National Legal Center for Immigrants

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Tessa McKenzie

Administrative relief is coming and, whatever shape it takes, we can be certain that consular identification cards will be important in the implementation of immigration action.  Starting November 1, Mexican Consulates in the United States began issuing new, enhanced consular IDs to ensure the continued security of these vital documents.  Visual and safety features have changed, and maintaining awareness of format changes to the consular ID cards is essential.

Sarah Bronstein

As the news of the large numbers of unaccompanied children apprehended along the border began to break, CLINIC went into high gear to figure out how we could support our affiliates and other service providers inundated with requests for assistance from this vulnerable population.  Training is one of the things CLINIC does best so we started to think about what type of training would be most useful.  My colleague Debbie Smith and I took the lead on developing the curriculum, materials and webinars for a course.  With assistance from other CLINIC staff,  we put together a four-week course co

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. 

Can this Residency be Saved? Representing the LPR who Shouldn't be One

2:00 p.m. - 3:30 p.m. Eastern Daylight Time

11:00 a.m. - 12:30 p.m. Pacific Daylight Time

Cost: $50; $25 for CLINIC Affiliates paying annual dues

Have you ever represented a client who turned out not to be eligible for his or her LPR status?  Perhaps your client immigrated as the child of an LPR but was already married. Or had an undisclosed conviction that would have triggered inadmissibility.  Or even received LPR status based on a sham marriage.  Is there any way to preserve your client's residency status or assist your client in re-immigrating?  Join CLINIC attorneys Sarah Bronstein and Susan Schreiber to review how defects in your client's underlying residency may come to the attention of USCIS and what remedies may be available for your client to retain residency status, including 237(a)(1)(H) waivers, re-immigrating and prosecutorial discretion.

Register by clicking here. After registering you will receive a confirmation email containing information on joining the webinar.

For questions or additional information contact Dinah Suncin at dsuncin@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.

 

 

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Provisional Waivers: New CIS Memo on "Reason to Believe"

By Debbie Smith

On January 24, 2014, USCIS issued an instruction to its employees on the adjudication of provisional waivers in cases where the applicant has a criminal history. The new instruction limits the grounds on which provisional waivers can be denied.  The provisional waiver process, first implemented by regulations on March 4, 2013, allows immediate relatives to apply for the waiver of the unlawful presence ground of inadmissibility before departing the United States for a consular interview abroad. Under these provisional waiver regulations, a waiver is not available to an applicant whom USCIS has “reason to believe” may be subject to a ground of inadmissibility other than unlawful presence.

Applicants with Criminal Histories

Until the January 24th guidance, applicants who had been convicted of any criminal offense other than a minor traffic citation were found ineligible for a provisional waiver under the USCIS interpretation of the "reason to believe" standard.  Where biometrics or a law enforcement check revealed any apparent criminal issue in the applicant's background, USCIS would not analyze or consider the evidence to determine if it actually constituted a ground of inadmissibility.  Instead, USCIS denied the provisional waiver under the "reason to believe" standard on the ground that the consular officer "may find the individual inadmissible based on his or her criminal history."  See USCIS, Questions and Answers: USCIS-American Immigration Lawyers Association (AILA) Meeting (April 11, 2013). As a result, applicants who were not actually inadmissible based on any criminal basis were nonetheless denied the provisional waiver under the “reason to believe” standard.

The January 24th instruction changed this policy.  Now USCIS officers "should not find a reason to believe that the applicant may be subject to inadmissibility under INA § 212(a)(2)(A)(i)(I) (the crime involving moral turpitude ground) solely on account of that criminal offense." See USCIS, Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers, (January 24, 2014).  The new policy requires USCIS adjudicators to examine any evidence in the record, including evidence provided by the applicant or the applicant's attorney, in order to determine if the applicant is inadmissible on a crime-related ground.  The adjudicator must now analyze whether the criminal offense actually constitutes a crime involving moral turpitude and, if so, whether the applicant falls within the "petty offense" or "youthful offender" exception.  The new instruction recognizes that because a criminal conviction in and of itself may or may not constitute a ground of inadmissibility, an analysis of the underlying criminal offense is the only way to conclude if there is a "reason to believe" that the applicant may be inadmissible.

Remaining Issues

This policy is an important step forward in establishing a fair and just provisional waiver procedure. In August 2013, advocates, including CLINIC, AILA and other organizations, urged USCIS to apply a proper interpretation of "reason to believe."  The January 24th guidance is a positive development in response to advocates' concerns. However, there are certain limitations in the new guidance that should be kept in mind.

First, the new guidance does not address the process for reconsidering those applications that have already been wrongly denied before the guidance issued. The guidance contains no information on whether USCIS will reopen the previously denied application or whether a new filing will be required.  It does not address whether, assuming a new filing is required, a filing fee will be needed.  While the waiver regulations do not provide for the applicant to file an appeal or motion to reopen, there is nothing to prevent USCIS from reopening and reconsidering a previously denied application.

Second, the guidance did not does not address a separate issue related to USCIS use of the “reason to believe” standard, namely waiver denials based on an improper assessment of the applicant's statement made at the time of an attempted entry at the border.  Discrepancies related to the applicant's birth date or name, for example, are not "misrepresentations" that are material to the applicant's eligibility for admission to the United States.  Nonetheless, USCIS has routinely denied waiver applications based on the "reason to believe" standard where the applicant gave a false name or birth date when stopped at the border and refused entry, or where the officer reported the information incorrectly or incompletely. The January 24th instructions do not correct this improper application of the "reason to believe" standard. 

CLINIC hopes that USCIS will issue further instructions addressing the reopening of improperly denied waiver applications and the proper assessment of erroneous but immaterial statements made during the voluntary return process at the border.  CLINIC continues to advocate for these changes.

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Recent Decisions on Immigration Law and Crimes

By Susan Schreiber

Three recent circuit court decisions provide some good news for immigrants related to immigration consequences of criminal offenses. These decisions, summarized below, address (a) analyzing when an offense is a crime of moral turpitude; (b) LPR eligibility for an INA § 212(h) waiver; and (c) conviction finality.

  1. Silva-Trevino v Holder, No. 11-60464 (5th Cir. 2014)

In 2008, the U.S. Attorney General issued a BIA precedent decision, Matter of Silva Trevino, 24 I&N Dec 687 (BIA 2008), which radically changed the analysis used to determine when an offense is considered a crime of moral turpitude.  Prior to the AG's decision, moral turpitude was analyzed based on the crime as described by the statute , with consideration of the record of conviction permitted where the statute was deemed to be "divisible," i.e. including multiple sections where some but not all sections described turpitudinous conduct.  The AG Silva Trevino decision departed from that analysis by allowing for the consideration of extrinsic evidence – evidence outside the record of conviction – to determine if an offense involves moral turpitude.  Since then, the AGs analysis has been rejected in the 3rd, 4th, 9th, and 11th circuits, with the 7th  and 8th circuits deferring to the AG's approach.   Now the 5th Circuit, hearing Mr. Silva-Trevino's case, has vacated the AG decision and rejected the analysis allowing for the consideration of extrinsic evidence.   This is important news in the “crimm-imm” field because the Silva-Trevino AG decision allowed for a dramatic expansion of crime-based inadmissibility and deportability based on crimes of moral turpitude.   It is likely that we will see more developments on this issue, perhaps including a new BIA precedent decision.

1. Negrete- Ramirez v Holder, No. 10-71322 (9th Cir. 2014)

INA § 212(h), the waiver available for certain crime-based inadmissibility grounds, was amended in 1996 to limit LPR eligibility for this waiver. Under the terms of the statute, 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 this statutory language may initially seem unambiguous, advocates have argued that the limitation, as written, applies only to those who entered as LPRs at the border, and not to those LPRs who adjusted status after arrival in the United States.

What does the BIA say?  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, was not persuasive to the Ninth Circuit, which joined the 3rd, 4th, 5th, 7th and 11th circuits in finding that the 212(h) bar does not apply to an LPR who adjusted status in the U.S.  It remains to be seen whether this significant rejection of the BIA's analysis of 212(h) may persuade the Board to revisit this issue.   

2. Orabi v. Attn'y Gen., 738 F.3d 535 (3rd Cir. 2014)

When is a conviction final for immigration purposes?  Can a noncitizen be charged with inadmissibility or deportability based on a conviction that is on direct appeal?  Since the enactment of IIRAIRA in 1996 and the inclusion of a definition of conviction in the INA at section 101(a)(48)(A), courts in the 1st, 2nd, 5th, 7th, 9th and 10th circuits, have determined that the statutory definition eliminated the finality requirement.  In the recent Orabi decision, however, the court  disagreed with sister circuits, holding that the principle that a conviction does not attain sufficient finality for immigration purposes until a direct appeal has been waived or exhausted is "alive and well" in the Third Circuit.  This is good news for those in Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands, the districts covered by the Third Circuit.

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Life After DACA - FAQ

GENERAL

 

1. Can DACA recipients travel abroad? 

Yes, but only if they receive permission from the government. 

DACA recipients may apply for advance parole, which gives a person in the United States advance permission to reenter the country after traveling abroad. In order to receive advance parole, a DACA recipient generally must show that he or she is traveling abroad for humanitarian, employment, or educational purposes. Advance parole does not guarantee that an individual will be allowed to reenter the United States.  Immigration officials have the authority to deny parole at a port of entry in certain circumstances.  In general, however, persons granted advance parole do not have problems reentering the U.S.  Talk to an immigration attorney or BIA accredited representative to find out if you should travel abroad

For more information see Catholic Legal Immigration Network, Inc. (CLINIC’s) free webinar, Travel Abroad for Deferred Action for Childhood Arrivals (DACA) Recipients , available on the DACA resources page at www.cliniclegal.org. You may also wish to consult CLINIC’s and American Immigration Council (AIC’s) practice advisory, Advance Parole for Deferred Action for Childhood Arrivals Recipients.

 

2. Can a DACA recipient renew deferred action?

Yes, DACA recipients may apply to renew their deferred action.  USCIS has not yet released instructions on applying for renewal.  This FAQ will be updated when the process for renewing DACA is announced.  Keep track of your Employment Authorization Document (EAD) expiration date and check with your legal services provider, the We Own the Dream  website, or the USCIS  website for updated renewal information.  

 

3. How do I replace a lost or stolen Employment Authorization Document (EAD)?

Currently U.S. Citizenship and Immigration Services (USCIS) does not issue replacement EADs to DACA recipients at reduced fees.   To apply for a replacement EAD, you must send a new form I-765 to USCIS.  Include a copy of your previous EAD approval notice, DACA

approval notice, two passport sized photos, and a check or money order for $465 payable to the Department of Homeland Security.  

 

4. How do I apply for a social security number?

 After you receive your Employment Authorization Document (EAD) you may apply for a social security number. To apply for a social security number, you must visit a Social Security office to complete and sign an application in person.  Bring your EAD and one document proving your age and identity.  Proof of identity documents must be the original or a certified copy.  Examples include passports, birth certificates and school I.D. cards.  You should get your Social Security Card in the mail within 1 to 4 weeks after submitting your application.  Instructions for applying for a social security number are available on the Social Security Administration’s website  at http://www.socialsecurity.gov/pubs/deferred_action.pdf. 

 

5. Can my DACA status be terminated or revoked?

 Yes.  Your DACA grant, which allows you to stay in the U.S. lawfully for two years, can be revoked.  For example, if you are convicted of a crime that would disqualify you from DACA, including crimes related to violence, drugs, sexual abuse, burglary, possession or use of a firearm, driving under the influence, or gangs, you could lose your deferred action and be placed in removal proceedings.  

 If you are arrested after receiving DACA, consult with an immigration attorney or BIA accredited representative. Find legal help at http://www.weownthedream.org/legalhelp/.

 

EMPLOYMENT

6. I am working under a social security number (SSN) that is not my own.  Should I tell my employer I now have a new SSN?

While there are ways to give your employer your updated SSN information, your employer may fire you if he or she finds out that you were working under a false SSN.  Many employers have honesty policies that require them to fire someone who has given them false information in order to work. 

One option for correcting your SSN is to ask to update your Internal Revenue Service (IRS) Form W-4 (Employee’s Withholding Allowance Certificate).  The W-4 helps the government track how much tax to withhold from your paycheck, how long you have been working, and how much you have contributed to the Social Security Fund.   Your employer should let you update this every year.  

You could also update your Form I-9 Employment Eligibility Verification.  Employers are required to complete the Form I-9 to verify a new employee’s identity and legal authorization to work in the U.S.  The new employee must provide an accepted document or documents to show their identity and eligibility to work.  If you presented false information and documents

at the time you were hired, updating your I-9 or W-4 may lead to your employer finding out that you were working under a false SSN, and possibly firing you.  You should think carefully about whether to disclose your new SSN.   

More information about DACA and work place issues can be found on the National Immigration Law Center (NILC) website at http://www.nilc.org/dacaworkplacerights.html.  If you have questions about employment issues you may also contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1-800-255-7688 or www.justice.gov/crt/about/osc/).

 

7. I am working for my employer under a false name.  Should I tell my employer my real name now that I have DACA?

If you tell your employer that you have been working under a false name, you may be fired for giving false information.  Many employers have honesty policies that require them to fire someone who has given them false information in order to work.  However, employers must apply their honesty policies without discriminating.  Your employer should not treat you differently, based on your national origin, from the way your employer treated other employees who presented false information.  If it does, your employer may be violating anti-discrimination laws.  

If you are currently working under a false name, you should think carefully about correcting any information that you previously gave to your employer.

More information about DACA and work place issues can be found on the National Immigration Law Center (NILC) website at http://www.nilc.org/dacaworkplacerights.html.  If you have questions about employment issues you may also contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1-800-255-7688 or www.justice.gov/crt/about/osc/).

 

TAXES

8. Do I need to pay taxes?  How do I transfer my ITIN history to my new SSN?

The tax laws that apply to U.S. citizens and permanent residents also apply to DACA recipients.  If you are working and earning a certain amount of money you are required to pay taxes.  You may already have an individual tax identification number (ITIN), which is a tax processing number that the Internal Revenue Service (IRS) gives to individuals who are not eligible for a social security number (SSN). 

You cannot have an ITIN and SSN at the same time, so you should rescind your ITIN once you get a new SSN.  Send a letter to the IRS ITIN Operation requesting that your ITIN be rescinded and that all your tax records are linked to your new SSN.  Include your complete name, mailing address, and copies of your ITIN and SSN cards. 

Send your letter to:

Internal Revenue Service

Austin, TX 73301-0057  

Note that the IRS address above has no street address.  For more information on how to rescind an ITIN, see the IRS website at http://www.irs.gov/Individuals/Additional-ITIN-Information.

 

DRIVER’S LICENSES AND PUBLIC BENEFITS

9. How do I get a driver’s license?

States have different policies about who is eligible for a driver’s license. Procedures for applying are also different, depending on the state you live in.  In all states except Arizona and Nebraska, DACA recipients with work authorization and a Social Security number can get a driver’s license as long as they meet the state’s other eligibility requirements.  In most states, driver’s license applicants are required to have a social security number, evidence of lawful or authorized presence in the United States, proof of identity and date of birth, and proof of residence in the state.  

The National Immigration Law Center (NILC) has more information about DACA and drivers licenses  at http://www.nilc.org/dacadriverslicenses.html. 

 

10. How do I answer questions about my immigration status when applying for benefits?

Deferred action is not a formal immigration status, but while you are granted deferred action you are considered lawfully present in the United States.  When filling out forms it is important to be honest.  You should not claim to be a U.S. citizen.  Doing so could lead to future immigration problems and in some cases, criminal prosecution. Similarly, you should not claim to be a lawful permanent resident. DACA recipients are not lawful permanent residents.  

When filling out an application or a form you can describe your status as “Deferred Action.”  If you have further questions about describing your status on an application or a form, contact a legal service provider near you. To locate one, go to http://www.weownthedream.org/legalhelp/.

 

11. Now that I have DACA, what public benefits do I qualify for?

Your access to public benefits depends on your state’s policies.  DACA recipients are not eligible for federal benefits.  Some states offer medical coverage to certain lawfully present immigrants who are ineligible for federal health coverage.  Others provide prenatal care regardless of woman’s immigration status, and a few states and counties provide health coverage to children regardless of their status.

DACA grantees are not covered under the Affordable Care Act (ACA) or “Obamacare” and cannot buy health insurance through the health insurance marketplace or health insurance

exchange.  You may qualify for insurance through an employer or buy full price insurance outside the marketplace if it is available.

National Immigration Law Center (NILC) has several resources explaining health care options to DACA grantees available at http://www.nilc.org/acadacafaq.html .  See also tables on benefits available to immigrants in particular states at http://www.nilc.org/guideupdate.html.

 

EDUCATION

12. Am I eligible for financial aid, in-state tuition, or scholarships?

Federal Financial Aid

DACA recipients cannot receive federal financial aid, including grants and scholarships that are federally funded.  In some states you may qualify for in-state tuition or state financial aid.  There are also private scholarships that may be available to you.

In-State Tuition and State Financial Aid

Some state policies grant in state tuition and/or state financial aid to students regardless of their immigration status, as long as they attended high school in the state for a particular period of time and meet certain other criteria.  Some states and schools allow in state tuition to lawfully present students who have lived in the state for a certain number of months.  Check to see what options are available in your state and at the school you attend.  For more information on access to education in different states, see National Immigration Law Center (NILC’s) “State Bills on Access to Education for Immigrants – 2013.”  

Private Loans and Scholarships

Private loans and scholarship may be available to you.  For a list of private scholarships that do not require proof of U.S. citizenship or legal permanent residency, visit the website for Educators for Fair Consideration (E4FC) .

 

MILITARY

13. Do I need to register for the draft?

It depends. If you are a male between the ages of 18 and 26, you must register for the draft.  To register, go to www.sss.gov and click “register online.” If you are not a male between the ages of 18 and 26, you do not have to register.

Undocumented immigrant males between the ages of 18 and 26 who do not have DACA also are required to register for the draft.   

 

14. Can I enlist in the U.S. Armed Forces or Coast Guard?

No. DACA recipients are not eligible to enlist in the U.S. Armed Forces or the Coast Guard.

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Update on Deferred Action for Childhood Arrivals (DACA) (January 31, 2014)

By Tatyana Delgado, CLINIC Training and Legal Support Attorney

On June 15, 2012, the Secretary of the U.S. Department of Homeland Security issued a memorandum allowing individuals who entered the U.S. as children and meet certain guidelines to apply for Deferred Action for Childhood Arrivals (DACA).   U.S. Citizenship and Immigration Services (USCIS) began accepting DACA applications in August 2012 and issuing DACA approvals in September 2012.  This article provides updates on a variety of issues related to DACA eligibility and adjudications. 

DACA Renewals

Given that DACA grants are valid for two years, the DACA renewal period is approaching.  USCIS has not yet released a final comprehensive explanation of the DACA renewal process.  However, on December 18, 2013, USCIS issued a draft revised I-821D, including proposed DACA renewal policies and procedure, for public comment.   Highlights of the proposed policies and procedure include:

  • A renewal application may not be submitted more than 120 days prior to the end of the individual’s current DACA grant period. 
  • Renewal applicants must have continuously resided in the U.S. since submitting the initial DACA request.  
  • DACA recipients who were “enrolled in school” (includes secondary school, education, literacy, or career training programs) at the time of the initial application must have made substantial progress, graduated from school, passed General Education Development (GED) test or other equivalent, enrolled in post-secondary education, or obtained employment.
  • Renewal applicants may not have departed the U.S. on or after August 15, 2012 without advance parole.
  • Individuals who initially received DACA from U.S. Immigration and Customs Enforcement (ICE) must respond to all of the questions in Form I-821D and provide supporting evidence of initial eligibility. 

Public comments on the proposed DACA form and instructions are due on February 18, 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

DACA Statistics

Many individuals who are eligible for DACA have not yet applied.  Estimates from the Migration Policy Institute (MPI) indicate that 1.76 million individuals are or will become eligible for DACA.  The latest USCIS report (dated September 11, 2013) stated that USCIS had received more than 580,000 DACA applications.  The majority of DACA applications have been approved.  Specifically, USCIS had approved over 450,000 cases and denied over 9,500 cases.   

In September 2013, the Center for American Progress (CAP) issued a report titled Undocumented No More:  A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA, outlining a series of findings regarding the DACA applicant pool.  CAP found that certain states, such as Florida and New Mexico, have low DACA application numbers.  While the DACA applicant pool is diverse, individuals from certain parts of the world, such as North and Central America (excluding Mexico), Asia, and Europe, are underrepresented in the applicant pool.  The average DACA applicant is 20 years old.  According to CAP, older applicants are more likely to be denied than younger applicants.  This may be attributed to difficulties with establishing DACA eligibility among those who are no longer attending school.  

Case Processing Times

USCIS reports that the average processing time for DACA applications is six months.  Several legal advocates have reported that DACA applicants are facing processing times that are longer than six months and in some cases, longer than one year. 

For cases that have been pending for more than six months, legal representatives or applicants may call the USCIS National Customer Service Center (NCSC) to inquire about the case.  The USCIS customer service representative should provide a referral number.  USCIS uses the referral numbers to track questions.  If there is no response from NCSC within 15 days, e-mail the service center where the application was filed.  The e-mail should include the application receipt number, date, alien number, NCSC referral number, and details regarding communications with NCSC.  Here are the regional service center e-mail addresses: 

If there is no response from the service center within 21 days, contact USCIS Service Center Operations by e-mailing SCOPSSCATA@dhs.gov.   Legal representatives or applicants may also contact the USCIS Ombudsman’s office by completing a case assistance form.  In addition, CLINIC affiliates may contact CLINIC for assistance with long pending cases. 

Supporting Evidence

DACA applications require documentation proving that applicants satisfy the eligibility guidelines.  Evidence of physical presence, continuous residence, educational or professional development, and undocumented status are key pieces of the application.

Although many individuals who satisfy the DACA eligibility guidelines have faced challenges with gathering the required documentation, legal advocates have been successful in helping clients overcome these challenges.  For example, Graham Bateman, an attorney with the Central Louisiana Interfaith Immigration Center, successfully assisted a DACA applicant who received a Request for Evidence (RFE) of continuous residence in the U.S. since 2007.  To supplement the school attendance records already submitted by her client, Graham helped the client obtain declarations from an individual who rented a mobile home for the client, a church leader, and a relative attesting to the client’s presence in the U.S.  The client was approved for DACA. 

In another case, Sister Mary Ellen Burns, an attorney with Apostle Immigrant Services, successfully helped an applicant gather evidence proving that he was present in the U.S. on June 15, 2012.   The client, a Jehovah’s Witness, had graduated from high school in June 2011 and participated in preaching teams regularly.  The leaders of the preaching teams maintain logs of the preaching hours for each of the members.  Thus, the leader of the congregation submitted a letter explaining their practices and listing the hours that the client had spent preaching in June 2011 through August 2012.  The client was approved. 

In addition, DACA applicants who indicate that they are “currently in school” may receive RFEs seeking evidence that they have completed or continue to be enrolled in a qualifying program.  For DACA purposes, “currently in school” may include enrollment in various types of educational or career training programs, such as a GED preparation program.  Applicants should be counseled that USCIS may request proof of program continuation or completion; therefore, it is important for applicants to continue to pursue their educational or career training program goals.

Continuous Residence Guideline - Brief, Casual, and Innocent Departures

Legal advocates report that DACA applicants with multiple or extended absences have been successful in meeting the DACA continuous residence requirement.  Clients should explain the purpose of the departure and provide evidence of the brief, casual, and innocent nature of the departure.  For example, in one approved case, the applicant traveled to another country for three months in 2008 at the age of 12.  The application included a letter describing the reason for the trip, which involved the need to obtain original documents that could only be retrieved in person in the native country.   This was the only trip that the client had taken during the continuous residence period.  Another approved case involved a client who had three brief departures during the continuous residence period.  One departure lasted three weeks, another two weeks, and the last departure lasted a few days.  The client explained that the purpose was to visit a sick grandmother who eventually passed away and provided documents showing the visits were brief and innocent. 

What about clients with longer absences – can they successfully apply for DACA?  CLINIC is aware of at least one approved case involving an individual who left the US. for six months to obtain professional training and evaluation related to a special talent. The applicant provided affidavits explaining the purpose of the trip and the application was subsequently approved.

Juvenile Delinquency

As part of the DACA application form, applicants are expected to inform USCIS whether they have been arrested, charged with, or convicted of a felony or misdemeanor in the U.S.  This includes incidents handled in juvenile courts.  While juvenile delinquency matters do not bar an individual from DACA, USCIS may consider these matters when deciding whether to exercise prosecutorial discretion. 

Legal advocates have reported that clients with juvenile delinquency dispositions have received DACA.  Submitting evidence of positive equities for clients with juvenile delinquencies is highly recommended.  For example, Nubia Torres, the Victims and VAWA Program Manager at Catholic Charities of Dallas, reported that a DACA client with a juvenile delinquency disposition based on a residential burglary was approved.  This negative factor was overcome by evidence of satisfactory completion of probation, and the applicant’s strong academic record, including his enrollment in college.  

USCIS has also indicated that applicants must provide records of all arrests unless disclosure of such records is prohibited under state law.  Thus, legal advocates should become familiar with the sealing and confidentiality laws that apply to juvenile records in their states.  In some states, juvenile records may not be shared with USCIS without a state court order.    

Review of DACA Denials

The USCIS Frequently Asked Questions (FAQs) on DACA indicate that applicants may seek review of DACA denials where (a) the denial is based on abandonment, but the applicant can show that s/he timely responded to the RFE; and (b) USCIS mailed the RFE to the wrong address even though the applicant submitted a proper change of address form before RFE was issued   Review may be requested by calling the NCSC and seeking a service request using the Service Request Management Tool (SRMT).  An applicant or legal representative may also submit a written request for administrative review to the regional service center that adjudicated the case.  

Legal advocates are encouraged to seek review of other types of USCIS errors.  For example, Christina Leddin, Immigration Specialist with Amigos Center, was able to overcome a DACA denial based on the applicant not establishing that she warranted a favorable exercise of prosecutorial discretion.  Thinking that the denial might be based on a discrepancy between the applicant’s true first name and the first name that appeared in some of her supporting documents, Christina argued that the denial was a USCIS administrative error.  In her request for case review, Christina explained the reason for the name discrepancy, and the case was ultimately reopened and approved.  CLINIC affiliates may contact CLINIC for assistance with seeking review of denials. 

Travel Abroad using Advance Parole

DACA recipients are eligible to apply for advance parole to temporarily travel abroad for educational, employment, or humanitarian reasons.  To date, DACA recipients have received advance parole approvals to visit sick relatives, study abroad, and conduct field work related to an academic course of study, among other reasons.  Several DACA recipients have reported that they left and returned to the U.S. with advance parole without any hurdles. 

In certain circumstances, DACA applicants returning to the U.S. with advance parole may qualify for adjustment of status under INA 245(a).  Indeed, one attorney for a DACA recipient reported that his client successfully adjusted status based on his marriage to a U.S. citizen following his return to the U.S. with advance parole.

Going Forward

CLINIC will continue to inform our network about developments in DACA adjudication policy and procedure, including updates on DACA renewals.  We applaud the vigorous and creative advocacy of the DACA advocates in the CLINIC network and we thank you for sharing your stories and strategies with your CLINIC colleagues. 

Special thanks to Graham Bateman, Sister Mary Ellen Burns, Christina Leddin, and Nubia Torres for their contributions to this article.  Please continue to share your updates, challenges, and successes with CLINIC Training and Legal Support Attorneys Tatyana Delgado, tdelgado@cliniclegal.org, and Ilissa Mira, imira@cliniclegal.org

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All about Priority Dates: Retention, Revocation, Reinstatement

Thursday, February 20th

2:00 - 3:30 (EST)

 

Are you confused as to exactly when your client can retain an earlier priority date?  What about the consequences of the petitioner's naturalizing?  What do you need to do when the derivative beneficiary ages out?  If a petition is terminated or revoked, can it ever be reinstated?  In this webinar we will review how priority dates are established, how they can be lost, and under what circumstances they may be recovered.  We will also discuss automatic conversion when the beneficiary marries, divorces, or ages out.  And we will analyze the real waiting time behind the priority date – it may be much longer than you think.

 

Register Here

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Now that 2014 is just around the corner, it's time to find out about trainings available to you in the coming year!

New Policy on Minors and False Claims to U.S. Citizenship

New Policy on Minors and False Claims to U.S. Citizenship

By Sarah Bronstein

In two separate letters to Senator Harry Reid of Nevada, the Departments of State (DOS) and Homeland Security (DHS) indicated that both federal agencies are adopting a new policy on regarding minors who make false claims to citizenship.   The letters, dated August 29, 2013 and September 12, 2013, state that the agencies have conducted a review of the false claim to citizenship ground of inadmissibility and have concluded that there are circumstances in which this ground of inadmissibility should not be applied to individuals who are under the age of 18. 

The false claim to citizenship ground of inadmissibility, INA § 212(a)(6)(C)(ii), applies to any foreign national who, on or after September 30, 1996, falsely represents himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law.  The issue of how this ground should be applied to minors has long been a contentious one.  The State Department issued guidance on this issue in April 2013 indicating that this ground of inadmissibility would not be applied in certain circumstances to claims made when the non-citizen was under the age of 18.  However, this guidance was quickly retracted.

In this latest guidance, DHS and DOS clarify that in order for a false claim to trigger this ground of inadmissibility, it must be made knowingly.  In addition, the agencies set an affirmative defense to this ground where: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim.  The burden is on the non-citizen to establish these elements clearly and beyond doubt.

Both agencies indicate in their letters that this guidance has been provided to the field and that the Adjudicator’s Field Manual (AFM) and the Foreign Affairs Manual (FAM) will be updated to reflect these changes.  The letters further state that the agencies are discussing procedures for individuals who were previously found inadmissible due to a false claim to citizenship made as a minor.  We will update you as developments continue.

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BIA Affirms Effect of Entry with False Claim of Citizenship

BIA Affirms Effect of Entry with False Claim of Citizenship

By Charles Wheeler

The BIA held that a woman who procured a U.S. passport by fraud and used it to gain entry to the United States was not considered “inspected and admitted,” and therefore is subject to the grounds of inadmissibility when placed in removal proceedings.  The Board had held more than 30 years ago that where an alien gained admission to the United States through a false claim of citizenship, it was considered entry without inspection.  Matter of Arequillin, 17 I&N Dec. 308 (BIA 1980).  The basis of that ruling came from a Supreme Court decision that found that U.S. citizens are not subject to the same level of scrutiny by border inspectors as non-citizens.  Reid v. INS, 420 U.S. 619 (1975).  The Court treated a person who enters through a false claim of citizenship as “comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected.”  In this case the BIA found the woman to have entered without inspection, to have been convicted of a crime of moral turpitude (procuring a passport by fraud), and in its discretion to not merit a grant of voluntary departure.  Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).

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Recent Circuit Court Cases on Derivation and Acquisition

Recent Circuit Court Cases on Derivation and Acquisition

By Jennie Guilfoyle and Debbie Smith

Derivation of Citizenship

Derivative citizenship under former INA § 321(a) does not require LPR status prior to turning 18, as long as the individual was residing in the United States before age 18, the Second Circuit held on August 12, 2013.  Nwozuzu v. Holder (2d Cir. 2013)

Kelechi Nwozuzu was born in Nigeria on March 8, 1977.  In 1982 he moved to the United States with his parents, who entered in F-1 nonimmigrant status as students.  In 1994 both his parents naturalized.  On February 6, 1995, when Nwozuzu was 17 years old, he applied for adjustment of status based on an I-130 his father had filed for him in 1990. That adjustment application was not adjudicated until after he had turned 18; he became a lawful permanent resident when he was 21.

Nwozuzu was put into removal proceedings on June 16, 2005, following three convictions in 2004 for possession of a loaded firearm and of marijuana.  He applied for citizenship while in proceedings.  His application was denied, but in October 2006, the Immigration Judge terminated his proceedings on the grounds that DHS had failed to establish that Nwozuzu was an alien.  DHS appealed this decision to the BIA, which held in 2008 that the IJ’s ruling was incorrect – that Nwozuzu was in fact an alien.  The BIA remanded the case to the IJ for further removal proceedings.  The IJ ruled against Nwozuzu, and ordered him removed; the BIA issued a final removal order in November 2011.  Nwozuzu appealed that decision to the Second Circuit.

The Second Circuit, looking closely at the language of former INA § 321(a), the derivation of citizenship statute that was in effect at the time Nwozuzu’s parents naturalized, and at the time he turned 18 (it was in effect from October 5, 1978 until February 26, 2001), determined that it does not require that a non-citizen child have resided in the United States as an LPR in order to derive citizenship upon the naturalization of both parents.

Former INA § 321(a) allowed derivation of citizenship by children born outside the United States upon:

  • The naturalization of both parents
  • While the child was under the age of 18
  • While the child was residing in the United States
  • Provided that the child was residing in the United States “pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized or thereafter begins to reside permanently in the U.S. while under the age of 18 years.”

The Second Circuit focused on the second prong of point 4, drawing a distinction between residing “pursuant to a lawful admission for permanent residence” and “residing permanently in the U.S. while under the age of 18,” holding that “reside permanently” means something different and less than lawful permanent residence. In Nwozuzu’s case, the court found that his application for adjustment of status in February 1995 was a sufficient indicator of his intention to remain permanently in the United States to constitute “residing permanently” under the derivation statute.  The fact that Nwozuzu was under 18 when his parents naturalized, and under 18 when he subsequently demonstrated his intention to live permanently in the United States meant that he did in fact derive citizenship.

In the Second Circuit, therefore, LPR status is not an absolute requirement for derivation under former INA § 321(a). Note, however, that several other circuits have examined this issue and come to the opposite conclusion. The Ninth and Eleventh Circuits have both held that the statute does require lawful permanent residence.  See U.S. v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010); Romero-Ruiz v. Mukasey, 538 F.3d. 1057 (9th Cir. 2008).

The current derivation statute, INA § 320, which applies in cases in which the last qualifying event was on or after February 27, 2001, specifies that in order to derive citizenship, the child must be living in the United States “pursuant to a lawful admission for permanent residence.”

Acquisition of Citizenship

In order for an unmarried U.S. citizen father to transmit citizenship to his child born abroad, he must meet the requirements specified by the version of the immigration statute, INA § 309, in effect at the time of the child's birth.  One of the requirements under INA § 309 for a child born in 1964 is that the child was legitimated while under age 21 under the laws of the child's or father's residence.  In its opinion, Saldana Iracheta v. Holder, No. 12-60087 (September 11, 2013), the Fifth Circuit Court of Appeals held that the BIA applied a non-existent provision of the Mexican Constitution in its erroneous decision that the child was not legitimated.  The Fifth Circuit analyzed the question of the child's legitimation by examining the relevant Mexican state statute and determined that the child had been legitimated and therefore had acquired United States citizenship at birth.

Sigifredo Saldana Iracheta was born in 1964 in the Mexican state of Tamaulipas to a U.S. citizen father and a Mexican citizen mother.  Although Saldana's parents never married, the couple had eight children together.  Saldana came to the United States and was granted temporary status as an agricultural worker in 1989.  Following a criminal conviction, he was placed in proceedings before the immigration court.

Saldana's citizenship claim required that he show:

  • He was legitimated before the age of 21 under the laws of the Mexican state where he resided or was domiciled as a child; and
  • His father resided in the United States for at least ten years, five or which were after the age of 14, at the time of Saldana's birth.

Saldana attempted to demonstrate that he acquired U.S. citizenship from his unmarried citizen father, but when he could not locate documents to support the claim, he was deported from the United States.

Saldana returned to the United States and filed several N-600s based on having acquired citizenship.  DHS and the AAO denied Saldana's N-600s, relying on several decisions by the BIA, including Matter of Reyes, 16 I&N Dec. 436 (BIA 1978).  Matter of Reyes held that under the Mexican Constitution, Article 314, a child may be legitimated only by the subsequent marriage of his or her parents.  In 2012, DHS reinstated Saldana's removal order and Saldana requested that the Fifth Circuit review the reinstatement order.

In its decision, the Fifth Circuit stated that DHS rejected Saldana's citizenship claim relying on Matter of Reyes for the proposition that Article 314 of the Mexican Constitution permits legitimation only where the child's parents later marry.  The court noted that "the BIA's mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from apply the correct law in subsequent cases." (Saldana Iracheta v. Holder, pg. 7, n.3).  Determining that under the Mexican civil code for the state of Tamaulipas Saldana was properly legitimated, the court found that Saldana established that he is a U.S. citizen.

The Saldana Iracheta v. Holder case reminds us that the issue of legitimation under a foreign statute is a complicated one and that the BIA can sometimes reach the wrong conclusion.  As advocates we need to challenge BIA decisions when we believe they are incorrectly decided.

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Waiving Crimes Away: All About 212(h) Waivers

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC Affiliates paying annual dues   

Your client wants to be become a lawful permanent resident but he has a criminal record.  You're not sure if his record will bar him from eligibility.  Your lawful permanent resident client was placed in removal proceedings upon returning from a trip abroad.  You need to determine if she can retain her residency through a waiver. Who qualifies for a waiver of crime-based inadmissibility?  What kinds of crimes are covered and what do you need to show to qualify for a waiver?  When can a lawful permanent resident use a 212(h) waiver to overcome losing his or her status based on a criminal conviction?  To learn all about 212(h) waivers, join CLINIC attorneys Sarah Bronstein and Susan Schreiber for a webinar on this topic.  


Register by clicking here. After registering you will receive an email confirmation containing information on joining the webinar.

 

For questions or additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

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Update from the NBC on Provisional Waivers

By Susan Schreiber and Charles Wheeler

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers.  The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants.  A summary of the information he provided appears below.

NBC Background

The NBC serves mainly as a pre-processing center for applications adjudicated at USCIS field offices, including I-485 adjustment applications and N-400 naturalization applications. In addition, the NBC adjudicates certain applications and petitions to completion, including I-90s, immediate relative I-130 petitions, interview-waivable adjustment applications and, since March 4, 2013, I-601A applications for provisional waivers.  In addition to its facility at Lee Summit, MO, the NBC has expanded to include a new facility in Overland Park, KS.   Approximately 500 government employees and 800 contract workers staff the Lee Summit site. Currently, the NBC facility in Lee Summit employs approximately 550 government workers, and 800 contract workers.  A new NBC facility in Overland Park, KS is expected to employ 400-500 government workers and a similar number of contract workers.

I-601A Adjudication

The NBC is divided into eight divisions.  Division 1 is responsible for I-601A adjudications and   is staffed with between 45-50 adjudicators and 5 supervisors.  When fully staffed, the division will have 6 supervisors, who in turn report to 2 section chiefs.

All I-601As are filed at the Chicago Lockbox, which reviews submissions under its own business rules that address document sufficiency.  If rejected, an application should be accompanied by an explanation of deficiency.  If accepted, the Lockbox creates a case receipt file and forwards it to the NBC, where it goes through its own initial processing checklist.  NBC contract staff goes through their checklist to determine if the application is complete.  If staff determines there are missing documents, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT" ("Just in Time”) shelves and is considered ready to be adjudicated.

Supervisors assign cases to adjudicators when they are ready to be adjudicated. When they receive a file, the adjudicator first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution.  For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard.  The adjudicator makes notes on the processing checklist, which is helpful in making the decision and for later supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored.  If it is approved, the file will be sent to the Texas Service Center.  The TSC holds on to the case files so they can be matched up later after the applicant immigrates.  The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa application until there is a decision on the waiver application. A "decisions" report is then sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals only spot-checked.  If a supervisor has questions or concerns about a particular decision, the supervisor is not supposed to tell the adjudicator how to rule in a particular case.  Instead, the supervisor should encourage a dialogue with the adjudicator to find out more about the decision recommendation.  If there is still disagreement as to whether the application should have been approved or denied, the supervisor may go to one of the section chiefs for further guidance.

Every week a report is generated indicating how many applications were adjudicated.  Based on those reports, the process is becoming more efficient.  The NBC is in communication and is sharing data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver.  It is looking specifically to see if applicants denied based on the “reason to believe” standard were found by the consulate to be inadmissible only for unlawful presence and later approved through an I-601. It is also seeking the opposite type of statistics: whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence.  After only six months of provisional waiver adjudication, the statistical evidence is not yet meaningful to draw any conclusions on these issues.

If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Both ICE and EOIR seem supportive of the provisional waiver process because it allows them to clear cases off their active docket where the respondent is likely to receive an immigrant visa.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.  

