petition issues to be included in a new chapter of the USCIS policy manual.  This new guidance will address issues including waiving the permanent bar and avoiding reinstatement for self-petitioners with prior removal orders.

The VSC will not be taking over adjudication of VAWA self-petitioner applications to adjust status. Delays in forwarding adjustment applications to the NBC have been addressed, and cases are now being forwarded to the NBC on a weekly basis. In some instances, the adjustment adjudication delays may be due to the field office not contacting the applicant for an interview, although the file was already forwarded to the district by the NBC. 

U Visas

VSC has already processed 10,000 conditional U approvals for FY 2015 and is now working on cases that will be charged to the FY 2016 U approval cap.  U applicants with conditional approval will not be able to use that time to meet the three-year continuous presence requirement for adjustment of status.

VSC will issue a notice of intent to revoke U status in cases involving fraud, error in approval, withdrawal of law enforcement certification, and divorce.  Currently, VSC is holding in abeyance cases involving U -3 derivatives who marry, waiting for more guidance on this issue. 

A nonimmigrant visa holder who applies for U status and then travels abroad must apply for a U visa to return to the United States if the U status application is approved while the nonimmigrant is still abroad.  If the nonimmigrant only receives a conditional approval, then s/he may return to the United States using the existing nonimmigrant status. 

U adjustment applicants who file after U status has expired may file an I-539 application to extend status concurrent with the adjustment application. The applicant should explain the reasons for the late filing, and detail any extenuating circumstances or events that delayed filing that were outside the applicant's control. Adjustment applicants who still have derivatives abroad waiting to enter on a U visa should ask the VSC to hold the adjustment application in abeyance.

 

Updates from the National Visa Center

NVC Receipt of Approved Petitions

NVC receives approved petitions from all USCIS Service Centers. The petitions include I-130s, I-140s, I-360s, I-129Fs, I-730s, and adoption petitions.  NVC reports it can take 6-8 weeks for USCIS to forward an approved I-130 to NVC.  If more than 8 weeks have passed since approval, NVC can reach out to USCIS to track down the case.  Sometimes files are misrouted to another USCIS Service Center or remain at the original Service Center waiting for a bulk shipment.   NVC must receive the original petition from USCIS before it can begin processing of the case.  After 8 weeks, petitioners, applicants and representatives can contact NVC to request assistance in locating an approved I-130 file.

Electronic Processing

NVC continues to increase its use of electronic procedures to communicate with visa applicants and to process immigrant visa forms and documentation. Currently, 45 percent of NVC correspondence is sent by e-mail.  NVC encourages applicants, petitioners and representatives to provide an e-mail address by either writing it on the USICS petition or by sending it directly to NVC.  Also, 85 percent of fees are now paid online through the Consular Electronic Applications Center (CEAC) Immigrant Visa Invoice Payment Center. NVC reports that the Electronic Processing Program, which requires immigrant visa applicants processing at select consulates to scan and e-mail documents and the I-864 affidavit of support, decreases the processing time by about a half.  While this pilot program is considered a success, the software used has limitations and no new consulates will be added to the program.  Additionally, several months ago NVC stopped assigning new cases for electronic processing through Ciudad Juarez.  Therefore all new cases processing through CDJ will require that original civil documents, the I-864 affidavit of support, and other supporting documentation be mailed to NVC.  In place of the pilot electronic processing program, NVC will soon introduce a new electronic system in which applicants will scan and upload their documents directly to NVC through CEAC and won't have to e-mail them.

Representation

When a petition was originally submitted to USCIS without representation or by a different representative, an attorney or BIA accredited representative can be added to a case at NVC by submitting a G-28, Notice of Appearance.  NVC recommends submitting the G-28 by e-mail to NVCAttorney@state.gov.  Once the G-28 is received, the new representative will receive correspondence about the case and will be able to inquire about the status of the case.  NVC recommends submitting a new G-28 even if the change in representation is within the same agency.

If a representative wants to withdraw from a case, he or she should send an e-mail to NVCAttorney@state.gov.  Once representation is withdrawn, NVC will send all correspondence to the applicant and petitioner or new representative if there is one.

When communicating with NVC by e-mail, the subject line should contain the NVC case number.  The e-mail should include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, the representative’s full name, and the agency or firm name and address.  The communication should be limited to one case per e-mail.

Derivative Consular Processing

If the principal beneficiary adjusted status in the U.S., a form I-824, Application for Action on an Approved Petition, should be filed with USCIS.  Once approved, USCIS will send the approval to NVC and begin consular processing.  If instead, the principal beneficiary obtained an immigrant visa abroad and a derivative wishes to later follow-to-join the principal, the process needs to be initiated at the specific consular post abroad.