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate.  With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day.  Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for "reason to believe."  The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship.  Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days.  The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

Reason to Believe

Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted to keep inadmissibility determinations a function of the Department of State, so that USCIS officers would limit their consideration to waiver adjudication. This is because the USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence. At the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators would make a very quick assessment based on the name check and biometrics results as to whether the applicant might be inadmissible on another ground. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of what the conviction is for, when it occurred, or whether it falls within a recognized exception to inadmissibility, like a petty offense.  If  the fingerprint check resulted in a “hit” during an IDENT database search, and it revealed a conviction, then the application was denied under the “reason to believe” standard.  Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

As the NBC staff soon realized, this broad application of the "reason to believe" standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any "reason to believe" denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential "reason to believe" issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Mr. Blackwood noted that if the reason to believe standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will also consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly. Mr. Blackwood indicated during his presentation that denials under the reason to believe standard that seem clearly wrong could be brought to his attention and he would pull the file to see if the agency made a mistake.  The examples he gave where the standard might have been misapplied include cases where the applicant’s name and date of birth appear inconsistently in DHS data files, but the inconsistency appears to be a clerical error or insignificant.  It would not include cases containing criminal convictions, since the agency is waiting for further instruction before reviewing those.  To bring those cases to his attention, send an e-mail to the authors at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org.  Include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue an Request for Evidence (RFE) before issuing a denial.  NBC adjudicators will typically issue an RFE if they believe additional documentation will help them reach a decision in a case.  For example, if an applicant claims a health-related hardship, but only submits financial evidence, the adjudicator will issue an RFE.  Or if the applicant claims multiple hardships but submits only evidence supporting one claimed hardship, or weak evidence of hardship, the adjudicator will issue an RFE for the additional evidence.  But if the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE.  In other words, if additional documentation would not add any value to the hardship claim, the NBC will forego issuance of an RFE.  Mr. Blackwood noted that quality control measures are in place because all denials are reviewed by a supervisor. 

Mr. Blackwood explained that RFE response times are set at 30 days so that consular processing is not delayed.  A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE

Comparison with NSC Adjudications of I-601

NBC staff made adjustments to their standards for evaluating extreme hardship that has resulted in more provisional waiver approvals. These adjustments came in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals.  Mr. Blackwood explained that adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications.  Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.

Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship.  For this reason, the denial rates will not necessarily be comparable. 

Waiver Submission Format 

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case. Submit all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions.  Since the Lockbox removes all tabs and bindings, use some kind of pagination system to help identify and segregate supporting documentation.  Even though the application is scanned at the Lockbox, the original submission is still sent to the NBC; any highlighting of important documentation or color dividers separating exhibits will be retained.  If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#.   Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.

Conclusion

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

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By Susan Schreiber and Charles Wheeler

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers. The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants. A summary of the information he provided appears below.

Sarah Bronstein

In two separate letters to Senator Harry Reid of Nevada, the Departments of State (DOS) and Homeland Security (DHS) indicated that both federal agencies are adopting a new policy regarding minors who make false claims to citizenship.

Webinar - Travel Abroad for Deferred Action for Childhood Arrivals (DACA) Recipients

This webinar is for non-immigration lawyers, community organizers, Deferred Action for Childhood Arrivals (DACA) recipients, and others who would like to learn about how DACA recipients can travel abroad.   We will explain who is eligible to apply for permission to travel abroad using advance parole, legal issues to consider, how to apply for advance parole, travel logistics, and the post-travel impact on certain immigration benefits.  

 

Panelists:

 

  • Tatyana Delgado, Training and Legal Support Attorney, CLINIC
  • Ilissa Mira, Training and Legal Support Attorney, CLINIC
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Webinar - DACA - One Year Later

This webinar is for legal service providers and others helping DREAMers apply for Deferred Action for Childhood Arrivals (DACA).  One year after DACA’s launch, we will review important DACA developments and explore ways we can continue to improve DACA-related services.  In this webinar, we will look at DACA application numbers to better understand the DACA applicant pool.  We will also look at the numbers to identify where new or bolstered DACA outreach is needed and to whom such outreach should be targeted.  We will discuss advocacy successes and DACA approvals in complicated cases.  In addition, we will address lessons learned about advanced practice issues, such as applying for DACA with criminal records, meeting eligibility guidelines, and advance parole.  Finally, we will highlight ways legal service providers and advocates can continue to further DACA efforts and improve assistance to DREAMers going forward. 

Panelists:        

  • Tom Wong, Assistant Professor of Political Science, UC San Diego
  • Allison Posner, Director of Advocacy, CLINIC
  • Robert Yabes, Immigration and Legal Services Program Director, Catholic Charities of Santa Clara County
  • Tatyana Delgado, Training and Legal Support Attorney, CLINIC
  • Ilissa Mira, Training and Legal Support Attorney, CLINIC

Held on August 22, 2013

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BIA Clarifies When Derivatives May Adjust under 245(i)

BIA Clarifies When Derivatives May Adjust under 245(i)

By Charles Wheeler

In a recent decision the Board of Immigration Appeals held that after-acquired derivatives are not eligible to be considered “grandfathered” for purposes of eligibility for section 245(i) adjustment of status. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013).  This decision clarifies but is consistent with prior USCIS memos interpreting this provision.

By way of background, INA § 245(a) allows those who entered the United States with inspection to adjust status if they are either an immediate relative or are in one of the family-based preference categories and have always maintained lawful immigration status, including always working with employment authorization. INA § 245(i) allows for the adjustment of those who entered without inspection or, if they entered with inspection and are in one of the preference categories, overstayed their I-94 or worked illegally.

To qualify for 245(i), a petition (I-130, I-360, I-526, or labor certification) must have been filed on behalf of the beneficiary on or before April 30, 2001, and the beneficiary must have been physically present in the United States on December 21, 2000.  This physical presence requirement is waived for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries. The petition must have been “approvable” at the time of filing.

The BIA confirmed the long-standing USCIS policy that both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i).

The BIA has clarified that in order to be “grandfathered” and thus eligible for 245(i) adjustment, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as “after-acquired,” are not considered “grandfathered,” and thus cannot adjust under 245(i).  Nevertheless, if they are considered derivatives (“dependents”) of the principal beneficiary at the time he or she is adjusting under 245(i), they may adjust as a derivative with that parent or spouse. In other words, they may not adjust under 245(i) independent of that relationship.

Example.  Juan, who entered the United States illegally in 1997, is the beneficiary of a fourth preference petition filed on his behalf by his US citizen brother in 2000.  The petition was approved. Juan married his undocumented wife, Juanita, in March 2001. When the F-4 priority date becomes current, both Juan and Juanita are eligible to adjust as grandfathered aliens under 245(i). Should he and his wife divorce before the F-4 becomes current, Juan can still adjust under 245(i) when it does become current, and Juanita can adjust under 245(i) should she become the beneficiary of a separate petition filed in her behalf, such as by a subsequent husband.

Example. Same facts only Juan and Juanita marry in March 2013 and they stay married.  Juanita is considered an after-acquired spouse. Juanita is not grandfathered under 245(i), but is still eligible to adjust with Juan under 245(i), regardless of when she entered the United States.  Since she is not considered grandfathered, she could not divorce Juan, re-marry, be petitioned by an LPR or U.S. citizen spouse, and adjust under 245(i).  She could only adjust under 245(i) as Juan’s derivative spouse.

The facts in the case were a bit complicated.  The husband, Charlemagne Estrada, had a family-based petition filed in his behalf prior to April 30, 2001 by his first spouse, though the couple later divorced.  Because the petition was considered approvable at the time of filing, Charlemagne was grandfathered under 245(i).  However, in order to adjust, he needed a new petition filed in his behalf.  He and his second wife, Vanessa, were married after April 30, 2001, thus making her an after-acquired spouse. But his second wife was also undocumented.  Because she could not file a petition in his behalf, he could not take advantage of his grandfathered status based on their marriage. 

Vanessa had had a labor certification filed in her behalf prior to April 30, 2001, but it was determined by an immigration judge not to have been approvable when filed.  A subsequent labor certification was filed and a Form I-140 approved on her behalf, but not until 2006.  Because she was not considered grandfathered under Charlemagne’s earlier I-130 petition, she was not eligible to adjust under 245(i) based on the second labor certification and approved I-140. Because no subsequent petition had been filed and approved in Charlemagne’s behalf, which would have allowed him to adjust under 245(i), Vanessa cannot adjust with him as his derivative spouse. Hence, the BIA found neither adjustment applicant eligible for 245(i).

The BIA case provides a good review of 245(i) eligibility for adjustment of status, clarifies the definition of after-acquired derivatives, and distinguishes them from those who are grandfathered under that section of the law.

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Court Strikes Down Regulation Limiting K-4 Adjustment

Court Strikes Down Regulation Limiting K-4 Adjustment

 By Charles Wheeler

 The Seventh Circuit Court of Appeals has held that in order to be eligible for adjustment of status, a child who entered the United States on a K-4 visa need only establish that he or she is a minor child of a K-3 parent who married the petitioning U.S. citizen.  Akram v. Holder, No. A096 769 035 (July 9, 2013). The court struck down the regulation at 8 CFR § 245.1(i) that requires the adjustment applicant to qualify as a “child” of the petitioning U.S. citizen parent.  Therefore, children who were over 18 years of age when the marriage took place, and thus do not qualify as stepchildren, may nevertheless adjust status without the need for the U.S. citizen to file an I-130.  This regulation had prevented children over 18 from qualifying as “stepchildren” under the definition of “child,” and thus required them to leave the United States and immigrate based on a separate petition filed by their LPR parent.

The facts in the case were not complicated.  A U.S. citizen married a woman in Pakistan.  At the time the woman had an 18-year-old daughter, Akram.  The U.S. citizen filed an I-130 petition for the spouse, but was unable to file an I-130 for the stepchild because she was not under 18 at the time of the marriage, which is a statutory requirement in the definition of “child.”  He also filed a petition to have the spouse enter as a K-3 nonimmigrant and the stepchild as a K-4.  To qualify for a K-4, the child need only establish that she was the minor unmarried child (under 21) of the K-3.  The spouse adjusted status, but the child was prevented from adjusting, since no I-130 had been filed due to inability to establish a “stepchild” relationship with the U.S. citizen.  The regulationsrequire a K-4 seeking adjustment of status to have filed an I-130 petition showing that he or she is the “child of the U.S. citizen who originally filed the petition for that alien’s K-4 status.”  Failing that, current policy and procedures require Akram to leave the United States after her I-94 expired and wait abroad until her LPR mother could petition for her.

The court analyzed the statute, § 1101(a)(15)(K)(iii), and decided that its intention was for K-4s to enter the United States and later adjust status.  It found nothing limiting K-4s to adjust based on their relationship to the K-4 petitioner.  That restriction exists only in the regulation, 8 CFR § 245.1(i), which the court found frustrated the statutory goal.  The court stated: “Nothing in the statute suggests that Congress intended for K-4s like Akram to come to the United States as mere temporary visitors.” Therefore, the court found that the regulation was invalid in its requirement that the stepchild’s adjustment be based on a relationship to the U.S. citizen petitioner.

In this case the K-3 mother adjusted status and filed an I-130 petition for the son, which was still pending at the time the court case was decided.  The court went further and addressed the issue about whether Akram could adjust based on that petition, assuming it was approved and the priority date was current.  It concluded that she could, and thus also struck down that part of the regulation that required that adjustment be based only on a petition filed by the U.S. citizen who filed the K-4 petition.  According to the court, it “is the K-3’s marriage, not the K-4’s relationship to the petitioning citizen, that matters.”  This presumes, of course, that Akram would have satisfied other eligibility requirements for adjustment of status as a preference category beneficiary, which include always maintaining lawful immigration status.

To summarize, in the Seventh Circuit, that portion of 8 CFR § 245.1(i) that provides that a K-4 cannot adjust status “in any way other than as a … child of the U.S. citizen who originally filed the petition for that alien’s …K-4 status” has been struck down.  It remains to be seen if the USCIS will agree to apply this holding nationwide or limit it to the states within that federal circuit (Illinois, Indiana, and Wisconsin).

Resources by type: 

Updates on Family-Based Immigration from the VSC and NVC

Updates on Family-Based Immigration from the VSC and NVC

By Jennie Guilfoyle

On July 9-10, 2013, CLINIC conducted a training on family-based immigration in Manchester NH. Representatives from the Vermont Service Center, the National Visa Center, and the Manchester USCIS field office attended the training and answered questions. The training was followed on July 11 by a tour of the NVC, at which NVC staff answered further questions. This article summarizes the highlights of remarks by staff from the VSC and the NVC.

Vermont Service Center

Background on the VSC

The VSC has approximately 1,500 employees, of which 1,000 are federal government employees, and 500 work for a contractor.  The VSC has two facilities, in St. Albans and Essex, Vermont. In the family-based immigration section, there are 200 adjudications officers, 21 supervisors, and 4 section chiefs. Adjudicators receive basic immigration law training when they begin work at the VSC, and then start by working on one specific form type. After a few months, they are moved to another form type. New adjudicators are paired with mentors, and supervisors review all their work at first. Supervisors review some portion of every adjudicator’s work each month.

General Case Processing

The VSC adjudicates Forms I-129F, I-130, and I-751. Forms I-129F and I-130 are sent to the lockbox, which fees them in, issues receipt notices, and then forwards them to the VSC. Forms I-751 are sent directly to the VSC. When any of these forms arrive at the VSC, they are put on the shelf in receipt date order, and that is the order in which they are processed. The VSC indicated that processing times for all these petitions are now in what they consider the normal range, which is about five months.

I-129Fs

The VSC discussed waivers of the requirement that an I-129F petitioner and beneficiary must have met in person in the two years prior to filing the I-129F. When there are medical reasons for the failure to meet, they look for supporting documentation that demonstrates that a meeting would entail extreme hardship; financial hardship generally will not suffice. The documentation would need to include specific information about why the petitioner and beneficiary cannot travel to meet each other, including why they are unable to meet in a third country between the United States and the beneficiary’s home country. There is a high bar to getting a medical waiver for the in-person meeting requirement.

The VSC indicated that they do not receive many waiver requests based on religious or cultural factors. If there are religious and/or cultural reasons for the failure to meet in person, they expect to see evidence from a religious leader that this is the custom in that country or locale. In their experience, they expect that even in religions or cultures that ban meetings of the intended spouses alone, that there may be ways for them to meet with a third party present; such a meeting satisfies the in-person meeting requirement. Their understanding is that such chaperoned meetings are acceptable in most countries these days.

Retention of Priority Dates

CLINIC inquired how the VSC is handling assignment of priority dates in cases in which an LPR spouse has filed an I-130 for a spouse and derivative children, and subsequently files a new I-130 for the children because the principal spouse is inadmissible and thus cannot immigrate.  Will the VSC assign the priority date from the earlier petition to the subsequent I-130s for the derivatives? The VSC indicated that they are currently not making decisions in such cases, but are awaiting guidance from USCIS Headquarters that they understand will be forthcoming.

I-130 Interviews

Advocates at the training noted that USCIS field offices seem to be doing interviews on I-130s for people who are not in removal proceedings. The VSC responded that they have stopped receiving stand-alone immediate relative I-130s for adjudication, and that these I-130s are now being distributed to district offices for adjudication, and that perhaps some district offices have decided to conduct interviews.

If the marriage took place after the beneficiary was put into removal proceedings, the case would be subject to 204(g), and sent to the district office for interview, no matter how strong the evidence of bona fide marriage might be.

I-130 and I-129F Revocations

The VSC does not have statistics on how often I-130s and I-129Fs are sent back from consulates with requests for revocation.  Consular officers return petitions for many reasons, the most typical being that the beneficiary has died, or has already immigrated another way. Other reasons include requesting an additional look into the bona fides of a family relationship, or at whether the relationship is still valid for immigration purposes.

Once cases are returned to the VSC, the VSC does not have a standard processing time. They work these cases as they are received back from the consulate, and as resources and time allow. Sometimes they work easier revocations first. They are currently training a new group of officers to work them.

The VSC does not send receipt notices to applicants when it receives consular returns. The VSC advises that advocates can reach out to VSC and ask for a status report on a returned case.  The VSC should be able to confirm whether or not they have the case, and where it stands in the process.

204(l) Cases

The VSC indicated that if the petitioner or principal beneficiary dies while the petition is at the VSC, that they would like to be informed about the death as soon as possible, even if the priority date will not be current in the near future.

Adam Walsh Act Cases

Since March 2011, the VSC has had sole jurisdiction over Adam Walsh Act cases (cases in which the petitioner has been convicted of a “specified offense against a minor”).  The VSC has a team of seven officers who adjudicate all Adam Walsh cases. The VSC reported receiving about 400 AWA cases last year. It has not yet finished processing all of them, but has approved only two cases, representing about one percent of the total number of cases adjudicated.

Changing Basis of I-751 Waiver After Filing

CLINIC inquired about how to proceed after a couple has filed a joint I-751 petition, and then divorce while the petition is pending. The VSC indicated that upon request, they can in this situation change the petition from a joint petition to a waiver, but that this is the only situation in which they can do so. In any other situation (e.g. changing from a jointly filed petition to a waiver based on death, battery or extreme cruelty, or extreme hardship), the applicant would have to file a new I-751.  This is based on a USCIS Headquarters directive.

Interviews for I-751s

The VSC said that interviews are most likely to occur in cases that lack sufficient evidence of a bona fide marriage. Before they would send a case for interview, they would issue an RFE asking for proof of good faith continuing marriage.  They recommend including evidence from each year of the marriage. Detailed evidence is encouraged; they especially like to see evidence of financial interrelationship. When advocates submit evidence of joint bank accounts, the VSC likes to see a transaction history for the accounts, to demonstrate that the couple really uses the account. Waiver cases, they said, are no more likely than any other cases to be interviewed.

Late Filing I-751s

USCIS may accept late-filed I-751s (filed after the two-year anniversary of the adjustment of status) if the applicant shows “good cause” for the failure to timely file. The VSC noted that there is now language in the instructions for the I-751 that states: “if your failure to file was through no fault of your own, you may file your petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if you demonstrate when you submit the petition that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable.” The VSC said that they might consider health or family issues as good causes. They did not provide any time period beyond which it would be too late to file an I-751, but encouraged practitioners to submit a late I-751, with a reasonable explanation for the late filing.  They said that their “policy is pretty liberal, and they aren’t trying to give people trouble.”  They also indicated that in cases in which an I-751 is not timely filed, it generally will take them a long time to put the applicant into proceedings.

Filing Tips from the VSC Adjudicators

Organization of Documents

The VSC indicated that there is no one way they prefer files to be organized, but that organization is extremely helpful to them.  They encouraged advocates to think about how to make it easier for the reader to navigate and comprehend the contents of the file. They find tabs and tables of contents to be hugely helpful.

Translations of Birth Certificates

Advocates inquired whether or not it is necessary to translate every word of a long form birth certificate, or if it is sufficient to translate only the portions that refer specifically to the individual listed on the certificate. The VSC indicated that they prefer to read everything on the birth certificate, no matter how long it is. They added that USCIS Headquarters has told them to ask for full translations of the document, and advised that advocates may therefore begin to see more RFEs asking for full translations.

Communicating with the VSC

The VSC indicated that the National Customer Service Center 800 number is their preferred method for communication. Advocates may also use the VSC@ncscfollowup.dhs.gov email addresses; emails sent to this address are directed to the VSC.

National Visa Center

Role of the NVC

The National Visa Center, which opened in 1994, is part of the Department of State. It handles all immigrant visa pre-processing. The NVC does not do any adjudication; it receives approved petitions from USCIS, and then ensures that all consular processing forms are filled out, all fees are paid, and many of the required documents collected for consular processing. The NVC forwards these completed files to the appropriate consular posts abroad, and in most cases schedules consular interviews and informs applicants about their interview dates. Because the NVC does not adjudicate petitions, there are only five State Department employees at the NVC, and more than 500 contract employees.

The NVC receives approved petitions from all four USCIS Service Centers, and from the NBC; they received I-130s, I-129Fs, I-140s, I-730s, and adoption-related petitions. Currently the NVC is receiving between 8,000 and 10,000 petitions per week.  The NVC stores these cases until they are close to being ready for consular processing.  Currently there are approximately 2.4 million files at the NVC.

The NVC noted that historically, once USCIS approved a case, the NVC would receive it within 15 days. Over the past six months, that timing has changed dramatically. The NVC is finding it is currently taking longer – in some cases as many as six to eight weeks – for cases to be sent to NVC once they are approved. Therefore, they now advise applicants to wait eight weeks following USCIS approval to inquire with the NVC about a case’s whereabouts.

For family-based immigrant visa cases, the NVC keeps track of which priority dates are close to becoming current, and begins to request forms, fees, and documents from applicants. They consider cases to be “document qualified” when the DS-230 or DS-260, the I-864, and all police certificates have been completed and submitted.  Some posts require that also all civil documents have to be submitted to the NVC before the case is considered document qualified.

Once a case is document qualified, and there is a visa available, the NVC considers the case ready for scheduling.  The NVC currently schedules interviews for all consular posts except Guangzhuo, China. Interview dates are typically scheduled 6-8 weeks before the actual interview. Once the interview is scheduled, the NVC sends a letter or email to the petitioner or agent, the representative (if there is one), and the applicant (if there is no agent designated). This letter lists the date and time of the interview, and directs the applicant back to the consulate’s website for further instructions. The NVC currently schedules about 25,000 interviews per month.

Electronic Filing and Processing

The NVC staff said that they are moving forward with Transformation, the process by which all immigration-related processing will take place online.  Eventually the immigrant visa process will be entirely electronic. Currently 80 percent of consular processing fees are paid online, and there are several pilot sites at which immigrant visa applicants must scan all their required documents and submit them to the NVC via email: Ashgabat, Turkmenistan; Damascus, Syria; Kabul, Afghanistan; Ciudad Juarez, Mexico (MEP cases only); Sana’a, Yemen; and Amman, Jordan.  Electronic processing is optional at Guangzhou, China and Montreal, Canada.

Even at all these electronic processing sites, though, the processing is still not fully electronic; USCIS still sends a paper file to the NVC. The NVC then scans that paper file into their system, and asks applicants to submit documents via email. This cuts down case processing time by about half. The NVC said that eventually the entire process will be electronic, and that applicants will be able to scan and upload documents directly into their system, without having to email them.

The DS-260, the fully online immigrant visa application form, is currently in use for cases at 11 posts: Kabul, Afghanistan; Montreal, Canada; Athens, Greece; Baghdad, Iraq; Amman, Jordan; Ciudad Juarez and Mexico City, Mexico; Islamabad, Pakistan; Lima, Peru; Damascus, Syria; and Sana’a, Yemen. DOS plans to expand use of the DS-260 to all other posts, possibly as soon as the end of this summer.

The DS-260 must be filled out online, but it does not appear on screen as a fillable PDF, the way USCIS forms do. Those filling out the form go through it question by question. Advocates at the training asked whether it is possible to get a complete copy of a blank DS-260 as a sample, to aid in working with clients. The NVC said that this is not possible.

DOMA Issues

On the date of the CLINIC training, the NVC was awaiting guidance from the State Department Visa Office on how to handle same-sex marriage issues, in the wake of the Supreme Court decision, U.S. v. Windsor, that struck down the Defense of Marriage Act.

Note that following the conference, on August 2, the State Department issued a cable with guidance on same-sex marriage issues:  http://travel.state.gov/pdf/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf.

Provisional Waiver Process: I-601A

Applicants for LPR status who will consular process, and will trigger the three- or ten-year unlawful presence bar when they depart the United States, and who are not subject to any other grounds of inadmissibility, may now file a “provisional waiver” application on Form I-601A before departing the country. USCIS then adjudicates that application before the applicant leaves the United States. The NVC stated that as of mid-July, USCIS had received approximately 7,000 provisional waiver applications, and had adjudicated a few hundred of those.

When USCIS approves an I-601A, it notifies the NVC. There is no need to notify the NVC when filing an I-601A, as USCIS does that. Once the NVC learns that an I-601A was filed on a particular case, they put the case on hold, and do not schedule the case for an interview until USCIS notifies the NVC about USCIS’s decision on the provisional waiver application. The NVC indicated that when applicants file I-601As with USCIS, they must keep processing their case with the NVC.  The NVC also advised advocates that I-601A applicants must send their immigrant visa fee receipts along with the I-601A application; the majority of the applications rejected thus far were rejected for failure to include the fee receipt.

Fraud Prevention Unit

The NVC has a Fraud Prevention Unit, established in 2003, that pre-screens certain cases. The unit is staffed by State Department employees, one USCIS officer, and 35 contract support staff.  The unit runs queries in commercial and government databases, as well as through social media sites like Facebook, to give consular officers more information in certain cases. For example, a petitioner might allege that he is divorced, but a search of such databases might reveal that he and his ex-wife have bought property together, and live together. The Fraud Prevention Unit would then provide this information to the consular officer in a memo.

Consular Returns

When a consular officer feels after the consular interview that a petition approval should be revoked, the officer writes a memo explaining why, and sends the case back to the NVC, which then sends the case back to USCIS. If USCIS reaffirms the approval, they return the case to the NVC, which sends the case back overseas to the consulate.

In 2012, the NVC received about 28,000 consular returns, which it generally forwarded to USCIS within 6 or 7 days of receipt. The NVC also returned another 16,000 petitions directly to USCIS, without ever sending them to post, in cases in which it learned that the beneficiary would no longer be eligible for a visa. The NVC noted that when a petitioner (for instance, a U.S. citizen spouse) dies while the petition is at the consular post, the consular officer does not have the authority to convert the case to a widow/er self-petition, and would have to return the case to USCIS.

Tips for Working with the NVC

Communicating with the NVC

If you call the NVC, be aware that Mondays are their busiest day of the week. Their phone lines are open from 7 a.m. to midnight Monday to Friday, and they recommend that the shortest wait times are before 10 a.m. Eastern time, and after 8 p.m. Eastern.

If you email the NVC at nvcattorney@state.gov, put the NVC case number in the email subject line. In the body of the email, make sure to include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, and your office information.

When You Receive a Series of Identical RFEs on the Same Case

Several advocates at the training mentioned getting a series of identical RFEs (which the NVC calls “checklist letters”) from the NVC, asking for something that the advocate believed he or she had already sent. The NVC explained that they use template checklist letters, and that advocates who find themselves in this situation can email the NVC and ask for the case to be escalated to a supervisor for review and clarification. The NVC also noted that they are working on modifying their checklist letters so that if they need to respond to an advocate a second or third time on the same case, they will not necessarily send a checklist letter identical to the first one they sent.

Correcting Mistakes in Previously Submitted DS-260

The DS-260 is submitted online; once an applicant submits the completed form, there is no way to go back and correct any mistakes. The NVC informed participants at the conference that if an applicant needs to correct a previously submitted DS-260 for a case that is still at the NVC, the advocate can contact the NVC (via email or telephone) and they can “unlock” the form so that the applicant can go back in and amend it.  Once the case has been scheduled for an interview, however, the NVC can no longer unlock the form, and the applicant would have to inform the consular officer of the correction during the interview.

Resources by type: 
CLINIC's new book Filing Successful Provisional Waivers: A Practitioner's Guide provides a step-by-step guide to the new provisional waiver process. The book's ten chapters and numerous sample materials guide practitioners through the process of interviewing clients, establishing extreme hardship, completing the waiver form, preparing declarations, identifying and gathering supporting documents, and filing the waiver application.

Overview of Immigration Law and Skills

E-learning Course:

Overview of Immigration Law and Skills

April 18 – May 16, 2013 

$200 per person for CLINIC affiliate agencies

   $225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

This four week e-learning course provides the new immigration practitioner with an overview of immigration law concepts and the practice skills necessary to be an effective advocate. Through readings, webinars, and exercises, participants will learn key concepts and remedies in immigration law and the functions of the different government agencies that carry out the law.  Topics covered will include introductory immigration concepts; an overview of family-based immigration; an overview of obtaining permanent residence status; and inadmissibility and deportability concepts.   The course will also cover client interviewing techniques, methods for conducting legal research and staying up-to-date on the law and how to deal with ethical issues in the practice of immigration law.    

This course involves a blend of self-directed learning and interaction with both the instructors and the other course participants. Students learn by taking part in weekly live webinars, completing reading assignments, exercises and activities each week; and sharing ideas with each other in online discussion forums. The course requires a time commitment of approximately four hours per week, and most of the course work may be done by students on their own schedules. Participants are strongly encouraged to attend each live webinar at the scheduled time, but all webinars are recorded and posted on the course website, and may be accessed by course participants who are unable to attend a particular webinar.  

The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Kristina Karpinski. For questions about the course content, please contact Kristina Karpinski at kkarpinski@cliniclegal.org.

Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.  Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Additionally, please note that the course is geared toward individuals who have little to no prior immigration law experience.

For a detailed course outline, including the dates and times of the live webinars, click here.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you

are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is April 12, 2013 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

All About Voluntary Departure; What It Is, What You Get, and What You Lose When You Don't Depart

March 27, 2013
All About Voluntary Departure; What It Is, What You Get, and What You Lose When You Don't Depart 

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC Affiliates paying annual dues 

Who qualifies for voluntary departure and what are the advantages and disadvantages of a grant of "VD"?  Whether or not you represent clients in removal proceedings, you will certainly have clients who currently have VD, or overstayed a grant of VD and now want to know what if any impact that has on eligibility for another immigration benefit.  To learn about eligibility for voluntary departure, time limits, establishing compliance, reopening VD orders, and consequences for failure to depart, join CLINIC attorneys Sarah Bronstein and Susan Schreiber for a review of all matters related to voluntary departure. 

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information, please contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Category: 

All About Conditional Residency

February 27, 2013
All About Conditional Residency  

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC Affiliates paying annual dues

In this webinar we start with the basics on who is subject to conditional residency and who is not.  We will discuss the rights, benefits, and obligations of conditional residency, including how to remove the conditions after two years. We will discuss the joint petition and the options for waiving it due to death, divorce, domestic violence, and extreme hardship. Finally, we will cover common problems such as late filings and options for clients in failing marriages.  Join CLINIC attorneys Jennie Guilfoyle and Charles Wheeler for this in-depth discussion. 

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information, please contact Dinah Suncin at dscuncin@cliniclegal.org

Training Type: 
Training Category: 

When Is a Kid a Kid (under the INA)?

 April 29, 2013

When Is a Kid a Kid (under the INA)?

 
2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC Affiliates paying annual dues  

How old do you have to be to sign an affidavit of support or be counted as a household member? To qualify as a stepchild?  To derive citizenship when your parent naturalizes? Of the seven ways to be a child under INA § 101(b), which ones satisfy that definition under 101(c)? What does it mean for a child to be "legitimated?"  And what are the various options for immigrating as an adopted child?  In this webinar, CLINIC attorneys Susan Schreiber and Charles Wheeler will review all the requirements of being a "child" under the Immigration and Nationality Act, as well as the various ways that age becomes a factor in immigration law benefits and responsibilities.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information, please contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Type: 
Training Category: 

Introduction to Immigration Law Practice: A Course for New Practitioners

Introduction to Immigration Law Practice:
A Course for New Practitioners


Presented by
Catholic Legal Immigration Network, Inc. (CLINIC)
And
Catholic Charities of Dallas, Immigration and Legal Services Program

April 23 – 24, 2013
8:45 a.m. - 5:15 p.m. – Day One
8:45 a.m. – 4:45 p.m. – Day Two

Location:
Catholic Charities of Dallas
1st Floor Conference Room
9461 LBJ Freeway (Hwy 635)
Dallas, TX 75243
(214) 634-7182 x 228

$235 per person from CLINIC affiliate programs; $705 cap ($50 materials fee per person for more than 3 attendees from the same office site)

$260 per person for other non-profit agency staff; $780 cap
($50 materials fee per person for more than 3 attendees from the same office site)

$390 per person for private attorneys and staff 

Continental breakfast included.  Lunch is on your own.

This two-day training provides the new immigration practitioner with an overview of immigration law concepts and the practice skills necessary to be an effective advocate. Through large group presentations and small group exercises, participants learn about rights and remedies under immigration law, the functions of the different government agencies that carry out immigration law,

and the fundamentals of interviewing clients, preparing applications, and staying up-to-date on the law.  Topics covered include the family-based petition process, adjustment of status, consular processing, inadmissibility and deportability concepts and select grounds, naturalization and BIA accreditation.  The trainers for this program are CLINIC attorneys Sarah Bronstein and Charles Wheeler.  

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are not an affiliate and are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649.  Your registration will be confirmed upon receipt of this letter. If you fail to submit your 501(c)(3) letter you can be disenrolled. If you are an attorney, please include your state bar number. Payment is by credit card only.  Please be sure to register under the correct category and for the correct training.  All registration changes, cancellations or disenrollments are subject to an administrative charge of $70.  Please note that CLINIC can only issue refunds for a training until one week prior to the first day of the training.

The deadline for registration is April 18 or sooner if registration is filled.  For registration information contact Dinah Suncin at dsuncin@cliniclegal.org.

Hotel Reservations:  A block of rooms is being held at the Holiday Inn Express Hotels and Suites, located at 9089 Vantage Point Drive, about a mile from the trainings site.  The room rate is $85.00 per night, plus tax.  To make a reservation, contact the hotel by April 15 at (972) 889-9972 and ask for the group block under CLINIC.  The hotel offers free shuttle services from the Love Field airport and will provide shuttle service to and from the training site.  Contact the hotel if you would like to use the shuttle service.   

Training Location and Parking:  Catholic Charities of Dallas is located on the northeast corner of the intersection of the LBJ Freeway (Hwy 635) and Abrams Road.  The office is in the Northcreek Place office park, across the parking lot from the Chase Bank building.  Free parking is available anywhere in the office complex parking lot.

REGISTER HERE

Training Category: 
Training Location: 

USCIS Finalizes Regulation on Provisional Waivers for Unlawful Presence

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility.  The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview.  The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S. citizen spouse or parent.  To be eligible, the applicant would need to have an approved I-130 or I-360 petition and have paid the immigrant visa fee bill.

Read the entire memo here.

Resources by type: 
Debbie Smith and Charles Wheeler

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility.  The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview.  The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S. citizen spouse or parent.  To be eligible, the applicant would need to have an approved I-130 or I-360 petition and have paid the immigrant visa fee bill. 

The USCIS will begin receiving and adjudicating the provisional waivers on March 4, 2013.  No applications will be accepted before that date. Applicants will be using a new Form I-601A, which the agency will publish sometime before that date. The filing fee for the waiver application is $585.  There is no filing fee waiver available for the provisional waiver or the biometrics that are required as part of the process.

Good Moral Character in Naturalization Cases

E-learning Course:
Good Moral Character in Naturalization Cases

March 18 – April 15, 2013

$200 per person for CLINIC affiliate agencies
$225 per person for other nonprofit agency staff
$325 per person for private attorneys and staff

This four-week training provides an in-depth examination of the statutory and regulatory requirements for demonstrating good moral character in naturalization cases.  The training will cover the crime-based bars to showing good moral character including crimes of moral turpitude and aggravated felonies.  We will also examine the regulatory requirements of good moral character such as failure to register for the selective service, provide child support or pay income taxes.  We will also explore how to assess the likelihood that a client will be found to lack good moral character under the “residual clause” or as a matter of discretion. 

The course starts on March 18 with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample materials to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes four webinars conducted on consecutive Mondays at 2:00 p.m. EST starting on March 25.  Each webinar lasts approximately 90 minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

The instructors for this course will be CLINIC attorneys Sarah Bronstein and Debbie Smith. For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Advanced.  This is an in-depth look at the requirements for good moral character in naturalization cases for the practitioner who already understands the basic requirements for naturalization. Familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organization with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are not an affiliate and are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3)letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andrés Abella. Your registration will be confirmed upon receipt of this letter.  If you fail to submit your 501(c) (3) letter you can be disenrolled. If you are an attorney, please include your state bar number.  Payment is by credit card only.

Please be sure to register under the correct category and for the correct training.  All registration changes, cancellations or disenrollments are subject to an administrative charge of $70.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is March 13, 2013 or sooner if registration is filled. For registration information contact Andrés Abella at aabella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Overview of Citizenship: Acquisition, Derivation and Naturalization

E-learning Course:
Overview of Citizenship: Acquisition, Derivation and Naturalization

 July 11 – August 8, 2013

$200 per person for CLINIC affiliate agencies
$225 per person for other nonprofit agency staff
$325 per person for private attorneys and staff

This four-week course covers acquisition and derivation of citizenship, and the requirements for naturalization, including residence, physical presence, good moral character, civics and English language requirements and exemptions, disability waivers, oath requirements and the application process. Throughout the course, participants will review both the law and procedure for acquisition, derivation, and naturalization, including examination of primary and secondary sources and sample application forms.

The course starts on July 11 with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample case files to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes four webinars conducted on consecutive Thursdays at 2:00 p.m. EST starting on Jult18.  Each webinar lasts approximately ninety minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.   The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Debbie Smith. For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Introductory This is an overview of citizenship for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organization with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are not an affiliate and are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3)letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andrés Abella. Your registration will be confirmed upon receipt of this letter.  If you fail to submit your 501(c) (3) letter you can be disenrolled. If you are an attorney, please include your state bar number.  Payment is by credit card only.

Please be sure to register under the correct category and for the correct training.  All registration changes, cancellations or disenrollments are subject to an administrative charge of $70.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is July 8, 2013 or sooner if registration is filled. For registration information contact Andrés Abella at aabella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Bars and Waivers: All about Inadmissibility Grounds and How to Overcome Them

Co-Sponsored by
Catholic Legal Immigration Network, Inc. (CLINIC), and
Catholic Charities Immigration Legal Services of the Archdiocese of Omaha

 March 20-22, 2013
8:30 – 5:00, March 20, 21
Optional tour of Nebraska Service Center, March 22

Location:
Hilton Garden Inn
1005 Dodge St.
Omaha, NE 68102
(402) 341-4400 

$235 per person for affiliate agency staff; $705 cap ($50 materials fee per person for more than 3 attendees from the same office site) 

$260 per person for other non-profit agency staff; $780 cap ($50 materials fee per person for more than 3 attendees from the same office site) 

$390 per person for private attorneys and staff

Continental breakfast is included.  Lunch is on your own. 

This two-day training will provide an in-depth analysis of the most common grounds of inadmissibility, including fraud, false claims to US citizenship, crimes, immigration violations, smuggling and health grounds. The training will also present practical information on developing and submitting a successful waiver application to overcome inadmissibility.  Participants will learn how to develop a theory for the case, marshal the facts, and obtain necessary supporting documentation. The training will also cover the latest developments on provisional waivers and stateside processing, including a presentation by representatives from the Nebraska Service Center. Training participants may also sign up to tour the Nebraska Service Center on March 22.

The trainers for this program are CLINIC attorneys Charles Wheeler and Susan Schreiber.  An application for Nebraska CLE credit is pending.

The training is for the staff of Catholic Charities and other community-based organization with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are not an affiliate and are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3)letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649. Your registration will be confirmed upon receipt of this letter.  If you fail to submit your 501(c) (3) letter you can be disenrolled. If you are an attorney, please include your state bar number.  Payment is by credit card only.

Please be sure to register under the correct category and for the correct training.  All registration changes, cancellations or disenrollments are subject to an administrative charge of $70.  Please note that CLINIC can only issue refunds for a training up to one week prior to the first day of the training.

Space is limited to 50 participants. The deadline for registration is March 14 or sooner if registration is filled.  For registration information contact Dinah M. Suncín at dsuncin@cliniclegal.org.

For the training agenda, click here.

(Please note that attendees must first register and pay to attend the training in order to participate in the bus tour.)


To sign up for the tour of the Nebraska Service Center and register for bus transportation, click here.

Hotel Information:  A block of rooms is being held at the Hilton Garden Inn at 1005 Dodge St. where the training is taking place. The room rate is $109.00 per night single or double occupancy, plus tax. To make a reservation, contact the hotel by February 19 at 402-341 4400 and ask for the group block under CLINIC.  The hotel is in the downtown/Old Market area of Omaha and offers free shuttle service to and from Eppely Airfield.  

Tour of the NSC: An optional tour of the Nebraska Service Center is being offered on Friday March 22.   A bus will depart the Hilton Garden Inn at approximately 8:00 a.m. for the Nebraska Service Center in Lincoln and then head back to Omaha by noon.  If possible, the bus will go directly to the Omaha airport before returning to the Hilton Garden Inn.  If you are departing Omaha by flight that day, we suggest that you make reservations for a flight departing after 3:30 p.m.  The fee for round-trip bus transportation is $30.00.

REGISTER HERE

Training Type: 
Training Category: 
Training Location: 

Understanding and Preparing Waivers

E-learning Course:
Understanding and Preparing Waivers

$200 per person for CLINIC affiliate agencies

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

October 8 – November 5, 2013

Waivers of the grounds of inadmissibility are an essential part of immigration practice.  This four-week course will present information on both the theory and practice of developing and submitting successful waiver applications.  Participants will learn what the legal standards of extreme hardship are, how to create a theory of the case, how to marshal the facts of the case, and what kinds of supporting documentation to submit.  By the end of the course, participants will be better able to analyze the strengths and weaknesses of specific cases and advise clients on their chances for success.   Please note that this course assumes a basic knowledge of the grounds of inadmissibility.

The trainers for this course are CLINIC attorneys Charles Wheeler and Debbie Smith.  For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

The course starts on October 8th with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample materials to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes four webinars conducted on consecutive Tuesdays at 2:00 p.m. EST starting on October 15.  Each webinar lasts approximately 90 minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

Training Level: Introductory.  This is an introduction to waivers of inadmissibility for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with: 1) immigration law vocabulary; and 2) the grounds of inadmissibility is assumed.

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you

are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is October 4, 2013 or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.    

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Understanding and Preparing Waivers

E-learning Course:
Understanding and Preparing Waivers


$200 per person for CLINIC affiliate agencies

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

May 30 – June 27, 2013

Waivers of the grounds of inadmissibility are an essential part of immigration practice.  This four-week course will present information on both the theory and practice of developing and submitting successful waiver applications.  Participants will learn what the legal standards of extreme hardship are, how to create a theory of the case, how to marshal the facts of the case, and what kinds of supporting documentation to submit.  By the end of the course, participants will be better able to analyze the strengths and weaknesses of specific cases and advise clients on their chances for success.   The trainers for this course are CLINIC attorneys Charles Wheeler and Kristina Karpinski.

The course starts on May 30th with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample materials to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes four webinars conducted on consecutive Thursdays at 2:00 p.m. EST starting on June 6.  Each webinar lasts approximately 90 minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

Training Level: Introductory.  This is an introduction to waivers of inadmissibility for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with: 1) immigration law vocabulary; and 2) the grounds of inadmissibility is assumed.

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is May 24, 2013 or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org. For questions about the course content, please contact Kristina Karpinski at kkarpinski@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Introduction to Family-Based Immigration

E-learning Course:
Introduction to Family-Based Immigration

February 5 – March 19, 2013

$270 per person for CLINIC affiliate agencies

$295 per person for other nonprofit agency staff

$425 per person for private attorneys and staff

This six-week training will explore the process of gaining permanent residence through a family relationship. We will cover which individuals are eligible based on family relationships, and how each step of the process works. Throughout the course, participants will review both the law and procedure for immigrating through a family relationship, including examination and critique of sample application forms. Topics covered will include: immediate relatives and the preference system, retention of priority dates, the Child Status Protection Act, immigrating through marriages, the affidavit of support, adjustment of status and consular processing.

The course starts on February 5 with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, and discussion questions.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The course also includes six webinars conducted on consecutive Tuesdays at 2:00 p.m. EST starting on Tuesday, February 12.  Each webinar lasts approximately 90 minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

The instructors for this course will be CLINIC attorneys Sarah Bronstein and Kristina Karpinski.  For questions about the course content, please contact Sarah Bronstein at sbronstein@cliniclegal.org.

Training Level: Introductory.  This is an introduction to family-based immigration for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed.  

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is January 31 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Ethical Issues in Immigration Law Practice

E-learning Course:
Ethical Issues in Immigration Law Practice

February 7 – February 28, 2013

$165  per person for CLINIC affiliate agencies

    $190   per person for other nonprofit agency staff

$290  per person for private attorneys and staff

What do you do when you are representing a husband and wife in a family-based immigration case, but the wife calls to say her husband is abusing her? How do you respond when you suspect that your client may have submitted a fake document with her asylum application? Do you agree to help your client appeal a waiver denial when you've never done an appeal before?  Legal advocates routinely encounter situations like these -- and turn to legal ethics rules for guidance. In this three-week e-learning course, you will learn about the sources of legal ethics rules, and to whom they apply. We will examine in detail some of the most important legal ethics rules, including the duty of confidentiality; issues around conflicts of interest among clients; the duty of candor to the tribunal; and the duty of zealous representation. This course is intended for anyone who practices immigration law -- attorneys, accredited representatives; and non-accredited staff. The course instructors are CLINIC attorneys    Jennie Guilfoyle and Susan Schreiber.

The course starts on February 7 with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample case files to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes three webinars conducted on consecutive Thursdays at 2:00 P.M. EST starting on February 14. Each webinar lasts approximately ninety minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so. 

Training Level: This is an introduction to ethical issues in immigration law practice.  Basic familiarity with  immigration law vocabulary and the ways in which an immigrant may gain legal status is assumed 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is February 4 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Overview of Citizenship: Acquisition, Derivation and Naturalization

E-learning Course:
Overview of Citizenship: Acquisition, Derivation and Naturalization

January 8 – February 5, 2013

$200 per person for CLINIC affiliate agencies

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

This four-week course covers acquisition and derivation of citizenship, and the requirements for naturalization, including residence, physical presence, good moral character, civics and English language requirements and exemptions, disability waivers, oath requirements and the application process. Throughout the course, participants will review both the law and procedure for acquisition, derivation, and naturalization, including examination of primary and secondary sources and sample application forms.

The course starts on January 8 with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, sample case files to review, quizzes, and discussion questions.  The course will be interactive, with opportunities for online and real-time discussion among students, and between students and instructors. The course also includes four webinars conducted on consecutive Tuesdays at 2:00 p.m. eastern time starting on January 15.  Each webinar lasts approximately ninety minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

Training Level: Introductory  This is an overview of citizenship for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is January 4, 2013 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org. For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Immigration Legal Skills

E-learning Course:
Immigration Legal Skills

January 10 – February 7, 2013

$200 per person for CLINIC affiliate agencies (paying annual dues)

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff 

How and where do you find immigration laws, and once you find them, how do you use them? Knowing how to find the law, and how to write clearly and effectively, are essential parts of every immigrant advocate's job. This hands-on, four-week e-learning course will focus on building fundamental legal research and writing skills.  Through readings, webinars, and exercises, participants will learn methods for conducting legal research using primary and secondary immigration source books and the Internet.  Students will practice writing persuasive letters and declarations, and will receive substantive feedback from the instructors.  The instructors will also discuss client interview techniques and how to advocate for clients before DHS.  The course is aimed at practitioners who have had little experience with legal writing and research.

Topics include:

  • Sources of Immigration Legal Authority
  • How to Find Immigration Legal Authority
  • Persuasive Legal Writing
  • Advocating for Clients with DHS
  • Client Interview Techniques

The course starts on January 10th with access to the e-learning course website and week one assignment. Once you receive your user name and password, you may participate in a variety of activities for self-directed learning, including reading assignments, exercises, and discussion questions.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The course also includes four webinars conducted on consecutive Thursdays at 2:00 p.m. EST starting on Thursday, January 17th.  Each webinar lasts approximately 90 minutes, and is recorded and posted on the course website after the webinar is conducted.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.

The instructors for this course will be CLINIC attorneys Sarah Bronstein and Charles Wheeler.  For questions about the course content, please contact Sarah Bronstein at sbronstein@cliniclegal.org.

Training Level: Introductory.  This is an introduction to immigration legal research and writing.  Basic familiarity with the immigration system, especially family-based immigration, is assumed.

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form.

Space is limited. The deadline for registration is January 7th or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

What Really Happened at the Border: Determining Whether Your Client was Ordered Removed

October 12, 2012
What Really Happened at the Border: Determining Whether Your Client was Ordered Removed

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC Affiliates paying annual dues

Your client isn't sure what happened at the border when she tried to enter several years ago and didn't succeed.  How do you determine what actually occurred at the border? Was there a removal order at all?  If so, what kind?  Was it expedited removal, Section 240 removal or voluntary departure?  The presenters will discuss strategies for determining what occurred including: what questions to ask clients, FOIA requests and obtaining FBI rap sheets.  The presenters for this webinar are Sarah Bronstein and Jennie Guilfoyle, CLINIC Training and Legal Support Attorneys.

REGISTER HERE

 

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Category: 

Understanding and Preparing Waivers

E-learning Course:

Understanding and Preparing Waivers

November 14 - December 19, 2012

The course webinars will take place on the five consecutive Wednesdays (except November 21) beginning on November 14, 2012.  All webinars will run from 2:00-3:30 p.m. Eastern Time. Click here for a more detailed course outline, including exact dates and times of the five webinars.

$200 per person for CLINIC affiliate agencies (paying annual dues)

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff 

Waivers of the grounds of inadmissibility are an essential part of immigration practice.  This four-week course will present information on both the theory and practice of developing and submitting successful waiver applications.  Participants will learn what the legal standards of extreme hardship are, how to create a theory of the case, how to marshal the facts of the case, and what kinds of supporting documentation to submit.  By the end of the course, participants will be better able to analyze the strengths and weaknesses of specific cases and advise clients on their chances for success.   Please note that this course assumes a basic knowledge of the grounds of inadmissibility.

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Wednesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Debbie Smith and Charles Wheeler.

For a detailed course outline, including the dates and times of the required webinars, click here.  Course participants are required to attend or view recordings of the course webinars in order to receive a course completion certificate at the end of the course.  Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments. Please note that in order to listen to the webinars, you will need either a speaker or set of headphones for your computer. There will probably not be a telephone audio option.

Training Level: Introductory.  This is an introduction to waivers of inadmissibility for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with: 1) immigration law vocabulary; and 2) the grounds of inadmissibility is assumed.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Space is limited. The deadline for registration is November 9, 2012, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org. For questions about the course content, please contact Charles Wheeler at cwheeler@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

14th Annual Family Immigration Law Conference and Tour of the Consulate

14th Annual Family Immigration Law Conference and Tour of the Consulate

Co-Sponsored by:

Catholic Legal Immigration Network, Inc. (CLINIC)
Catholic Charities of Dallas, and
Diocesan Migrant and Refugee Services

November 14-15, 2012
Optional tour of the consulate on November 16 (separate registration required)

8:00 a.m. – 5:00 p.m., Nov. 14: Conference Day 1
8:45 a.m. – 5:00 p.m., Nov. 15: Conference Day 2
9:00 a.m. – 2:00 p.m., Nov. 16: Optional Tour of the Consulate

Location:

Wyndham El Paso Airport Hotel
2027 Airway Blvd.
El Paso, TX 79925

800-742-7248

$235 per person from affiliate agencies; $705 cap
($50 charge for each attendee beyond 3)

$260 for other nonprofit agencies; $780 cap
($50 charge for each attendee beyond 3)

$390 for private attorneys and staff

$40 optional tour of the U.S. consulate in Cd. Juarez (requires separate registration)

Please be sure to register under the correct category and for the correct training.  All registration changes or cancellations are subject to an administrative charge of $70.00

Registration for the training includes an electronic version of CLINIC’s Family-Based Immigration Law manual and continental breakfast both days. Lunch is on your own.

This two-day training will provide updated information on selected topics in family-based immigration, including: conversion and retention of priority dates; consular processing; adjustment of status; Child Status Protection Act; remedies for surviving relatives; selected grounds of inadmissibility; ethical issues in family-based immigration; new waiver filing procedures; and tips for filing effective waiver applications.  Speakers include CLINIC’s Charles Wheeler and Susan Schreiber, CIS Ombudsman staff attorney Peggy Gleason, and USCIS and US consular officials from Cd. Juarez.  The training is designed for practitioners who have some experience in family-based immigration law.  This is not an introductory training and is not geared to brand new practitioners. CLE applied for, including one hour ethics credit. 

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal worker staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649.  Your registration will be confirmed upon receipt of this letter.  If you are an attorney, please include your state bar number. Payment is by credit card only.

Space for the training is limited to 125 participants.  The deadline for registering for the conference is November 11, 2012 or sooner if registration is filled.  For questions about training registration, please contact Dinah Suncin at dsuncin@cliniclegal.org. Space for the consular tour is limited to 75 persons. The deadline for registering for the consular tour is October 29th, or sooner if capacity is met. For more information regarding the tour, call (915) 532-3975, ext. 212.

Lodging is available at the Wyndham El Paso Airport Hotel for $99 per day, single or double.  When making the reservation, call (800) 742-7248 at least two weeks before the training to ensure that special rate and indicate you are coming to the “CLINIC” training. Other hotels are located nearby.

For registration and information regarding the optional consulate tour, CLICK HERE

For information on the agenda, CLICK HERE

REGISTER HERE

Training Type: 
Training Category: 
Training Location: 

Tour of the American Consulate in Ciudad Juarez

Invites you on a

Tour of the American Consulate in Ciudad Juarez

Friday, November 16, 2012

9:00 a.m. – 2 p.m.

Cost: $40

Please note that the price includes a box lunch.

Anticipated Schedule:

9:00 a.m.              Bus picks you up Wyndham El Paso Airport Hotel
10:00 a.m.           Tour of American Consulate, Ciudad Juarez
Noon                     Bus leaves Ciudad Juarez for return trip; box lunches will be provided
2:00 p.m.             Bus arrives Wyndham El Paso Airport Hotel

Space is limited

The deadline for registering is November 3, 2012
No one will be permitted on the tour unless registered by that date.
Remember that a passport is required for reentry to the United States.

For more information regarding the tour, call (915) 532-3975, ext. 212.

REGISTER HERE

Training Type: 
Training Category: 

U Nonimmigrant Status for Victims of Crime

E-learning Course:
U Nonimmigrant Status for Victims of Crime

November 19 – December 17, 2012

Click here for a more detailed course outline including the dates and times of the four webinars.

$200 per person for CLINIC affiliate agencies

$225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

This e-learning course will cover the law and procedure of U nonimmigrant status for victims of certain crimes.  The trainers will discuss the eligibility requirements for U status; law enforcement certification issues; waivers of the grounds of inadmissibility; strategies for preparing winning applications; applying for family members; extensions of status; travel and adjustment of status for U nonimmigrants.  The training materials will include sample U status application packets and inadmissibility waiver requests.  The instructors for this course will be CLINIC attorneys Sarah Bronstein and Jennie Guilfoyle.

The course includes four webinars conducted on Mondays at 2:00 est starting on November 19.  Each webinar lasts approximately ninety minutes, and is recorded and posted on the course website after the webinar is conducted.  In addition to the weekly webinars, the e-learning course provides a variety of activities for self-directed learning, including reading assignments, exercises, quizzes, and discussion questions. The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so.  

Training Level: Introductory.  This is an introduction to U Nonimmigrant Status for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of all course webinars in order to receive a course completion certificate at the end of the course.   Please note that in order to listen to the webinars, you will need either a speaker or a set of headphones for your computer.  There will not be a telephone audio option.

Technical Requirements:  Our e-learning webinars are hosted through Adobe Connect. You can listen to the webinars through your computer speakers by plugging headphones into your computer. There will not be a telephone audio option. 

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you

are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form,

Space is limited. The deadline for registration is November 14 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org. For questions about the course content, please contact Sarah Bronstein at sbronstein@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Introduction to Immigration Consequences of Crimes

E-learning Course:
Introduction to Immigration Consequences of Crimes  

October 11 – November 29, 2012

$270 per person for CLINIC affiliate agencies

$295 per person for other nonprofit agency staff

$425 per person for private attorneys and staff

If your client has a criminal record, can she naturalize?  Apply for TPS? Become a lawful permanent resident?  Will your client be subject to being removed from the U.S.?   And can your client remedy the situation by seeking to vacate a guilty plea given without immigration advisals?

Immigration advocates quickly learn that crimes have immigration consequences; this training will help you understand how to analyze those consequences to appropriately counsel your clients. This six-week e-learning course will provide an overview of how to determine whether your client’s criminal record will have immigration consequences, including exposure to removal or ineligibility for a particular benefit under immigration law. Course participants will learn the basic concepts involved in analyzing the immigration consequences of crimes including differentiating between inadmissibility and deportability; statutory definitions of conviction and sentence; and exceptions to crime-based inadmissibility. The training will also cover techniques for screening clients to uncover criminal issues, and how to gather and read criminal records. The instructors for this course will be CLINIC attorneys Sarah Bronstein and Susan Schreiber.

EST starting on October 11.  Each webinar lasts approximately ninety minutes, and is recorded and posted on the course website after the webinar is conducted.  In addition to the weekly webinars, the e-learning course provides a variety of activities for self-directed learning, including reading assignments, exercises, sample case files to review, quizzes, and discussion questions. The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend whenever you choose to do so. 

Training Level: Introductory.  This is an introduction to immigration consequences of crimes for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.   Course participants are required to attend or view recordings of all course webinars in order to receive a course completion certificate at the end of the course.   Please note that in order to listen to the webinars, you will need either a speaker or a set of headphones for your computer.  There will not be a telephone audio option.

Technical Requirements:  Our e-learning webinars are hosted through Adobe Connect. You can listen to the webinars through your computer speakers by plugging headphones into your computer. There will not be a telephone audio option. 

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you

are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (202) 635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form,

Space is limited. The deadline for registration is October 5 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

REGISTER HERE

Training Category: 

Terrorism-Related Inadmissibility Grounds

August 9, 2012
Terrorism-Related Inadmissibility Grounds 
 
2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; $25 for CLINIC affiliates paying annual dues


The Terrorism-Related Inadmissibility Grounds (TRIG) are extremely broad in scope, and cover many activities one would not associate with "terrorism"; they have posed particular challenges for asylum seekers, asylees, and refugees in recent years.  In this webinar, CLINIC attorneys Sarah Bronstein and Jennie Guilfoyle will provide an overview of TRIG, focusing in particular on how they affect applicants  for refugee status, refugee/asylee applicants for adjustment of status to lawful permanent resident, and refugee/asylee family reunification petitioners.  The panelists will also cover TRIG exemptions, including updates on the latest exemptions.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org

Training Category: 

Introduction to VAWA Self-Petitioning

E-learning Course: 

Introduction to VAWA Self-Petitioning 

September 6 – October 4, 2012

$200 per person for CLINIC affiliate agencies

   $225 per person for other nonprofit agency staff

$325 per person for private attorneys and staff

Family-based immigration allows certain USCs and LPRs to petition for their spouses, children, and parents to become permanent residents.  Some spouses, children, and parents who have been abusedby USCs or LPRs are eligible to file self-petitions under the Violence Against Women Act and gain permanent residence without the involvement of the abusers.  This four-week course provides an introduction to VAWA self-petitioning, focusing on eligibility, how, when and where to apply, and how to document VAWA self-petitions.  We will also explore the dynamics of abusive relationships and working with survivors of domestic violence.  The instructors for this course will be CLINIC attorneys Kristina Karpinski and Susan Schreiber. 

The course includes five webinars conducted on consecutive Thursdays at 2:00pm eastern time starting on September 6, 2012. Each webinar lasts approximately ninety minutes, and will be recorded and posted on the course website after the webinar is conducted.  In addition to the weekly webinars, the e-learning course provides a variety of activities for self-directed learning, including reading assignments, exercises, sample case files to review, quizzes, and discussion questions. The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  Although we encourage participants to attend the live webinars each week, you will be able to listen to and view a recording of any webinar you are unable to attend, whenever you choose to do so.   

Training Level: Introductory.  This is an introduction to VAWA self-petitioning for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the live webinars, click here.  Course participants are required to attend or view recordings of all course webinars in order to receive a course completion certificate at the end of the course.   Please note that in order to listen to the webinars, you will need either a speaker or  a set of headphones for your computer.  There will not be a telephone audio option.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202  635 2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please provide the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant listed on the registration form,

Space is limited. The deadline for registration is August 31 or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Spotlight on the Petitioner

July 31, 2012
Spotlight on the Petitioner

2:00 p.m. - 3:30 p.m. Eastern Daylight Time 
11:00 a.m. - 12:30 p.m. Pacific Daylight Time

Cost: $25 for CLINIC affiliates paying annual dues 
 
Picture this scene: A USC or LPR and his undocumented wife come to see you to discuss filing for the wife's permanent residency status. You've asked the husband for proof of his status, and you've interviewed the wife to find out about her manner of entry and potential inadmissibility issues. Are you done? Not quite. You still need to question the USC or LPR spouse about his history, including possible warrants, prior convictions and for an LPR, other circumstances that might trigger enforcement if they come to light. Also, if the USC petitioner is filing for a fiancée, the spotlight on the petitioner includes the need to inquire about prior petitions as well as criminal convictions.

What circumstances put the petitioner in the spotlight? And how do you determine if the petitioner is at risk of petition denial or being subject to criminal or immigration enforcement?   To answer these questions join CLINIC attorneys Kristina Karpinski and Susan Schreiber for a review of issues including the Adam Walsh Act, required disclosures for fiancé(e) petitioners, IBIS security checks on petitioners, and other matters that may trigger enforcement for LPRs.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org  

Training Category: 

Citizenship for Elders: Issues and Options in Test Preparation

June 28, 2012

Citizenship for Elders: Issues and Options in Test Preparation

12:00 p.m. - 1:30 p.m. Eastern Daylight Time 
9:00 a.m. - 10:30 p.m. Pacific Daylight Time

Cost:  Free  

The citizenship test, especially the English language requirement, often poses a major challenge for older applicants.  How can citizenship teachers and program administrators best meet the special needs of an older learner?  What are the best strategies for success?  Join us for a conversation about promising practices in instruction and program design for elders in your community.  We will also discuss suggestions for learning activities, cultural considerations, and strategies to address common health issues.  This webinar is based on CLINIC's handbook by the same title, which is being updated for release of a second edition shortly.  CLINIC Field Support Coordinators Leya Speasmaker and Laura Burdick will present together with local agency staff.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Leya Speasmaker at lspeasmaker@cliniclegal.org 

Training Category: 

Immigration Program Management Training

Immigration Program Management Training

Sponsored by
Catholic Legal Immigration Network, Inc. (CLINIC)

Hosted by
Catholic Charities of St. Paul and Minneapolis

July 31st and August 1st,  2012
8:00 a.m. – 5:00 p.m.  Day One
8:00 a.m. – 3:30 p.m. Day Two

Location:
Catholic Charities of St. Paul and Minneapolis
1200 2nd Ave South, Board Room
Minneapolis, MN
651-647-3113

$235 per person from affiliate agencies; $705 cap ($50 materials fee for each additional staff from the same office location)

$260 per person for other non-profit agency staff; $780 cap

($50 materials fee per person for more than 3 attendees from the same office site)

$390 per person for private attorneys and staff

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.

Breakfast, Lunch, and Dinner are on your own.

This two-day training provides a complete overview of how to start and sustain a nonprofit immigration legal services program. It features a manual and curriculum that offers detailed information and suggestions for applying for Board of Immigration Appeals agency recognition and staff accreditation, implementing effective case management systems, fundraising and scores of other pertinent topics related to managing an immigration program. 

Participants will learn how to determine which applications to accept and how to adjust fees to obtain the best support for their program. There will be a discussion of case intake and management strategies, avoiding unauthorized practice of law, and strategies for working with the funders and delivering on grant objectives.

The training is highly interactive. Participants will leave with a plan to create or improve immigration legal services. Past participants have used information from this training to build or expand their legal immigration capacity.

The training is suitable for program staff from a wide range of organizations, including established immigration programs, ethnic and immigrant organizations, domestic violence and sexual assault coalitions and service providers, unions, social services and medical providers, and educational programs (ESL and Citizenship).

The training will be presented by Michelle Sardone, BIA Fully Accredited Representative and Jack Holmgren, Attorney, both of whom work at CLINIC’S Center for Citizenship and Immigrant Communities as Field Service Coordinators. 

The training is for the staff of Catholic agencies and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal worker staff of private law offices. If you are registering as staff of a community-based organization, fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at (415) 394-8986 to the attention of Jack Holmgren. Your registration will be confirmed upon receipt of this letter and your payment through the website by credit card only. No checks or cash accepted for payment.

Space is limited to 30 participants. The registration deadline is July 20, 2012 or sooner if registration is full. For registration information call Jack Holmgren at (415) 394-8074.

Lodging

Hilton Hotel, at 1001 Marquette Ave, Minneapolis is directly across from the training site.

The Twin Cities has numerous other lodging options.

REGISTER HERE

Training Category: 
Training Location: 

Special Immigrant Juvenile Status

Children who have been the victims of abuse, abandonment or neglect are among the most vulnerable immigrants in our society.  These children may qualify for Special Immigrant Juvenile Status (SIJS), a pathway to becoming a lawful permanent resident.  The presenters discuss the eligibility requirements for SIJS as well as the procedures for applying both affirmatively and defensively in removal proceedings.  The presenters for this webinar are Sarah Bronstein and Kristina Karpinski, Training and Legal Support Attorneys with Catholic Legal Immigration Network.

Held on June 7, 2012.

Resources by type: 

How Long Is Too Long: LPRs and Abandonment of Residency

June 12, 2012
How Long Is Too Long: LPRs and Abandonment of Residency
  

2:00 p.m. - 3:30 p.m. Eastern Daylight Time 
11:00 a.m. - 12:30 p.m. Pacific Daylight Time

Cost:  $50; $25 for CLINIC affiliates paying annual dues

We all know that the "permanent" in lawful permanent residency is misleading. LPRs can lose their status in a number of ways, including abandonment of residency.  How long can an LPR be out of the country before abandonment becomes a possibility?  How is abandonment assessed? When should your client file for a reentry permit?  What does a long-absent LPR need to do to return to the United States?  If the LPR manages to return to the U.S. after a prolonged absence abroad, does the issue of abandonment go away?  What if it's not the LPR's fault - the parents took the child abroad and he or she had to go with them?  If you want to know the answers to these and other questions, join CLINIC attorneys Susan Schreiber and Charles Wheeler for a discussion on this topic.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Category: 

Good Moral Character in Naturalization Cases

 E-learning Course: 

Good Moral Character in Naturalization Cases

July 2 – 23, 2012

Click here for a more detailed course outline including the dates and times of the four webinars.
Before registering for this training, please make sure that you will be available for these webinars.

$235 per person for CLINIC affiliate agencies
$260 per person for other nonprofit agency staff
$390 per person for private attorneys and staff

This four week course will begin on July 2, 2012 with an introductory webinar that will include a review of the course website, a discussion course expectations, and an overview of good moral character.  During the course we will cover the statutory and regulatory requirements for demonstrating good moral character in naturalization cases.  We will study the crime based bars to showing good moral character including crimes of moral turpitude and aggravated felonies.  We will also examine the regulatory requirements of good moral character such as failure to register for the selective service, provide child support or pay income taxes.  We will also explore how to assess the likelihood that a client will be found to lack good moral character under the “residual clause” or as a matter of discretion. 

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in four webinars conducted on consecutive Mondays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Sarah Bronstein and Debbie Smith. For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Advanced.  This is an in depth look at the requirements for good moral character in naturalization cases for the practitioner who already understands the basic requirements for naturalization. Familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

Course Completion Requirements: Note that in this e-learning course, successful completion of the course requires participation, not simply registration. In order to receive a certificate of completion at the end of the course, participants are required to (a) attend the weekly webinars in person or listen to recordings of any webinars they have missed and (b) complete the weekly homework assignments.  Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

For a detailed course outline, including the dates and times of the required webinars, click here

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of  Andrés Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  Please note that only the person who registers for the training has authorized access to course webinars and the e-learning website and posted materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00. CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is June 25, or sooner if registration is filled. For registration information contact Andrés Abella at aabella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of this e-learning course.  If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit

REGISTER HERE


Training Category: 

Introduction to Immigration Law Practice: A Course for New Practitioners

Introduction to Immigration Law Practice:

A Course for New Practitioners

Presented by

Catholic Legal Immigration Network, Inc. (CLINIC)

July 17 - 18, 2012
8:45 a.m. - 5:30 p.m. – Day One
8:45 a.m. – 4:45p.m. – Day Two

Location:

Asian Pacific American Legal Center
1145 Wilshire Blvd., 2nd floor
Los Angeles, CA 90017
(213) 977-7500

$235 per person from CLINIC affiliate programs; $705 cap ($50 materials fee per person for more than 3 attendees from the same office site)


$260 per person for other non-profit agency staff; $780 cap

($50 materials fee per person for more than 3 attendees from the same office site)
 

$390 per person for private attorneys and staff

Continental breakfast included.  Lunch is on your own.

 

This training offers 12 hours of California MCLE credit.

This two-day training provides the new immigration practitioner with an overview of immigration law concepts and the practice skills necessary to be an effective advocate. Through large group presentations, skits, and small group exercises, participants learn about rights and remedies under immigration law, the functions of the different government agencies that carry out immigration law,

and the fundamentals of interviewing clients, preparing applications, and staying up-to-date on the law.  Topics covered include the family-based petition process, adjustment of status, consular processing, inadmissibility and deportability concepts and select grounds, naturalization and BIA accreditation.  The trainers for this program are CLINIC attorneys Sarah Bronstein and Susan Schreiber.  

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of you IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.

Note that this is an interactive training with several small group exercises included in the curriculum. Prior to the training, participants will receive an email with some short reading and worksheet assignments to be completed before the training starts. Participants will also have a homework assignment to complete for day two of the training.

The deadline for registration is July 12th or sooner if registration is filled.  For registration information contact: Dinah Suncin at dsuncin@cliniclegal.org.

For the agenda and additional information, click here:

Training Location: The training will take place at the Asian Pacific American Legal Center near downtown Los Angeles.  There are paid parking lots in the vicinity.  If you wish to be close to the training site we suggest you stay in the downtown Los Angeles area.

REGISTER HERE

Training Category: 
Training Location: 

Update and Next Steps on Pre-Adjudication of Waivers

The USCIS has published its proposed regulation on stateside pre-adjudication of unlawful presence waivers. CLINIC staff conducted a free webinar to affiliates that covers all aspects of this proposed change.  The webinar includes a summary of the proposed regulation, the potential impact on your caseload, and the steps you might take to prepare for it.  CLINIC will be developing community education handouts and other materials, as well as model comments to the proposed regulation.  Presenters include Maria Odom, CLINIC's Executive Director, and staff from the Capacity Building, Advocacy, and Training and Legal Support sections.

Held on May 3, 2012.

Resources by type: 

Overview of Citizenship: Acquisition, Derivation and Naturalization

 E-learning Course: 

Overview of Citizenship: Acquisition, Derivation and Naturalization

May 29- June 26, 2012

Click here for a more detailed course outline including the dates and times of the five webinars.  Before registering for this training, please make sure that you will be available for these webinars.

$235 per person for CLINIC affiliate agencies
$260 per person for other nonprofit agency staff
$390 per person for private attorneys and staff

This four-week course will begin on May 29, 2012 with an introductory webinar that will include a review of the course website and discuss course expectations and logistics. Over the next four weeks we will cover acquisition and derivation of citizenship, and the requirements for naturalization, including residence, physical presence, good moral character, civics and English language requirements and exemptions, disability waivers, oath requirements and the application process. Throughout the course, participants will review both the law and procedure for acquisition, derivation, and naturalization, including examination of primary and secondary sources and sample application forms.

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Tuesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Kristina Karpinski and Debbie Smith.  For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Introductory  This is an overview of citizenship for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

Course Completion Requirements:  Note that in this e-learning course, successful completion of the course requires participation, not simply registration.  In order to receive a certificate of completion at the end of the course, participants are required to (a) attend the weekly webinars in person or view recordings of any webinars they have missed and (b) complete the weekly homework assignments.  Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

For a detailed course outline, including the dates and times of the required webinars, click here

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  Please note that only the person who registers for the training has authorized access to course webinars, the e-learning website and posted materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is May 21, 2012, or sooner if registration is filled. For registration information contact Andres Abella at abella@cliniclegal.org.  

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Immigration Legal Skills

E-learning Course:

Immigration Legal Skills

June 4 - July 2, 2012

The course webinars will take place on the five consecutive Monday of the course, beginning June 4, 2012, and ending July 2, 2012.  All webinars run from 2:00-3:30pm Eastern Standard Time.

 Before registering for this training, please make sure that you will be available for these webinars.

$ 200 per person for CLINIC affiliate agencies (paying annual dues)

$ 225 per person for other nonprofit agency staff

$ 325 per person for private attorneys and staff 

How and where do you find immigration laws, and once you find them, how do you use them?  Knowing how to find the law, and how to write clearly and effectively are essential parts of every immigrant advocate's job. This hands-on, four-week e-learning course will focus on building fundamental legal research and writing skills.  Through readings, webinars, and exercises, participants will learn methods for conducting legal research using primary and secondary immigration source books and the Internet.  Students will practice writing persuasive letters and declarations, and will receive substantive feedback from the instructors.  The instructors will also discuss client interview techniques and how to advocate for clients before DHS.  The course is aimed at practitioners who have had little experience with legal writing and research.

Topics include:

            Sources of Immigration Legal Authority

            How to Find Immigration Legal Authority

            Persuasive Legal Writing

            Advocating for Clients with DHS

            Client Interview Techniques

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Mondays, as listed above.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Charles Wheeler.  For questions about the course content, please contact Jennie Guilfoyle at jguilfoyle@cliniclegal.org.

Note that successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Training Level: Introductory.  This is an introduction to immigration legal research and writing.  Basic familiarity with the immigration system, especially family-based immigration, is assumed

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. Please note that only the person who registers for the training has authorized access to course webinars and the e-learning website and posted materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Be sure to list the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is May 31, 2012, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.   

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

 

REGISTER HERE

Training Category: 

Understanding and Preparing Waivers

E-learning Course:

Understanding and Preparing Waivers

June 6 - July 11, 2012

The course webinars will take place on the five consecutive Wednesdays (except July 4)  of the course, beginning on June 6, 2012.  All webinars will run from 2:00-3:30 p.m. Eastern Daylight Time. Click here for a more detailed course outline.  Before registering for this training, please make sure that you will be available for these webinars.

$ 200 per person for CLINIC affiliate agencies (paying annual dues)

$ 225 per person for other nonprofit agency staff

$ 325 per person for private attorneys and staff 

Waivers of the grounds of inadmissibility are an essential part of immigration practice.  This four-week course will present information on both the theory and practice of developing and submitting  successful waiver applications.  Participants will learn what the legal standards of extreme hardship are, how to create a theory of the case, how to marshal the facts of the case, and what kinds of supporting documentation to submit.  By the end of the course, participants will be better able to analyze the strengths and weaknesses of specific cases and advise clients on their chances for success.   Please note that this course assumes a basic knowledge of the grounds of inadmissibility..

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Tuesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Charles Wheeler.  For questions about the course content, please contact Charles Wheeler at cwheeler@cliniclegal.org.

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Training Level: Introductory.  This is an introduction to waivers of inadmissibility for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with: 1) immigration law vocabulary; and 2) the grounds of inadmissibility is assumed.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Space is limited to 40 participants. The deadline for registration is June 4, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.   

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Confronting Thorny Ethical Issues

April 30, 2012

Confronting Thorny Ethical Issues
 
2:00 p.m. - 3:30 p.m. Eastern Standard Time      
11:00 a.m. - 12:30 p.m. Pacific Standard Time
Cost: $50; $25 for CLINIC affiliates paying annual dues

How should advocates handle  a situation that poses an ethical dilemma?  In this webinar, the presenters will provide an overview of some of the ethical rules that advocates must follow.  The presenters will discuss situations in which a client seems not to be telling the truth, or wishes to or has already submitted false documents when seeking an immigration benefit.  The panelists will address when conflicts of interest may arise.  For example, what should you do when the beneficiary of a family based petition filed by her spouse tells you in confidence that her spouse is abusing her?  The discussion will include consideration of different ethics rules that might come into play, including duties of confidentiality to the client, conflicts of interest and candor to the tribunal.  The presenters for this webinar are Sarah Bronstein and Debbie Smith, Training and Legal Support Attorneys with CLINIC.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org. 

Training Category: 

Keeping Up with the News: CLINIC's New Quarterly Update Webinar for our Affiliates

March 23, 2012
Keeping Up with the News: CLINIC's New Quarterly Update Webinar for our Affiliates
 
 
2:00 p.m. - 3:30 p.m. Eastern Standard Time 
11:00 a.m. - 12:30 p.m. Pacific Standard Time

Cost:  Free

Join us on March 23 for CLINIC 's new quarterly webinar review of legal updates and news on CLINIC initiatives and services. Starting this March, and followed by webinars in June, September, and December,  CLINIC staff will  sponsor a free affiliates-only webinar to bring you the latest news in immigration law and procedure, legislative updates, advocacy developments, and CLINIC programming. The first webinar in the series, set for March 23 at 2:00 EST, will include reports from several CLINIC staff members, to review immigration law developments in the first three months of 2012, as well as the highlights of CLINIC activities and services during this period.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.

For additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Category: 

E-learning at CLINIC: Find Out What It's All About

E-learning at CLINIC: Find Out What It's All About

February 29, 2012

2:00 pm-2:45 pm EST


Are you interested in taking CLINIC trainings without leaving your office? And eager for a deeper understanding of immigration law topics like Inadmissibility, Immigration Consequences of Crimes, and Family-Based Immigration? If so, then CLINIC's e-learning courses may be right for you. How can you find out more about how elearning works, what it is and what you need to do to take part in an elearning course?  Join this free webinar on February 29th as Training and Legal Support attorneys Jennie Guilfoyle and Susan Schreiber lead a tour of CLINIC's e-learning site; explain how our courses work; and offer a look at the material CLINIC will cover in our March-April e-learning courses, Inadmissibility, Introduction to Immigration Consequences of Crimes, and Introduction to Family-Based Immigration. 

REGISTER HERE

After registering you will receive a confirmation email containing information about joining the Webinar.   For additional information, please contact Dinah Suncin at dsuncin@cliniclegal.org.  

Training Category: 

Selected Issues in Family-Based Immigration

Selected Issues in Family-Based Immigration

Co-Sponsored by
Catholic Legal Immigration Network, Inc. (CLINIC)
and
Catholic Charities of Dallas, Immigration and Legal Services Program

April 3-4, 2012
8:45 a.m. - 5:15 p.m. – Day One
8:45 a.m. – 4:45 p.m. – Day Two

Location:
Catholic Charities of Dallas
1st Floor Conference Room
9461 LBJ Freeway (Hwy 635)
Dallas, TX
214-634-7182 ext. 228

$235 per person from CLINIC affiliate programs; $705 cap ($50 materials fee for each additional staff from the same office location)

$260 per person for other non-profit agency staff; $780 cap
($50 materials fee per person for more than 3 attendees from the same office site)

$390 per person for private attorneys and staff

Continental breakfast included.  Lunch is on your own.

This two-day training provides in-depth coverage of selected topics in family-based immigration, including establishing qualifying parent/child relationships; issues relating to derivative beneficiaries; potential concerns for family-based petitioners; conditional residency updates; remedies for widows and other surviving relatives; updates on affidavits of support and inadmissibility based on immigration violations; adjustment of status eligibility; CSPA developments; planning for stateside pre-adjudication of waivers; and tips for filing successful waivers.  The trainers for this program are CLINIC attorneys Susan Schreiber and Charles Wheeler and other local speakers.  An application for Texas CLE credit is pending, including an hour of ethics credit.

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of you IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649  to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.

Training Level: Note that this is not an introductory training and is not geared to new practitioners. Please review the agenda before registering; the training is conducted at a level that assumes participants have a basic understanding of family-based immigration law and procedure.

Space is limited to 40 participants. The deadline for registration is March 28 or sooner if registration is filled.  For registration information email Andres Abella at aabella@cliniclegal.org.

        For the agenda and additional information, click here.
Hotel Reservations: A block of rooms is being held at the Holiday Inn Express Hotels and Suites, located at 9089 Vantage Point Drive, about a mile from the training site. The room rate is $79.00 per night single or double occupancy, plus tax. To make a reservation, contact the hotel by March 23 at 972-889-9972 and ask for the group block under CLINIC. The hotel offers free shuttle service from the Love Field airport (if requested with 24 hours advance notice), and will also provide shuttle service to and from the training site.  
Training Location and Parking: Catholic Charities of Dallas is located on the northeast corner of the intersection of LBJ Freeway (Hwy 635) and Abrams Road.  The office is in the Northcreek Place office park, across the parking lot from the Chase Bank building. Free parking is available anywhere in the office complex parking lot.

REGISTER HERE

Training Type: 
Training Category: 
Training Location: 

When the Price is Too High: All About Fee Waivers

March 19, 2012
When the Price is Too High: All About Fee Waivers

2:00 p.m. - 3:30 p.m. Eastern Standard Time     
11:00 a.m. - 12:30 p.m. Pacific Standard Time
Cost: $50; $25 for CLINIC affiliates paying annual dues

The price of many immigration applications has risen in recent years. For those who cannot afford filing fees that can run into the hundreds and even thousands, there are some fees that may be waived. In this webinar, the presenters will discuss which fees may be waived; for whom they may be waived; and what to submit along with fee waiver applications to ensure the best chance of success.  The presenters for this webinar are CLINIC Project Coordinator Laura Burdick, Training and Legal Support Attorney Jennie Guilfoyle, and Field Support Coordinator Michelle Sardone.

Register by clicking here. After registering you will receive a confirmation email containing information on joining the webinar.

For additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

REGISTER HERE

Training Type: 
Training Category: 

By Charles Wheeler

Salvadorans who have already been granted Temporary Protected Status (TPS) are eligible to live and work in the United States for an additional 18 months and continue to maintain their status.  The extension of TPS for nationals of El Salvador was effective from March 9, 2012 and will remain in effect through September 9, 2013.  Nationals of El Salvador who have been granted TPS previously must re-register during the current re-registration period, which began January 9, 2012 and will remain in effect through March 12, 2012.

Only Salvadorans granted TPS and who re-registered for TPS during the prior re-registration periods, have been continuously physically present in the United States since March 9, 2001, and have continuously resided in the United States since February 13, 2001 may re-register.  Certain nationals of El Salvador may be entitled to late initial registration.  See INA § 244(c)(2) for grounds of inadmissibility that may apply.