Provisional Unlawful Presence Waivers

When an applicant submits an I-601A provisional waiver to USCIS, NVC will automatically be notified by USCIS.  NVC will not send a case to the consulate and schedule the immigrant visa interview until further notification by USCIS that a decision was made on the waiver.  It is no longer required, and even discouraged by NVC, for applicants to e-mail NVC stating their intention to file the I-601A.  NVC has found that many applicants who have e-mailed in the past, never filed waivers.  Instead of keeping those cases on hold, NVC has sent those cases to the consulates for the visa interview if all the required forms and documents have been submitted.  If an applicant submits an I-601A after the case has been scheduled for an interview, he or she can make a request to the consulate that the interview be rescheduled.

Affidavit of Support Issues

NVC does a technical review of the I-864 affidavit of support and accompanying documents submitted by the petitioner/sponsor and co-sponsors.  Advocates have reported an increase in requests by NVC for new I-864s.  NVC explained that when the form is not properly completed, NVC can't send back the form for correction because of privacy concerns and must request a new form.  NVC made some recommendations to avoid a request for a new form or documentation.

  • Don't leave any blank spaces on the form.  Write N/A if the question is not applicable.
  • Be careful in properly calculating the household size in Part 5.  Do not count anyone twice.
  • In completing Part 6, question #13, the sponsor must fill in the total income reported on his/her federal tax returns for the last three years.  The amount should match exactly what is on the return, so if a joint return was filed, the amount should include the spouse's income.  When it is a joint return, NVC requests that both the sponsor's W-2 and the spouse's W-2 be submitted.  However, an I-864A is not required if sponsor's income is sufficient for his/her household size.  If a consulate is improperly requesting an I-864A in this situation, NVC recommends contacting legalnet@state.gov.  
  • NVC recommends getting tax return transcripts from IRS online or by mail.
  • If submitting an employment letter as evidence of current income, make sure the letter was signed within the last 90 days.

 

F-2B Immigrant Visa Processing Without Separate I-130 Petition

NVC is awaiting guidance from USCIS on whether aged-out derivatives from the F-2A category who automatically convert to the F-2B category and have a current priority date, may seek an immigrant visa without the petitioner having filed a second I-130 petition.  In a November 2013 memo, USCIS provided guidance on this issue for those seeking adjustment of status.  If an aged-out F-2A derivative beneficiary is current in the F-2B category and is otherwise eligible for adjustment of status, he or she may file an I-485 application without the petitioner having filed a separate I-130.  NVC indicated they are aware of this issue and are willing to proceed with the consular processing of these cases after receiving guidance from USCIS and making the necessary changes to their internal systems.  Further information on this issue will be provided when received from NVC.

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Catholic Charities of Indianapolis Expands its Welcome to New Americans

By Jeff Chenoweth

Director, Capacity Building Section

 

The Midwest has a history as being 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 Twentieth century when the 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 from 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, 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.  It is now one of CLINIC’s 250 affiliates that operate in 46 states and over 330 cities.  This is the largest immigration service provider network 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 this 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 just beginning 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 should Congresses pass a bill that would 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.

 

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Maryland Law Expands Eligibility for Special Immigrant Juvenile Status

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.

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USCIS Releases Revised Form I-821D and DACA Renewal Guidelines

By Ilissa Mira, CLINIC Training and Legal Support Attorney

 

On June 5, 2014, USCIS released the much anticipated revised Form I-821D, Consideration of Deferred Action for Childhood Arrivals (DACA).  The new dual-purpose form will be used to file both initial and renewal DACA requests.  As of the release date, USCIS will not accept DACA requests submitted on the old form.

In September 2012, USCIS began granting Deferred Action for Childhood Arrivals (DACA) to individuals who entered the U.S. as children and met certain eligibility guidelines.  DACA grantees receive deferred action and an employment authorization document, both valid for a two-year period.  Initial DACA grants for the earliest applicants will begin to expire in September 2014 and the renewal process is now open.   

To qualify for renewal, an individual must have previously been approved for DACA and show that  he or she:

  1. Did not depart the United States on or after August 15, 2012 without advance parole;
  2. Has continuously resided in the United States since he or she submitted his or her most recent request for DACA that was approved up to the present time; and
  3. Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Renewal applicants should submit their requests to USCIS at least 4 to 5 months before their DACA expires.  Individuals whose current DACA grants expire before they receive a renewal will lose their deferred action and work authorization.  Those who are 18 years or older will accrue unlawful presence during any gap in deferred action.  To prevent a lapse in work authorization and the accrual of unlawful presence, USCIS encourages renewal applicants to submit requests at least 120 days (4 months) prior to the expiration of their current DACA period.  The USCIS Frequently Asked Questions (updated June 5, 2014) currently state that those who have filed for renewal at least 120 days before their deferred action and EAD expire may receive a short DACA extension if USCIS encounters unexpected processing delays while their request is being adjudicated.  However, no specific process for providing extensions has been announced.  CLINIC recommends that applicants submit renewal requests as soon as they qualify to do so.  At the earliest, renewal requests may be submitted 150 days (5 months) prior to the individual’s current DACA expiration date. 

The new form indicates sections that are for initial applicants, renewal applicants, or both.  Requestors who are applying for DACA for the first time must demonstrate their eligibility under the general DACA guidelines and submit supporting evidence.  For the majority of renewal requestors, the renewal application process will be much simpler than the initial process.  Those who previously received DACA from USCIS do not complete the education section of the form and must only list residences and absences from the United States since their initial DACA grant.  Supporting documents are only required if the renewal requestor is currently in exclusion, deportation, or removal proceedings (but not if the case was administratively closed); or has been charged with, or convicted of, a felony or misdemeanor.  Renewal applicants should not submit supporting documents that were submitted to USCIS in a previous DACA request.  Note that renewal applicants are not instructed to include supporting documentation related to the education guidelines or continuous residence.  However, USCIS reserves the authority to request additional documents or information relating to a DACA renewal determination.

Renewal requestors who received initial DACA grants from ICE must go through a more burdensome process.  ICE-granted DACA recipients must complete all sections of the form as if they were initial applicants and must demonstrate that they meet each of the DACA eligibility guidelines. 

All DACA requests must include the new Form I-821D, as well as Forms I-765 and I-765WS. 

Requests made on June 5, 2014 or later must be made using the revised Form I-821D (version 6.4.14).  USCIS is no longer accepting DACA requests made on the previous version of the form.  The fee for both initial and renewal applicants remains $465, unless the applicant qualifies for a fee exemption

 

Additional changes to the form and instructions include:

  • For initial applicants, new guidance on satisfying the educational requirement through current school enrollment.
  • A new “Processing Information” section of the form which requires biographic data to be used in conducting background checks.
  • Renewal applicants are asked to list only addresses and absences since their last DACA approval.
  • New national security questions related to the recruitment or use of child soldiers.

DACA renewals provide an opportunity for affiliates to reach out to both current DACA recipients and potential first time applicants.  642,685 individuals have applied for DACA as of March 2014 and 82% of those applications were approved.  The success of the DACA program may encourage new applicants to seek DACA application assistance for the first time. CLINIC’s DACA Workshop Toolkit will be updated to include a number of new resources for planning and implementing group workshops to serve both initial and renewal DACA requestors.

 

 

 

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CSPA Ruling: Age-Out Derivatives Must Start All Over

The Supreme Court has now weighed in and answered one of the last remaining questions regarding the Child Status Protection Act (CSPA): do derivative children who age out before the principal beneficiary immigrates retain the original priority date when their parent becomes an LPR and files a new petition on their behalf in the F-2B category?  The answer has been no, based on a Board of Immigration Appeals decision, Matter of Wang, 25 I&N Dec. 28 (BIA 2009).  In that case the BIA ruled that there is no appropriate category to which aged-out derivatives other than F-2As could “automatically convert.” But the Second and Ninth Circuit Courts of Appeal ruled differently, relying on a more generous interpretation of the statutory language and perceived congressional intent. In a 5-4 decision issued today, the Supreme Court reversed the Ninth Circuit and found the language of the statute ambiguous, thus deferring to the agency’s interpretation of this provision.  It held that INA § 203(h)(3) allows for the different treatment of aged-out derivatives depending on their preference category.  In accordance with the BIA decision and the agency interpretation, only F-2A derivatives – and not those in any other family-based preference category – convert to the F-2B category when they age out.  Scialabba v. Cuellar de Osorio, 573 U.S. __ (2014).

The USCIS’s interpretation only allows the unmarried derivative children of LPRs to convert to the F-2B category upon turning 21.  They automatically convert and do not require the filing of a second petition.  Should the LPR petitioner file a second petition, the child would retain the original priority date.  For all other aged-out derivatives, when the parent immigrates and files a new I-130 petition, there is no retention of the original priority date. 

 

To hear a thorough explanation of the CSPA and an analysis of the Court’s recent decision, sign up for CLINIC’s June 19th webinar on this topic.

Register for CSPA: From A to Z

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Developing a Comprehensive Immigration Reform Plan

CLINIC anticipates that its growing network of Catholic and non-Catholic affiliates with immigration legal programs will assist the largest number of undocumented immigrations seeking legalization services. The majority of these immigration programs will be faith-based, principally within Catholic diocesan and Catholic Charities agencies. As such, CLINIC sees itself as the lead national organization implementing immigration reform once passed while working to with other networks and their affiliates to build similar capacity. Due to the scope and complexity of implementing a legalization program, all participating organizations on the national and local levels need to make plans and take action steps now in advance of a law passing. 