To re-register, submit the following documents:

  • Form I-821 (without filing fee)
  • Form I-765 (with $380 filing fee if seeking an EAD or extension unless seeking fee waiver)
  • Biometrics fee of $85 for applicants age 14 or older (unless seeking fee waiver).

Salvadoran TPS re-registrants must send their applications to the appropriate USCIS office, which is dependent on where they are currently residing. Applicants residing in the following states will mail their application to U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, P.O. Box 8635, Chicago, IL  60680-8635: Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington D.C., and West Virginia.

Applicants residing in the following states will mail their application to U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, P.O. Box 660864, Dallas, TX  75266:  Alabama, Alaska, American Samoa, Arkansas, Colorado, Guam, Hawaii, Idaho, Iowa, Kansas, Louisiana; Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, New York, North Dakota, Northern Mariana Islands, Oklahoma, Puerto Rico, South Dakota, Tennessee, Texas, Utah, Virgin Islands, Wisconsin, and Wyoming.

Applicants residing in the following states will mail their application to U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, P.O. Box 21800, Phoenix, AZ  85036: Arizona, California, Nevada, Oregon, and Washington.

First-time TPS applicants or late initial registrants must mail their applications to: U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, P.O. Box 8670, Chicago, IL 60680-8670.

The current EADs for Salvadorans will be automatically extended for six months, through September 9, 2012.

Immigration Attorney
Catholic Charities – Orlando
Catholic Charities of Central Florida

Closing Date: When Filled

FT/PT FULL TIME

Minimum Salary: Commensurate with qualifications and experience

Brief Description of Job: Staff Attorney is responsible for providing consultations and immigration related services to agency clients; required to represent clients before the U.S. Citizenship & Immigrations Services and Immigration Court. Must be able to prepare and/or oversee all types of immigration cases. In conjunction with Immigration Coordinator, provides in-service training to staff on immigration related skills and knowledge; assists in the development and expansion of immigration services throughout Central Florida. Interfaces with other legal professionals and organizations, attends meetings as assigned and represents the program as directed by Immigration Coordinator; presents immigration related workshops for the immigrant community within the Diocese of Orlando (some travel required).

Minimum Qualifications: Requires completion of recognized Jurisprudence Degree (J.D.), Florida Bar Membership. Knowledge and experience in immigration law. Attorney must have the ability to work with clients from different cultural backgrounds. Bilingual communications skills in both English and Spanish are required.

Additional Qualifications: Must be proficient in Microsoft Office Suite including Excel, Word, Access, PowerPoint and Outlook. Have ability to prioritize, coordinate, multi-task and take initiative, work independently, remain organized and thrive in a detail-oriented environment; function as a member of a team, and be dependable. All applicants will be background screened. In addition a valid Florida driver’s license with a clean driving record required. Consideration given to Florida Bar members only

Send letter of interest, resume, references and completed Employment Application (found on
Web site: www.cflcc.org ) to:

Ms. Jean Comazzi , Director, Human Resources Catholic Charities of Central Florida
1819 North Semoran Blvd.
Orlando, FL 32807
Phone Number: No phone calls please.
Facsimile Number: (407) 382-1340
E-Mail Address: jean.comazzi@cflcc.org
Entity Website Address: www.cflcc.org

Affiliates may find the Federal Trade Commission’s (FTC) new “Who Can Help Me?” cards (wallet size that cleverly expands into a 8” by 14” paper) in English and Spanish an important resource to distribute to clients. This pocket-sized fold-out flyer teaches consumers how to spot and avoid scams that target immigrants. The resource also provides information on how to report an immigration scam.

Order this resource here.

See the double-sided card here.

The USCIS announced that effective January 1, 2012, the filing locations for I-130s will change from the Chicago Lockbox to one of two lockboxes, depending on where they reside in the United States.  This new change only affects stand-alone I-130s.  Those filing the I-130 together with the I-485 will continue to mail them to the Chicago Lockbox at USCIS, P.O. Box 805887, Chicago, IL 60680-4120.  Those residing abroad will continue to file them with the overseas USCIS office having jurisdiction over the area where they live or with the Chicago Lockbox at USCIS, P.O. Box 804625, Chicago, IL 60680-4107.

Those applicants residing in the following states will mail their stand-alone I-130 to the Phoenix Lockbox at USCIS, Attn: I-130, PO Box 21700, Phoenix, AZ 85036: Alaska, American Samoa, Arizona, California, Colorado, Florida, Guam, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Northern Mariana Islands, Oklahoma, Oregon, Puerto Rico, South Dakota, Texas, Utah, Virgin Islands, Washington, and Wyoming.

Those applicants residing in the following states will mail their stand-alone I-130 to the Chicago Lockbox at USCIS, P.O. Box 804625, Chicago, IL 60680-4107: Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington, D.C., West Virginia, and Wisconsin.

By Charles Wheeler

The USCIS published a Notice of Intent for proposed rulemaking in the Federal Register on January 9, 2012.  This notice outlined the agency’s proposed plan to transfer the adjudication of certain I-601 waiver applications from USCIS overseas to stateside processing.  This adjudication would take place before the applicant leaves for consular processing, thus eliminating the waiting time abroad and the uncertainty of the adjudication outcome.  Those applicants whose waiver is provisionally approved could then continue with immigrant visa processing at the U.S. consulate abroad; those who are denied would likely choose to abandon the process.  The proposed pre-adjudication procedure is not in effect yet and will likely not go into effect until the end of the year.

When a proposed regulation is published, perhaps this spring, it will contain a 60-day notice and comment period.  CLINIC will be circulating model comments and encouraging affiliate programs to submit their own formal response.  The USCIS announcement has caused media attention and interest in the immigrant community.  CLINIC will also be providing further information, including sample community education materials. Below is a short summary and analysis of the Federal Register notice.

1.  The pre-adjudication policy would apply only to immediate relatives, i.e., spouses, parents, and unmarried children under 21 of U.S. citizens.  Those in the preference categories (spouses and children of permanent residents; married children or children over 21 of U.S. citizens; and siblings of U.S. citizens) would not be covered and would continue to be subject to the current waiver filing requirements.  In other words, they will file their I-601 waiver after being formally refused an immigrant visa by a consular official and that waiver will be adjudicated by an overseas USCIS office.  It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover all family preference categories. This proposed change will also have limited applicability to parents of U.S. citizens over 21, since they will likely lack the qualifying relative.

2. The pre-adjudication procedure would apply only to immediate relatives who are filing an I-601 application to waive the unlawful presence ground of inadmissibility that would be triggered by the immigrant visa applicant’s departure for the consular interview.  Those who are subject to inadmissibility based on other grounds, such as fraud, health, or criminal conduct, will be subject to the current waiver filing requirements.  It is also important to remember that family members who have triggered the “permanent bar” under INA § 212(a)(9)(C), based on more than one year of unlawful presence followed by a departure and illegal reentry, cannot file a waiver until they have departed and spent 10 years outside the United States.  It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover other grounds of inadmissibility.

3.  The anticipated pre-adjudication procedure would apply only to immediate relatives who are basing it on extreme hardship to a U.S. citizen parent or spouse, not a permanent resident alien parent or spouse.  Such a limitation appears arbitrary, and CLINIC will be advocating for expansion to include all qualifying relatives as that term is currently defined.

 4.  The waiver would be filed after the I-130 petition is approved and the case file has been forwarded to the National Visa Center, which controls consular processing.  The immigrant visa applicant would likely file the waiver at one of two designated USCIS Service Centers and pay the filing fee (currently $585).  All waiver applicants will be screened through existing databases based on their names and biometrics to see if they are subject to other grounds of inadmissibility. The agency is considering the creation of a new waiver form to distinguish it from the filing of an I-601.

5.  If the waiver is granted by the USCIS Service Center, it would be on a provisional basis.  This means that the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. But it is anticipated that denial of an immigrant visa after the waiver has been provisionally granted would be rare.

6.  If the waiver is denied by the USCIS Service Center, the applicant would be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings.  According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud in the record.  The memo does not indicate if the nature of the fraud will be considered, but simply states upon a finding of fraud, an NTA will be issued.  In addition, an NTA will be issued if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime.  These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery.  In addition, NTAs will be issued to human rights violators and those where the alien reentered the United States after an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.

In the case of non-egregious public safety criminal cases, the USCIS will complete adjudication of the waiver and refer the case to Immigration and Custom Enforcement (ICE).  ICE will then decide whether or not to issue an NTA.  It will make its decision based on the “totality of the circumstances” and existing priorities and guidelines on the exercise of prosecutorial discretion.  The totality of the circumstances includes factors such as the severity of the crime, time since the crime was committed, additional criminal conduct, evidence of rehabilitation, immigration history, length of presence in the United States, and contributions to society.  The USCIS will not issue an NTA if ICE declines to do so.

Therefore, in the routine case involving an applicant with no serious criminal conduct, if the waiver for unlawful presence is denied, the applicant will not be put into immigration proceedings.  However, practitioners will need to screen their clients well to determine if they are subject to any other grounds of inadmissibility, including prior orders of deportation.

7.  The proposed change does not affect current requirements for eligibility for the waiver of unlawful presence, nor does it modify the standard of extreme hardship to a U.S. citizen spouse or parent.  Those applicants who are provisionally approved would still have to consular process if they are not otherwise eligible for adjustment of status.  The proposed change would not affect pending waiver applications.  In other words, those who have left the country and are waiting abroad for their waiver to be approved by the USCIS will be subject to the current procedure.  This change, however, will likely discourage those immediate relatives who are in the consular process pipeline and will be scheduled for an immigrant visa soon from proceeding abroad if they would be eligible for this pre-adjudication process.

CLINIC welcomes two new subscribers to our network:

Church World Service/Lancaster Legal Immigration Program, located at 308 E. King Street in Lancaster, PA.  Janet Tisinger is the Program Director and a BIA partially accredited representative.   Sheila McGeehan and Beth May are partially accredited representatives, and Melissa Engle is the program’s Legal Outreach Worker (BIA partial accreditation pending).

The Neighborhood Good Samaritan Center, Inc., Charlotte, North Carolina.  Patrice K. M. Ognodo is the Executive Director.

By Allison Posner

On January 11-12, 2012, CLINIC and the United States Conference of Catholic Bishops (USCCB) hosted a conference to address the most pressing immigration enforcement issues states will face as they begin their 2012 legislative sessions.  The conference was attended by over 230 people from 43 states who work on behalf of immigrants in their communities.  Participants included bishops, priests, men and women religious, Catholic advocates, communications professionals and individuals who serve immigrants in their communities.  They had a chance to speak directly with immigration experts and Department of Homeland Security and Department of Justice officials and came away with the most up-to-date information as well as tools and strategies to bring home to their communities.

Most Reverend John C. Wester, Bishop of Salt Lake City, welcomed participants to the conference, saying that he believes “that the work the church is doing on immigration on a state and local level – both in the past and in the months ahead – could make all the difference in how our nation eventually solves” this country’s immigration problems.  He described his role in signing the Utah Compact – for which business, religious, law enforcement and political leaders came together to outline a common set of principles – to guide the state’s decision makers on decisions relating to immigration and immigrants. 

Bishop Wester thanked attendees for the work they do on behalf of immigrants and urged them to continue to “fight the battle locally and remain a voice of faith in the debate.”

Panels at the event included discussions of:

  • Immigration laws and their impact on the Church, with experts on harboring, transporting, barriers to marriage, separation of families, and the impact on clergy and seminarians;
  • Federal and state immigration enforcement partnerships with  representatives from the Department of Homeland Security;
  • State immigration laws, including E-Verify, education, public benefits, and omnibus  enforcement measures;
  • Communicating the message;
  • Lessons learned from states that have already faced immigration legislation; and
  • Proactive strategies for the future.

Look for materials from the conference, including video of some of the panel sessions, on CLINIC’s website soon!

All About Lying: Immigration Consequences of Willful Misrepresentations

February 13, 2012 
All About Lying: Immigration Consequences of Willful Misrepresentations

2:00 p.m. - 3:30 p.m. Eastern Standard Time     
11:00 a.m. - 12:30 p.m. Pacific Standard Time 

Cost: $50; $25 for CLINIC affiliates paying annual dues

One client applied for a tourist visa and failed to disclose that her USC spouse already resided here. Another client entered into a sham marriage to get legal status but then decided it was a bad idea and got divorced. Still another client, desperate for work authorization, signed a fraudulent application for asylum prepared by a notario. A fourth client obtained a state ID by using a fake USC birth certificate.  And client number five presented a fake passport and visa for her two-year old daughter to enter the U.S.  What are the different immigration consequences of misrepresentations?  And can they be overcome?  Join CLINIC attorneys Sarah Bronstein and Susan Schreiber to review the various ways that immigration law addresses misrepresentations, and strategies and waivers to defend against or overcome adverse consequences.

REGISTER HERE

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information contact Dinah Suncin at dsuncin@cliniclegal.org

Training Category: 

Grounds of Inadmissibility

E-learning Course: 

Grounds of Inadmissibility 

March 14-April 25, 2012 

Click here for a more detailed course outline including the dates and times of the seven webinars.  Before registering for this training, please make sure that you will be available for these webinars.

$270 per person for CLINIC affiliate agencies


$295 per person for other nonprofit agency staff


$425 per person for private attorneys and staff

The USCIS has proposed shifting the filing of certain waivers from overseas offices to the filing and adjudication of the waivers in the United States before the applicant leaves the country for a consular interview.  Such a change, which is estimated to be implemented this year, will increase interest in applicants filing waivers and immigrating family members. To prepare for this increased demand, practitioners will need to know whether their clients are inadmissible and whether they qualify for this special pre-adjudication procedure.

This six-week training on the grounds of inadmissibility provides an in-depth examination of the concept of inadmissibility.  The training will cover when and to whom inadmissibility applies.  Course participants will study in detail selected grounds of inadmissibility including unlawful presence and other immigration violations; misrepresentation and false claims to citizenship; smuggling; unlawful voting; crimes; and health-based grounds.  We will also discuss effective interviewing and client counseling techniques.  While we will touch on the waivers available for some of these grounds, we will not look closely at waivers and how to apply for them; CLINIC’s e-learning course on waivers covers those.

The course requires a time commitment of approximately four hours per week for each of the six weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in seven webinars conducted on consecutive Wednesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Charles Wheeler.  For questions about the course content, please contact Jennie Guilfoyle at jguilfoyle@cliniclegal.org.    

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. In order to receive a certificate of completion at the end of the course, participants are required to (a) attend the weekly webinars in person or view recordings of any webinar they have missed and (b) complete the weekly homework assignments. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to Andres Abella at 202-635-2649. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by Pay Pal only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is March 9, 2012, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.  

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 9.5 hours of MCLE credits based on the webinar component of this e-learning course.  If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Introduction to Immigration Consequences of Crimes

E-learning Course: 

Introduction to Immigration Consequences of Crimes  

March 15 – April 26, 2012

Click here for a more detailed course outline including the dates and times of the seven webinars.
Before registering for this training, please make sure that you will be available for these webinars.

$270 per person for CLINIC affiliate agencies


   $295 per person for other nonprofit agency staff


$425 per person for private attorneys and staff

If your client has a criminal record, can she naturalize?  Apply for TPS? Become a lawful permanent resident?  Will your client be subject to being removed from the U.S.?   And can your client remedy the situation by seeking to vacate a guilty plea given without immigration advisals?

Immigration advocates quickly learn that crimes have immigration consequences; this training will help you understand how to analyze those consequences to appropriately counsel your clients. This six-week e-learning course will provide an overview of how to determine whether your client’s criminal record will have immigration consequences, including exposure to removal or ineligibility for a particular benefit under immigration law. Course participants will learn the basic concepts involved in analyzing the immigration consequences of crimes including differentiating between inadmissibility and deportability; statutory definitions of conviction and sentence; and exceptions to crime-based inadmissibility. The training will also cover techniques for screening clients to uncover criminal issues, and how to gather and read criminal records.

The course requires a time commitment of approximately four hours per week for each of the six weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in seven webinars conducted on consecutive Thursdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Sarah Bronstein and Susan Schreiber. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

Training Level: Introductory.  This is an introduction to immigration consequences of crimes for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with

(a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

Course Completion Requirements: Note that in this e-learning course, successful completion of the course requires participation, not simply registration. In order to receive a certificate of completion at the end of the course, participants are required to (a) attend the weekly webinars in person or view recordings of any webinars they have missed and (b) complete the weekly homework assignments.  Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Technical Requirements:  Our e-learning webinars are hosted through Adobe Connect. You can listen to the webinars through your computer speakers by plugging headphones into your computer. There will not be a telephone audio option. 

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of  Andrés Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  Please note that only the person who registers for the training has authorized access to course webinars and the e-learning website and posted materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00. CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is March 1, or sooner if registration is filled. For registration information contact Andrés Abella at aabella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 9.5 hours of MCLE credits based on the webinar component of this e-learning course.  If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Category: 

Introduction to Family-Based Immigration

E-learning Course: 

Introduction to Family-Based Immigration

March 13-April 24, 2012 

Click here for a more detailed course outline including the dates and times of the seven webinars.  Before registering for this training, please make sure that you will be available for these webinars.

$270 per person for CLINIC affiliate agencies
$295 per person for other nonprofit agency staff
$425 per person for private attorneys and staff

This six-week training will explore the process of gaining permanent residence through a family relationship. We will cover which individuals are eligible based on family relationships, and how each step of the process works. Throughout the course, participants will review both the law and procedure for immigrating through a family relationship, including examination and critique of sample application forms. Topics covered will include: immediate relatives and the preference system, retention of priority dates, the Child Status Protection Act, immigrating through marriages, the affidavit of support, adjustment of status and consular processing. The training will also include exercises and readings on these topics. 

The course requires a time commitment of approximately four hours per week for each of the six weeks of the course.  This time will be spent in different activities, including reading assignments, exercises, and participation in seven webinars conducted on consecutive Tuesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Kristina Karpinski and Debbie Smith.  For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Introductory.  This is an introduction to family-based immigration for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed.   

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. In order to receive a certificate of completion at the end of the course, participants are required to (a) attend the weekly webinars in person or view recordings of any webinar they have missed and (b) complete the weekly homework assignments.  Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Technical Requirements: Our e-learning webinars will be hosted through a webinar carrier that permits listening through your computer speakers or by plugging headphones into your computer.   Your computer must have this capacity in order to participate in the webinars.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  Please note that only the person who registers for the training has authorized access to course webinars, the el-learning website and course materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is March 8, 2012, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.  

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE

Training Type: 
Training Category: 

Preparing for State-Side Pre-Adjudication of Waivers

Preparing for State-Side Pre-Adjudication of Waivers

Join us for a this Affiliates Only Webinar on January 12
12:00 PM - 1:30 PM EST

Space is limited.

The USCIS is planning to issue proposed rulemaking that would change the adjudication of unlawful presence waivers on behalf of immediate relatives.  The agency has published a Notice, issued various materials, and will soon hold a Stakeholders meeting explaining this proposal in greater detail.  CLINIC is offering affiliates a webinar where we will summarize the proposed change, provide updated information and analysis, and project how this change will impact your caseload. For example, we anticipate that many LPRs will want to naturalize so their family members can qualify for the proposed change.  U.S. citizens may want to file I-130 petitions for their spouses and children before the proposed rule takes effect to avoid a backlog in I-130 processing.  And clients who would benefit from this proposed change and who are scheduled to leave for consular processing before it goes into effect may want to postpone that immigrant visa interview. The webinar will offer suggestions on community education and how to prepare for the proposed changes.  Please join us so that you can contribute to this dialogue and we may all benefit from your ideas.

REGISTER HERE

After registering you will receive a confirmation email containing information about joining the Webinar.

Training Type: 
Training Category: 

Retention, Revocation, Retrogression, and Reinstatement: Mastering the Four R's with Petitions and Priority Dates

 

January 23, 2012
Retention, Revocation, Retrogression, and Reinstatement: Mastering the Four R's with Petitions and Priority Dates


2:00 p.m. - 3:30 p.m. Eastern Standard Time  
11:00 a.m. - 12:30 p.m. Pacific Standard Time
Cost: $50; $25 for CLINIC affiliates paying annual dues

Are you confused as to exactly when your client can retain an earlier priority date?  What about the consequences of the petitioner's naturalizing or the beneficiary's marrying?  What do you need to do when the derivative beneficiary ages out?  If a petition is terminated or revoked, can it ever be reinstated? In this webinar we will unlock all the mysteries involving priority dates and petitions, as well as expose areas where there is still uncertainty.  Join CLINIC attorneys Charles Wheeler and Susan Schreiber as they lead a wide-ranging review of this complex area.

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For additional information contact Dinah Suncin at dsuncin@cliniclegal.org.

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By Charles Wheeler

Public charge can form the basis for denying admission to both intending immigrants and nonimmigrants.  It may be used by Department of State (DOS) officials in their adjudicating immigrant and nonimmigrant visa applications and by the United States Citizenship and Immigration Services (USCIS) in their adjudicating adjustment of status applications.  It is also a ground of deportation and can form the basis for removing an alien, although this is rarely employed.  Public charge is not a factor in applications for naturalization, although applicants who have committed of welfare fraud could be denied for lack of good moral character requirement.  This article will examine the public charge ground of inadmissibility and deportability with an emphasis on providing practical advice for overcoming this potential obstacle. It will attempt to answer the question of whether public charge is a significant problem for the intending immigrant due to the mandatory submission of affidavits of support and the emphasis on the sponsor’s income.

Brief History of the Public Charge Ground
The public charge ground of inadmissibility dates back to the first general immigration law.  In1882 Congress excluded persons who were “idiots, lunatics, convicts, and persons likely to become a public charge.”  In 1891, Congress added the term “paupers” to the list of persons subject to exclusion.  A few years later, the Immigration and Naturalization Service (INS) Commissioner interpreted these provisions as authorizing the imposition of a poverty test to aliens seeking entry – they had to show that they possessed at least $25 in cash, plus sufficient funds to purchase a ticket to their final destination.  Although that requirement was later rescinded, both the State Department and Immigration Service officers have been empowered for over a century to exclude persons who in their opinion were unable or unwilling to support themselves and other nuclear family members.

In 1915 the Supreme Court defined a public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.”  For the first hundred years, the public charge ground of inadmissibility was used more than any other ground to deny entry or adjustment of status to intending immigrants.

Definition of Public Charge
The term “likely to become a public charge” has never been defined in the statute or regulations.  As a result, DOS and INS officers exercised broad powers in interpreting this provision.  Unfortunately, they sometimes applied different standards and imposed inconsistent requirements.  For at least the two decades preceding the 1996 immigration law, most officers required the intending immigrant to demonstrate the ability, through an offer of employment or demonstrated work history, to earn at least 100 percent of the poverty income guidelines for their household size.  During that period it was common for officers to require low income applicants to submit an affidavit of support, Form I-134.  This was typically executed by the U.S. citizen or LPR petitioner or a close family member.  These affidavits stated that the sponsor would support the intending immigrant for a three-year period, although several courts held them to be legally unenforceable by entities seeking reimbursement for the value of public benefits provided.  Sponsors supplemented these affidavits with income tax returns and bank statements.

But in the mid-1990, some officers required additional proof that the intending immigrant and all family members – including U.S. citizen children – demonstrate that they were not receiving and had not received any form of public assistance.  If they had received it, some officers conditioned the granting of their application on proof that they had repaid the value of these public benefits.  This resulted in some U.S. citizen children living in mixed households being removed from supplemental food and health-related programs because the parents feared that receipt of these benefits would jeopardize their immigration status or eligibility for immigration benefits.

This lack of clarity and uniformity – and even overreaching on the part of some officers – resulted in the INS’s promulgating a memorandum, field guidance, and a proposed rule in the Federal Register in 1999 that clarified the meaning of the term “public charge.” The Department of State issued a cable to its consulates providing similar instruction.  That cumulative guidance has been helpful in establishing clear standards for interpreting this ground of inadmissibility and deportability.  It has also been helpful in clarifying the relationship between public charge and the receipt of certain public benefits.  Regrettably, this formal guidance has not been strictly followed by all USCIS offices or consular posts.

According to the memorandum, field guidance, and proposed rule, an alien has become a public charge for inadmissibility or deportability purposes when he or she has become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”  The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance.  Programs that support aliens who are institutionalized for long-term care, including Medicaid, are typically provided to those in a nursing home or mental health institution.  The proposed rule explains that “institutionalization for short periods of rehabilitation” does not fit this definition.

The intending immigrant’s receipt of non-cash benefits should not be taken into account when considering whether he or she is likely to become a public charge.  This would include the following programs:

•    Food Stamps
•    Housing and rental assistance
•    Medicaid (other than for the long-term institutionalized) and other health insurance and health services
•    School lunch and school breakfast
•    Nutritional programs for Women, Infants, and Children (WIC)
•    State Child Health Insurance Program (SCHIP)
•    Job training program
•    Education assistance, including Head Start
•    Low Income Home and Energy Assistance Program (LIHEAP)
•    Foster care and adoption assistance
•    Emergency disaster relief
•    Federal education loans or grants, and
•    In-kind, community-based programs, services, or assistance..
   
Programs that pay benefits that are “earned,” such as unemployment insurance, worker’s compensation, or Social Security retirement, disability, and Medicare, which are based in part on employee contributions, should also not be considered.  Nor should government pensions, veterans’ benefits, or state and local programs that provide a health-related benefit.  After passage of the Welfare Act in 1996, and even well before for some programs, aliens without lawful immigration status have been precluded from receiving most of these non-cash benefits.

Furthermore, receipt of benefits – including one of the three designated cash assistance programs – by household members other than the intending immigrant should not be considered by the DOS or INS/USCIS officer.  For example, receipt of cash benefits by the alien’s parents or children should not be considered, nor should those received by the sponsor completing an affidavit of support.  The only caveat is when the family is reliant on the public benefit as its sole means of support.  In those situations, the intending immigrant may be considered to have received the benefit as well.  Officers should never condition applicants’ admission or adjustment of status on the repayment of benefits received.

The May 1999 INS memorandum, field guidance, and proposed rule also point out that the determination of the likelihood of becoming a public charge is a prospective test and should include consideration of all of the factors set forth in the statute, as well as prior administrative decisions and regulations implementing the Immigration Reform and Control Act of 1986.  These make up what is called the “totality of the circumstances test,” and are explained more fully below.  Any officer who intends to deny an application based on public charge must weigh six statutory factors and “specifically articulate the reasons for the officer’s determination.”  Past or even current receipt of one of the three cash assistance programs does not automatically mean that the alien is likely to become a public charge in the future.  Rather, it is just one of the factors taken into consideration when making the forward-looking determination.  When the applicant received the benefits and for how long a period will determine how much weight these factors should be given.  Past receipt by the intending immigrant of non-cash benefits (other than institutionalization for long-term care), however, should not be considered.

Public Charge as Applied Today
The USCIS and State Department continue to apply a two-part test, which looks at both the intending immigrant’s likelihood of becoming a public charge and the sponsor’s likelihood of fulfilling his or her financial obligations.

The 1996 immigration law codified the totality of the circumstances test that had traditionally been applied to immigrant visa and adjustment applicants by INS and Department of State officials.  According to the statute, those officials must take into consideration the following factors related to the intending immigrant: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.  With respect to age, consular officials are instructed to consider any skills that applicants over the age of 16 possess that would make them employable in the United States. They should also consider any health-related ailment that would preclude or hinder the alien from working.  If the alien is married and/or has children, the official should weigh the number of dependents he or she is responsible for supporting. With respect to work experience, the official should examine “the applicant’s skills, length of employment, and frequency of job changes” to determine whether the applicant will become self-sufficient shortly after entering the United States.

For almost the last half century, the general rule in determining public charge has been that intending immigrants who are able-bodied and employable will not be found to be inadmissible under this ground.  The seminal case in this area held that “a healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relative in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.”  In contrast, however, an elderly person who has been receiving Supplemental Security Income (SSI), may have difficulty satisfying the test.

The last reported case discussing public charge, decided over 20 years ago, analyzed the factors and applied them generously to a legalization applicant.  In that case, the applicant was a 33-year old mother of three, who had little work experience and whose family had received welfare payments for four years.  Nevertheless, the Commissioner found that in light of her age, her ability to earn a living, and the reason for her past unemployment, which was to care for her pre-school-age children, she was not likely to become a public charge.

The same section of the 1996 law that codified the factors that must be considered also mandated the filing of the legally-enforceable affidavit of support.  Since implementation of that requirement, the focus has shifted away from the intending immigrant and onto the sponsor.  The sponsor must now demonstrate the ability to maintain the intending immigrant at a certain financial level through the submission of an affidavit of support, last year’s income tax return, and possibly other supporting documentation.  Most officers do not consider the five factors indicated above or even the intending immigrant’s likelihood of becoming a public charge if the sponsor has submitted an affidavit of support that meets the minimum requirements.  The State Department has acknowledged that the submission of Form I-864 “should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the ‘totality of the circumstances’ analysis.”  In other words, the submission of the affidavit of support should obviate the need to weigh the five factors.  Only in “an unusual case” or in situations where the applicant is exempted from submitting an affidavit of support (e.g., because he or she submits an I-864W based on 40 qualifying quarters or derivation of citizenship) should the five factors be considered.

Even in cases where the applicant has submitted an affidavit of support that satisfies the financial requirements, the USCIS and State Department officers have the discretionary power to require more proof that the sponsor has the financial ability to support the intending immigrant.  They may exercise that in cases where there is a “significant public charge concern.”   This has been defined as cases where the intending immigrant has advanced age, serious health problems, or mental or physical disabilities.  Physical disabilities and handicaps or mental disorders will likely provide a basis for closer scrutiny by USCIS and State Department adjudicating officers.  Courts in the distant past have upheld findings of inadmissibility for public charge due to deafness, heart disease, blindness, and senility.

One would assume that if the intending immigrant provides a convincing affidavit of support from a sponsor of adequate means, who will now be legally obligated to maintain the immigrant at a certain level above the poverty line, that the submission should satisfy the public charge test.  This is bolstered by the fact that 1996 changes in welfare law now make most LPRs ineligible for federal means-tested benefits for their first five years, and perhaps well after that period, due to the enforcement of expanded sponsor-to-alien deeming of income rules.  In other words, restrictions in welfare eligibility, coupled with legal enforceability of sponsorship agreements, should make it almost impossible for new immigrants to “become a charge upon the public,” even if they are old, in poor health, or unemployable.  Hence, the ability of the intending immigrant to support himself or herself should be afforded less concern compared to the financial status of the sponsor.

However, in certain cases the USCIS and State Department continue to apply a two-part test that looks both at the sponsor’s ability and likelihood of fulfilling his or her financial obligations and at the intending immigrant’s likelihood of becoming dependent on cash assistance programs.  In other words, the traditional public charge analysis is still applied in those situations, but it is commingled with one directed at the income and resources of the sponsor.

The Foreign Affairs Manual (FAM) has provided additional guidance on interpreting the public charge ground of inadmissibility.  It states that the consular officer must not base a determination that the applicant is likely to become a public charge on “what if” type considerations.  The determination must be based on “reasonable future projection of the alien’s present circumstances...which make it not merely possible, but likely, that the applicant will become a public charge.”

For example, it advises consular agents to be “flexible,” and to predicate public charge decisions on existing, specific facts.  Applicants with income or funds that make them at or above the poverty income guidelines should be presumed admissible under INA § 212(a)(4); with those below the guidelines there arises a rebuttable presumption of inadmissibility.  Public charge findings “should be based on a reasonable projection of present circumstances and officers should point to a factual set of circumstances which make it not merely possible but likely that the alien will become a public charge.”

A 1997 State Department directive instructs consular posts on the new affidavits of support and their use in determining public charge.  It states that the mere fact that the sponsor has met the minimum requirement does not preclude a finding that the visa applicant is inadmissible as a public charge.  Even if the affiant meets the minimum requirements, a consular officer may require additional evidence of income or assets, or may require a joint sponsor, if the demonstrated resources do not appear adequate to prevent the applicant from becoming a public charge.   The memo states that if the applicant and his or her spouse or dependents are in good health and appear to be employable, an affidavit of support that meets the minimum income level should generally be considered adequate.  If not, "closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary."

Aliens Not Subject to Public Charge
Certain categories of aliens are not subject to the public charge ground of inadmissibility and thus are not subject to the affidavit of support requirements.  These include the following:
•    Refugees and asylees
•    Amerasians
•    Aliens adjusting under the Cuban Adjustment Act
•    Aliens adjusting under the Nicaraguan Adjustment and Central American Relief Act
•    Aliens adjusting under the Haitian Refugee Immigration Fairness Act
•    Special immigrant juveniles applying for adjustment of status
•    Applicants for cancellation of removal
•    Lautenberg parolees seeking adjustment of status
•    Applicants for registry.

Do not confuse the category of aliens not subject to public charge with those who are subject to public charge but are exempt from filing a binding Form I-864.  For example, the affidavit of support requirements are not applicable to widows or widowers applying for LPR status based on a prior marriage to a U.S. citizen.  However, the public charge ground of inadmissibility still applies. The same is true for victims of domestic violence immigrating under the Violence against Women Act (VAWA), although the USCIS does not consider benefits obtained while the applicant was in deferred action status.  Other aliens exempt from the I-864 requirements but still subject to public charge would include fiancé(e)s, diversity visa lottery winners, parolees, and returning LPRs.  They may be asked to submit the non-binding Form I-134, Affidavit of Support.

Public Charge Ground of Deportation
Although public charge also remains a ground of deportation, given the numerous factors that must be established by the Immigration and Customs Enforcement (ICE), it is rarely used as a way to remove an alien from the country.

Permanent resident aliens can only be removed for becoming a public charge if all of the following conditions are satisfied: (1) they became a public charge within five years of the date of last admission; (2) they received public cash assistance for income maintenance purposes; (3) the need for benefits was based on circumstances that existed before they entered; (4) the public cash assistance they received created a legal debt or obligation to repay; (5) they received a demand to repay the debt from the agency within five years of admission; and (6) they refused to repay it.  As mentioned earlier, most LPRs are barred from receiving SSI and TANF benefits for a considerable period of time.  More importantly, these federal cash assistance programs do not create legal debts to the recipients.  The only benefit programs that could create a debt are state general relief or general assistance.  In addition to making a demand for payment, the state benefit-providing entity must pursue all possible collection remedies, including filing a court action and seeking to enforce a final judgment.

The 1996 immigration legislation did not change the public charge ground of deportation, and thus it will still be very difficult for the ICE to deport an alien for becoming a public charge.  While the affidavit of support creates a legal debt when the sponsored immigrant receives means-tested benefits, such a debt is incurred by the sponsor, not the immigrant.

By Debbie Smith

On December 1, 2011, the 9th Circuit Court of Appeals amended its June 2011 decision in  Palacios and eliminated its earlier holding that unlawful presence in the U.S. before April 1, 1997 must be counted for purposes of the “permanent” bar.  In its amended opinion, Carrillo de Palacios v. Holder, No. 09-72059 (9th Circuit December 1, 2011), the court backed away from its earlier conclusion that unlawful presence accumulated prior April 1, 1997 in conjunction with a reentry to the U.S. after April 1, 1997 made a person permanently inadmissible under INA § 212(a)(9)(C)(i)(I).  Following the amended 9th Circuit decision, unlawful presence can only be accrued as of, but not before, April 1, 1997 for the permanent bar purposes. The amended decision returns 9th Circuit law to that which had been in effect for more than 14 years.

The new Palacios decision reinstates a USCIS and Department of Date (DOS) policy regarding the pre-April 1997 accrual of unlawful presence.  In the memo issued by Paul Virtue on June 17, 1997, immigration officers were instructed “No period of unlawful presence in the United States prior to April 1, 1997, is considered for purposes of applying section 212(a)(C)(i)(I) of the Act.”  This USCIS policy was reaffirmed in 2009 by another USCIS memo, Donald Neufeld, “Consolidation of Guidance Concerning Unlawful Presence” (May 6, 2009).  Similarly, a November 1996 DOS cable summarizing the admissibility provisions of IIRIRA, specifically 212(a)(9)(C), cautioned that “[u]nlawful presence prior to the effective date of Title III-A of Pub. L. 104-208 (April 1, 1997) shall not be counted for purposes of this provision.” “R 200415Z NOV 96, FM SecState WashDC, Cable to All diplomatic and Consular Posts.” 

The new Palacios opinion was in response to a petition for rehearing of the court’s decision. An amicus brief by the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project also urged the court to reconsider its decision because it was incompatible with established retroactivity principles and unfairly prejudiced those who departed the U.S. prior to the effective date of IIRIRA. In light of these challenges, the court ultimately amended it prior holding and removed the language regarding pre-April 1, 1997 unlawful presence. 

The Palacios decision and the Judulang v. Holder case, also digested in this issue, remind us of the importance of strategically pursuing and appealing decisions that negatively impact immigrants.  CLINIC is the proud co-filer, along with World Relief, of an amicus brief written by Ira Kurzban in Judulang v. Holder.  In Judulang, the Supreme Court unanimously overturned a 2005 BIA decision, Matter of Blake, declaring that the BIA’s rule was arbitrary, capricious and no more reliable than tossing a coin in the air.  Using the “rationale” established in Matter of Blake, untold immigrants, including legal permanent residents, were deported.  Both Palacios and Judulang demonstrate that careful and persistent challenges to unfair rules can result in improvements in our immigration laws.

By Nadine Wettstein

The Ninth Circuit Court of Appeals has held that parole as a Special Immigrant Juvenile qualifies as an admission “in any status” for eligibility for cancellation of removal.  In that case, Jorge Raul Garcia entered the United States without inspection in 1992 when he was eight years old.  In July 1994, a California court approved a dependency petition that had been filed by the state. The state then filed a I-360 petition to classify him as a Special Immigrant Juvenile and an I-485 application for adjustment to permanent residence.  The petition and application were approved in 2000 (almost six years later!) and he became an LPR.  His I-181, Memorandum of Creation of Record of Lawful Permanent Residence, indicated his “year admitted” as 1992. 

Mr. Garcia was convicted of two minor theft convictions in 2005: stealing a bicycle and shoplifting.  DHS instituted removal proceedings and Mr. Garcia applied for cancellation of removal under INA § 240A(a), for LPRs.  DHS claimed Mr. Garcia lacked the required seven years of continuous residence, arguing that the period began in 2000 when he became a permanent resident.  Mr. Garcia argued that he was deemed paroled in the United States upon the filing of the SIJS-based application in 1994, more than seven years before his second conviction.

The Ninth Circuit agreed with Mr. Garcia.  It held that “admitted in any status” in broader than the statutorily-defined term “admitted.”  There are instances where a person is “admitted” for the purposes of INA § 240A(a)(2) without been inspected and authorized to enter at the border. The court held that the grant of SIJS-based parole qualifies as one of the alternative methods of being “admitted in any status” for cancellation purposes.  Mr. Garcia accrued the required seven years of continuous presence after being “admitted in any status.”  Garcia v. Holder, 659 F.3d 1261, No. 08-73004 (9th Cir. No. 2, 2011).

The Third Circuit Court of Appeals has held that an alien’s due process rights were violated when an Immigration Judge (IJ) ceased functioning as neutral arbiter.  In that case, Vasil Abulashvili overstayed his visitor visa.  In removal proceedings, he applied for asylum, withholding and protection under the Convention Against Torture.  At the merits hearing, the trial attorney was “woefully unprepared.”  A few minutes into his questioning, the IJ took over the cross-examination and asked a total of 87 questions.  She defended doing so by saying that “in order to afford the respondent with due process and an opportunity to explain why his testimony in court is different from his written application, someone needed to ask the respondent about it.”  She ultimately found his asylum claim was not credible and denied it. The BIA affirmed, rejecting the claim that his due process rights had been violated by the IJ’s questioning, saying she had merely been “ferreting out … the facts.”

The court overruled, first holding that the IJ’s and BIA’s adverse credibility determination was not supported by substantial evidence.  It appeared, the court said, that the IJ and BIA did not fairly consider the entire record and Mr. Abulashvili’s explanations of the purported discrepancies.

The IJ had every right to exercise her discretion to question Mr. Abulashvili, the court said, but she had “a responsibility to function as a neutral, impartial arbiter and must refrain from taking on the role of an advocate for either party.”  Here, the IJ interjected herself into the proceedings to the extent of assuming the role of opposing counsel, the court said.  After the IJ began cross-examining Mr. Abulashvili, the government attorney did not follow up with a single question, the court noted.  “Why would he since an Immigration Judge was now doing his job for him? … It is not the IJ’s function to protect the government by becoming its counsel when its own counsel is not prepared.” 

By stepping into the role of the attorney for the government, the IJ gave the strong impression that she was on the government’s side, the court said.  The explanation that she was merely “ferreting out the facts” would be more plausible if the interventions were as likely to favor the respondent as the government, and if the record established that the IJ fairly considered the entire record before making negative credibility determinations, the court concluded.  Abulashvili v. Attorney General, __ F.3d __, Nos. 08-2756 & 09-2560, 2011 U.S. App. Lexis 22835 (3d Cir. Nov. 15, 2011).

By Nadine Wettstein

A recent BIBA decision held that the government bears the burden of proving, by clear and convincing evidence, that a returning lawful permanent resident is to be regarded as an applicant for admission under INA §§ 240(c)(2)(A) and 101(a)(13)(C), and is therefore subject to the inadmissibility ground for removal.  The regulatory presumption benefitting LPRs who present a valid unexpired Permanent Resident Card (Form I-551) after a temporary absence of less than one year also supports this holding.  8 CFR § 211.1(a)(2).  Also, a conviction of accessory after the fact is a crime involving moral turpitude if the underlying or substantive crime is itself a crime involving moral turpitude. Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011)

In a second case, the BIA held that even if a Notice to Appear (NTA), Form I-862, fails to provide the time and date of the hearing, personal service of the NTA on the respondent terminates the accrual of continuous residence under the “stop time” rule of INA § 240(A)(d)(1). 

This is so even though the statute, INA § 239(a)(1)(G), specifies that the NTA must include the “time and place at which the proceedings will be held.”  This provision is “simply definitional,” the BIA said.  The best reading of the statute as a whole is that Congress intended to specify the document that DHS must serve on the person to trigger the “stop-time” rule.  [But see, Dababneh v. Gonzales, 471 F.3d 806, 809-10 (7th Cir, 2006), distinguished by the BIA, which said that the “stop-time” rule cut off the accrual of physical presence once the DHS served him with both the NTA and the notice of hearing]. Matter of Camarillo, 25 I&N Dec. 644 (BIA Dec. 2, 2011).

CLINIC and the United States Conference of Catholic Bishops are hosting a conference on state and local immigration issues!  The conference will be held in Salt Lake City, Utah from January 11 through13, 2012.  We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include:

  • strategies for communications and messaging;
  • coalition building; and
  • parish organizing and education

On topics such as:

  • comprehensive anti-immigrant legislation;
  • state cooperation with E-Verify;
  • education, health care and public benefits; and
  • the impact of these immigration measures on the Church’s mission. 

Confirmed speakers include John Sandweg, Counsel to DHS Secretary Napolitano.  Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

A new practice advisory on working with clients with mental competency issues has been released by the American Immigration Council's Legal Action Center (LAC) in collaboration with The University of Houston Law Center Immigration Clinic.

In May, the Board of Immigration Appeals (BIA) issued a precedent decision in Matter of M-A-M.  The respondent was represented by the University through CLINIC’s BIA Pro Bono Representation Project.  The decision set forth a framework for immigration judges to follow in cases involving individuals with mental competency issues.

The LAC's practice advisory provides a detailed analysis of that decision - the first published decision from the BIA in nearly fifty years to provide substantive guidance on hearings involving respondents with mental disorders - and offers strategic advice on how to address issues that may arise in the context of representing such individuals.

In order to centralize and streamline receipting of citizenship and naturalization forms, USCIS has made changes to the filing locations of certain forms. 

On Oct. 30, 2011, USCIS began accepting Forms N-336, N-600 and N-600K at its Phoenix Lockbox facility and Form N-300 at its Dallas Lockbox facility.  Until Dec. 2, 2011, applications filed at field offices were forwarded to the appropriate lockbox.  After December 2, all applications erroneously filed at field offices will be returned to applicants to re-file with the proper lockbox.

Lockbox filing is a central and secure way to deposit fees and do a preliminary review of applications for required data, correct fee, and applicants’ signatures.  Other filing tips from USCIS include:

  • Send a separate fee for each application being filed.
  • Make sure to use the proper version of the form, noted on the bottom right-hand corner. (For the N-600 and N-336, the current version is dated 10/30/11. No prior versions are accepted.  For the NN-600K, the current version is 8/1/11, and no prior versions are accepted.)
  • Make sure to complete required fields fully. 
  • Remember that a form G-1145 can be filed alongside your application to provide USCIS with an email address or phone number to get instant notification of form acceptance.  This is a free service.
  • To request that the filing fee be waived, file Form I-912 along with the underlying application.
  • To request that an application be expedited, contact your local field office – not the lockbox.  That office will handle the expedite request.

In response to stakeholder feedback, EOIR has announced that it will reinstate the ability of callers to check the status of multiple cases in one call.  Starting on December 12, callers will be able to press the “pound” key (#) to return to the main menu and enter additional alien registration numbers.   In addition, callers will be able to press the “star” key (*) to skip the maintenance message at the beginning of the recording. 

By Allison Posner

As of November 30, 2011, the California and Vermont service centers will once again send all original notices, including I-797 approval notices, to the representative of record according to the G-28 on file.  The Texas and Nebraska service centers will do the same on or before December 5, 2011.

By Susan Schreiber

Section 212(c) of the INA provides relief from removal to law permanent residents who are deportable for certain criminal convictions.  There are many restrictions regarding eligibility for this form of relief, but at a minimum, the applicant must meet the following criteria:

  • Is an LPR or was an LPR prior to receiving a final order of deportation or removal;
  • Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal, or, if the person does not have a final order, had seven years by the time that he or she applies for § 212(c) relief;
  • Pled guilty or nolo contendere to a deportable offense through a plea agreement made before April 1, 1997; and
  • Was otherwise eligible to apply for § 212(c) at the time the plea was made.

In addition, the LPR charged under deportability must establish that there is a comparable ground of inadmissibility in order to be eligible to seek an INA § 212(c) waiver. Under this rule, an LPR charged with crime-based deportability is barred from seeking this waiver if there is no “comparable ground” of inadmissibility.  In re Blake, 23 I&N Dec 722 (BIA 2005).  As applied by the Board, this test precludes eligibility where the charged deportability ground covers more or fewer offenses than any inadmissibility ground, even if the LPR’s offense falls within a ground of inadmissibility.  In Blake, for example, this doctrine was used to defeat  eligibility for a § 212(c) waiver for  an LPR found deportable for an aggravated felony sexual abuse of a minor offense even though such an offense would trigger inadmissibility as a crime of moral turpitude.

In Judulang v Holder, 2011 Lexis 9018 (U.S. Dec. 12, 2011), the Supreme Court unanimously rejected the comparable grounds rule as arbitrary and capricious.  Mr. Judulang, an LPR since 1974, was found deportable for an aggravated felony crime of violence, based on a 1988 voluntary manslaughter conviction in which he received a suspended sentence of six years.  An immigration judge denied Mr. Judulang’s request for a § 212(c) waiver, and this decision was upheld by the BIA, which determined that the crime of violence deportation ground is not comparable to any ground of inadmissibility including the one for crimes of moral turpitude.  The BIA’s decision was subsequently affirmed by the Ninth Circuit Court of Appeals.

In its decision, the Supreme Court described the comparable grounds rule as “unmoored from the purposes and concerns of the immigration laws,” permitting “an irrelevant comparison between statutory provisions to govern a matter of the utmost importance – whether lawful resident aliens with longstanding ties to this country may stay here.”  Judulang at 21.  CLINIC supported an amicus brief submitted in this case and applauds this decision of the Court advancing greater justice and fairness for LPRs.

Click here for the December 2011 Visa Bulletin.

Immigration and Customs Enforcement issued a memo on November 17th announcing a case-by-case review of the EOIR immigration court docket in each office.  This review will include both incoming cases as well as those currently pending in immigration courts.  This review will last for two months, until mid-January 2012, at which point the agency will assess the data and case outcomes before taking further action or review.  The review is viewed as a further step in implementing the June 17, 2011 Prosecutorial Discretion Memorandum that set forth various factors and criteria to consider when deciding to initiate or continue with removal proceedings.  That memo announced plans to review of 300,000 pending cases to determine which ones are appropriate for an exercise of prosecutorial discretion.  This most recent memo sets that review in motion as well as provides more detailed guidance to ICE attorneys. The intent of the effort is to direct enforcement and deportation to cases where the respondent poses a threat to public safety and away from those who are students, long-term residents, or have formed families and strong community ties.

On November 4, 2011, the DHS extended TPS for nationals of Honduras and Nicaragua.  Nationals from those two countries who have previously registered for TPS are now eligible to re-register for an 18-month extension of their TPS status and employment authorization document (EAD).   TPS was scheduled to expire for these persons on January 6, 2012, but the USCIS recently extended TPS eligibility until July 5, 2013.  TPS beneficiaries from those two countries who pursue re-registration will also have their EADs automatically extended for six months, or until July 5, 2012.

The 60-day re-registration period began November 5, 2011 and will run through January 5, 2012.  To re-register, submit the following documents: Form I-821 (without filing fee); Form I-765 (with $340 filing fee if seeking an EAD or extension unless seeking fee waiver); and biometrics fee of $80 for applicants age 14 and older (unless seeking fee waiver).  Applicants filing for a fee waiver should complete and file Form I-912, Request for Fee Waiver, and submit it together with supporting documentation.

Honduran TPS re-registrants should send their applications to  USCIS, Attn: TPS Honduras, P.O. Box 6943, Chicago, IL 60680-6943.  Nicaraguan TPS re-registrants should send their applications to USCIS, Attn: TPS Nicaragua, P.O. Box 6943, Chicago, IL 60680-6943. If the re-registrant does not need to submit supporting documentation, he or she may file the application electronically by following the instructions on the USCIS website.

By Leya Speasmaker

What method does your office use to process new client consultations? Read below to learn how two CLINIC affiliates have each created a system that accommodates and meets the needs of their office and their community.

Appointment-Only Model

Nathaly Perez
Program Manager
Office of Immigrant Services (OIS)
Catholic Charities of East Tennessee

1.  How do you currently process and accept new clients seeking the services of your office?

When someone calls or stops by our office, our staff conducts a brief legal screening in order to determine if the person or family’s request matches the organization’s services. We also let them know what services will be available and when they will be available.

If OIS does offer the immigration legal service the client needs, the staff person schedules a consultation with the BIA accredited representative, while also informing the client of the initial consultation fee due at the time of the appointment.

Once the client arrives for the appointment, the intake sheet is completed. At this time the client is informed of his or her rights and responsibilities to the agency, as well as the confidentiality policy. If it is determined that the client’s case will be taken, it is only then that a case number is assigned and the client signs a retainer agreement.

All clients who walk in are required to schedule an appointment for a later date unless the person’s situation is deemed an emergency requiring immediate attention.

2.  Why did your office decide to use this approach?

 Our office decided to use this approach because of the high number of calls and walk-ins we receive. In order to manage the demand, we needed to develop a concrete system that worked for our office. Now, we have set hours for consultation appointments, which last one hour each. We only make appointments for Mondays and Wednesdays from 1 to 6 p.m. and on Tuesdays and Thursdays from 10 a.m. to 3.p.m. We do not schedule appointments on Fridays or during other business hours so that we have time to complete case work and other tasks.

3.  What is the impact of this approach on your program?

This approach has had a very positive impact on the day-to-day operations of our office. Now, we experience less chaos, and the day’s schedule is much more organized and systematic. We have fewer "no-shows" and an increase in initial consultation fees because people understand up front they must come with fees (or their fee waiver request items) in order to receive an appointment.

4.  What is the community’s response to this approach?

The community now appreciates and values the appointment, our time, and their time more than when they could simply arrive at our office at any point in the week. I believe we have also increased the level of our office’s professionalism in the eyes of the community.

Also, clients who open cases with our office are motivated after the initial consultation to make follow-up appointments faster, since they know they'll be waiting a week or two before the next available slot.

Walk In-Only Model

Vanna Slaughter

Division Director

Catholic Charities of Dallas, Inc.

Immigration and Legal Services 

 

1.  How do you currently process and accept new clients seeking the services of your office?

Our program conducts daily walk-in intake from 7:30 a.m. until noon on a set schedule that includes some Saturdays.

One Monday a month, we ask clients who have “whopper” cases to come in to open their cases on a scheduled pre-paid appointment basis.  A "whopper" case can include: 1) large refugee families applying for adjustment of status; 2) multi-beneficiary family adjustment of status cases; 3) I-601 waiver packets; and 4) domestic violence victims' cases that need personal testimonies prepared.

We do our schedule this way for two reasons.  First, we want to give staff at least one Saturday off each month.  Second, we want to be able to dedicate the entire day for the preparation of big cases, so they don't backlog us during the week.

Each morning at 7:30 a.m. we open the doors and hand out numbers (there is always a line of people waiting).  Once everyone is seated we give an intake "charla" explaining how we operate and what to expect.

In our efforts to promote citizenship, we ask anyone present who has come only for US citizenship to come to the head of the line. We then ask everyone to applaud them for making the important decision to become a US citizen. 

Before we open the doors, we estimate our capacity for the day. Everyone is usually able to do four to five consultations on any given morning.

2.  Why did your office decide to use this approach?

Over the years, we have experimented with various appointment models and they have simply never worked for us.  When we used a 100 percent appointment intake model, we had a huge "no show" rate and it severely affected our productivity. We also tried a pre-paid appointment model, but at one point we had appointments scheduled so far out into the future (because of the demand), that it became a worrisome liability concern for us. So, after each attempt we have return to the walk-in model.

3.  What is the impact of this approach on your program?

This approach has several advantages. First, the walk-in model does not require us to maintain an appointment schedule. Next, we are able to control on a daily basis the number of potential clients we see and "cut off" the flow when we reach our capacity. Also, clients can choose when to come, including Saturdays, which is our busiest day.  Finally, while people are waiting to see staff, we take advantage of their attention and conduct outreach on important topics.

4.  What is the community’s response to this approach?

We do receive a few “Suggestion Box” cards complaining about the procedure we use that allows citizenship clients to go to the head of the line, but we believe it sends a positive message to all our clients about the value we place on citizenship.   The vast majority of our daily "Suggestion Box" cards are overwhelmingly positive about the ease of our system and the efficiency of it.

CLINIC and the United States Conference of Catholic Bishops are hosting a conference on state and local immigration issues.  The conference will be held in Salt Lake City from January 11-13, 2012.  We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include:

  • strategies for communications and messaging;
  • coalition building; and
  • parish organizing and education.

On topics such as:

  • comprehensive anti-immigrant legislation;
  • state cooperation with E-Verify;
  • education, health care and public benefits; and
  • the impact of these immigration measures on the Church’s mission. 

Confirmed speakers include John Sandweg, Counsel to DHS Secretary Napolitano.

Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

On October 31, the Department of Justice announced it was filing a complaint and injunction against certain provisions in the recently passed South Carolina immigration law (Act No. 69).  Passed in June, the South Carolina law is set to go into effect on January 1st. The law requires police officers to question the immigration status of individuals stopped for other reasons if the officers suspect them to be undocumented. The DOJ is challenging the constitutionality of the law as an intrusion on the federal government's interest and authority over immigration law and enforcement.

CLINIC’s State & Local Initiatives Project is pleased to announce its Alabama Resource Center, located on CLINIC’s website.  The site includes an analysis of the new law and the subsequent court rulings blocking parts of it, and talking points for advocacy on this and other state anti-immigrant measures.

The Alabama Resource Center also provides “know your rights” materials and three separate Community Resource Q&As on different parts of the Alabama law.  This site will be regularly updated with new materials, so we encourage you to keep coming back to it.  Please contact CLINIC’s State and Local Project attorney, Karen Lucas at klucas@cliniclegal.org with any questions.

By Allison Posner

On October 24, 2011, CLINIC celebrated the 10th Anniversary of the Board of Immigration Appeals (BIA) Pro Bono Project.  A reception was generously hosted by the law firm Fried Frank with special guests in attendance, including the Honorable Immigration Judge Paul Schmidt, Acting Director of EOIR Juan Osuna, and Acting Chairman of the BIA David Neal.

The BIA Pro Bono Project secures counsel for respondents who had no representation before the BIA.  They either lost their cases before the Immigration Judge or won and are now facing an appeal by the Department of Homeland Security.

In a published study, the Department of Justice found that immigrants who had been provided representation through the Project were up to four times more likely to win a favorable decision before the BIA.  CLINIC has succeeded in securing pro bono representation for nearly 800 respondents around the country – individuals who would not have otherwise had representation. 

Project Coordinator Lauren Sullivan presented certificates of appreciation to the 10 volunteer screeners who devote countless hours every week screening cases for eligibility in the Project.

Also at the reception, CLINIC presented its 2011 Pro Bono award to the Georgetown University Law Center’s Appellate Litigation Center for its longstanding support of the Project.  Along with their students, Professor Steven Goldblatt and his predecessors have represented almost 40 respondents through CLINIC’s Project. Because many of Georgetown’s alumni continue to volunteer after they graduate, the school’s involvement with the Project has had a ripple effect, providing some of our most qualified pro bono counsel.

Immigration Legal Skills

E-learning Course:

Immigration Legal Skills

January 11-February 8, 2012

The course webinars will take place on the five consecutive Wednesdays of the course, beginning January 11, 2012, and ending February 8, 2012.  All webinars run from 2:00-3:30pm Eastern Standard Time. 

 Before registering for this training, please make sure that you will be available for these webinars. 

$ 200 per person for CLINIC affiliate agencies (paying annual dues)

$ 225 per person for other nonprofit agency staff

$ 325 per person for private attorneys and staff 

How and where do you find immigration laws, and once you find them, how do you use them?  Knowing how to find the law, and how to write clearly and effectively are essential parts of every immigrant advocate's job. This hands-on, four-week e-learning course will focus on building fundamental legal research and writing skills.  Through readings, webinars, and exercises, participants will learn methods for conducting legal research using primary and secondary immigration source books and the Internet.  Students will practice writing persuasive letters and declarations, and will receive substantive feedback from the instructors.  The instructors will also discuss client interview techniques and how to advocate for clients before DHS.  The course is aimed at practitioners who have had little experience with legal writing and research.

Topics include:

            Sources of Immigration Legal Authority

            How to Find Immigration Legal Authority

            Persuasive Legal Writing

            Advocating for Clients with DHS

            Client Interview Techniques

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Wednesdays, as listed above.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle and Charles Wheeler.  For questions about the course content, please contact Jennie Guilfoyle at jguilfoyle@cliniclegal.org.

Note that successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Training Level: Introductory.  This is an introduction to immigration legal research and writing.  Basic familiarity with the immigration system, especially family-based immigration, is assumed.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to: CLINIC at 202-635-2649 to the attention of Andrés Abella or to his e-mail: aabella@cliniclegal.org.  Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. Please note that only the person who registers for the training has authorized access to course webinars and the e-learning website and posted materials.

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Be sure to list the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is January 4, 2012, or sooner if registration is filled. For registration information contact Andres Abella at:  aabella@cliniclegal.org.   

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE.

 

REGISTER HERE

Training Category: 

U.S. Citizenship: Acquisition, Derivation and Naturalization

E-learning Course: 

U.S. Citizenship: Acquisition, Derivation and Naturalization

January 10- February 7, 2012 

Click here for a more detailed course outline including the dates and times of the five webinars.  Before registering for this training, please make sure that you will be available for these webinars. 

$200 per person for CLINIC affiliate agencies


$225 per person for other nonprofit agency staff


$325 per person for private attorneys and staff 

This four-week training will cover acquisition and derivation of citizenship, and the requirements for naturalization, including residence, physical presence, good moral character, civics and English language requirements and exemptions, disability waivers, oath requirements and the application process. Throughout the course, participants will review both the law and procedure for acquisition, derivation, and naturalization, including examination of sample application forms. The training will also include exercises and readings on these topics. 

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.  This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Tuesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Kristina Karpinski and Debbie Smith.  For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

Training Level: Introductory.  This is an overview of citizenship for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax or scan a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202.635.2649  to the attention of Andres Abella, aabella@cliniclegal.org. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.

Please note that only the person who registers for the training has authorized access to course webinars and the elearning website and posted materials.  

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is January 5, 2012, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTER HERE


Training Category: 

Assisting Family Members of U Status Applicants and U Status Holders

Assisting Family Members of U Status Applicants and U Status Holders

December 16, 2011

2:00 p.m. - 3:30 p.m. Eastern Standard Time  
11:00 a.m. - 12:30 p.m. Pacific Standard Time
Cost: Free for CLINIC affiliates paying annual dues

One of the benefits of U non-immigrant status for victims of crime is the ability to apply for certain family members as derivatives.  The presenters will discuss the eligibility requirements for derivatives and the bars that apply.  The presenters will also explore the problem areas for derivatives including extensions of status.    Eligibility for adjustment of status, including the I-929 process for family members not previously in U status, will also be discussed.  The presenters for this webinar are Sarah Bronstein and Jennie Guilfoyle, Training and Legal Support Attorneys with CLINIC.

Non-affiliates can register by clicking here.

Click here for complimentary webinar registration (log in required)

After registering you will receive a confirmation email containing information on joining the webinar.  For additional information, please contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Type: 
Training Category: 

Introduction to Immigration Law Practice: A Course for New Practitioners

  Introduction to Immigration Law Practice:

A Course for New Practitioners 

Co-Sponsored by

Catholic Legal Immigration Network, Inc. (CLINIC) and
Catholic Charities of Central Florida

 January 25-26, 2012
8:45 a.m. - 5:30 p.m. – Day One
8:45 a.m. – 4:45p.m. – Day Two

Location

Diocese of Orlando
Chancery Building
50 East Robinson Street
Orlando, FL 32801
(407) 246-480

Approved for 15 Florida CLE Credits

$235 per person from CLINIC affiliate programs; $705 cap ($50 materials fee per person for more than 3 attendees from the same office site)

$260 per person for other non-profit agency staff; $780 cap
($50 materials fee per person for more than 3 attendees from the same office site)

$390 per person for private attorneys and staff 

Continental breakfast included.  Lunch is on your own.

This two-day training provides the new immigration practitioner with an overview of immigration law concepts and the practice skills necessary to be an effective advocate. Through large group presentations, skits, and small group exercises, participants learn about rights and remedies under immigration law, the functions of the different government agencies that carry out immigration law,

and the fundamentals of interviewing clients, preparing applications, and staying up-to-date on the law.  Topics covered include the family-based petition process, adjustment of status, consular processing, inadmissibility and deportability concepts and select grounds, naturalization and BIA accreditation.  The trainers for this program are CLINIC attorneys Jennie Guilfoyle and Susan Schreiber.  

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 202-635-2649 to the attention of Andres Abella. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  

Note that this is an interactive training with several small group exercises included in the curriculum. Prior to the training, participants will receive an email with some short reading and worksheet assignments to be completed before the training starts. Participants will also have a homework assignment to complete for day two of the training.

Space is limited to 50 participants. The deadline for registration is January 17 or sooner if registration is filled.  For registration information contact Andres Abella, aabella@cliniclegal.org

                        For the agenda and additional information, click here

Hotel Reservations:

A block of rooms has been reserved at the Sheraton Orlando Downtown Hotel, 400 West Livingston Street, Orlando FL 32801, www.orlandosheratondowntown.com, 407-843-6664.  The group rate is $119/night.  The cut-off date for this special rate is January 3, 2012.  When you call to reserve a room, the group name is “CLINIC.”  The hotel is about an 8-minute walk from the training site.

REGISTER HERE

Training Category: 
Training Location: 


      Click here for the Novmber 2011 Visa Bulletin.

By Charles Wheeler

The most important canon in the medical profession is to do no harm.  That adage comes into play in immigration law as well, especially when advising clients whether or not to naturalize.  Most of those judgment calls involve clients who have committed an offense that might make them subject to removal. It also arises when the client has spent a considerable amount of time outside the United States while a permanent resident, thus opening up the possibility of abandonment of permanent residency.  But after passage of the Child Status Protection Act (CSPA), another pitfall involves the potential adverse effect naturalization could have on the client’s children.

One of the more confounding – and now disappointing – aspects of the CSPA has been whether it offers children protection when their parents naturalize and they automatically convert to a different preference category.  After all, a special section codified at INA § 204(k) was added by the CSPA to ensure that children from the Philippines in the F-2B category would not be penalized when their parents naturalize.  These children are allowed to opt out of the automatic conversion to the F-1 category and remain in the F-2B, given that the backlogs in the first preference are longer.  What about children who are over 21 using their biological age, but still in the F-2A category due to their CSPA age?  The first preference is also currently backlogged farther than the F-2A for all nationalities.  Shouldn’t they be able to take advantage of this benefit and opt out? The answer, according to a recent BIA decision, is “no.” Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011). The holding sends a clear warning to those who are contemplating naturalizing and whose children might be affected.  It also is a sharp rebuke to the USCIS, which recently analyzed this issue and came to the opposite conclusion.

Effect of Petitioner Naturalizing.  Let’s start with a review of the possible scenarios when the petitioner naturalizes.  These include the following: (1) the child is under 21 using biological age; (2) the child is over 21 using biological and CSPA age at that time; and (3) the child is over 21 using biological age but under 21 using CSPA age. It is the last scenario that has caused the most confusion and has now been addressed by the BIA.

 

Child Is Under 21 When Petition Is Filed and When Petitioner Naturalizes. The children of LPR parents who filed a Form I-130 on their behalf and who subsequently naturalize will be able to take advantage of the CSPA if these children are unmarried and under 21 on the date the petitioning parent naturalizes. The children automatically convert from the second-preference F-2A category to immediate relative. Under Section 2 of the CSPA, codified at INA § 202(f)(2), they will be able to preserve that status even if they subsequently turn 21 before immigrating. It is the date of the parent’s naturalization that controls. If the child was under 21 at that time, he or she converted to the immediate-relative category and will not age out.

Example: Nora, an LPR, filed an I-130 for her 17-year-old daughter, Sophia.  Three years later, before the F-2A category became current, Nora naturalized.  Sophia, now age 20, automatically converted to the immediate relative category, since she was under 21 on the date of the petitioner’s naturalization.

It is the child’s biological age – not his or her CSPA age – on the date of naturalization that determines immediate relative status.  The BIA’s recent decision also addressed this issue and clarified that one cannot use the CSPA age-adjustment formula of section 3 to claim immediate relative status. Section 2 of the CSPA only looks to biological age on the date of naturalization, not adjusted age.  Children who are over 21 on the date of naturalization convert to the first preference category, regardless of how long the I-130 petition had been pending, as will be discussed in the second and third scenarios.

 

Child is Over 21 When Parent Naturalizes.  Under current law, as well as that existing before passage of the CSPA, an LPR parent’s I-130 petition filed on behalf of an unmarried son or daughter over 21 will automatically convert from the second-preference F-2B category to first preference when the LPR parent naturalizes. The same is true if the child was under 21 at the time the I-130 was filed but later turned 21 (after applying CSPA age-adjustment rules) before the LPR naturalized; the category converts from F-2A to F-2B and then to first preference.

The first preference category is now backlogged further than the F-2B category for beneficiaries from the Philippines, and on occasion it has been backlogged further for beneficiaries from Mexico. Therefore, when their parents naturalize, and these sons and daughters over 21 convert from F-2B to first preference, they actually extend the time they must wait for their visa to become current. Section 6 of the CSPA eliminated this penalty by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the F-2B category.

The USCIS issued a memo on March 3, 2004, explaining the procedure for opting out. Since only beneficiaries from the Philippines were affected by this provision, they were required to send a letter formally requesting preservation of their F-2B classification to the officer-in-charge in Manila. The officer-in-charge in turn would provide written notification of a decision granting or denying the request and send it to the beneficiary and to DOS’s Visa Issuance unit.

The USCIS subsequently changed the opt-out request procedure. According to a later memo, affected children “should file a request in writing with the District Office having jurisdiction over the beneficiary’s residence.” For those residing in the United States, that will be the local district office. For those residing in the Philippines, it will be the officer-in-charge in Manila. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. To expedite the request, applicants were told to include the following basic information about the case: case number, date of beneficiary’s birth, name of petitioner, priority date, preference category, and a copy of the I-130 approval notice.

Example. Sandra is the 34-year-old daughter of a Filipino man who just naturalized. He filed an I-130 petition on Sandra’s behalf on April 15, 2001. At that time she was 24 years old. The second-preference F-2B category is now current for her priority date. But when her father naturalized, she converted to the F-1 category, which is currently backlogged three and a half years further than the F-2B category. Fortunately, Sandra can elect to remain in the F-2B category and thus be eligible to adjust or consular process. She must file a formal election and written request to the USCIS office in Manila.

The statutory language in section 6 of the CSPA is mandatory (“any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place”), and thus requires the agency to accept the applicant’s written statement opting out of the automatic conversion. Therefore, the son or daughter should not have to file a “request” and have that “approved.” Obviously, one should make this argument in any situation in which the son or daughter is denied the right to opt out.

It would not have mattered if the beneficiary started out in the F-2A category and later converted to the F-2B category by the time the petitioner naturalized.  A clarifying memo from the agency determined that the opt-out protection would extend to those beneficiaries as well.

 

Child Is Over  21 Using Biological Age But Under 21 Using CSPA Age When Petitioner Naturalizes. Section 3 of the CSPA changed the definition of unmarried child under 21 of an LPR for purposes of eligibility for the F-2A classification. The language in INA §203(h) is also mandatory; the determination of age “shall be made using” the child’s adjusted age – not biological age – on the date the visa becomes available or the date the petition is approved, whichever is later. Children are allowed to subtract from their age the entire period the petition was pending before being approved by the USCIS. Therefore, children in the F-2A category who are over 21 using their biological age, but under 21 using their adjusted age on the date the visa becomes available, would not convert to the F-2B category.  These children are able to preserve their F-2A status provided they seek LPR status within one year of the visa becoming available.

Under section 3 of the CSPA, therefore, children of LPR petitioners are able to preserve their F-2A classification upon turning 21 if they are still under 21 using their adjusted age on the date the F-2A becomes current. But assume that before the child immigrates or adjusts status in the F-2A category, the petitioner naturalizes. We know that the child does not convert to the immediate relative category, since section 2 of the CSPA controls and that section looks to the biological age of the child on the date of naturalization. The child would appear to convert from the F-2A category to the first-preference.  But for nationals of all countries, the first preference is currently backlogged four and a half years further than the F-2A category.  For nationals of Mexico and the Philippines, the backlog is considerable (15 years and 12 years, respectively).

While CSPA § 6 allows children in the F-2B category to opt out of conversion to first preference, it has been unclear whether its protection extended to children over 21 but still in the F-2A category.  Are they allowed to opt out and remain in the F-2A category?  That was one of the questions addressed by the recent BIA case, which held that the statute provided no equivalent opt-out provision for children in the F-2A category. The exact language of section 6 reads as follows:

1) In General- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant [in the F-2B category] based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant [in the first preference category].

(2) Exception- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.

The BIA applied standard statutory construction principles. Section 6 of the CSPA refers specifically to beneficiaries in the F-2B category who wish to opt out of conversion and remain in the F-2B category.  The BIA also looked at Congressional intent, which it found was attempting to “fix…a troubling anomaly in our immigration laws” when some children were “in effect…penalized for becoming citizens.” But it determined that the anomaly that Congress was trying to fix did not extend to the one presented in this case.  It held that: “[n]either section 204(k)(2) of the Act nor the USCIS memorandum allows an alien to elect to remain in the 2A-preference category upon the petitioner’s naturalization where the alien is biologically over the age of 21 but would remain legally a “child” by applying the formula in section 203(h)(1) of the Act.” (emphasis in the original).

As a result of the BIA decision, practitioners must be wary of filing for naturalization if the applicant has children who are approaching or have already turned 21.  Those children might be able to retain their F-2A status using CSPA age-adjustment principles.  But those children would convert automatically to the first preference upon the parent’s naturalizing if they are over 21 using their biological age and would be unable to reverse the process.  For children from Mexico, it will be painful informing them that may have to wait another decade or more before becoming LPRs based on their parent’s naturalizing.

Example. Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolisma.  At the time, she was 17 years old.  The I-130 was pending for four and a half years before it was approved.  Yolisma is now 23, but according to her adjusted age, she is only 19 and is still in the F-2A category.  Her visa is now current, but Jose naturalized last month. Yolisma converted to the first preference category and will be unable to opt out of this conversion to stay in the F-2A.

Ironically, less than four months prior to the BIA’s decision, the USCIS analyzed this issue and decided that the CSPA allowed these children to opt out of conversion to the first preference and remain in the F-2A category. This rationale was set forth in the minutes to a national stakeholders’ meeting held on June 29, 2011.  While the minutes did not carry the force of law, they did provide guidance to practitioners and adjudicators as to the agency’s official position.  It is an embarrassment for the agency now to have to retreat, and an injustice to those who relied on this policy statement to their peril. But after this recent BIA’s decision, it will be a greater embarrassment – and a violation of the first canon – for the practitioner who assists a client in naturalizing only to discover that the children are greatly disadvantaged.

By Nadine Wettstein

The U.S. Supreme Court will be ruling on at least four major immigration issues in its 2011-2012 term, which began on October 3, 2011.  The Court may yet add additional cases and issues to the docket. The Court’s decisions promise to settle some long-fought arguments and significantly affect the development of immigration law.  The following is a short summary of the cases and questions the Court already has accepted this term.

Section 212(c) Lives! Must There be a Corresponding Ground of Inadmissibility? The first issue the Court will consider concerns the repealed but still-viable and relevant relief from removal, the §212(c) waiver.  At issue is the BIA’s decision, Matter of Blake, 23 I&N Dec. 722 (BIA 2005).  In Blake, the BIA held that a person found deportable based on an aggravated felony conviction, under INA § 237, was not eligible for a § 212(c) waiver because there was no corresponding ground of inadmissibility for “aggravated felony” under INA § 212.

Almost all the circuit courts of appeal have considered challenges to Blake, and all but the Second Circuit upheld the BIA’s decision.  This is the question the Supreme Court granted certiorari to address:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the INA.

The case is Judulang v. Holder, No. 10-694 [decision in lower court: 06-070986, 2007 U.S. App. LEXIS 22480 (9th Cir. Sept. 17, 2007)].   CLINIC submitted an Amicus Curiae (Friend of the Court) brief to the Supreme Court in this case, focusing on §212(c) relief as ameliorative in nature.  The brief, written by Ira Kurzban, argues that the Blake formulation forecloses §212(c)’s critical function as a discretionary provision of mercy and forgiveness for deserving long-time lawful permanent residents.  

Briefing in Judulang has been completed and the Supreme Court held oral argument on October 12, 2011.  The Court may issue a decision before the end of the year.

Are “Aggravated Felonies” Really Aggravated? The next case scheduled for argument concerns the far-reaching impact of the expanded definition of “aggravated felony.”   The question presented is:

Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2), were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable.

The Ninth Circuit – in conflict with the Third Circuit, Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) – held that this offense is an aggravated felony.

In this case, too, CLINIC signed on to an Amicus Curiae brief written by Ira Kurzban.  The brief emphasizes the disastrous emotional, physical, and financial impact on U.S. families of a family member being deported.  The brief argues that Congress intended to limit the definition of “aggravated felony” to the very specific crimes identified in the statute, especially as deeming something an aggravated felony brings numerous severe consequences, deeply affecting families.

The case is Kawashima v. Holder, No. 10-577 [decision in lower court: 615 F.3d 1043 (9th Cir. 2010)].   Oral argument is scheduled for November 7, 2011.

Can a Parent’s Residence be Imputed to a Child? Also this term, the Court will decide whether a parent’s residence in the U.S. and status as an LPR can be “imputed” to – that is, counted by – an unemancipated minor child who lived with the parent, so the child will qualify for cancellation of removal under INA § 240A(a).  That section requires that the cancellation applicant have been lawfully admitted for permanent residence for not less than five years, and that the applicant have resided in the U.S. continuously for seven years, after having been admitted in any status. The Ninth Circuit has held that if the parent meets these requirements but the child does not, the parent’s status and years of residence can be imputed to the child to qualify for cancellation.  We will see if the Supreme Court agrees.

The cases are: Holder v. Gutierrez, No. 10-1542 [decision in lower court: No. 08-70436, 411 Fed. Appx. 121, 2011 U.S. App. Lexis 1414 (9th Cir. 2011); and  Holder v. Sawyers, No. 10-1543 [decision in lower court: No. 08-70181, 399 Fed. Appx. 313, 2010 U.S. App. Lexis 21284 (9th Cir. 2010)].

Does Fleuti (“Innocent, Casual and Brief” Departures) Survive? Before IIRIRA was enacted in 1996, case law had developed the concept of “innocent, casual and brief” departures from the United States. This concept, otherwise known as the Fleuti doctrine, for the case Rosenberg v. Fleuti, 374 U.S. 449 (1963), allowed immigrants to leave the U.S. and return without triggering grounds of inadmissibility.  That is, if the departure was innocent, casual and brief, the person was not considered to be requesting admission on the return.

However, IIRIRA enacted INA § 101(a)(13)(C), which specifies the circumstances under which a returning LPR is not seeking admission to the U.S.  These circumstances do not expressly include the “innocent, casual and brief” concept.  Moreover, LPRs are considered to be seeking admission if they have committed specified offenses.

The question the Court will consider is:

Whether 8 U.S.C. § 1101(a)(13)(C)(v), which removes a legal permanent resident of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make “innocent, casual, and brief” trips abroad without fear that he will be denied reentry, applies retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act.

The case is Vartelas v. Holder, No. 10-1211 [decision in lower court: 620 F.3d 108 (2d Cir. 2010).

By Leya Speasmaker

How does your program respond to clients seeking to renew their Green Card? Here are two different approaches from affiliates in Texas. Alma Garza-Cruz from Catholic Charities of Southeast Texas in Beaumont responded to the following questions:

How do you currently respond to Green Card renewal applicants? We offer walk-in appointments on Fridays from 9AM – 3PM. Clients do not need to make an appointment in advance.  They must bring their paperwork and two money orders: one for Catholic Charities’ fee of $150.00 and one for the USCIS filing fee of $450.00. 

Why did your program decide to implement this approach? Before this initiative, clients seeking a Green Card renewal had to complete the typical client intake process, which includes intake and assessment, case selection, and a second appointment to complete the paperwork.  Due to scheduling availability and office processing times, clients would then need to wait an average of 2-3 weeks before our office actually filed their I-90. 

Many of the clients seeking to renew their Green Card come to us with “urgency.”  They realize their card has expired or is expiring in the very near future.  We found that the delay resulting from our typical office procedures prompted many to use quick responding notarios or insurance agents advertising preparation of immigration documents, etc. This new initiative helps to meet their need for immediate services, helps the clients avoid using the services of notaries, and helps our program to fulfill a need in the community.  While assisting the client in the renewal their Green Card, we take care to provide sound legal advice. We also use their appointment as an opportunity to discuss the naturalization process, the impact of crimes on immigration applications, and the responsibilities that Green Card holders have to the government.

What is impact of this approach on your program? The number of I-90s filed by our office is rising.  We have advertised in church bulletins, a Catholic newspaper, and at local Hispanic markets. We also mailed information about this service to over 600 employers in area. We issued a press release, and secured the services of a volunteer attorney who comes on Fridays to help us with the walk-in appointments. Through these advertising efforts, we have reached a greater market and are teaching the community the dangers of using unauthorized legal practitioners.

What is the community response to this approach? The community is glad that we have started this initiative. Clients like walking in without an appointment and being seen right away.  They also appreciate having the opportunity to avoid using the services of notarios.

Linda Brandmiller from Catholic Charities of San Antonio responded to the same questions as follows:

How do you currently respond to Green Card renewal applicants? Generally, our program does not help clients to renew their Green Cards.  If eligible, we encourage the client to file for naturalization instead. We ask two questions prior to accepting money for a consultation. The first is, “When does the card expire?”  This gives us an understanding of the time line and relevant options.  The second is, “Why are you renewing your LPR card, and why have you not applied for citizenship?” 

We provide a brief overview of why naturalization is an important step to take and how it can protect the client and their family. We explain that we offer two Saturday workshops per year (in the Spring and Fall) at a reduced fee of $50. Usually, the client will decide to proceed through the consultation process for naturalization screening (the $30 consultation fee is credited to the workshop fee).

If the client is not interested in naturalizing, we provide a referral to another local BIA program that charges a reduced fee to renew the card. We encourage the client to return to us when they are ready to consider naturalization. 

Why did your program decide to implement this approach?  We have a fundamental conflict with perpetuating an “underclass.”  We believe that people who maintain their LPR status are less likely to fully acculturate, will always be victims of changing laws and interpretations, do not have a true “voice” in the country since they cannot vote and are often written off as only “residents,” don’t qualify for full benefits, are always at risk of deportation, spend money unnecessarily on renewing a card that never provides permanency, generally have a longer wait time for petitioning relatives, and cannot petition for the full range of family members. Also, we have discovered recently that many LPR renewals may likely trigger a Notice to Appear due to past criminal history, fraud in obtaining the card, etc. Clients seek our services, “just to renew the green card” because they think that this application is safer to file and will escape detection, but we feel that this may not be the case.

What is the impact of this approach on your program? Some people walk away and state they won’t consider naturalization.  After understanding the full impact of remaining an LPR vs. transitioning to a USC, many clients choose to pursue naturalization. In the fairly rare circumstances where someone does not qualify to naturalize, we renew their LPR card with the explanation of what they need to do to become a citizen at the earliest possible time. Increased revenue is another impact we’ve seen because of this approach. We have more than doubled the participation in our most recent naturalization workshop and have seen increased requests for naturalization services in our office.

What is the community response to this approach?  As of yet, we have not heard of any significant community response one way or another.  As staunch advocates, even though our decision to not routinely renew LPR cards may be the road less travelled, we believe that sometimes you have to do something that may be a little more difficult but in the long-run has a better outcome for our clients.