On this page, you will find materials to facilitate planning and action steps.

 

Back to CLINIC's CIR Resource Page

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Issues Around Immigration Reform

In order to pass comprehensive immigration reform, increased awareness among the public, particularly voters, is essential.  These materials are provided to help the reader in gaining more awareness and being a public voice promoting immigration reform.

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Structuring and Implementing an Immigrant Legalization Program

By Donald Kerwin and Laureen Laglagaron

 

Summary:

While comprehensive immigration reform may have moved to the back burner politically, Congress ultimately will need to reform US immigration policy as immigration enforcement alone will not prove effective in dealing with the nation’s estimated 11.1 million unauthorized immigrants.

This Policy Brief argues that a carefully planned legalization program is an essential component to successful reform. A large-scale legalization program merits a comprehensive planning process beginning even prior to passage of legislation, as the Department of Homeland Security (DHS) and other stakeholders build infrastructure, finalize policies and procedures, and prepare for a registration process.

The study makes the case that a broad legalizetion program should begin with an initial registration process that rapidly identifies and vets applicants. Such a process would be the best way and, indeed, the only feasible way to achieve the immigrant integration, public safety, and national security goals of a legalization program. A registration program would screen out public safety and national security threats, and would allow qualified applicants to live and work legally in the United States while they attempted to earn legal permanent status and to integrate into society. 

To the extent that the articulated goals of a registration program lead to conflicting programmatic options, the study favors solutions that would encourage the largest number of potentially eligible persons to come forward during the registration process. None of the core goals of a legalization program would be met if large numbers of unauthorized immigrants remained in the shadows of US society. 

Many commentators have questioned whether DHS could successfully lead and administer a large-scale legalization program. This Policy Brief concludes that it could, but not without a well-crafted bill, sufficient appropriated funding to build program infrastructure, an unprecedented mobilization of public

Click to View "Structuring and Implementing an Immigrant Legalization Program" (PDF)

 

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Will History Repeat Itself? A Guide to Immigration Legalization Preparation

By Peggy Gleason

As you know, the House and Senate are scheduled to negotiate a compromise that could produce a comprehensive immigration reform bill.  For the first time since the Immigration Reform and Control Act (IRCA) of 1986, legalization may become law.  Without knowing exactly what will pass, it is difficult to plan for our programs.  However, we know the rough outlines of the possible legislation and we can mine our own experiences for concrete preparation steps we can take now.

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Legalization Readiness - Gathering Supporting Documentation

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.

 

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The Case for Legalization: Lessons Learned from 1986 and Recommendations for the Future

By Donald Kerwin and Charles Wheeler

 

This article originally appeared in Issues in Immigration, Vol. 1 (Center for Migration Studies, 2004). It was reprinted by Bender’s Immigration Bulletin, Vol. 12, No. 3 (Feb. 1, 2007).

 

The Immigration Reform and Control Act (IRCA) of 1986 offered a significant benefit and created what its sponsors hoped would be a formidable club. On the one hand, it provided a path to legal status for nearly three million undocumented persons. On the other, it established sanctions against employers who hired the undocumented, in the hope that this would discourage undocumented work and migration. By the time its application period ended in December 1988, the U.S. undocumented population had fallen to between one and one-half and three million persons. At the time, the Immigration and Naturalization Service (INS) predicted that “[f]uture growth or decline of the resident illegal population will depend partly on [IRCA’s] effectiveness.” By this measure, IRCA has failed egregiously.

The very thought of another legalization program is anathema to immigration restrictionists who believe it would reward lawbreakers, create incentives to undocumented migration, and exacerbate the challenge of integrating the nation’s historically high population of foreign-born persons. Even if this were true, the alternative is less tenable. The task of removing millions of undocumented persons would be preclusively expensive, logistically impossible, and politically unpopular, given the draconian impact on U.S.-born family members and the U.S. labor market. Alternatively, to ignore the issue would result in a permanent underclass of disenfranchised persons, which would undermine the nation’s civic life, values, and security.

 

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Parole in Place – Evaluating Successful Parole Requests

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.

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New Form N-400 Released by USCIS

By Laura Burdick

 

On February 4, 2014, USCIS released its long-awaited revision of the Form N-400 (Application for Naturalization).  A draft of the new form was published in the Federal Register for comment on December 20, 2012 and again on March 20, 2013.  CLINIC submitted comments on the draft together with the American Immigration Lawyers Association (AILA) on February 15, 2013.  The comments are posted on the CLINIC website at https://cliniclegal.org/resources/revisions-to-application-for-naturalization.   