CLINIC welcomes a new member agency, Catholic Charities of Shreveport in Louisiana.  The Diocese of Shreveport is already a member.  Yet, Catholic Charities of Shreveport, apart from the diocese, is a newly incorporated 501 (c) 3 agency. Jean Dresley, the Executive Director, advised that Catholic Charities will start a legal immigration program with new leadership and direct staff to conduct administrative-based immigration representation.  The Diocese of Shreveport will retain its BIA partially accredited representative to conduct immigration representation for its church-based needs. 

CLINIC has accepted and welcomes a new subscriber, Lutheran Community Services Northwest, with offices in Portland and McMinnville, Oregon, and Seattle and Vancouver, Washington. All but the McMinnville office are recognized with at least one accredited representative on staff.

CLINIC and the United States Conference of Catholic Bishops will be hosting a conference on state and local immigration issues.  The conference will be held in Salt Lake City, Utah from January 11 through13, 2012.  We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include strategies for communications and messaging, coalition building, parish organizing and education, and the impact of these immigration measures on the Church’s mission.  Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

Last month, DHS’s Homeland Security Advisory Council (HSAC) released a report outlining its findings and recommendations regarding the Secure Communities Program.  CLINIC shared its concerns that the recommendations do not go far enough to correct the real problems with the program.  On October 18, CLINIC wrote a letter to the HSAC welcoming several of the recommendations proposed by the Task Force.  CLINIC reiterated, however, the concerns expressed in our August letter to the Task Force and called upon HSAC to consider broader reforms.  CLINIC continues its active advocacy role with respect to Secure Communities by meeting with both the Government Accountability Office (GAO) and the DHS Office of Inspector General (OIG) as these officers carry out their independent reviews of the Secure Communities program.

CLINIC is interested in hearing about your recent experiences with U Visa certification practices in your area, to inform our advocacy with DHS’s Office of Civil Rights and Civil Liberties (CRCL) regarding that office’s oversight of certification practices in the field.  Have your local ICE/CBP agents, police departments and state attorneys general been certifying meritorious U Visa applications, or have they refused?  Contact CLINIC Advocacy Attorney Karen Siciliano Lucas at klucas@cliniclegal.org.

By Debbie Smith

On August 18th, the Obama administration announced that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) would be participating in a joint working group to ensure that the agencies direct their resources to the high-priority cases and “clear out” cases that do not involve immigrants who have been convicted of crimes or pose a security risk, i.e. low priority cases.  As part of this inter-agency review, the working group will analyze whether the 300,000 cases currently pending before the immigration courts, Board of Immigration Appeals, and federal circuit courts of appeals should be administratively closed.  The August 18th announcement was intended to implement the two memos issued by ICE Director John Morton on June 17, 2011 about prosecutorial discretion that clarify DHS’ enforcement priorities: national security, public safety, border security and repeat immigration law violators. 

What is prosecutorial discretion?  Prosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against a person, and even if there is a decision to exercise enforcement powers – to what degree and how – in what form to exercise enforcement powers.  In the immigration context, the decision of who to stop, who to arrest, who to detain, whether to initiate proceedings, and whether to execute a removal order are all examples of the exercise of prosecutorial discretion.  The types of prosecutorial discretion at ICE’s disposal include the decision to issue or cancel a detainer; issue, reissue, serve, file or cancel a Notice to Appeal; grant deferred action, parole or a stay of removal; settling or dismissing a proceeding, and pursuing an appeal.  Prosecutorial discretion may involve individual immigration decisions or larger policy determinations.  For example, the decision not to engage in immigration enforcement near schools or churches is a prosecutorial discretion decision within a larger policy framework.

What positive factors will be considered in a prosecutorial discretion decision? The factors that may be weighed in the exercise of prosecutorial discretion are the types of positive and hardship factors that we often consider in waiver cases.  The positive factors have been identified by DHS as meriting particular care and concern:

  • the length of presence in the US
  • the history, ties and contributions to the community
  • ties to family in the US and their citizenship or immigration status
  • ties to the home country
  • conditions in that country
  • health and age factors
  • presence of family members requiring care, military veterans, victims of domestic abuse or trafficking or other serious crimes, pregnant and nursing women. 

What is the current practice around the country? Although the August 18th announcement indicated that there would be guidance on prosecutorial discretion, two months later, no guidance has yet been issued.  Practitioners report that there is no uniform method of handling cases that request prosecutorial discretion.  The American Immigration Lawyers Association and the American Immigration Council recently released an interim report on the implementation of prosecutorial discretion nationwide.  According to this interim report, there has been a mixed response to practitioner requests for prosecutorial discretion.  Some offices have granted deferred actions and stays of removal.  Some DHS district counsel (OCC) have opposed motions to administratively close proceedings while others have joined in motions to administratively close.  Many immigration judges and district counsel have indicated an unwillingness to provide prosecutorial discretion until there is guidance and written memos from the joint DHS and DOJ working group.

What should you do?  There are significant questions left unanswered in the implementation of the announcement and Morton memos.  However, it may be important to do an inventory of your cases to determine if any fall within the areas specified in the announcement and memos.  This is particularly true for cases involving individuals currently in removal proceedings for whom the cancellation or reissuance of a Notice to Appear would permit the non-citizen to qualify for relief such as cancellation of removal or other forms of relief.  For example, if your client fits the criteria outlined for prosecutorial discretion, is in removal proceedings, and has eight years of physical presence in the US, you may seek prosecutorial discretion with the thought of cancelling the Notice to Appear now but later requesting reissuance if your client has a good cancellation of removal case.

In addition, it’s important to review your cases to look for instances involving individuals who were the victim of a crime, a witness to a crime, or a plaintiff in a lawsuit involving civil liberties or civil rights.  We are accustomed to looking for crime victims for purposes of U visa cases, but we can also expand our sights to those involved in protecting their civil rights via union organizing or complaining about employment discrimination or housing conditions.  Those involved in unfair labor practice actions – state or federal labor department cases, employment discrimination actions, etc. – should be protected under the terms of the Morton memos. 

Prosecutorial discretion should also be exercised to allow clients previously apprehended by ICE to be released from custody or granted deferred action, parole or a stay of removal.  Other clients in removal proceedings may be able to benefit from the exercise of prosecutorial discretion and be permitted to settle a case or appeal, dismiss a proceeding, or join in a motion to reopen removal proceedings.

How do you go about requesting prosecutorial discretion? The announcement and memos do not outline any procedure for requesting prosecutorial discretion.  However, since prosecutorial discretion may be requested at any stage in the proceedings – at the time of arrest, detention, or  even after an order of removal – where the request is filed will depend on the stage of the case.  You may make the request of the district counsel if your client is in removal proceedings.  In other circumstances, it may be appropriate to make your request of others within ICE.

Your client may also request prosecutorial discretion from USCIS to prevent the initiation of proceedings or request other consideration.  Despite the fact that the current memo is from ICE, previous memos have included USCIS, and it is also appropriate to request its exercise prosecutorial discretion.

CLINIC’s Advocacy staff is interested in hearing from you about your experiences with requesting prosecutorial discretion in your cases.  Please contact Allison Posner at aposner@cliniclegal.org to relate your experiences sharing the merits of your clients’ cases and how the government responded to your requests.

The ABC's of Employment Based Immigration

 

November 22, 2011

The ABC's of Employment Based Immigration    

2:00 p.m. - 3:30 p.m. Eastern Daylight Time 

11:00 a.m. - 12:30 p.m. Pacific Daylight Time 

Cost: $50; Free for CLINIC affiliates paying annual dues

 

The immigration law authorizes temporary and permanent stays in the U.S. for certain employees and employment.  This webinar will discuss non-immigrant visas related to employment-based immigration and the rules governing the accrual of unlawful presence and dual intent for those visas.  The webinar will also provide an overview of employment-based immigrant visas. The speakers will include Scott Pollock, an attorney at Scott D. Pollock and Associates in Chicago, and Debbie Smith, attorney at CLINIC.  Scott Pollock is an attorney with more than 25 years of experience in employment-based immigration, deportation defense and federal litigation.  Debbie Smith, a Training and Legal Support attorney at CLINIC, was previously in private practice in San Francisco.

 

Non-affiliates, register by clicking here. 

 

Affiliates, click here for complimentary webinar registration (log-in required).

 

 After registering you will receive a confirmation email containing information on joining the webinar.  For additional information, please contact Dinah Suncin at dsuncin@cliniclegal.org.

Training Category: 

The Nuts and Bolts of Case Management and Legal Supervision

The Nuts and Bolts of Case Management and Legal Supervision

November 10, 2011 

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time

How do you ensure your case management systems are working effectively? How do you ensure the quality of your immigration work before it is filed? How can you ensure your program is providing quality immigration services?  In this 90 minute webinar, we will discuss the importance of case management and legal supervision in your immigration program.  You will learn what it is, who can supervise, what supervision entails and where and how often supervision needs to occur.  CLINIC affiliates will be sharing their legal supervision model.  Please join Helen Chen, Field Support Coordinator of CLINIC, Kathleen Walsh, Executive Director of Catholic Charities of Raleigh and Lisa Chun, Supervising Attorney of North Carolina Justice Center.  

Non-affiliates can register by clicking here.

Click here for complimentary webinar registration (log in required)

After registering you will receive a confirmation email containing information on joining the webinar.

Training Category: 


    Click here or on the icon to view the Visa Bulletin.

  Introduction to Immigration Law Practice:  A Course for New Practitioners

October 18- 19, 2011

Louisville, KY 40202

 

 

Overview of Citizenship: Acquisition, Derivation and Naturalization

October 19 - 20, 2011

Phoenix, AZ 85013

By Charles Wheeler

The most ambiguous and hotly contested provision in the Child Status Protection Act (CSPA) concerns the status of derivative beneficiaries after they age out.  The relevant provision, codified in INA § 203(h)(3), reads as follows:

RETENTION OF PRIORITY DATE—If the age of an alien is determined under [INA §203(h)(1)] to be 21 years of age or older for the purposes of [INA §§203(a)(2)(A) and (d)], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

In the preceding sections, 203(h)(1) sets forth the CSPA age-reducing formula for determining whether an alien has aged out. Section 203(h)(2) defines the petitions covered by 203(h)(1) and includes F-2A beneficiaries and derivative beneficiaries in all family- and employment-based petitions, as well as diversity immigrants.

The INS/USCIS, Department of State, and the Executive Office for Immigration Review have been battling practitioners on the proper interpretation of section 203(h)(3) almost from the date the CSPA was implemented.  And a lot rides on the outcome.  Thousands of children who are now over 21 using their CSPA age, but who were once derivative beneficiaries in one of the family-based categories, either are or are not eligible to immigrate immediately upon the principal beneficiary’s becoming an LPR and filing a new petition in their behalf.

Although relatively straightforward on its face, the language in 203(h)(3) has managed to confound the Board of Immigration Appeals and now the federal circuit courts.  Upon further analysis, it reads like a riddle subject to multiple interpretations – a legal Rubik’s Cube of possible meanings – each one containing some flawed reasoning. Does the word “petition” relate to all petitions covered in 203(h)(2) or does it apply only those in the F-2A category?  If it applies to all derivatives, what category do they convert to when they age out and when does this conversion take place?  If it applies to all derivatives, does this really mean that they retain the priority date filed on behalf of their parent years earlier, and thus will be current upon the parent’s filing a new petition in their behalf? Does it matter what Congress intended when it passed this provision, or are the words plain and unambiguous on their face?  If this provision applies only to derivatives in the F-2A category, does this “automatic” conversion necessitate the filing of a second I-130 petition on the child’s behalf? These are the questions the appellate agency and federal courts grappled with as they came to differing results using varying approaches.

When an LPR parent petitions for an unmarried child under 21 and that child ages out of the second-preference F-2A category, after taking into account the CSPA’s age-out protections, the child automatically converts to the F-2B category. If that child was not a direct beneficiary but a derivative in the F-2A category, and then ages out, the child loses derivative status. The USCIS’s current policy is that the LPR parent must file a separate I-130 on the child’s behalf. The child converts from the F-2A category to the F-2B category upon the LPR parent’s filing this second petition, and the child is able to retain the original priority date that was obtained for the first I-130. 8 CFR § 204.2(a)(4).

Example. Dinah, an LPR, filed an I-130 petition for her husband, Carlos, on April 30, 2001. She named her daughter, Maria, on the I-130 petition. When the F-2A petition became current, Carlos adjusted status under INA §245(i). Maria had turned 24 and had aged out of derivative status, even after applying CSPA principles. Dinah will need to file a new I-130 on Maria’s behalf, since Maria is no longer a derivative. Maria will convert to the F-2B category and will be able to retain the priority date from the first I-130 petition filed on behalf of Carlos.

According to the USCIS, that same principle does not apply to derivative children who age out, after applying the CSPA, in the first-, third-, or fourth-preference categories.  Those children will have to wait until their parent, the principal beneficiary, becomes an LPR and files a new I-130 petition on their behalf. This would be a second-preference F-2B category petition.  But the child does not get to retain the original priority date.

During a ten-week period ending on September 8, 2011, three circuit courts weighed in.  The first found that the language in the statutory provision was unambiguous and thus the court was free to ignore agency interpretation.  But it held that the automatic conversion and retention of priority date principle applied only to children in the F-2A category and not to all other beneficiaries.  Li v. Renaud, 2011 U.S. App. LEXIS 13357 (2nd Cir. N.Y. June 30, 2011). The second court found the language ambiguous and deferred to agency interpretation, thus resulting in a similar outcome albeit from a different direction. Cuellar de Osorio v. Mayorkas, 2011 U.S. App. LEXIS 18289 (9th Cir. Cal. Sept. 2, 2011).  But the third court, like the first one, found the language to be unambiguous, only it came to the opposite conclusion – the provision applied to all derivatives, not just those in the F-2A category. Khalid v. Holder, 2011 U.S. App. LEXIS 18622 (5th Cir. Sept. 8, 2011). It is presumed that the government and/or the petitioners will be seeking further review of these decisions, through petitions for rehearing en banc, stays, or a writ of certiorari to the U.S. Supreme Court. This article will try to shed some light on these different holdings and let practitioners know the current interpretation in their jurisdiction.

This CSPA provision was first interpreted by the INS shortly after the law was passed; the agency’s unofficial position was that it narrowly applied only to derivative beneficiaries in the F-2A category. But this interpretation was put into question by an unpublished decision from the BIA, which held that derivative children in other family-based categories – including the third and fourth preference – must also covert to the F-2B category upon the principal beneficiary’s immigrating and filing a new petition on their behalf.  And the aged-out children then retain the original priority date for the petition filed on behalf of the principal beneficiary. Matter of Garcia, 2006 WL 2183654 (BIA July 16, 2006).  The BIA reasoned that the Aappropriate category@ must be viewed from the perspective of the principal beneficiary, i.e. the aged-out derivative becomes the unmarried child over 21 of an LPR.

The USCIS did not adopt this case holding or interpretation, however.  In fact, at a USCIS National Stakeholder meeting on May 27, 2008, the agency finally stated its official position that the conversion and retention language of INA § 203(h)(3) applied only to derivatives who age out of the F-2A category.  At about that time the Attorney General certified a case similar to the facts in Garcia to the BIA for a more definitive ruling. One year later, the BIA, in a published decision, adopted the government’s position and held that the statute applies only to derivative children in the F-2A category. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). It reviewed the legislative history and found no Congressional language supporting such a finding.  It also examined the term Aconversion@ and concluded that it should not be expanded to cover derivatives in the F-1, F-3, and F-4 categories who age out, since there is no Aappropriate category@ for these persons.  It chose to limit the term Aretention of priority date@ to situations where the same petitioner files a new petition for the same beneficiary.

In both the BIA and the later circuit court decisions, the underlying facts were essentially the same.  A U.S. citizen had petitioned either for a married sibling in the fourth preference category or a married son/daughter in the third preference category.  The principal beneficiary had a child who later aged out of derivative status.  After the principal beneficiary became an LPR, he or she filed a separate petition for the child in the F-2B category and requested retention of the original priority date. All three circuit courts applied a well-established, two-part analysis set forth in a seminal Supreme Court decision, Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first part under the Chevron test is to determine whether the statutory language is clear on its face after applying traditional rules of statutory construction.  If Congress has spoken directly to the precise question at issue, then that is the end of the analysis, regardless of the agency’s interpretation.  If, on the other hand, the language or Congressional intent is ambiguous, a reviewing court proceeds to the second part of the test, which is to defer to the agency’s interpretation, assuming it is reasonable.

The Second Circuit, which covers the states of Connecticut, New York, and Vermont, held that the statutory language was plain on its face.  It bought the USCIS’s argument that “conversion” occurs only when the category changes, not the petitioner.  There is no ‘appropriate category” for the derivatives to automatically convert to, since that requires the filing of a second petition by a different petitioner. Therefore, according to the court, Congress must have meant to limit 204(h)(3) to the aged-out F-2A derivatives.  It decided that section 203(h)(3) “does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference cannot be ‘converted to [an] appropriate category.’” The court did not reach the issue of whether the BIA’s decision in Matter of Wang was reasonable since it limited its analysis to the statutory language.

In contrast, two months later the Ninth Circuit Court of Appeals examined the same statutory language and found them to be ambiguous.  The Ninth Circuit encompasses the western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The court found that if it interpreted the language literally, i.e., that “petition” applies both to F-2A and all other preference categories, it would lead to “unreasonable or impracticable results.” The court had difficulty with the term “automatically,” which modifies the conversion to the appropriate category after the derivative aged out.  Since any conversion to the F-2B category for beneficiaries in the third or fourth preference requires the principal beneficiary’s becoming an LPR and then filing a subsequent petition, it could not be described as automatic.  If there is no automatic conversion for this group of derivatives, then there can be no retention of priority date, since the two actions do not operate independently.  Finding the terms to be ambiguous, the court turned to the legislative intent, which it found to be inconclusive. The court then looked at how the agency and the BIA had interpreted the provision and found the holding in Matter of Wang to be reasonable.

The Ninth Circuit also distinguished the long-standing regulation, 8 CFR § 204.2(a)(4), which allowed for retention of the priority date for derivatives in the F-2A category when they aged out and the same petitioner filed a new I-130, from the new INA § 203(h)(3), which calls for automatic conversion and retention. Practitioners had argued that limiting this CSPA provision to beneficiaries in the F-2A category would affect no significant change and make the statutory language unnecessary. But the court explained that the CSPA provision made this conversion from the F-2A to the F-2B category automatic, implying that no second I-130 petition need be filed.  In another part of the decision, the court stated that section 203(h)(3) allows the F-2A beneficiary “to move to a different category as an adult without having to file a new petition and get a new priority date.”  This is precisely the argument advanced by counsel representing the government in this case when they distinguished the pre-existing regulation from the statutory provision: these aged-out derivatives in the F-2A category do not require a new petition to be filed in their behalf in order to convert to the F-2B category and thus they can now save on filing fees. The Fifth Circuit pointed out that the Second Circuit implied the same interpretation (“the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the [LPR petitioner] of the burden of filing a new petition, since the conversion would now be automatic.”).  While the USCIS does not currently agree with this interpretation of 203(h)(3), and the National Benefits Center will still require the filing of a second petition, those residing in the states covered by the Ninth and Second Circuit decisions should consider making this argument.

Had the Fifth Circuit – which is considered the most conservative of the three – gone along with the Second and Ninth Circuit, this controversy would probably have been put to rest.  But the Fifth Circuit took a more detailed examination of the statutory language and looked at all three parts of section 203(h) as a whole. Like the Ninth Circuit, it concluded that the word “petition” in 203(h)(3) referred to petitions filed on behalf of beneficiaries in the F-2A as well as all other categories. It was given the same meaning as the word “petition” in 203(h)(1), which “applies to a child of an LPR, or a child who is a derivative beneficiary of any family, employment, or diversity visa petition.” Unlike the Ninth Circuit, or the BIA in Matter of Wang, the Fifth Circuit found no ambiguity.  “In light of the interrelated nature of the of [(h)(1), (h)(2), and (h)(3)], reading the subsection as a whole confirms that Congress intended (h)(3) to  apply to any alien who “aged out” under the formula in (h)(1) with respect to the universe of petitions described in (h)(2).” 

The Fifth Circuit, which covers the states of Louisiana, Mississippi, and Texas, refused to read in some congressional intent or limit (h)(3) to derivatives in the F-2A category since the language of the statute was plain on its face.  It agreed that this interpretation caused a break with past practices regarding the terms conversion and retention, but the clarity of the statutory words compelled such an expansion (“it seems unlikely that Congress would exclude an entire class of derivative beneficiaries from subsection (h)(3)’s benefits by silent implication based on the unwritten assumption that the petitioner must remain the same.”). And it answered the question of what category the aged-out derivative in the third or fourth preference automatically converted to by going back to the BIA’s reasoning in Matter of Garcia.  The automatic conversion does not happen when the derivative turns 21; it happens when the visa becomes available, which is when section (h)(1)’s age-adjusting formula is applied.  At that point, assuming it has been determined that the derivative has aged out, the principal beneficiary is current and the appropriate category is looked at with respect to the principal beneficiary.  The aged-out derivative then becomes the unmarried child over 21 of an LPR. The Fifth Circuit was thus able to weave together all the language used in 203(h) without having to read out various portions, carve out exceptions, rely on past agency practices, or imply congressional intent when none was specifically stated.

Conclusion.  Borrowing from that time-worn phrase, section 203(h)(3) might just be a riddle wrapped in a mystery inside an enigma. Resolution of this issue will have to await further federal appellate court decisions, probably through en banc panels in the circuits that have ruled so far.  If a split in the circuits continues, this may be resolved only at the Supreme Court level.  In the meantime, unless a stay is granted, aged-out derivatives residing in the Fifth Circuit should be eligible for relief comparable to that afforded the plaintiff in the Khalid decision. The Fifth Circuit decision is attractive and compelling in its logic, simplicity, and refusal to read in congressional intent when the statutory language is plain and clear.  With a Supreme Court packed with strict constructionists, it is possible that such an approach may ultimately succeed.

By Karen Siciliano Lucas

Part 1: Federal Judge Temporarily Blocks Part of Georgia’s HB 87

On Monday, June 27, 2011, federal Judge Thomas W. Thrash, Jr. temporarily blocked the implementation of two sections of Georgia’s controversial immigration law, House Bill 87.  He did so by issuing a preliminary injunction, which prevents the state of Georgia from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality.

The first part of HB 87 blocked by Judge Thrash is Section 8, which authorizes the police to investigate the immigration status of a criminal suspect and detain him if he has no lawful status in the United States.

The second blocked provision is Section 7, which makes it a crime to transport or harbor an undocumented immigrant or induce an undocumented immigrant to come to Georgia.  

Judge Thrash held that Sections 7 and 8 are likely to be found unconstitutional because they violate the Supremacy Clause in Article VI of the Constitution, which states that federal law is the “supreme Law of the Land” and that states are bound to uphold it.  Generally, states are prevented (or preempted”) from legislating in a way that undermines Congressional efforts in the same area.

Section 8: Why Can’t State Police Investigate and Detain Individuals Who Have Violated Federal Immigration Laws?  Section 8 is a problem, Judge Thrash reasoned, because it gives so much discretion to local police officers.  Under Section 8, police officers may choose whether to investigate a criminal suspect’s immigration status, and may also choose whether to detain or release any given suspect who is unlawfully present.  Thus, Section 8 substitutes the discretion of the local police for that of the federal government in setting immigration enforcement priorities.  It “poses a serious risk that HB 87 will result in inconsistent civil immigration policies not only between federal and state governments, but among law enforcement jurisdictions within Georgia.”

This is why, Judge Thrash explained, the federal Immigration and Nationality Act (INA) does not permit states to enforce immigration law except in certain very limited circumstances, when the Attorney General has specifically authorized and continues to monitor the enforcement (for example, in the case of what are known as “287(g) agreements”).   

Why Doesn’t Section 8 Violate the Fourth Amendment?  In addition to arguing that Section 8 violates the Supremacy Clause of the Constitution, with which Judge Thrash agreed, the plaintiffs in this case also argued that Section 8 violated the Fourth Amendment.  The Fourth Amendment prevents unreasonable arrests and detention by law enforcement.  Detention that is not based on an underlying crime is unreasonable.  Simply residing in the United States without documents (by overstaying one’s visa, for example) is not a crime, Judge Thrash correctly noted that it is a civil violation.   The Fourth Amendment would not permit police to hold a person solely on that basis. 

But investigating someone’s immigration status pursuant to Section 8 would not necessarily prolong his or her detention, Judge Thrash reasoned.  Section 8 allows officers to investigate someone’s immigration status when they have cause to believe that the person has committed or is committing another crime.  If, for example, if an officer arrests a man for selling drugs, taking the time to check his immigration status while he is detained would not extend his detention beyond that which the law already considers appropriate for that offense.  But if an officer detains a man solely to check his immigration status, or lengthens his detention only to perform such a check, that officer likely would be violating the Fourth Amendment. 

Section 8 would not always, in every circumstance, create a Fourth Amendment problem.  Therefore, Judge Thrash could not block Section 8 wholesale on this ground.  If the judge had been presented with particular examples of officers acting in an unconstitutional manner, he might then have ruled that Section 8 violated the Fourth Amendment as applied to those individuals.  But that was not the nature of the case before him.  The point of this case was to try to block Section 8 before any local officer had an opportunity to enforce it.

Section 7: Can States Criminalize the Transportation and Harboring of Individuals Who Have No Legal Status in the U.S., or Is This Also Blocked by Federal Law?  Section 7 defines the term “harboring” much more broadly than federal immigration law does, Judge Thrash noticed.  Section 7 therefore creates new and different immigration crimes at the state level.

Thus, both Section 7 and Section 8 try to create a separate state system for identifying and punishing immigration violators, giving state officers substantial discretion to establish their own immigration enforcement priorities separate and apart from those identified by the federal government.  Judge Thrash therefore would not let these sections go into effect.

Judge Thrash easily distinguished the United States Supreme Court’s recent decision to permit Arizona to mandate the federal E-Verify system in that state and to punish businesses that hire unauthorized workers by revoking their business licenses.  Unlike Section 7, Arizona’s employer sanctions statute fits neatly into an explicit Congressional carve-out for state efforts.  Furthermore, while Arizona’s employer sanctions statute falls within a field traditionally regulated by the states (the employer-employee relationship), Section 7, which Judge Thrash described as regulating the movement of immigrants, does not.

Judge Thrash used some very strong language in opposition to the policies underlying the entire bill. “The widespread belief that the federal government is doing nothing about illegal immigration is a myth,” he said.  The assertion that the federal government has been “passive” in enforcing immigration law “has no basis in fact.”  He further described HB 87 as an attempted “end-run” around the comprehensive federal immigration enforcement scheme that was designed to allow the Executive Branch to set enforcement priorities. 

But he saved his most vigorous condemnation for Section 7: “The Defendants’ claim that the new criminal statutes [in Section 7] will prevent exploitation of illegal aliens is gross hypocrisy.  The apparent legislative intent is to create such a climate of hostility, fear, mistrust and insecurity that all illegal aliens will leave Georgia.”

Is Anything Left of HB 87 After This Decision?  Yes.  Among other things, HB 87 also does the following: enacts a mandatory E-Verify program (Sections 3 and 12); creates a new crime of “aggravated identity fraud” (Sections 4-6); authorizes federal/state law enforcement partnerships (Sections 9-11); mandates that officers use “a reasonable effort” to verify whether any foreign nationals confined in county or municipal jails had been “lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired” (Section 13); mandates that any undocumented immigrant in custody be “detained, arrested, and transported as authorized by state and federal law” (Section 13); requires certain documentary proof of “lawful presence” for the receipt of public benefits (Section 17); and creates the “Immigration Enforcement Review Board” (Section 20).  None of these sections were addressed in this case.

What’s next for HB 87?  The Attorney General of Georgia, Sam Olens, has appealed Judge Thrash’s ruling to the 11th Circuit U.S. Court of Appeals.  That may take a while.  In the meantime, Sections 7 and 8 remain blocked.  CLINIC will follow all developments with respect to HB 87 and will continue to keep our affiliates informed.

Part 2: Federal Judge Temporarily Blocks Part of Indiana’s SEA 590

Introduction.  On June 24, 2011, federal Judge Sarah Baker temporarily blocked the implementation of two sections of Indiana’s controversial immigration law Senate Enrolled Act 590 (SEA 590). She did so by issuing a preliminary injunction, which prevents the state of Indiana from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality.  SEA 590 was scheduled to go into effect July 1, 2011.

The first part of the law that Judge Baker blocked is Section 19, or the portion of SEA 590 that authorizes police officers to make warrantless arrests of anyone who: “(a) has been ordered to leave the U.S. by a judge; (b) has been issued a federal immigration detainer or notice of action; or (c) has been indicted for or convicted of one or more aggravated felonies.

The second provision is Section 18, which made it an offense for anyone other than a police officer to knowingly or intentionally accept consular identification as a valid form of identification. This article will discuss only Section 19.

Warrantless Arrests in Section 19:  What Are Orders Of Removal, Detainers, And Notices Of Action? “Removal” is the current legal term for deportation.  A removal order is issued by an immigration judge if, after a hearing, the government has sufficiently proven that the person is a noncitizen and that he or she is removeable based on one or more of the deportation grounds listed in the INA.

A detainer is a request – not a mandate or a criminal arrest warrant – made by federal immigration authorities to the local jail that is already holding someone on a non-immigration related criminal violation.  The detainer asks that the jail continue to hold that person for no more than 48 hours beyond the time permitted by state law for the underlying offense.  This 48-hour window allows ICE to take custody of the individual if it so chooses.

A notice of action is merely a federal form (Form I-797) used to communicate with a person whose immigration petition is pending.  The subject matter of a notice of action can be as mundane as merely acknowledging receipt of the petition.

Is It a Crime To Be the Subject of a Removal Order, Detainer, or Notice of Action?  No.  Simply being the recipient of a removal order, a notice of action, or a detainer is not a crime under either federal or Indiana state law.

Though it may seem incredible given the severity of the consequences of deportation for the individual and for his or her family, removal is a civil (or administrative) remedy, not a criminal punishment, and removal proceedings take place in an administrative immigration court system, not the criminal court system.

Is It a Crime To Have Been Indicted or Convicted of an Aggravated Felony?  No.  It is not a crime under either federal or Indiana state law to have been indicted or convicted of an aggravated felony.  Someone who has been indicted for a felony should not be punished until a trial is held and he or she is found guilty.  After the person has served the sentence, a person who has been convicted of a felony is not then punished again simply for being a convicted felon.

Furthermore, whether any particular criminal conviction gives rise to immigration penalties is not a straightforward calculation, and local police cannot be expected to make the complex determination that a particular criminal is removable from the United States absent a federally-issued removal order.

Aren’t Federal Immigration Officers Supposed To Arrest Anyone Who Has Received A Removal Order?  Not necessarily.  Under federal law, a person may be arrested and detained by ICE once removal proceedings have begun and before a final decision has been made.  This is not technically a criminal matter either, despite the similarity of the language (“arrest” and “detention”) used in criminal law.

But such an individual need not be detained.  In fact, a person whose removal order is pending or already has been issued by an immigration court may be released on bond or conditional parole, and may even be legally authorized to work.  A removal order is not the end of the line for an individual.  He may still appeal that order – during which time he may (or may not) be administratively detained by the federal government – until he receives a final decision (at which time the removal order “becomes final”).  Even at this late stage, in some circumstances, he may be permitted to reopen the removal proceedings.

The Constitution requires that, once a removal order becomes final, a person may only be detained by the federal government for 90 days.  If the federal government cannot deport an individual by the end of the 90 days, he must be released from detention subject to supervision. 

Why Is Section 19 Unconstitutional?  Judge Baker declared that Section 19 is likely unconstitutional on two grounds. First, it violates both the Fourth Amendment and constitutional due process requirements.  Second, it violates the Supremacy Clause in Article VI of the Constitution.

Fourth Amendment and Due Process.  “Section 19 authorizes state and local law enforcement officers to effect warrantless arrests for matters that are not crimes,” wrote Judge Baker.  That is the crux of the Fourth Amendment problem.  The Fourth Amendment requires that arrests be reasonable, and arrests are only reasonable if the officer has probable cause to believe that some criminal offense has been or is being committed.

Judge Baker also objected to the “deafening silence” in Section 19 about what happens to a person after his or her arrest.  That is, Section 19 did not spell out any due process protections for the person arrested as required by the Fifth and Fourteenth Amendments.  Will the person be eligible for bail?  What if ICE does not want to take custody of the person?  Will he or she be detained indefinitely?  These are questions that Section 19 leaves unanswered.

The Supremacy Clause and Preemption.  The Supremacy Clause in Article VI of the Constitution declares that federal law is the “supreme Law of the Land” and that states are bound to uphold it.  Generally, states are preempted from legislating in a way that undermines Congressional efforts in the same area.

Federal regulatory schemes (like our nation’s vast system of immigration laws) block state action when “compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 

Judge Baker held that states generally have no authority to enforce federal immigration law in the absence of an appropriate partnership with the federal government (such as a “287(g) agreement”).  Indiana currently has no such agreement with the federal government, and Section 19 authorizes arrests in circumstances that are much broader than those permitted to states working in partnership with the federal government.

The problem with Section 19 is that it interferes with federal discretion to set enforcement priorities and select enforcement methods.  Relying on the U.S. Ninth Circuit Court of Appeals’ recent decision to block many sections of Arizona’s infamous SB 1070, Judge Baker ultimately held that it is “reasonable to predict” that many arrests made pursuant to Section 19 – that is, state-level arrests of people who may not actually be subject to federal detention – “will be in direct contravention of ‘the carefully calibrated scheme of immigration enforcement that Congress has adopted.’” 

Is Anything Left of SEA 590 after this Decision? Yes.  Among other things, SEA 590 also: prevents the establishment of any “sanctuary” locality or agency; prohibits officers from checking the immigration status of victims of and witnesses to crime (Section 3); creates certain tax consequences for hiring unauthorized workers (Sections 4-7); verifies the immigration status of any “committed criminal offender” (Section 8);  requires that the immigration status anyone over 18 who applies for federal or state public benefits be verified, with certain exceptions (Sections 13 and 14); mandates that businesses use the federal E-Verify program to determine work authorization (Section 16); permits police officers to submit a complaint to ICE if they have probable  cause to believe that an individual has engaged in day labor in violation of federal immigration law (Section 17); places restrictions on bail for unlawfully present individuals (Section 22); and punishes transporting, moving, harboring or concealing an unlawfully present immigrant for the purpose of commercial advantage or private financial gain (Section 24).

For more information on SEA 590 and what the law means in practice, please visit CLINIC’s “Indiana Immigration Law Q & A” podcast at http://cliniclegal.org/programs/center-immigrant-rights/state-and-local-immigration-enforcement/0811/state-and-local-immigr.

What’s Next for SEA 590?  The Attorney General of Indiana, Greg Zoeller, has announced that he will not appeal Judge Baker’s preliminary injunction.  That means that Sections 18 and 19 will not be able to go into effect for the time being.  The next step is for the federal court to make a final determination of the sections’ constitutionality.  That may take a while.

It is always possible that civil rights groups will mount yet another court challenge to SEA 590, targeting parts of the law that have not yet been addressed and remain in effect.  CLINIC will follow all developments with respect to SEA 590 and will continue to keep our affiliates informed. 

For more information about these cases and about all state and local immigration initiatives, please contact Karen Siciliano Lucas at klucas@cliniclegal.org.

By Susan Schreiber

On August 12, 2011, CLINIC was happy to welcome five staff from the National Benefits Center (NBC) to speak to participants at a training on family-based immigration issues in Kansas City, Missouri.  The NBC officers attending the training were Ya-Mei Chen, Community Relations Officer; Cynthia Einhellig, Supervisor, Congressional Liaison Team;  Michael James, Supervisor, Hague Adoption Team; Norma Limon, Assistant Center Director,  Customer Relations Division; and Teresa Schaedel, Supervisor, Program and Management Analyst.  After a brief presentation about the work of the NBC, the officers responded to a list of questions submitted in advance of the training as well as to questions from the participants.  A summary of practice tips and updates provided by the NBC officials follows.  Note that these are not official minutes and were not reviewed by the NBC prior to publication. 

Submissions to Lockbox. The lockbox is staffed by private contractors who review the case submission for compliance with required criteria (e.g. signature, visa availability). If the criteria are not met, the lockbox will reject the case and return it to the applicant. If the criteria are met, the fee will be accepted and a receipt notice will be sent to the applicant and representative.  The physical file will then be assembled and sent to the NBC. In a case where an applicant’s eligibility for adjustment of status may not be apparent to lockbox staff (e.g. applicant asserts eligibility for an earlier priority date), the applicant can avoid rejection of the application in the mailroom by marking box (h) – “Other” – on the I-485 as the eligibility category, and then writing in “ Insist to File.”

All application submissions to the lockbox are scanned, even if the submission is rejected and returned to the applicant.  If you think your client’s case was improperly rejected at the lockbox, you can contact the lockbox at lockboxsupport@dhs.gov.

Evidence Review.  Once the case file is received at the NBC, a biometrics appointment is scheduled and a review is conducted to ensure that all required initial evidence has been submitted. If the required evidence is incomplete, a Request for More Evidence (RFE) will be issued, and no applications for ancillary benefits (e.g. advance parole, employment authorization) will be processed until a response to the RFE is submitted.  Applicants are given 87 days to respond to an RFE; if no response is submitted and the reviewing officer determines that the RFE was needed, the case will be denied due to abandonment.  Advocates who receive RFEs that are not clear should bring this to the attention of the NBC; this can be done by sending in correspondence asking for clarification of the RFE.

An applicant who does not have documentary proof of admission but asserts eligibility for adjustment of status under INA § 245(a) based on his or her affidavit will get a “system-generated” RFE, but the case should still be forwarded to the District Office for interview, and assessment of the applicant’s asserted eligibility.  Similarly, if the applicant asserts eligibility for adjustment of status under INA § 245(i) based on grandfathering, but doesn’t have proof of the prior petition, the NBC will issue an RFE. If the applicant responds with an affidavit in the absence of additional proof, the case should be forwarded to the District Office for interview and consideration of the asserted eligibility for 245(i).

An applicant issued an RFE for proof of parent/child relationship may decide to submit DNA evidence; this can be done on the initiative of the petitioner and cannot be required by CIS in any event.  If an applicant decides to reply to the RFE with other evidence of parent/child relationship, the applicant will not get a second opportunity to supplement the record with DNA test results.

The NBC does not review any waivers of inadmissibility nor make requests for submission of a waiver

Security Checks. The NBC is also responsible for consolidating the application with any other existing files relating to the applicant and doing security checks.  The “IBIS” security checks are conducted using the name and date of birth of petitioners, beneficiaries and applicants and running them through various law enforcement data bases.  In most instances, even where there is a “hit”, the case will be forwarded to the district office for review at the interview.  Where the IBIS security check raises an Adam Walsh Act issue regarding the petitioner, the NBC will issue a biometrics appointment notice to the petitioner.  In the event that the NBC determines that the petitioner has a listed offense against a minor, a Notice of Intent to Deny/Request for More Evidence will be issued to the petitioner, giving the petitioner 87 days to submit proof that the she or he does not have a conviction for a specified offense against a minor or that approval of the petition will not pose any risk to the beneficiary.

Surviving Relatives. INA § 204(l) cases are forwarded by the NBC to the District Office for adjudication.  These are cases where the petitioner died while the I-130 was pending or the adjustment of status application was pending.

An applicant who qualifies for humanitarian reinstatement may apply for this relief concurrently with an application for adjustment of status. The NBC will forward the application, including the request for humanitarian reinstatement, to the District Office for consideration

Hague Convention Cases.  There is no electronic processing available for Hague cases, and applications are filed with the lockbox.  The Lockbox reviews the submission to determine that the form is complete and signed and that the fee is paid; the case is then forwarded to the NBC and assigned a case number and a SIM receipt number. If the case is approved after evidence review, a Form 800A is issued which constitutes provisional approval; final approval only takes place after the Department of State decides to issue a visa to the adoptive child.

Visa Retrogression.  The NBC is the holding center for case files of adjustment applicants who have been interviewed and found approvable but for visa retrogression.

Priority date checks are run every three weeks to determine if a waiting case now has a current priority date.  When a date becomes available, the NBC staff checks to see if the biometrics and IBIS checks are current.  If so, the application is approved at the NBC.

Watch Out for these Filing Errors: The NBC noted that  common filing errors include: (a) marking the wrong eligibility category on the I-485 form; (b) failing to submit an Affidavit of Support for the petitioner when using a joint sponsor because the petitioner lacks sufficient income; (c) double-counting an immigrating spouse in the affidavit of support household size; (d) failing to submit an SSA 1099 to prove social security earnings; and (e) failing to provide a physical address, in addition to a PO Box address.

By Nadine Wettstein

In a deeply split decision, with separate concurring and dissenting opinions, the en banc Ninth Circuit significantly expanded the reach of its “modified categorical approach” for deciding whether a conviction was an aggravated felony or a crime involving moral turpitude.   The court overturned a prior en banc decision, Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), which had governed immigration cases arising in the Ninth Circuit since 2007.