At 21 pages, the new form is significantly longer than the old form, which is only 10 pages long.  The additional length is due in large part to a new bar code that appears at the bottom of each page, more space for residences and children, and approximately 40 additional questions in Part 11 relating to the following: good moral character; military service; group membership; and past involvement with terrorism, persecution, torture, or genocide.  USCIS states that while the eligibility requirements for naturalization have not changed, the additional questions relating to terrorism, persecution, torture, or genocide are necessitated by the Intelligence Reform and Terrorism Prevention Act of 2004.  The new form also includes additional questions about the applicant’s parents, current spouse, and prior spouse(s), and requires a statement concerning the failure to register for the Selective Service prior to age 26.  In addition, the preparer’s statement has been revised and there is a new interpreter’s statement that the applicant and interpreter must sign, if applicable.

On the positive side, there are several changes that will make the form more user-friendly.  The new form has better instructions for completing the sections on employment/education history and children, and there is a new question relating to the age/residency exemptions on the English language test.  Also, the prior question asking applicants to list all trips outside the U.S. of 24 hours or more since becoming a lawful permanent resident has been changed to request only those trips taken during the last five years.

The longer form has implications for applicants, legal service providers, and USCIS adjudicators.  Potential applicants may be intimidated by the new form and may find it less accessible, resulting in more people needing application assistance.  Legal service providers may need more time to complete and review the form, and thus may need to raise their fee for the N-400 or find ways to increase their efficiency in order to continue serving the same number of naturalization clients.  The additional security-related questions make it more important than ever that representatives obtain a copy of the applicant's A-file in certain cases before completing the N-400. USCIS adjudicators may need more time to review the form and conduct naturalization interviews, and this could increase N-400 processing times.

We encourage legal service providers to use a professional, written translation of the questions in Part 11 of the new form, due to complexity of the vocabulary in this section.  Translations in languages commonly spoken by asylees and refugees are especially needed.  CLINIC will collect and share translations of Part 11 on its website to help avoid duplication of effort.  We have also asked USCIS to consider providing the translations.

For group workshops, more time will be needed to complete and review the new form.  The interpreter certification could pose a problem, especially if an interpreter was used only for a few questions, and did not translate every question on the form.  Interpreters may be intimidated or unwilling to sign the certification.  Professional, written translations of Part 11 will be useful for literate applicants, while an interpreter could read the translation for those who are not literate.

The old form will continue to be accepted for 90 days, through May 2, 2014, but it is no longer available on the USCIS website.  CLINIC has posted the old form on its website in the Toolkit for Naturalization Workshops (https://cliniclegal.org/resources/toolkits/toolkit-naturalization-workshops) located under “resources.”  We encourage affiliates to continue using the old form for as long as possible, while obtaining training on the new form.  A USCIS teleconference on the new form will be held on February 20, 2014; CLINIC and the ILRC are conducting a joint webinar on the new form on February 26, 2014.  In addition, there are some educational materials on the new form posted on the N-400 page of the USCIS website.

The new form presents an opportunity for affiliates to encourage lawful permanent residents to apply for citizenship now, while the old form is still accepted, and to conduct group application workshops to facilitate the process for as many people as possible.  CLINIC’s Toolkit for Naturalization Workshops (https://cliniclegal.org/resources/toolkits/toolkit-naturalization-workshops) was recently updated and provides a variety of useful resources for planning and implementing a group workshop.

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CLINIC Builds Capacity for Citizenship Services

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

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Electing to Naturalize: The Importance of Planning Ahead

By Megan Sahar Turngren

On Election Day, it can seem like a burden to wake up early and stand in line at your local polling place, but the ability to vote is a prized benefit of citizenship and an important step in the journey to full integration in the United States.  The benefits of citizenship are numerous and the CLINIC network has long advocated naturalization for all eligible permanent residents.

Particularly, in CLINIC’s Religious Immigration Section (RIS), we echo this sentiment and strongly encourage religious workers to pursue naturalization. While you may be aware of the many resources to help immigrants learn U.S. history, understand government structure, and become proficient in English, you may be less familiar with information regarding your status and more complex aspects of the naturalization process. 

Before someone can pursue naturalization, they must be a permanent resident for five years. In RIS, many of our clients contact us to begin the naturalization process as soon as they reach the five-year mark. However, the five-year mark is just one of the requirements that must be met to become a citizen.

One of the most important—and yet often overlooked—requirements is called “continuous presence.” Applicants must have resided continuously in the United States for at least five years after receiving permanent resident status.   ”Continuous residence” is problematic for many of our clients who often travel abroad for extended periods for missionary work. If applicants spend too much time abroad during a trip, they may not meet the qualifications for continuous presence.  Fortunately, the use of a reentry permit to reenter the U.S. after an extended period outside of the United States does not affect the requirement for continuous presence. Permanent residents are automatically presumed to break the continuity of residence if they are absent from the U.S. for six months or more, however.

In certain circumstances, there may be the option to apply for relief from the continuous residence requirement. To qualify for this relief, individuals must have resided inside the United States for one continuous year at some point after obtaining Lawful Permanent Resident (LPR) status. Also, employers would need to be able to provide a detailed explanation of the reasons for the multiple extended trips abroad (in the case of priests, nuns, and religious workers, religious organizations would provide this verification).

Additionally, individuals must reside in one location for at least three months prior to the filing date of the application. For our clients, who often travel around the United States in service to the Church, advanced planning may be required to satisfy this requirement. Once the application is filed, LPRs should plan to remain inside the U.S. until the naturalization process is complete. Even with a valid reentry permit and permanent resident card, a foreign national should think twice about taking any trips abroad during this time.

Furthermore, permanent residents must also be able to show that they have physical presence for at least 30 months of the five years immediately preceding the filing of the naturalization application. Please keep in mind that the requirements for physical presence and conditional residence are similar but not the same.

The naturalization process can seem cumbersome for lawful permanent residents but understanding the requirements and legal resources available to you are important in navigating your road to citizenship and the privileges it provides.

For more on the services offered by CLINIC’s Religious Immigration Section, the naturalization process, and our network of nation-wide charitable legal service providers, explore CLINIC’s website.

*Megan Sahar Turngren is a Staff Attorney in CLINIC's Religious Immigration Section

 

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Promoting Citizenship at the Public Library

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)

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Immigration Options for Seminarians

By: Minyoung Ohm

 

Many seminarians will be graduating this spring and will become ordained priests and deacons.  For some foreign-born seminarians on student visas, this is the time when they decide what immigration status is best suited for their future employment.  Typically, a seminarian switches to R-1 religious worker status because he will be assigned to perform priestly duties at local parishes and churches.  Unlike an F-1 student visa, an R-1 visa falls in the employment-based visa category.   Therefore, an employer (whether it be a Diocese or a religious community) must file an I-129 petition with the United States Citizenship and Immigration Services (USCIS) attesting that it is offering a job to the seminarian and the seminarian will be compensated for his services.

 

When to File a Change of Status

An I-129 petition to change status should be filed as early as possible so that when a seminarian graduates, he can seamlessly jump into parish work without unnecessary delay.   Typically, I-129 petitions take approximately 4-5 months to be adjudicated.  In addition, students cannot start working and getting paid until the I-129 petition is approved.  USCIS makes premium processing available (adjudication within 15 days of filing) only to religious organizations that have been previously verified by USCIS.  The request for premium processing must be accompanied by extra filing fee of $1,225 in addition to the regular filing fee of $325, making it financially burdensome for some organizations.

 

Traveling Abroad after Changing Status

Seminarians often travel abroad after they graduate to celebrate their ordination with their family members back home.  It is important to note that changing status to R-1 by filing an I-129 petition only grants R-1 “status” inside the United States.  If the seminarian travels abroad and only has an F-1 student visa in their passport, he will need to apply for a new R-1 visa before coming back to the U.S.  Applying for a new visa will require the seminarian to attend a visa interview in person at an appropriate U.S. Consulate in his home country.  Before granting an R-1 visa, the consular officer will verify that the seminarian has an approved I-129 petition filed by his employer.

 

Optional Practical Training

Optional Practical Training, or “OPT”, allows a seminarian to hold a job after graduation for one year and get paid while still being in F-1 student status.  OPT is useful in that it allows a student to explore a job opportunity and gain practical experience in the U.S. without having to worry about changing status.  The OPT program can also serve as a trial period for employers who want to hire a seminarian but are not yet ready to commit money and efforts to changing the status of a student.  

If a student is interested in OPT, the seminarian should speak with the designated school official at the school where the student is enrolled.  Once the school approves OPT program for a graduating student, the seminarian will need to apply for an employment authorization card with USCIS.  The application for the employment authorization can take up to 3 months.  It is important to remember that the seminarian cannot begin working for the religious organization until he receives the employment authorization card.

 

We congratulate the accomplishments of the seminarians who are graduating this year. If you need assistance in changing the immigration status for your seminarians, please reach out to the attorneys in the Religious Immigration Services section of CLINIC.  We are happy to help facilitate this transition as smoothly

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Understanding Immigration Expiration Dates

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.

 

 

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Laws Extending In-State Tuition to ALL Residents

It is estimated that 65,000 undocumented students graduate from high school in the United States every year. These graduates face various financial barriers to pursuing a college education, including the fact that a social security number is required to qualify for federal financial aid. Since the Obama administration announced its Deferred Action for Childhood Arrivals (DACA) program in 2012, over 520,000 youth have been granted permission to work and, as a result, the right to obtain a social security number. (Click here for the numbers of individuals granted DACA in each state). While not all individuals believed to be eligible for DACA have been able to apply, the program has been instrumental in illuminating some of the difficulties undocumented young people face in their quest to pursue higher education and obtain legal employment. In particular, state educators, policy makers, and the public at large are beginning to appreciate the financial and educational barriers faced by undocumented youth and seek meaningful solutions.     