The practical effect of the decision will be to allow immigration courts in the Ninth Circuit to examine more of the facts offered by the prosecution in the earlier, criminal proceedings.  Under a strict categorical approach, first outlined by the U.S. Supreme Court in 1990 (in Taylor v. U.S., 495 U.S. 575 (1990)), the immigration court was not to consider the particular facts underlying the conviction, but only the statutory definition of the conviction.  Courts were to consider the elements of the crime of conviction in general, and not try to evaluate the defendant’s alleged conduct.

Eventually, a “modified categorical approach” was developed.  Courts apply the modified categorical approach if the conviction is not categorically an aggravated felony, such as when the crime as described by the federal defining statute (e.g., “burglary”) does not match precisely how the crime is defined by the state law under which the person was convicted.  For example, INA § 101(a)(43)(G) says a “burglary” offense may be an aggravated felony.  However, the federal statutes and different states’ statutes define “burglary” differently.  Some require proof of more or different elements than others.

How the modified categorical approach operates in reality has been the subject of much litigation at all levels, from the immigration courts to the U.S. Supreme Court. In this latest iteration, the Ninth Circuit, in the critical words of one of the separate opinions, “has converted the modified categorical approach into a modified factual one.”  

The majority opinion in Aguila-Montes de Oca says the purpose of the modified categorical approach is to determine: (1) what facts the state conviction necessarily rested on, and (2) whether these facts satisfy the elements of the generic [federal] offense.  In making this determination, courts may look beyond the record of conviction and the requirements of the generic statute. Courts can avoid “evidentiary disputes” about the prior criminal proceedings, the majority opinion says, “by relying only on documents that give us the ‘certainty of a generic finding’ including ‘the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’”

In addition, the majority expressly overruled the “missing element” rule of Navarro-Lopez and subsequent cases relying on it. The “missing element rule” said that the modified categorical approach would not apply when the crime of conviction was missing an element of the generic crime.  When an element of the generic crime is missing, Navarro-Lopez said, logically a court never could find that the jury was actually required to find all the elements of the generic crime.   Reversing, the Aguila-Montes de Oca majority held that a missing-element statute can be examined under the modified categorical approach.  However, courts “must exercise caution in determining what facts a conviction ‘necessarily rested’ on.  It is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.”  [emphasis in original]. 

Practitioners can be certain that this is not the last word from this court or others, as the government continues its policy focus on removal of people with even old and relatively minor convictions, and the courts apply the INA’s sometimes unforgiving provisions.

By Sarah Bronstein

On September 6, 2011, the USCIS issued proposed regulations implementing changes to the Immigration and Nationality Act (INA) relating to Special Immigrant Juvenile Status (SIJS) (76 FR 54978) (Sept. 6, 2011).  SIJS is an immigration benefit available to children who have been the victims of abuse, abandonment or neglect.   The proposed regulations incorporate several legislative amendments culminating in the significant changes that were made by the William Wilberforce Trafficking Victims Protection Reauthorization act of 2008 (TVPRA 2008). 

Age-Out Provisions.  Under the TVPRA 2008 and the proposed regulations, a petition for Special Immigrant Juvenile Status (Form I-360) may be approved as long as the child was under the age of 21 when the petition was filed.  Additionally, the proposed regulations no longer provide for automatic revocation of the petition of an applicant who turns 21 prior to the adjudication of the application for adjustment of status.

Juvenile Court Dependency.  Prior to the TVPRA 2008, the INA required that the juvenile court make a finding that the child was eligible for long term foster care.  While many advocates successfully pushed the boundaries of the statute, there was concern that only children who were in state foster care were eligible for SIJS.  The TVPRA 2008 amended the statute to allow for eligibility for a child who had been declared dependent on a juvenile court, or who had been legally committed to or placed under the custody of a State agency or department of a State, or an individual or entity appointed by a State or juvenile court.  The proposed regulations clarify that adoption and guardianship proceedings fall under the meaning of the statute.

Juvenile Court Jurisdiction.  The previous regulations required that the juvenile court maintain jurisdiction over the child through adjustment of status.  The proposed regulations require that juvenile court dependency remain in effect through adjudication unless the child’s age prevents continued jurisdiction.  Many state juvenile courts will not maintain jurisdiction beyond the age of 18.  The TVPRA 2008 locks in the child’s age at the time of the filing of the I-360, therefore in order to remain consistent with this change, the proposed regulations provide this exception to the ongoing juvenile court jurisdiction requirements if the reason for the lack of jurisdiction is solely age.

Viability of Reunification with One or Both Parents.  One of the most significant changes in the statute that was made by the TVPRA of 2008 was to allow for SIJS eligibility where reunification with one or both parents is not viable due to abuse abandonment or neglect or a similar basis under state law.  This change has led to what many advocates call “one-parent SIJS cases,” where the child was abused, abandoned, or neglected by one parent but resides with the other parent.   The proposed regulations do not offer any clarification about how USCIS views these cases.  The language in the regulations merely mirrors the language in the statute.

Abuse, Abandonment or Neglect or Similar Basis under State Law.  The preamble to the proposed regulations contains useful language stating that the viability of reunification due to abuse, abandonment, or neglect, or a similar basis under state law, is a question that lies within the expertise of the juvenile court, after applying the relevant state law.   In addition, the preamble notes that the concepts of abuse, abandonment and neglect are not defined in the INA and therefore derive from state law and vary from state to state.

Consent Requirements.  Issues of consent have been a significant source of confusion and litigation.  The INA states that petitioners for SIJS must obtain the consent of the Secretary of Homeland Security.  In the case of children who are not in the custody of the Department of Health and Human Services (HHS), the federal agency responsible for the care and custody of unaccompanied alien children apprehended by the Department of Homeland Security, the proposed regulations clarify that consent to the juvenile court order is not required.  Rather, the approval of the I-360 application serves as the consent of the Secretary of Homeland Security.  The consent requirement differs for unaccompanied alien children in the custody of HHS.  A petitioner for SIJS who is in the custody of HHS must seek “specific consent” from HHS if he or she seeks a juvenile court order that would alter his or her custody status or placement. 

180-Day Adjudication.  The TVPRA of 2008 added a requirement that USCIS adjudicate I-360 petitions for SIJS within 180 days.  The proposed regulations clarify that the 180-day period of time begins when a receipt notice from USCIS is issued.  If USCIS issues a request for evidence (RFE) on the case, the 180-day period will start over from the date when USCIS receives the required information.

Adjustment of Status.  The proposed regulations also implement changes to the statute in the TVPRA 2008 relating to the grounds of inadmissibility and adjustment of status.  The following grounds of inadmissibility do not apply to those seeking adjustment of status as a special immigrant juvenile:  public charge (INA § 212(a)(4)); labor certification (INA § 212(a)(5)(A));  aliens present without inspection (INA § 212(a)(6)(A)); misrepresentation  (INA § 212(a)(6)(C));  stowaways (INA § 212(a)(6)(D)); documentation requirements (INA § 212(a)(7)(A)); and aliens unlawfully present (INA § 212(a)(9)(B)).  The following grounds of inadmissibility cannot be waived :  conviction of certain crimes (INA § 212(a)(2)(A)); multiple criminal convictions (INA § 212(a)(2)(B));  controlled substance traffickers (INA § 212(a)(2)(C)); and security, terrorism, foreign policy, Nazis, genocide (INA § 212(a)(3)(A, B, C, E)).  Any other ground of inadmissibility may be waived for humanitarian reasons, family unity, or in the public interest.

By Susan Schreiber

VAWA 2005, signed into law in January 2006, extended self-petitioning eligibility to (a) abused parents of adult U.S. citizens, and (b) abused sons and daughters of U.S. citizens and lawful permanent residents over age 21 and under 25, who may apply as self-petitioning children if the abuse was a central reason for the delay in filing.   Recent policy memoranda issued by USCIS provides new guidance on eligibility to self-petition in each of these categories

Self-Petitioning As an Abused Child after Attaining Age 21. The USCIS guidance, issued on September 6, 2011, provides that an eligible self-petitioner in this category must show that she or he was qualified to file the self-petition on the day before attaining age 21.  This means, for example, that the qualifying battery or extreme cruelty must have occurred before the applicant turned 21.  Citing INA § 204(a)(1)(D)(v), the guidance also requires that the self-petition be filed before the applicant’s 25th birthday, along with supporting documentation.

On the critical issue of establishing that abuse was “one central reason for the delay in filing,” the USCIS memorandum describes a central reason as one that is caused by or incident to the battery of extreme cruelty experienced by the applicant.  In other words, the applicant must establish a connection between the battery or extreme cruelty and the delay in filing.  Examples in the guidance include situations where: (1) the self-petitioner is subjected to abuse close in time to turning 21, so that there is insufficient time to submit an application before attaining age 21, and (2) the self-petitioner is so traumatized by abuse that she or he is unable to apply before turning 21.  The guidance notes that the adjudicating officer must evaluate each application on a case-by-case basis, and consider the totality of circumstances, including any credible evidence that the qualifying abuse was one central reason for the delay in filing.

The memo concludes that self-petitioners in this category must be unmarried because the applicants will be treated as self-petitioning children of U.S. citizens under INA § 204(a)(1)(A)(iv) or self-petitioning children of lawful permanent residents under § 204(a)(1)(B)(iii).  Applications filed by self-petitioners who are married at the time of filing or at the time of petition adjudication will be denied. However, if the self-petitioner marries after filing, the petition may be approved if the marriage is terminated before the petition is adjudicated.

Approved self-petitioners in this category are treated as if the self-petition was filed on the day before the applicant turned 21.  For Child Status Protection Act (CSPA) purposes, this should mean that a self-petitioning son or daughter of a U.S. citizen will be considered an immediate relative child who does not age-out of this category.  Self-petitioning sons and daughters of lawful permanent residents are classified in the F-2A category, and will have to do an adjusted age calculation once the priority date is current to determine if the CSPA will allow them to remain in that category.  If not, as the guidance notes, INA § 204(a)(1)(D)(i) would allow the aged-out self-petitioner to convert to the appropriate category, which in this situation would be the F-2B classification.

Example: Cora, who turned 21 on January 15, 2008, filed a self-petition as the abused child of an LPR on July 30, 2010.  She established that abuse was a central reason for the delay in filing and the petition is approved on February 14, 2011.  Under the guidance, Cora’s petition is adjudicated as if she filed on January 14, 2008.  Since the priority date is current, Cora will determine if she qualifies to remain in the F2A category under CSPA by subtracting from her chronological age the amount of time between the filing of the petition (January 14, 2008) and the date the petition was approved (February 14, 2011).  In this case, that will allow Cora to subtract 3 years and one month from her actual age.

The F-2A priority date in Cora’s case became current on July 1, 2011, when Cora was 24 years, 5 months and two weeks old.  With the adjusted age calculation that subtracts 3 years and two months from Cora’s actual age, Cora’s adjusted age is still over 21 and she will convert to the F-2B category to wait for a current priority date.

Eligibility to Self-Petition as the Abused Parent of an Adult U.S. Citizen.  The August 30, 2011 USCIS memoranda addressing this VAWA 2005 self-petitioner category begins by clarifying that qualifying parent/child relationships include stepparents and adoptive parents of U.S. citizens.  In the case of a stepparent, the applicant must establish that the marriage creating the stepparent relationship took place before the U.S. citizen stepchild turned 18. If the step-relationship is no longer in legal existence at the time of filing, due to death, legal separation or divorce, the self-petitioning stepparent remains eligible only if she or he can show that the relationship between the stepparent and stepchild continues to exist at the time of filing.  Similarly, adoptive self-petitioning parents must show that the qualifying adoptive relationship was created when the U.S. citizen child was under age 16, and otherwise meets the requirements for an adoptive parent/child relationship under INA § 101(b)(1)(E), (F), or (G).

The CIS guidance reviews the basic eligibility requirements for self-petitioners in this category, which parallel the requirements for self-petitioning spouses and children.   Specifically, the abused parent must show that he or she:

  • Possesses the requisite qualifying relationship to a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed.   A qualifying self-petition may be  filed by the parent of a U.S citizen who  was at least 21 years old and died within two years prior to filing the petition.  An abused parent may also self-petition within two years of the loss or renunciation of citizenship of a former U.S. citizen son or daughter, where the loss of citizenship is a result of an incident of domestic violence and the U.S. citizen was at least 21 years of age at the time of the loss of status;
  • Is a person of good moral character;
  • Resides with or previously resided with the abusive U.S. citizen son or daughter; and
  • Has been subjected to battery or extreme cruelty by the U.S. citizen son or daughter.

 

The self-petitioner must submit evidence to satisfy each of these eligibility requirements, and the guidance gives examples of potential documents to submit for each of these eligibility requirements.  As the USCIS memo notes, secondary evidence may be submitted by self-petitioning parents as appropriate to establish these requirements; adjudicators must consider all relevant credible evidence.  As is the case for other VAWA self-petitioners, abused self-petitioning parents do not need to be living in the United States at the time of filing.

The USCIS will not issue prima facie determinations to self-petitioning parents because they are not a recognized as ‘qualified aliens’ for public benefits purposes.   Self-petitioning parents are also not eligible to confer derivative benefits; listing a derivative beneficiary will not result in denial of the petition but a listed derivative is not eligible for any benefits.

For More Information.  Both agency memos can be accessed on the USCIS website by following the homepage link to “Laws” and then using the link to policy memoranda, listed both by date and topic, The guidance will also be integrated in the Adjudicator Field Manual at Chapter 21.14(a) (on self-petitioning as an abused child over age 21) and at Chapter 21.15 (on self-petitioning parents).  Note that the current Form I-360 and instructions do not reflect these new developments.  In particular, a self-petitioning parent will need to write in this category on the 360 form, because it is not currently listed.

Understanding and Preparing Waivers

E-learning Course:

Understanding and Preparing Waivers

November 9 –December 14, 2011

Click here for a more detailed course outline including the dates and times of the 5 webinars.  Before registering for this training, please make sure that you will be available for these webinars.

 

 $175 per person for CLINIC affiliate agencies (paying annual dues)

$ 190 per person for other nonprofit agency staff

$ 280 per person for private attorneys and staff

 

Waivers of the grounds of inadmissibility and deportability are an essential part of immigration practice.  This four-week course will present information on both the theory and practice of developing and submitting successful waiver applications.  Participants will learn what the legal standards of extreme hardship are, how to create a theory of the case, how to marshal the facts of the case, and what kinds of supporting documentation to submit.  By the end of the course, participants will be better able to analyze the strengths and weaknesses of specific cases and advise clients on their chances for success.   Please note that this course assumes a basic knowledge of the grounds of inadmissibility and deportability.

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Wednesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle, Debbie Smith, and Charles Wheeler.  For questions about the course content, please contact Debbie Smith at dsmith@cliniclegal.org.

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 415-394-8696 to the attention of Chris Ozaki. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Space is limited.. The deadline for registration is November 2, 2011, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.   

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTRATION CLOSED

Training Type: 
Training Category: 

E-learning Course: 

Select Issues in VAWA Self-Petitioning

 

Presented by:

U.S. Department of Justice Office on Violence Against Women (OVW), in partnership with

Catholic Legal Immigration Network, Inc. (CLINIC)

 

November 3-December 8, 2011

 

This training will cover select issues in self-petitioning and gaining permanent residence under the Violence Against Women Act. This four-week course provides participants with previous training and/or experience in VAWA cases more in-depth instruction, updated information and an opportunity to further develop the skills necessary to effectively prepare and file self-petitions . Topics covered will include: developments in self-petitioning eligibility requirements and a look at complex eligibility issues; best practices in preparing and documenting self-petitions; assessing and responding to problems throughout the self-petitioning process such as Requests for Evidence and Notices of Intent to Deny; and issues related to inadmissibility, waivers and adjustment of status.  Please see the course outline for a more detailed description of the topics covered. 

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on select Thursdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Jennie Guilfoyle, Kristina Karpinski, and Susan Schreiber. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

For a detailed course outline, including the dates and times of the required webinars, click here Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.  Additionally, please note that the course is geared toward individuals who already have some training and or experience handling VAWA cases.

Also, please note that in order to access the audio portion of the webinars participants will need computer speakers or headphones.

Registration: The training is open to OVW grantees from the Legal Assistance for Victims grant program, the Culturally and Linguistically Specific Services program, the Rural grant program and the STOP program.  Registration is limited to 35 participants.  The deadline for registration is October 27th, or sooner if registration is filled. For registration information contact Chris Ozaki at 415-394-9371 or at cozaki@cliniclegal.org.  

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

This project is supported by Grant No. 2007-TA-AX-K036 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this program are those of the author and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

 

REGISTER HERE


Introduction to VAWA Self-Petitioning

E-learning Course: 

Introduction to VAWA Self-Petitioning

November 8-December 13, 2011

 

Click here for a more detailed course outline including the dates and times of the five webinars.
Before registering for this training, please make sure that you will be available for these webinars.

 

$175 per person for CLINIC affiliate agencies


   $190 per person for other nonprofit agency staff


$280 per person for private attorneys and staff

 

Family-based immigration allows certain USCs and LPRs to petition for their spouses, children, and parents to become permanent residents.  Some spouses, children, and parents who have been abused by USCs or LPRs are eligible to file self-petitions under the Violence Against Women Act and gain permanent residence without the involvement of the abusers.  This four-week course provides an introduction to VAWA self-petitioning, focusing on eligibility, how, when and where to apply, and

how to document VAWA cases.  We will also explore the dynamics of abusive relationships and working with survivors of domestic violence.  Please note that this course assumes some basic knowledge of family-based immigration.

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on consecutive Tuesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Sarah Bronstein, Kristina Karpinski, and Susan Schreiber. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org

Training Level: Introductory.  This is an introduction to VAWA self-petitioning for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the required webinars, click here Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments. Please note that in order to listen to the webinars, you will need either a speaker or a set of headphones for your computer.  There will not be a telephone audio option.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 415-394-8696 to the attention of Chris Ozaki. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is November 1, or sooner if registration is filled. For registration information contact Andres Abella at aabella@cliniclegal.org.  

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.

REGISTRATION CLOSED


Training Type: 
Training Category: 

VAWA Self-Petitioners and Inadmissibility

VAWA Self-Petitioners and Inadmissibility 

 October 13, 2011

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time

Your VAWA self-petitioner client now has a current priority date and wants to file for adjustment of status.  Does she qualify even though she has a retail theft conviction? What if she entered the U.S. with a fake passport? Or departed the U.S. after overstaying her tourist visa and then returned without inspection? Is she inadmissible?  If so, can she overcome the bar?  To learn more about the special rules on inadmissibility grounds and waivers that apply to VAWA self-petitioners, join CLINIC attorneys Susan Schreiber and Kristina Karpinski for a 90 minute webinar addressing these issues.

 Non-affiliates can register by clicking here.

Click here for complimentary webinar registration (log in required)

After registering you will receive a confirmation email containing information on joining the webinar.

Training Type: 
Training Category: 

All About Cuban Adjustment

All About Cuban Adjustment

September 22, 2011

  

2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; Free for CLINIC affiliates paying annual dues 
 

Under the Cuban Adjustment Act, Cubans, and their spouses and children, who have been lawfully admitted to the U.S. may apply for adjustment of status after one year of physical presence in the U.S.  During this webinar, presenters Randy McGrorty, Director of Catholic Charities Legal Services of Miami, and Jennie Guilfoyle, Training and Legal Support Attorney at CLINIC, will explore the ins and outs of Cuban adjustment.  Topics will include eligibility requirements; filing procedures; parole of Cubans; employment authorization; inadmissibility waivers and pitfalls; and adjustment of non-Cuban spouses and children.

Non-affiliates register by clicking here.

Affiliates, click here for complimentary webinar registration (log-in required).

After registering you will receive a confirmation email containing information on joining the webinar.

Training Category: 

Tour of the American Consulate in Ciudad Juarez

 

Diocesan Migrant and Refugee Services

Invites you on a

Tour of the American Consulate in Ciudad Juarez

Friday, November 18, 2011
9:00 a.m. – 2 p.m.

Cost: $40 

Please note that the price includes a box lunch. 

 

Anticipated Schedule:

9:00 a.m.         Bus picks you up Wyndham El Paso Airport Hotel
10:00 a.m.       Tour of American Consulate, Ciudad Juarez
Noon               Bus leaves Ciudad Juarez for return trip; box lunches will be provided
2:00 p.m.         Bus arrives Wyndham El Paso Airport Hotel

 

Space is limited

The deadline for registering is November 3, 2011
No one will be permitted on the tour unless registered by that date.
Remember that a passport is required for reentry to the United States.

For more information regarding the tour, call (915) 532-3975, ext. 212

 

You must be registered for the 13th Annual Family Immigration Law Conference to attend.

 

SOLD OUT

Training Type: 
Training Category: 

Introduction to Immigration Law Practice: A Course for New Practitioners

   Introduction to Immigration Law Practice:

A Course for New Practitioners

\

Co-Sponsored by

Catholic Legal Immigration Network, Inc. (CLINIC)
and
Catholic Charities of Louisville

 

October 18- 19, 2011
8:45 a.m. - 5:30 p.m. – Day One
8:45 a.m. – 4:45p.m. – Day Two

 

Location:

Cathedral of the Assumption
433 S. Fifth Street
Louisville, KY 40202
502 582 2971


$235 per person from CLINIC affiliate programs; $705 cap ($50 materials fee per person for more than 3 attendees from the same office site)


$260
per person for other non-profit agency staff; $780 cap
($50 materials fee per person for more than 3 attendees from the same office site)


$390
per person for private attorneys and staff

 

Continental breakfast included.  Lunch is on your own.


This two-day training provides the new immigration practitioner with an overview of immigration law concepts and the practice skills necessary to be an effective advocate. Through large group presentations, skits, and small group exercises, participants learn about rights and remedies under immigration law, the functions of the different government agencies that carry out immigration law,

and the fundamentals of interviewing clients, preparing applications, and staying up-to-date on the law.  Topics covered include the family-based petition process, adjustment of status, consular processing, inadmissibility and deportability concepts and select grounds, naturalization and BIA accreditation.  Application for CLE credits pending. The trainers for this program are CLINIC attorneys Kristina Karpinski and Susan Schreiber.    

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of you IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 415-394-8696 to the attention of Chris Ozaki. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only.  

Note that this is an interactive training with several small group exercises included in the curriculum. Prior to the training, participants will receive an email with some short reading and worksheet assignments to be completed before the training starts. Participants will also have a homework assignment to complete for day two of the training.

The deadline for registration is October 13 or sooner if registration is filled.  For registration information call Chris Ozaki at 415-394-9371.

 

                        For the agenda and additional information, click here.

 

Hotel Reservations: A block of rooms is being held at the Galt House, located at 140 North Fourth St, about .75 miles from the training site. The room rate is $109.00 per night single or double occupancy, plus tax. To make a reservation, contact the hotel by September 30. at 800-843-4258 and ask for the group block under Catholic Legal Immigration Network.  You may also arrange transportation to and from the airport to the hotel at a cost of $15 one-way, $25 round-trip by contacting Galt House or the Sandollar Limousine at www.sandollarlimo.com. You can also check on public transportation options at ridetarc.com

Training Location and Parking: The training will take place in the Undercroft of the Cathedral of the Assumption in downtown Louisville.  Parking is available at the Fourth Street Live Garage at 425 South Fifth Street. The entrance to the garage is on Fifth Street between Muhammad Ali Boulevard and Liberty St, and the maximum daily fee is $10.00.

 

REGISTRATION CLOSED


Training Category: 
Training Location: 

Keeping Up with CSPA

Keeping Up with CSPA 


September 8, 2011


 


2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Cost: $50; Free for CLINIC affiliates paying annual dues
 


 


Now that the Child Status Protection Act has been part of our immigration law for nine years, you probably know all the basics:  locking in immediate relative status; making adjusted age calculations for second preference beneficiaries and derivatives; and satisfying the one-year filing requirements.   But there are several new twists and updates on the CSPA front that you should be aware of.  For example, are you familiar with:

· The three new federal court decisions interpreting the CSPA's effective date, attaching the original priority date to an aged-out derivative beneficiary, and what it means to seek LPR status within a year of visa availability?
· The new CIS policy allowing an F-2A beneficiary to retain CSPA protection if the parent naturalizes after the beneficiary turns 21?
· Strategies to retain CSPA protection if the priority date retrogresses?
· New guidance from CIS about how the CSPA operates when the aging out principal or derivative beneficiary is a surviving relative?

If this sounds like something you haven't heard about yet, join CLINIC attorneys Susan Schreiber and Charles Wheeler for a webinar on recent CSPA developments.


 
Non-affiliates, register by clicking here.


 


Affiliates, click here for complimentary webinar registration (log-in required). 


 


After registering you will receive a confirmation email containing information on joining the webinar.

Training Category: 

Strategies for Naturalizing the Most Vulnerable Applicants

Strategies for Naturalizing the Most Vulnerable Applicants


September 12, 2011


2:00 p.m. - 3:30 p.m. Eastern Daylight Time
11:00 a.m. - 12:30 p.m. Pacific Daylight Time
Free for All


This webinar will discuss several key strategies for helping vulnerable applicants overcome barriers in the naturalization process.  Topics will include disability waivers, reasonable accommodations for applicants with disabilities, due consideration on the citizenship test, and fee waivers for low-income applicants.  The presenters are Laura Burdick, Naturalization Project Coordinator, CLINIC; Alla Shagalova, Associate Director, Immigration Services, Hebrew Immigrant Aid Society; and Amy Tenney, Immigration Legal Services Staff Attorney, World Relief.  Space is limited. 


Non-affiliates can register by clicking here.


Affiliats can register by clicking here (log in required)


After registering you will receive a confirmation email containing information on joining the webinar.

Training Category: 

Introduction to Family-Based Immigration

E-learning Course: 

Introduction to Family-Based Immigration

September 14-October 26, 2011

 

Click here for a more detailed course outline including the dates and times of the seven webinars.  Before registering for this training, please make sure that you will be available for these webinars.

 

$235 per person for CLINIC affiliate agencies


$260 per person for other nonprofit agency staff


$390 per person for private attorneys and staff

 

This six-week training will explore the process of gaining permanent residence through a family relationship. We will cover which individuals are eligible based on family relationships, and how each step of the process works. Throughout the course, participants will review both the law and procedure for immigrating through a family relationship, including examination and critique of sample application forms. Topics covered will included: immediate relatives and the preference system, retention of priority dates, the Child Status Protection Act, immigrating through marriages, the affidavit of support, adjustment of status and consular processing.

The course requires a time commitment of approximately four hours per week for each of the six weeks of the course.   This time will be spent in different activities, including reading assignments, exercises, and participation in seven webinars conducted on consecutive Wednesdays, as listed in the detailed course schedule.  The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors.  The instructors for this course will be CLINIC attorneys Kristina Karpinski, Debbie Smith and Charles Wheeler.  For questions about the course content, please contact Kristina Karpinski at kkarpinski@cliniclegal.org.

Training Level: Introductory.  This is an introduction to family-based immigration for the practitioner who already has some exposure to immigration law fundamentals. Basic familiarity with (a) immigration law vocabulary; (b) the ways in which an immigrant may gain legal status; and (c) the concepts of inadmissibility and deportability, is assumed. 

For a detailed course outline, including the dates and times of the required webinars, click here.  Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments.

Registration: The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal  staff of private law offices.  If you are registering as staff of a community-based organization, you must fax a copy of your IRS 501(c)(3) letter designating your agency as a nonprofit entity to CLINIC at 415-394-8696 to the attention of Chris Ozaki. Your registration will be confirmed upon receipt of this letter. If you are an attorney, please include your state bar number. Payment is by credit card only. 

Please be sure to register under the correct category and for the correct training. All registration changes or cancellations are subject to an administrative charge of $70.00.  Please note that CLINIC can only issue refunds for an e-learning course until one week prior to the first day of the training.

Please note that we need the full name and a working email address for each individual taking this course.  We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant.  On the registration form, please provide us the name and email address of the individual who will be taking the course.

Space is limited. The deadline for registration is September 6, 2011, or sooner if registration is filled. For registration information contact Chris Ozaki at 415-394-9371 or at cozaki@cliniclegal.org.   

CLE: CLINIC is authorized by the State Bar of California to provide minimum continuing legal education (MCLE) trainings. E-learning participants are eligible to claim 1.5 hours of MCLE credits per webinar for the webinar component of our e-learning immigration law courses. If you are an attorney licensed in another state, please check with your state bar to determine whether this training qualifies for MCLE credit.


COURSE FULL

Training Type: 
Training Category: 

IV.  Conclusion

This memorandum provides an introduction to applicable international human rights law and commentary supporting a right to free legal counsel for UASC navigating U.S. immigration proceedings. The arguments indentified in this memorandum are particularly based on the CRC, which is not binding on the United States as a consequence of its non-ratification. Nonetheless, given the CRC’s near universal ratification record, advocates can use arguments based on the CRC for its persuasive value before policymakers and judges in the United States.  If and when the United States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the United States.  That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

This memorandum identifies five potential arguments which could be utilized by U.S.-based advocates to campaign for a right to free legal counsel for UASC in immigration proceedings. Three of these arguments have the potential to provide a right to free legal counsel for all UASC in the United States. The first argument is based on utilizing the bests interests of the child and non-discrimination concepts, which are pivotal to the CRC, the paramount international human rights instrument dedicated to the defense of children’s rights. This argument essentially provides that respect for the best interests of UASC requires implementation of procedural safeguards, which includes the provision of free legal counsel in immigration proceedings. The second broad argument is based on Article 20(1) of the CRC which singles out children temporarily or permanently deprived of their family environment for special protection and assistance. An argument for the provision of free legal counsel for such children navigating immigration proceedings is founded on Committee guidance. The last all encompassing argument is based on access to justice and fairness and is underpinned by provisions in the CRC as well as guidance by the Committee and UNHCR. Provisions of the CRC and Committee and UNHCR guidance also support arguments for a right to free legal counsel for two narrower categories of UASC, those detained and those seeking asylum.

Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken. To this end, some additional avenues for research have been identified.

 

E. UASC SEEKING ASYLUM HAVE A RIGHT TO FREE COUNSEL

Finally, another more limited argument open to advocates relates to a right to free legal counsel for UASC seeking asylum in the United States.

As discussed earlier, in addition to singling out children who are temporarily and permanently deprived of their family environment, the CRC also imposes obligations on States Parties to ensure that asylum-seeking children receive appropriate protection.[1] Within this context, the Committee has repeatedly elaborated that appropriate protection measures include the provision of free, qualified legal representation where UASC are navigating asylum procedures.[2] The Committee has also noted that the legal representative should be present at all interviews with the child.[3]

UNHCR’s guidance confirms that the principles of non-discrimination and best interests of the child should inform procedural aspects of a determination of a child’s refugee status.[4] In this regard, UNHCR’s commentary highlights the importance of qualified legal representation for children who are principal applicants in asylum procedures as a minimum procedural safeguard to ensure fairness in refugee status determinations.[5]

An argument on the right to free legal counsel based on Article 22(1) of the CRC as well as the commentary and guidance of the Committee and UNHCR should highlight the importance of legal representation for UASC in U.S. immigration proceedings. For example, empirical research has highlighted the critical importance of legal representation for success in U.S. asylum proceedings.[6] Additionally, an UASC’s chance of gaining asylum could be impacted by the risk that he/she may not be able to clearly articulate subjective fear and relevant experiences,[7] and where adjudicators are unfamiliar with forms and manifestations of persecution experienced by children (i.e. under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage and persecution of kin) and fail to handle children’s claims in an age-sensitive manner.[8]

If attempts are made to advocate for a right to free legal counsel for UASC seeking asylum in the United States, it may be valuable to keep abreast of developments in Europe regarding the proposed recast (a consolidated legislative enactment, which incorporates existing and additional amendments)[9] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[10] In its proposed Article 21(4), the recast states that subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive.”[11] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[12] it arguably has the capacity to significantly influence consensus in State practice, which in turn may be of persuasive value in influencing reform in the United States.

At present, it should be noted that some European countries provide legal representation to UASC in asylum proceedings in certain circumstances. For example, in Denmark, there are strict rules for unaccompanied minors in appeals proceedings.  In addition to the general right to have counsel appointed by the Refugee Appeals Board, Denmark provides all unaccompanied minors with counsel in cases where the Danish Immigration Service does not deem the case appropriate for a hearing in front of the Refugee Appeals Board.[13]  “If the Danish Immigration Service submits a case concerning a residence permit under section 7 for a child falling within subsection (1) to the Danish Refugee Council... the Danish Immigration Service shall at the same time assign counsel to the child unless the child has itself retained one.”[14]  A Section 7 residence permit is essentially the grounds to claim refugee status, subsection 1 outlines the definition of an unaccompanied minor, and the Danish Refugee Council reporting only occurs when immigration officials deem the case unsuitable for the Refugee Appeals Board.  So, in addition to being represented in front of the Appeals Board, unaccompanied minors have a right to legal counsel even if their case is denied a hearing in front of that board.[15]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[16] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[17] Outside Europe, both New Zealand and Canada have legal aid schemes which cover UASC. In New Zealand, for example, all refugee status determinations, including all applicable appeals, are eligible for legal aid under part 2, section 7, of the Legal Services Act 2000.[18] Guideline 3 on Child Refugee Claimants issued by the Canadian Immigration and Refugee Board, provides that the Immigration Act (now the Immigration and Refugee Protection Act) requires the designation of a representative for all child claimants.[19] One duty imposed on designated representatives relates to the retention of counsel,[20] and federally-funded legal aid is available to retain counsel.[21]

If advocates decide to campaign for a right to free legal counsel for UASC seeking asylum, given the shared common law heritage between the United Kingdom, Canada, New Zealand and the United States, consideration should be given to undertaking additional research on the provision of legal aid to UASC in asylum proceedings in these countries to determine whether lessons from these countries may lend assistance to advocacy in the United States. Additionally, case law research should be undertaken in applicable countries to determine whether national and regional courts have made persuasive pronouncements regarding the importance of counsel for children and particularly UASC in asylum proceedings.

 

 


[1] Convention on the Rights of the Child, at Article 22(1).

[2] Committee on the Rights of the Child, General Comment No. 6, at paragraphs 21, 36, 68-69.

[3] Id. at paragraph 72.

[4] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 5.

[5] Id. at paragraphs 65 and 69.

[6] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[7] See generally, Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010); The Committee on the Rights of the Child, General Comment No. 6, at paragraph 66; See e.g. United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 11; United Nations High Commissioner for Refugees, Guidelines on Unaccompanied Children Seeking Asylum, at paragraph 8.6.

[8] See generally Executive Committee, Conclusion on Children at Risk; United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims; The Committee on the Rights of the Child, General Comment No. 6, at paragraphs 3, 59 and 74.

[9] Recasting is like codification in that is brings together in a single new legislative act all the amendments made to it. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves new substantive changes, as amendments are made to the original act during preparation of the recast text. See http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last accessed December 8, 2010)

[10] See Amendment proposed by 52009PC0554 Repeal, at http://eur-lex.europa.eu/Notice.do?val=418705:cs&lang=en&list=418705:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=Granting%20and%20Withdrawing%20Refugee%20Status~ (last accessed December 8, 2010)

[11]See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009PC0554:EN:HTML (last accessed December 8, 2010).

[12] As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Parliament and the European Council will have to decide on proposals presented by the Commission (such as the recast proposal on granting and withdrawing asylum status discussed above), on the basis of Treaties, before that date and that are at different stages of the legislative process. As of August 2010, the recast proposal is awaiting a parliamentary decisions/first parliamentary reading; See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2009/0165. This link will continue to be updated as the recast moves through the relevant legislative process.

[13] Aliens (Consolidation Act) §56a, available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf.

[14] Id.

[15] Id.

[16] Sweden typically provides counsel for the most serious immigration proceedings. Norway has a general right to legal counsel under Immigration Act § 34; Denmark, under §55 of Aliens Consolidation Act (available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf) provides counsel at the Refugee Appeals Board, unless it is not reasonable to do so; Finland, under the Legal Aid Act (available at http://www.finlex.fi/en/laki/kaannokset/2002/en20020257.pdf) provides a right to counsel in most administrative proceedings, and Section 9 of Aliens Act (available at http://www.finlex.fi/en/laki/kaannokset/2004/en20040301.pdf) requires that legal aid be provided under the requirements of the Legal Aid Act.

[17] See e.g., Community Legal Advice, Asylum seekers and refugees, http://www.communitylegaladvice.org.uk/gateway/immigration.jsp?rid=5665 (last visited June 15, 2010). Check to see if available on UK Border Agency website, such as Home Office, UK Border Agency, Rights and Responsibilities http://www.ukba.homeoffice.gov.uk/asylum/rights/

[18] See http://www.legislation.govt.nz/act/public/2000/0042/latest/DLM71807.html (last visited June 15, 2010).

[19] See Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010).

[20] Id.

[21] Correspondence with practitioners acting as designated representatives for UASC in Canada  (on file).

 

D. DETAINED UASC HAVE A RIGHT TO FREE COUNSEL

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[2]

 

 


[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

[2] Aliens Act, Ch. 18, Sec. 1, available at http://www.sweden.gov.se/content/1/c6/06/61/22/bfb61014.pdf.

C. FAIRNESS/ACCESS TO JUSTICE REQUIRES FREE LEGAL COUNSEL FOR UASC

A complementary argument to those highlighted in the preceding two subsections is one based on fairness/access to justice.  As discussed above, the CRC explicitly provides that children temporarily or permanently deprived of their family environment are entitled to “special protection and assistance provided by the State.”[1] As regards the subset of asylum seeking children, the CRC also requires States to take appropriate measures to ensure that such children “receive appropriate protection” in the enjoyment of rights set forth in the Convention and other international human rights or humanitarian instruments to which they are a party.[2] Regarding the content of special protection, the Committee in GC6 states that it encompasses the provision of legal representation, in addition to the provision of guardianship for UASC, where they are involved in administrative, judicial or asylum procedures.[3] Similarly, in elaborating the content of appropriate protection for asylum seeking children, the Committee states that UASC should “in all cases, be given access, free of charge, to a qualified legal representative”.[4] The Committee further states that the refugee status applications of UASC must be given priority and “every effort should be made to render a decision promptly and fairly.”[5] (emphasis added)

Articles 20(1) and 22(1) and the Committee’s interpretation of these articles in GC6 together arguably reflect an attempt to incorporate notions of fairness and access to justice by accommodating the specific protection needs of children temporarily or permanently deprived of their family environment and UASC seeking asylum. The Committee’s interpretation suggests that where such children are navigating asylum, administrative or judicial procedures, mere guardianship is inadequate to comply with the requirement to provide appropriate or special protection. Rather, the provision of legal representation is a necessary component to ensuring that the rights of such children are adequately protected. In this regard, appropriate and special protection seems to reflect an attempt to level the playing field and ensure that UASC who have specific protection needs and who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights. [6] 

In a similar vein to the Committee’s guidance, UNHCR’s commentary also correlates the provision of legal representation with notions of fairness. In its Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure that fair refugee status determination decisions are reached with respect to their claims.[7]

In GC6, the Committee also states that “[t]he ultimate aim in addressing the needs of unaccompanied and separated children is to identify a durable solution that addresses all their protection needs and takes into account their view…”[8] In this regard, a legitimate argument exists to the effect that fair asylum, judicial and administrative proceedings are necessary to identify durable solutions that, address all the protection needs of UASC, are in their best interests and protects their legal rights such as those relating to non-refoulement.

Within this framework, and in light of the acute vulnerability of UASC, advocates can argue that in order to ensure fairness/access to justice for UASC, they should be provided with free legal representation in immigration proceedings.  Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with the necessary procedural safeguards, including free legal representation. The Committee’s interpretation of special and appropriate protection in GC6 for children temporarily deprived of their family environment and asylum seeking children, respectively, supports this position.

If advocates decide to campaign for a right to free legal counsel on the basis of an argument related to fairness/access to justice, additional research on the content of “special protection” and “appropriate protection” should be undertaken. Beyond the committee’s interpretation of those terms in GC6, it may also prove valuable to exhaustively review the Committee’s recommendations to State Parties in individual State Party reports, and to review relevant literature as well as regional and national jurisprudence.

 

 


[1] Convention on the Rights of the Child, at Article 20(1).

[2] Id. at Article 22(1).

[3] Committee on the Rights of the Child, General Comment 6, at paragraph 36.

[4] Id. at, paragraph 69.

[5] Id. at, paragraph 72.

[6] Despite the primarily implicit nature of this argument, in paragraph 72 of its General Comment No. 6, the Committee explicitly refers to fairness in refugee status determination procedures for UASC. Additionally, the Committee’s reasons for issuing General Comment No. 6 were at least partially motivated by gaps in protection experienced by UASC. See Committee on the Rights of the Child, General Comment No. 6, paragraph 3, which states that the “issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of [UASC] children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention…. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials….” See also, Committee on the Rights of the Child, General Comment No. 6, at paragraph 1. 

[7] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraphs 65 and 69.

[8] Committee on the Rights of the Child, General Comment No. 6, at paragraph 79.