Out-of-state students pay an average of $22,203 a year to attend a public, 4-year college while in-state residents pay an average of $8,893.[1]  Recognizing this substantial difference in tuition, as well as the tremendous social and economic contributions of college graduates, a growing number of states are passing tuition equity laws – laws that extend eligibility for in-state tuition rates to all residents regardless of immigration status. More than 60% of our foreign-born population currently lives in a state with tuition equity.  Undocumented residents who meet certain criteria can access in-state tuition in 19 states.  16 of these states (California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, and Washington) have state-wide tuition equity laws or policies while 3 states (Hawaii, Michigan, and Rhode Island) have tuition equity policies at major educational institutions. [2]  

While this is great progress, there remains work to be done in the remaining states in which legislators have not yet passed tuition equity laws.  On the most restrictive end of the spectrum, Georgia explicitly prohibits undocumented students from accessing in-state tuition while Alabama and South Carolina bar undocumented students from even enrolling in public institutions of higher education. CLINIC has prepared Talking Points on why offering in-state tuition rates to all residents, regardless of immigration status, is fundamentally fair, fiscally responsible, beneficial to the economy, and in line with Catholic social teaching.  We hope these will assist in your advocacy, whether it is convincing state legislators to sponsor or vote for a tuition equity bill; persuading decision-makers in university systems that tuition equity is sound public policy; writing an op-ed or speaking to the media; or converting the minds and hearts of members of your community. 




[1] See background information on the federal IN-STATE for DREAMERS Act of 2014, available at: http://www.murray.senate.gov/public/_cache/files/ac4d9ed0-b3ae-4168-970d-c08eb35b4a04/instatefordreamersact2014.pdf

[2] It is worth noting that Ohio and Massachusetts, along with a handful of individual universities and community colleges around the country, limit access to in-state tuition to DACA grantees only.


 

 

This summary was prepared in April 2014 for informational purposes only and is not intended as legal advice. 

For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or

 (301) 565-4807.

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Seventh Circuit Finds IJs Have Jurisdiction of 212(d)(3) Waivers for U Nonimmigrants

 

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.

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BIA Finds Asylee Status Ends After Adjustment

 By Susan Schreiber

 

What if your asylee client became deportable for conviction of a crime after adjusting status?  Can you client re-adjust under INA § 209(b), along with seeking a waiver under § 209(c)?   In Matter of C-J-H, 26 I&N Dec. 284, the Board said “no” because asylees who adjust status to lawful permanent residence no longer qualify as asylees.

In reaching this decision, the Board acknowledged that INA § 209(a) contains language that explicitly bars refugees from readjusting their status, but makes no reference to asylees.  Nevertheless, the Board determined that 209(b), by it's plain terms, applies only to asylees seeking to adjust to LPR status, and that once an asylee completes this process, she or he no longer has the status of asylee. The Board also rejected the argument that readjustment under 209(b) should be permitted because readjustment under INA § 245(a) is available to certain deportable LPRs.  In the Board's view, 209(b) adjustment is distinguishable because it has "different language and narrower purposes" than 245(a) adjustment.

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FOIA Updates: Changes and Delays

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

 

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Advocating for In-State Tuition for All Residents

By Jen Riddle

 

How many undocumented students could benefit from in-state tuition?

It is estimated that 65,000 undocumented students graduate from high school in the United States every year. These graduates face various financial barriers to pursuing a college education, including the fact that a social security number is required to qualify for federal financial aid. Since the Obama administration announced its Deferred Action for Childhood Arrivals (DACA) program in 2012, over 520,000 youth have been granted permission to work and, as a result, the right to obtain a social security number. While not all individuals believed to be eligible for DACA have been able to apply, the program has been instrumental in illuminating some of the difficulties undocumented young people face in their quest to pursue higher education and obtain legal employment. In particular, state educators, policy makers, and the public at large are beginning to appreciate the financial and educational barriers faced by undocumented youth and seek meaningful solutions.

 

What is the cost difference between in-state and out-of-state tuition?

Out-of-state students pay an average of $22,203 a year to attend a public, four-year college, while in-state residents pay an average of $8,893.  Recognizing this substantial difference in tuition, as well as the tremendous social and economic contributions of college graduates, a growing number of states are passing tuition equity laws – laws that extend eligibility for in-state tuition rates to all residents regardless of immigration status.

 

Which states already allow undocumented students to qualify for in-state tuition rates?

More than 60 percent of our foreign-born population currently lives in a state with tuition equity.  Undocumented residents who meet certain criteria can access in-state tuition in 19 states.  Sixteen of these states (California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, and Washington) have state-wide tuition equity laws or policies while three states (Hawaii, Michigan, and Rhode Island) have tuition equity policies at major educational institutions.  While this is great progress, there remains work to be done in the remaining states in which legislators have not yet passed tuition equity laws. On the most restrictive end of the spectrum, Georgia explicitly prohibits undocumented students from accessing in-state tuition while Alabama and South Carolina bar undocumented students from even enrolling in public institutions of higher education.

 

What can I do?

CLINIC has prepared Talking Points on why offering in-state tuition rates to all residents, regardless of immigration status, is fundamentally fair, fiscally responsible, beneficial to the economy, and in line with Catholic social teaching.  We hope these will assist in your advocacy, whether it is convincing state legislators to sponsor or vote for a tuition equity bill; persuading decision-makers in university systems that tuition equity is sound public policy; writing an op-ed or speaking to the media; or converting the minds and hearts of members of your community. 

 

Questions?

For advocacy strategy assistance, customized legal analysis, or the development of resources specific to your state or campaign, please reach out to State and Local Advocacy Attorney Jen Riddle at (301) 565-4807 or jriddle@cliniclegal.org.

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USCIS Releases Second Revised Form I-821D and Outlines DACA Renewal Process

By Ilissa Mira, CLINIC Training and Legal Support Attorney

In September 2012, USCIS began granting Deferred Action for Childhood Arrivals (DACA) to individuals who entered the U.S. as children and met certain eligibility guidelines.  DACA grantees receive deferred action and an employment authorization document, both valid for a two-year period.  Initial DACA grants for the earliest applicants will begin to expire in September 2014.  In anticipation, USCIS is developing a renewal process and inviting public comment.  This article summarizes the latest changes to the proposed Form I-821D and current areas of concern.    

USCIS released a preliminary revised Form I-821D and instructions on December 18, 2013 for a 60-day public comment period.  In response, CLINIC submitted recommendations focusing on several areas of concern, including: 

 

  • the proposed form’s confusing structure
  • a restriction allowing renewal applicants to apply no more than 120 days before their grant of deferred action expired
  • burdensome education requirements for renewal applicants
  • burdensome evidentiary requirements regarding criminal records
  • lack of clarity regarding supporting documentation required for renewal applicants

 

On April 5, 2014, USCIS published a second revised form, which incorporates many of CLINIC’s recommendations.  Additionally, USCIS updated its DACA webpage to include preliminary information regarding the renewal process.  The draft Form I-821D and the information on the website are subject to change until the form and renewal process are finalized in May 2014. 

Highlights from the website guidance and the latest draft Form I-821D and instructions include:

 

  • One form will be used for both initial and renewal applicants.  New instructions clarify who must respond to each section (e.g., initial requestors, renewal requestors, or both).
  • Renewal requests may be submitted no more than 150 days prior to the expiration of the individual’s current DACA period.  The previous revision allowed renewal applicants to submit requests only 120 days priors to the expiration of their current DACA period. 
  • Guidance on the USCIS website currently states that those who have filed at least 120 days before their deferred action and EAD expire may be provided a short extension if USCIS is unexpectedly delayed in processing the renewal request.
  • The form and instructions do not require renewal applicants to demonstrate that they continue to meet the education guidelines or include supporting documentation related to the education guidelines.  However, guidance on the USCIS website advises applicants to keep copies of all supporting documents that evidence they satisfy the DACA guidelines.
  • Initial DACA requestors may satisfy the education guideline through enrollment in an education, literacy or career training program administered by a non-profit.
  • Renewal applicants are not required to resubmit supporting documentation included in a prior DACA request to USCIS.  Only documents related to criminal history or removal proceedings since the initial DACA grant must be submitted.

 

CLINIC is pleased that USCIS has expanded the renewal window, however, we are troubled that some individuals who do not apply within the 120 – 150 day period before their DACA expires may fall into unlawful status if USCIS fails to adjudicate their applications in that timeframe.  We appreciate that renewal applicants will not be required to resubmit evidence previously included in prior applications.  Still, we are concerned that requests for arrest records are inappropriate and overly burdensome to applicants and that requests for juvenile records will lead to inconsistent and unfair treatment of individuals depending on their state’s privacy laws.

 

Public comments on the latest proposed DACA form and instructions are due on May 5, 2014.  CLINIC will be submitting comments and we encourage our affiliates to use this opportunity to share their thoughts with CLINIC Training and Legal Support Attorneys Tatyana Delgado, tdelgado@cliniclegal.org and Ilissa Mira, imira@cliniclegal.org.