B. CHILDREN TEMPORARILY OR PERMANENTLY DEPRIVED OF THEIR FAMILY ENVIRONMENT HAVE A RIGHT TO FREE LEGAL COUNSEL

Another overarching argument open to U.S.-based advocates is one based on Article 20(1) of the CRC. Article 20(1) recognizes the heightened vulnerability of children who do not have the protection of a family environment; it provides that any child who is “temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State” (emphasis added). As children who are temporarily or permanently deprived of their family environment, UASC fall within the protection afforded by this article.[1]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[2] provides that “States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.” In this context, the Committee subsequently states in paragraph 36 that “[i]n cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.”

Based on Article 20(1) and the Committee’s interpretation of this article in paragraphs 33 and 36 of GC6, advocates can argue that UASC are entitled to special protection and assistance from the State, and that this concept of special protection and assistance encompasses the provision of free legal representation for UASC during immigration proceedings. If advocates decide to campaign for a right to free legal counsel on this basis, additional research should be undertaken on the interpretation of “special protection and assistance” as well as “protection and assistance”. This should include a review of relevant literature, a review of regional and national jurisprudence as well as an exhaustive review the Committee’s recommendations to State Parties.

 

 


[1] See Committee on the Rights of the Child, General Comment No. 6, at paragraph 39.

[2] Article 20(1) is interpreted together with Article 18(2). Article 18(2) of the CRC states that “[f]or the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

III. POTENTIAL ARGUMENTS

This section identifies potential arguments, which could be utilized by U.S.-based advocates to promote a right to free legal counsel for UASC navigating immigration proceedings in the United States. The arguments are intended to provide a broad framework within which advocacy strategies and campaigns promoting a right to free legal counsel can be designed. Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken.

Within this context, the following potential arguments are discussed:

§  Respect for the best interests of the child requires procedural safeguards for UASC, which includes the provision of free legal counsel in immigration proceedings;

§  Children who are temporarily or permanently deprived of their family environment have a right to free legal counsel;

§  Fairness/access to justice for UASC necessarily requires free legal counsel;

§  Detained UASC have a right to free legal counsel; and

§  UASC seeking asylum have a right to free legal counsel. 

A. The Best Interests of the Child Support the Right to Free Legal Counsel

An overarching argument that is open to U.S.-based advocates is one based on respect for the best interests of the child.

As previously discussed, the non-discrimination principle expressed in Article 2 of the CRC imposes an obligation on States Parties to respect and ensure the rights set forth in the Convention to each child within its jurisdiction without discrimination of any kind, including on the basis of the child’s status as a foreign national. One such right, as identified in Article 3 of the CRC, requires that the best interests of the child be a primary consideration in all actions concerning children. Accordingly, the combined application of these two articles requires that the best interests of the child be a primary consideration in all actions concerning UASC who are within the jurisdiction of the United States.

According to the Committee, in order to respect the best interests principle, both substantive and procedural safeguards must be implemented.[1] Notably, the Committee highlights that in circumstances where UASC are referred to administrative, judicial or asylum proceedings, a key procedural safeguard includes the provision of a legal representative.[2] Arguably, this wording suggests that a mere right or access to legal representation for UASC is inadequate to ensure respect for their best interests when they are navigating civil proceedings; rather, in such circumstances, there is an obligation on States to provide children with a legal representative in order to ensure respect for their best interests. This argument can be buttressed by highlighting the heightened vulnerability of UASC as acknowledged by ExCom,[3] and the Committee.[4]

If advocates decide to campaign for a right to free legal counsel on the basis of respect for the best interests of the child, additional research on its application to procedural safeguards should be undertaken. This should include a review of relevant literature, a review of regional and national jurisprudence (as the best interests concept is used in many domestic settings) as well as an exhaustive review of the Committee’s recommendations to State Parties.

 

B. Children Temporarily or Permanently Deprived of their Family Environment have a Right o Free Legal Counsel

Another overarching argument open to U.S.-based advocates is one based on Article 20(1) of the CRC. Article 20(1) recognizes the heightened vulnerability of children who do not have the protection of a family environment; it provides that any child who is “temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State” (emphasis added). As children who are temporarily or permanently deprived of their family environment, UASC fall within the protection afforded by this article.[5]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[6] provides that “States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.” In this context, the Committee subsequently states in paragraph 36 that “[i]n cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.”

Based on Article 20(1) and the Committee’s interpretation of this article in paragraphs 33 and 36 of GC6, advocates can argue that UASC are entitled to special protection and assistance from the State, and that this concept of special protection and assistance encompasses the provision of free legal representation for UASC during immigration proceedings. If advocates decide to campaign for a right to free legal counsel on this basis, additional research should be undertaken on the interpretation of “special protection and assistance” as well as “protection and assistance”. This should include a review of relevant literature, a review of regional and national jurisprudence as well as an exhaustive review the Committee’s recommendations to State Parties.

 

C. Fairness/Access to Justice Requires Free Legal Counsel for UASC

A complementary argument to those highlighted in the preceding two subsections is one based on fairness/access to justice.  As discussed above, the CRC explicitly provides that children temporarily or permanently deprived of their family environment are entitled to “special protection and assistance provided by the State.”[7] As regards the subset of asylum seeking children, the CRC also requires States to take appropriate measures to ensure that such children “receive appropriate protection” in the enjoyment of rights set forth in the Convention and other international human rights or humanitarian instruments to which they are a party.[8] Regarding the content of special protection, the Committee in GC6 states that it encompasses the provision of legal representation, in addition to the provision of guardianship for UASC, where they are involved in administrative, judicial or asylum procedures.[9] Similarly, in elaborating the content of appropriate protection for asylum seeking children, the Committee states that UASC should “in all cases, be given access, free of charge, to a qualified legal representative”.[10] The Committee further states that the refugee status applications of UASC must be given priority and “every effort should be made to render a decision promptly and fairly.”[11] (emphasis added)

Articles 20(1) and 22(1) and the Committee’s interpretation of these articles in GC6 together arguably reflect an attempt to incorporate notions of fairness and access to justice by accommodating the specific protection needs of children temporarily or permanently deprived of their family environment and UASC seeking asylum. The Committee’s interpretation suggests that where such children are navigating asylum, administrative or judicial procedures, mere guardianship is inadequate to comply with the requirement to provide appropriate or special protection. Rather, the provision of legal representation is a necessary component to ensuring that the rights of such children are adequately protected. In this regard, appropriate and special protection seems to reflect an attempt to level the playing field and ensure that UASC who have specific protection needs and who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights. [12] 

In a similar vein to the Committee’s guidance, UNHCR’s commentary also correlates the provision of legal representation with notions of fairness. In its Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure that fair refugee status determination decisions are reached with respect to their claims.[13]

In GC6, the Committee also states that “[t]he ultimate aim in addressing the needs of unaccompanied and separated children is to identify a durable solution that addresses all their protection needs and takes into account their view…”[14] In this regard, a legitimate argument exists to the effect that fair asylum, judicial and administrative proceedings are necessary to identify durable solutions that, address all the protection needs of UASC, are in their best interests and protects their legal rights such as those relating to non-refoulement.

Within this framework, and in light of the acute vulnerability of UASC, advocates can argue that in order to ensure fairness/access to justice for UASC, they should be provided with free legal representation in immigration proceedings.  Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with the necessary procedural safeguards, including free legal representation. The Committee’s interpretation of special and appropriate protection in GC6 for children temporarily deprived of their family environment and asylum seeking children, respectively, supports this position.

If advocates decide to campaign for a right to free legal counsel on the basis of an argument related to fairness/access to justice, additional research on the content of “special protection” and “appropriate protection” should be undertaken. Beyond the committee’s interpretation of those terms in GC6, it may also prove valuable to exhaustively review the Committee’s recommendations to State Parties in individual State Party reports, and to review relevant literature as well as regional and national jurisprudence.

 

D. Detained UASC have a Right to Free Counsel

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[15] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[16]

 

E. UASC Seeking Asylum have a Right to Free Counsel

Finally, another more limited argument open to advocates relates to a right to free legal counsel for UASC seeking asylum in the United States.

As discussed earlier, in addition to singling out children who are temporarily and permanently deprived of their family environment, the CRC also imposes obligations on States Parties to ensure that asylum-seeking children receive appropriate protection.[17] Within this context, the Committee has repeatedly elaborated that appropriate protection measures include the provision of free, qualified legal representation where UASC are navigating asylum procedures.[18] The Committee has also noted that the legal representative should be present at all interviews with the child.[19]

UNHCR’s guidance confirms that the principles of non-discrimination and best interests of the child should inform procedural aspects of a determination of a child’s refugee status.[20] In this regard, UNHCR’s commentary highlights the importance of qualified legal representation for children who are principal applicants in asylum procedures as a minimum procedural safeguard to ensure fairness in refugee status determinations.[21]

An argument on the right to free legal counsel based on Article 22(1) of the CRC as well as the commentary and guidance of the Committee and UNHCR should highlight the importance of legal representation for UASC in U.S. immigration proceedings. For example, empirical research has highlighted the critical importance of legal representation for success in U.S. asylum proceedings.[22] Additionally, an UASC’s chance of gaining asylum could be impacted by the risk that he/she may not be able to clearly articulate subjective fear and relevant experiences,[23] and where adjudicators are unfamiliar with forms and manifestations of persecution experienced by children (i.e. under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage and persecution of kin) and fail to handle children’s claims in an age-sensitive manner.[24]

If attempts are made to advocate for a right to free legal counsel for UASC seeking asylum in the United States, it may be valuable to keep abreast of developments in Europe regarding the proposed recast (a consolidated legislative enactment, which incorporates existing and additional amendments)[25] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[26] In its proposed Article 21(4), the recast states that subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive.”[27] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[28] it arguably has the capacity to significantly influence consensus in State practice, which in turn may be of persuasive value in influencing reform in the United States.

At present, it should be noted that some European countries provide legal representation to UASC in asylum proceedings in certain circumstances. For example, in Denmark, there are strict rules for unaccompanied minors in appeals proceedings.  In addition to the general right to have counsel appointed by the Refugee Appeals Board, Denmark provides all unaccompanied minors with counsel in cases where the Danish Immigration Service does not deem the case appropriate for a hearing in front of the Refugee Appeals Board.[29]  “If the Danish Immigration Service submits a case concerning a residence permit under section 7 for a child falling within subsection (1) to the Danish Refugee Council... the Danish Immigration Service shall at the same time assign counsel to the child unless the child has itself retained one.”[30]  A Section 7 residence permit is essentially the grounds to claim refugee status, subsection 1 outlines the definition of an unaccompanied minor, and the Danish Refugee Council reporting only occurs when immigration officials deem the case unsuitable for the Refugee Appeals Board.  So, in addition to being represented in front of the Appeals Board, unaccompanied minors have a right to legal counsel even if their case is denied a hearing in front of that board.[31]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[32] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[33] Outside Europe, both New Zealand and Canada have legal aid schemes which cover UASC. In New Zealand, for example, all refugee status determinations, including all applicable appeals, are eligible for legal aid under part 2, section 7, of the Legal Services Act 2000.[34] Guideline 3 on Child Refugee Claimants issued by the Canadian Immigration and Refugee Board, provides that the Immigration Act (now the Immigration and Refugee Protection Act) requires the designation of a representative for all child claimants.[35] One duty imposed on designated representatives relates to the retention of counsel,[36] and federally-funded legal aid is available to retain counsel.[37]

If advocates decide to campaign for a right to free legal counsel for UASC seeking asylum, given the shared common law heritage between the United Kingdom, Canada, New Zealand and the United States, consideration should be given to undertaking additional research on the provision of legal aid to UASC in asylum proceedings in these countries to determine whether lessons from these countries may lend assistance to advocacy in the United States. Additionally, case law research should be undertaken in applicable countries to determine whether national and regional courts have made persuasive pronouncements regarding the importance of counsel for children and particularly UASC in asylum proceedings.

 

 


[1] Committee on the Rights of the Child, General Comment No. 6, paragraph 21.

[2] Id. at 21 and 36.

[3] See Executive Committee, Conclusion on Children at Risk, at paragraph (c)(ii) (discussing individual risk factors)

[4] See Committee on the Rights of the Child, General Comment No. 6, at paragraph 3 (stating “The issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of such children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention. They are often discriminated against and denied access to food, shelter, housing, health services and education. Unaccompanied and separated girls are at particular risk of gender-based violence, including domestic violence. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials. In other cases they are admitted but are denied access to asylum procedures or their asylum claims are not handled in an age and gender-sensitive manner. Some countries prohibit separated children who are recognized as refugees from applying for family reunification; others permit reunification but impose conditions so restrictive as to make it virtually impossible to achieve. Many such children are granted only temporary status, which ends when they turn 18, and there are few effective return programmes.”)

[5] See Committee on the Rights of the Child, General Comment No. 6, at paragraph 39.

[6] Article 20(1) is interpreted together with Article 18(2). Article 18(2) of the CRC states that “[f]or the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

[7] Convention on the Rights of the Child, at Article 20(1).

[8] Id. at Article 22(1).

[9] Committee on the Rights of the Child, General Comment 6, at paragraph 36.

[10] Id. at, paragraph 69.

[11] Id. at, paragraph 72.

[12] Despite the primarily implicit nature of this argument, in paragraph 72 of its General Comment No. 6, the Committee explicitly refers to fairness in refugee status determination procedures for UASC. Additionally, the Committee’s reasons for issuing General Comment No. 6 were at least partially motivated by gaps in protection experienced by UASC. See Committee on the Rights of the Child, General Comment No. 6, paragraph 3, which states that the “issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of [UASC] children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention…. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials….” See also, Committee on the Rights of the Child, General Comment No. 6, at paragraph 1. 

[13] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraphs 65 and 69.

[14] Committee on the Rights of the Child, General Comment No. 6, at paragraph 79.

[15] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

[16] Aliens Act, Ch. 18, Sec. 1, available at http://www.sweden.gov.se/content/1/c6/06/61/22/bfb61014.pdf.

[17] Convention on the Rights of the Child, at Article 22(1).

[18] Committee on the Rights of the Child, General Comment No. 6, at paragraphs 21, 36, 68-69.

[19] Id. at paragraph 72.

[20] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 5.

[21] Id. at paragraphs 65 and 69.

[22] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[23] See generally, Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010); The Committee on the Rights of the Child, General Comment No. 6, at paragraph 66; See e.g. United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 11; United Nations High Commissioner for Refugees, Guidelines on Unaccompanied Children Seeking Asylum, at paragraph 8.6.

[24] See generally Executive Committee, Conclusion on Children at Risk; United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims; The Committee on the Rights of the Child, General Comment No. 6, at paragraphs 3, 59 and 74.

[25] Recasting is like codification in that is brings together in a single new legislative act all the amendments made to it. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves new substantive changes, as amendments are made to the original act during preparation of the recast text. See http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last accessed December 8, 2010)

[26] See Amendment proposed by 52009PC0554 Repeal, at http://eur-lex.europa.eu/Notice.do?val=418705:cs&lang=en&list=418705:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=Granting%20and%20Withdrawing%20Refugee%20Status~ (last accessed December 8, 2010)

[27]See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009PC0554:EN:HTML (last accessed December 8, 2010).

[28] As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Parliament and the European Council will have to decide on proposals presented by the Commission (such as the recast proposal on granting and withdrawing asylum status discussed above), on the basis of Treaties, before that date and that are at different stages of the legislative process. As of August 2010, the recast proposal is awaiting a parliamentary decisions/first parliamentary reading; See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2009/0165. This link will continue to be updated as the recast moves through the relevant legislative process.

[29] Aliens (Consolidation Act) §56a, available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf.

[30] Id.

[31] Id.

[32] Sweden typically provides counsel for the most serious immigration proceedings. Norway has a general right to legal counsel under Immigration Act § 34; Denmark, under §55 of Aliens Consolidation Act (available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf) provides counsel at the Refugee Appeals Board, unless it is not reasonable to do so; Finland, under the Legal Aid Act (available at http://www.finlex.fi/en/laki/kaannokset/2002/en20020257.pdf) provides a right to counsel in most administrative proceedings, and Section 9 of Aliens Act (available at http://www.finlex.fi/en/laki/kaannokset/2004/en20040301.pdf) requires that legal aid be provided under the requirements of the Legal Aid Act.

[33] See e.g., Community Legal Advice, Asylum seekers and refugees, http://www.communitylegaladvice.org.uk/gateway/immigration.jsp?rid=5665 (last visited June 15, 2010). Check to see if available on UK Border Agency website, such as Home Office, UK Border Agency, Rights and Responsibilities http://www.ukba.homeoffice.gov.uk/asylum/rights/

[34] See http://www.legislation.govt.nz/act/public/2000/0042/latest/DLM71807.html (last visited June 15, 2010).

[35] See Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010).

[36] Id.

[37] Correspondence with practitioners acting as designated representatives for UASC in Canada  (on file).

D. FREE LEGAL COUNSEL FOR CHILDREN DEPRIVED OF LIBERTY

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

 As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1]

 

 


[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

C. NON-DISCRIMINATION, BEST INTERESTS OF THE CHILD, AND SPECIAL PROTECTION AND ASSISTANCE  

This subsection introduces the principles of non-discrimination and best interests of the child. These represent two of four fundamental principles which underlie the Convention.[1] This subsection also examines Article 20(1) of the CRC, which states that children temporarily or permanently deprived of their family environment are entitled to special protection and assistance provided by the State. The manner in which these principles may prove valuable for attempts to advocate for a right to free legal counsel for all UASC in immigration proceedings are discussed in section III.

 

1. Non-discrimination

Pursuant to Article 2 of the CRC, States Parties to the Convention are required to respect and ensure the rights set forth in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s status.[2]

Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In its interpretative guidance, the Committee notes that the principle of non-discrimination applies in all dealings with UASC and does not prevent, and may indeed call for, affirmative action and differentiation on the basis of protection needs.

GC6: Paragraph 18: The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender….[3]

A plethora of other international instruments including the Universal Declaration of Human Rights,[4] the United Nations Charter[5] and the International Covenant on Civil and Political Rights[6] also articulate the prohibition against discrimination.[7] Similarly, the notion that States may be required to undertake affirmative action in order to protect the rights of various vulnerable populations is also common to other international treaties.[8]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[9] While the United States has signed this treaty, it has yet to proceed with ratification.[10]

 

2. Best Interests of the Child

Similar to Article 2 on non-discrimination, Article 3(1) of the Convention, sets out a pivotal standard, which underpins all other rights articulated in the Convention. Article 3(1) provides that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3(1): In all actions concerning children, whether undertaken by a public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

According to the Committee, as regards displaced children, the principle of the best interests of the child must be respected throughout the displacement cycle with the ultimate aim that any durable solution addresses the protection needs of UASC.

GC6: Paragraph 19: …In the case of a displaced child, the principle must be respected during all stages of the displacement cycle….

GC6: Paragraph 79: The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs….

The CRC does not provide a definition of best interests. The Committee states that the concept does require a clear and comprehensive assessment of the child’s particular vulnerabilities and protection needs and that in order to conduct this initial assessment a child should be given access to the State’s territory.[11]

GC6: Paragraph 20: A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

While it is clear that the best interests concept is indeterminate, the Committee also notes that key procedural safeguards must be implemented in order to ensure respect for the best interests of an UASC; this includes the provision of a legal representative in addition to a guardian where a child is referred to asylum, administrative or judicial proceedings.

GC6 Paragraph 21: …[T]he appointment of a competent guardian as expeditiously as possible serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied and separated child. Therefore such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

Including the reference in Article 3, the best interests standard is invoked eight times in the Convention in seven articles.[12] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[13] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[14] The standard is also a familiar concept in U.S. family law.

 

3. Special Protection and Assistance

Article 20(1) of the CRC, addresses the situation of children who are temporarily or permanently deprived of their family environment and states that such children are entitled to special protection and assistance provided by the State. In this respect, UASC would be entitled to the protection afforded under this article.

Article 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

The Committee clearly states that UASC fall within the protection afforded under Article 20(1).

GC6: Paragraph 39: Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State.

In interpreting Articles 18(2) and 20(1), the Committee notes that States are required to undertake necessary measures to secure the proper representation of UASC’s best interests. According to the Committee, necessary measures include the provision of legal representation where children are involved in asylum, administrative or judicial proceedings.  

GC6: Paragraph 33: States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.…

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.

 

 


[1] The Committee has identified the following Articles of the CRC as general principles for its implementation: Article 2 (non-discrimination), Article 3(1) (best interests), Article 6 (right to life and survival and development) and Article 12 (right to express views and be heard). See Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child, at paragraph 12. See also Committee on the Rights of the Child, General Comment No. 6.

[2] This would include for example, the obligation to respect and ensure the rights in the CRC without discrimination on the basis of a child’s immigration status.

[3] It is well established in international human rights law that not all differences in treatment constitute discrimination. Generally, the concept of differentiation in human rights law permits differences in treatment if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate.

[4] Universal Declaration of Human Rights, at Article 2.

[5] Charter of the United Nations, at Articles 1(3), 55 and 56.

[6] International Covenant on Civil and Political Rights, at Article 2.

[7] The Conclusion on Children at Risk indicates that strategies and actions to strengthen protection of children at heightened risk should be underpinned by fundamental principles. This includes ensuring the non-discriminatory enjoyment of rights and each child’s right to life. See Executive Committee, Conclusion on Children at Risk, at paragraph (b).

[8] See e.g. Convention on the Elimination of Discrimination Against Women, Article 4.

[9]  American Convention on Human Rights, at Article 1(1).

[10] See http://www.oas.org/juridico/english/sigs/b-32.html (last accessed December 6, 2010).

[11] UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum also confirm that an unaccompanied child seeking asylum should not be refused access to the territory. At paragraph 4.1, it states the following: “Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.” 

[12] See Articles 3(1), 9(1), 9(3), 18(1), 20(1), 21, 37(c) and 40(2)(b)(iii).

[13] See e.g. Charter of Fundamental Rights of the European Union, Article 24(2) and African Charter on the Rights and Welfare of the Child, at Article 4(1).

[14] See Executive Committee, Conclusion on Children at Risk, at paragraph (b)(v):

B. THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

 As a preliminary matter, a brief introduction to the Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations High Commissioner for Refugees and the Executive Committee of the United Nations High Commissioner for Refugees is provided.  This treaty and bodies speak to the rights of UASC.

 

1. The Convention on the Rights of the Child

 The Convention on the Rights of the Child (“CRC” or “Convention”) is the paramount international human rights treaty dedicated to the rights of children. Every nation except two has ratified the CRC; the United States and Somalia have, however, signed the treaty,[1] and as a consequence, are obliged under international law to act in a manner consistent with the treaty’s object and purpose.[2]  In the very least, advocates can use the CRC for its persuasive value before policymakers and judges in the United States.  If and when the Unites States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the Unites States.  That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

 

 


[1] See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&... (last accessed December 6, 2010)

[2] Vienna Convention on the Law of Treaties, Article 18.

A.  INTRODUCTION

The international materials discussed in this section include:

§  The Convention on the Rights of the Child (1989);

§  The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§  The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§  The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§  The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

II.  Main Sources of International Law and Commentary

A.  Introduction

The international materials discussed in this section include:

§  The Convention on the Rights of the Child (1989);

§  The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§  The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§  The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§  The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

II.  Main Sources of International Law and Commentary

A.  Introduction

The international materials discussed in this section include:

§  The Convention on the Rights of the Child (1989);

§  The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§  The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§  The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§  The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

B.  The Convention on the Rights of the child and the United Nations High Commisioner for Refugees

As a preliminary matter, a brief introduction to the Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations High Commissioner for Refugees and the Executive Committee of the United Nations High Commissioner for Refugees is provided.  This treaty and bodies speak to the rights of UASC.

 

1. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“CRC” or “Convention”) is the paramount international human rights treaty dedicated to the rights of children. Every nation except two has ratified the CRC; the United States and Somalia have, however, signed the treaty,[1] and as a consequence, are obliged under international law to act in a manner consistent with the treaty’s object and purpose.[2]  In the very least, advocates can use the CRC for its persuasive value before policymakers and judges in the United States.  If and when the Unites States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the Unites States.  That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

 

2. The Committee on the Rights of the Child and General Comment 6

The Committee on the Rights of the Child (the “Committee”) is a body of independent experts mandated pursuant to Article 43 of the CRC to measure State Party compliance and progress with obligations under the CRC. Progress and compliance is generally measured through a reporting mechanism intended to engender dialogue between the Committee and State Parties.[3] In an attempt to improve implementation of the CRC, the Committee publishes interpretative guidance in the form of ‘General Comments’ to enhance State understanding of the CRC’s provisions and to highlight thematic concerns. The Committee’s General Comments are based on the experience gained through examination of State Party reports. While not strictly binding on States Parties, the Committee’s pronouncements are regarded as authoritative.[4]

The Committee’s General Comment No. 6 on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (“GC6”) is of particular relevance to the subject of this memorandum. This comment was issued in order to “draw attention to the particularly vulnerable situation of unaccompanied and separated children…”[5] and to “provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child…”[6]

 

3. The United Nations High Commissioner for Refugees and its Executive Committee

The United Nations High Commissioner for Refugees (“UNHCR”), a body established by the United Nations General Assembly, is mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide. To this end, its primary purpose is to safeguard the rights of refugees. Pursuant to its mandate, UNHCR issues guidelines on various facets of international protection of asylum seekers and refugees. The Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (“Guidelines on Child Asylum Claims”) are intended to provide legal interpretative guidance for, inter alia, governments, legal practitioners, decision makers and the judiciary on carrying out asylum determinations.[7] The Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (“Guidelines on Unaccompanied Children Seeking Asylum”) are intended to, inter alia, promote awareness of the special needs of unaccompanied children and the rights reflected in the CRC.[8] UNHCR’s guidelines have been regarded to be of persuasive value in U.S. case law.[9] 

The Executive Committee (“ExCom”) of the High Commissioner’s Programme,[10] the governing body of the UNHCR adopts conclusions on international protection, which contribute to the development of international refugee law. ExCom has adopted Conclusion No. 107 on Children at Risk (“Conclusion on Children at Risk”) which is aimed at strengthening the protection of children at risk.[11] Factors that put children in situations of heightened risk include individual risk factors such as being unaccompanied or separated,[12] and wider environmental risk factors such as lack of access to child-sensitive asylum procedures.[13] The Conclusion on Children at Risk provides operational guidance to States, UNHCR, and other relevant agencies and partners on the protection of children affected by forced displacement and statelessness and outlines the main aspects of a comprehensive child protection system.[14]

C.  Non-discrimination, Best Interests of the Child, and Special Protection and Assistance

This subsection introduces the principles of non-discrimination and best interests of the child. These represent two of four fundamental principles which underlie the Convention.[15] This subsection also examines Article 20(1) of the CRC, which states that children temporarily or permanently deprived of their family environment are entitled to special protection and assistance provided by the State. The manner in which these principles may prove valuable for attempts to advocate for a right to free legal counsel for all UASC in immigration proceedings are discussed in section III.

 

1. Non-discrimination

Pursuant to Article 2 of the CRC, States Parties to the Convention are required to respect and ensure the rights set forth in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s status.[16]

Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In its interpretative guidance, the Committee notes that the principle of non-discrimination applies in all dealings with UASC and does not prevent, and may indeed call for, affirmative action and differentiation on the basis of protection needs.

GC6: Paragraph 18: The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender….[17]

A plethora of other international instruments including the Universal Declaration of Human Rights,[18] the United Nations Charter[19] and the International Covenant on Civil and Political Rights[20] also articulate the prohibition against discrimination.[21] Similarly, the notion that States may be required to undertake affirmative action in order to protect the rights of various vulnerable populations is also common to other international treaties.[22]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[23] While the United States has signed this treaty, it has yet to proceed with ratification.[24]

 

2. Best Interests of the Child

Similar to Article 2 on non-discrimination, Article 3(1) of the Convention, sets out a pivotal standard, which underpins all other rights articulated in the Convention. Article 3(1) provides that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3(1): In all actions concerning children, whether undertaken by a public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

 According to the Committee, as regards displaced children, the principle of the best interests of the child must be respected throughout the displacement cycle with the ultimate aim that any durable solution addresses the protection needs of UASC.

GC6: Paragraph 19: …In the case of a displaced child, the principle must be respected during all stages of the displacement cycle….

GC6: Paragraph 79: The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs….

The CRC does not provide a definition of best interests. The Committee states that the concept does require a clear and comprehensive assessment of the child’s particular vulnerabilities and protection needs and that in order to conduct this initial assessment a child should be given access to the State’s territory.[25]

GC6: Paragraph 20: A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

 While it is clear that the best interests concept is indeterminate, the Committee also notes that key procedural safeguards must be implemented in order to ensure respect for the best interests of an UASC; this includes the provision of a legal representative in addition to a guardian where a child is referred to asylum, administrative or judicial proceedings.

GC6 Paragraph 21: …[T]he appointment of a competent guardian as expeditiously as possible serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied and separated child. Therefore such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

 Including the reference in Article 3, the best interests standard is invoked eight times in the Convention in seven articles.[26] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[27] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[28] The standard is also a familiar concept in U.S. family law.

 

3. Special Protection and Assistance

Article 20(1) of the CRC, addresses the situation of children who are temporarily or permanently deprived of their family environment and states that such children are entitled to special protection and assistance provided by the State. In this respect, UASC would be entitled to the protection afforded under this article.

Article 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

The Committee clearly states that UASC fall within the protection afforded under Article 20(1).

GC6: Paragraph 39: Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State.

 In interpreting Articles 18(2) and 20(1), the Committee notes that States are required to undertake necessary measures to secure the proper representation of UASC’s best interests. According to the Committee, necessary measures include the provision of legal representation where children are involved in asylum, administrative or judicial proceedings. 

GC6: Paragraph 33: States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.…

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.

D.  Free Legal Counsel for Children Deprived of Liberty

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

 The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

 As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[29]

E.  Free Legal Counsel for Asylum Seeking Children

The CRC also imposes obligations on States Parties with regards to asylum seeking children. In particular, the CRC requires States to ensure that such children receive appropriate protection in the enjoyment of applicable rights set forth in the Convention and in other international human rights and humanitarian instruments to which the State is a party.

Article 22(1): States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

 The Committee elaborates, noting that where UASC are referred to asylum procedures or other administrative or judicial proceedings, appropriate measures include providing such children with a legal representative. According to the Committee, refugee status applications of UASC seeking asylum must be given priority and should be determined promptly and fairly.

GC6: Paragraph 21: …In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian. (emphasis added)

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation. (emphasis added)

GC6: Paragraph 68: Appropriate measures required under article 22(1) of the Convention must take into account the particular vulnerabilities of unaccompanied and separated children. Such measures should be guided by the considerations set out below.

GC6: Paragraph 69: …The unaccompanied or separated child should also, in all cases, be given access, free of charge, to a qualified legal representative, including where the application for refugee status is processed under the normal procedures for adults. (emphasis added)

GC6: Paragraph 70: Refugee status applications filed by unaccompanied and separated children shall be given priority and every effort should be made to render a decision promptly and fairly. (emphasis added)

GC6: Paragraph 72: …The guardian and the legal representative should be present during all interviews.

In its recent Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims. According to UNHCR, minimum standards include an entitlement, arguably free of charge, to a legal representative where children are principal applicants in asylum procedures.

Paragraph 65: Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims.[30] The general measures outlined below set out minimum standards for the treatment of children during the asylum procedure.

Paragraph 69: An independent, qualified guardian needs to be appointed immediately, free of charge in the case of unaccompanied and separated children. Children who are the principal applicants in an asylum procedure are also entitled to a legal representative.[31] Such representatives should be properly trained and should support the child throughout the procedure. 

 These guidelines also state that a child sensitive application of the refugee definition would be consistent with the CRC and that the principles of non-discrimination and best interests of the child (discussed in subsection C above) “inform both the substantive and the procedural aspects of the determination of a child’s application for refugee status.”[32]

 As part of its operational guidance to States and other entities, the Conclusion on Children at Risk identifies “components that may form part of a comprehensive child protection system, with the aim of strengthening the protection of children at risk”.[33] In this regard, the Conclusion states that the best interests of the child shall be a primary consideration in all actions concerning children.[34] It also recommends that States and other relevant agencies act to prevent children being put at heightened risk by providing qualified free legal representation for UASC.[35]

 The UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum provides that upon arrival, a child should be provided with a legal representative and states that claims from unaccompanied children should be examined in a fair manner.

Paragraph 4.2: Upon arrival, a child should be provided with a legal representative. The claims of unaccompanied children should be examined in a manner which is both fair and age-appropriate.

 

 


[1] See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&... (last accessed December 6, 2010)

[2] Vienna Convention on the Law of Treaties, Article 18.

[3] All States Parties are obliged to submit regular reports to the Committee on how the rights in the CRC are being implemented. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to State Parties in the form of “concluding observations”. For information on the Committee, see http://www2.ohchr.org/english/bodies/crc/ (last accessed on December 6, 2010). See also Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006).

[4] See e.g. Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006), at 38-41. 

[5] Committee on the Rights of the Child, General Comment No. 6, at paragraph 1.

[6] Id.

[7] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (Guidelines on Child Asylum Claims), at cover page.

[8] United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Guidelines on Unaccompanied Children Seeking Asylum), at paragraph 1.3.

[9] See Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (“[T]he Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform.  It has been widely considered useful in giving content to the obligations that the Protocol establishes.”

[10] The UN Economic and Social Council established this body in 1958 and it formally came into existence on January 1, 1959. The Executive Committee is currently composed of 79 member States, which includes the United States. For information on the Executive Committee, see http://www.unhcr.org/pages/49c3646c83.html (last accessed December 6, 2010).

[11] See Executive Committee, Conclusion No. 107 (LVIII) – 2007 on Children at Risk (Conclusion on Children at Risk), at paragraph (a).

[12] Id. at paragraph (c)(ii).

[13] Id. at paragraph (c)(i).

[14] Id. at paragraph (a); See also Ron Pouwels, UNHCR’s Executive Committee Conclusion on Children at Risk, Refugee Survey Quarterly, 27(4).

[15] The Committee has identified the following Articles of the CRC as general principles for its implementation: Article 2 (non-discrimination), Article 3(1) (best interests), Article 6 (right to life and survival and development) and Article 12 (right to express views and be heard). See Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child, at paragraph 12. See also Committee on the Rights of the Child, General Comment No. 6.

[16] This would include for example, the obligation to respect and ensure the rights in the CRC without discrimination on the basis of a child’s immigration status.

[17] It is well established in international human rights law that not all differences in treatment constitute discrimination. Generally, the concept of differentiation in human rights law permits differences in treatment if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate.

[18] Universal Declaration of Human Rights, at Article 2.

[19] Charter of the United Nations, at Articles 1(3), 55 and 56.

[20] International Covenant on Civil and Political Rights, at Article 2.

[21] The Conclusion on Children at Risk indicates that strategies and actions to strengthen protection of children at heightened risk should be underpinned by fundamental principles. This includes ensuring the non-discriminatory enjoyment of rights and each child’s right to life. See Executive Committee, Conclusion on Children at Risk, at paragraph (b).

[22] See e.g. Convention on the Elimination of Discrimination Against Women, Article 4.

[23]  American Convention on Human Rights, at Article 1(1).

[24] See http://www.oas.org/juridico/english/sigs/b-32.html (last accessed December 6, 2010).

[25] UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum also confirm that an unaccompanied child seeking asylum should not be refused access to the territory. At paragraph 4.1, it states the following: “Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.” 

[26] See Articles 3(1), 9(1), 9(3), 18(1), 20(1), 21, 37(c) and 40(2)(b)(iii).

[27] See e.g. Charter of Fundamental Rights of the European Union, Article 24(2) and African Charter on the Rights and Welfare of the Child, at Article 4(1).

[28] See Executive Committee, Conclusion on Children at Risk, at paragraph (b)(v):

[29] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

[30] “The relevant applicable age for children to benefit from the additional procedural safeguards elaborated in this section is the date the child seeks asylum and not the date a decision is reached…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 65, footnote 129.

[31] “…Legal representative” refers to a lawyer or other person qualified to provide legal assistance to, and inform, the child in the asylum proceedings and in relation to contacts with authorities on legal matters…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 69, footnote 135.

[32] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 5.

[33] Executive Committee, Conclusion on Children at Risk, at paragraph a.

[34] Id. at paragraph b(v).

[35] Id. at paragraph b(viii).

B. STRUCTURE

Section II of this memorandum introduces excerpts from international law and commentary directly or indirectly applicable to the provision of free legal counsel for unaccompanied and separated children in civil proceedings. This serves as background to the discussion in Section III on how the identified law and commentary could be utilized to support attempts to promote a right to free legal counsel for unaccompanied and separated children navigating immigration proceedings in the United States.

 

C. DEFINITIONS

 For the purpose of this memorandum, the following definitions apply:

 §  Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.[1]

§  Unaccompanied children: Children (as defined above) who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.[2]

§  Separated children: Children (as defined above) who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. Accordingly separated children may include children accompanied by other adult family members.[3]

§  Unaccompanied and separated children/child (“UASC”): This definition encapsulates the two immediately preceding definitions in their plural and singular forms, as relevant.

 

 


[1] Convention on the Rights of the Child (CRC), at Article 1.

[2] Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (General Comment No. 6), at paragraph 7.

[3] Id. at paragraph 8.

A. PURPOSE

This memorandum highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

The right to counsel for these children matters in two important ways.  First, children are not competent to represent themselves in any legal proceeding, and immigration removal law and procedure is complex.  Second, research has long demonstrated that respondents in immigration court are several times more likely to gain asylum if they are represented.[1]  Under current U.S. law (Immigration and Nationality Act Sec. 292, 8 U.S.C. Sec. 1362), however, unaccompanied and separated children are not provided with counsel at government expense.  That means that they must depend on pro bono representation.  While there are major efforts underway by advocacy organizations to recruit pro bono counsel for these children,[2] a significant number of unaccompanied and separated children are not represented in their immigration removal proceedings.[3] Accordingly, advocacy organizations continue to campaign for mandated representation for this vulnerable population.  International human rights law can helpfully support that campaign.

 

 


[1] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[2] See e.g. the Unaccompanied Children Program at the VERA Institute for Justice, Kids in Need of Defense (KIND), and the National Pro Bono Project for Children at the Catholic Legal Immigration Network Inc. (CLINIC).

[3] For example, based on correspondence with the VERA Institute on December 2, 2010, only 19% of the children who were admitted into ORR custody between April 1, 2006 and March 31, 2008 (and whose cases were concluded (while the child was released) at the IJ stage by June 20, 2008) were represented at some point in their removal proceedings.

I.  Introduction

A.  Purpose

This memorandum highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

The right to counsel for these children matters in two important ways.  First, children are not competent to represent themselves in any legal proceeding, and immigration removal law and procedure is complex.  Second, research has long demonstrated that respondents in immigration court are several times more likely to gain asylum if they are represented.[1]  Under current U.S. law (Immigration and Nationality Act Sec. 292, 8 U.S.C. Sec. 1362), however, unaccompanied and separated children are not provided with counsel at government expense.  That means that they must depend on pro bono representation.  While there are major efforts underway by advocacy organizations to recruit pro bono counsel for these children,[2] a significant number of unaccompanied and separated children are not represented in their immigration removal proceedings.[3] Accordingly, advocacy organizations continue to campaign for mandated representation for this vulnerable population.  International human rights law can helpfully support that campaign.

 

B.  Structure

Section II of this memorandum introduces excerpts from international law and commentary directly or indirectly applicable to the provision of free legal counsel for unaccompanied and separated children in civil proceedings. This serves as background to the discussion in Section III on how the identified law and commentary could be utilized to support attempts to promote a right to free legal counsel for unaccompanied and separated children navigating immigration proceedings in the United States.

 

C.  Definitions

 For the purpose of this memorandum, the following definitions apply:

 §  Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.[4]

§  Unaccompanied children: Children (as defined above) who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.[5]

§  Separated children: Children (as defined above) who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. Accordingly separated children may include children accompanied by other adult family members.[6]

§  Unaccompanied and separated children/child (“UASC”): This definition encapsulates the two immediately preceding definitions in their plural and singular forms, as relevant.

 

 


[1] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[2] See e.g. the Unaccompanied Children Program at the VERA Institute for Justice, Kids in Need of Defense (KIND), and the National Pro Bono Project for Children at the Catholic Legal Immigration Network Inc. (CLINIC).

[3] For example, based on correspondence with the VERA Institute on December 2, 2010, only 19% of the children who were admitted into ORR custody between April 1, 2006 and March 31, 2008 (and whose cases were concluded (while the child was released) at the IJ stage by June 20, 2008) were represented at some point in their removal proceedings.

[4] Convention on the Rights of the Child (CRC), at Article 1.

[5] Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (General Comment No. 6), at paragraph 7.

[6] Id. at paragraph 8.

Using International Law in U.S. Immigration Cases

The following resources were created as part of a partnership between CLINIC and the Institute for the Study of International Migration at Georgetown University to encourage the use of international law arguments in U.S. immigration cases:

An International Human Right to Free Legal Counsel for Unaccompanied and Separated Children in U.S. Immigration Proceedings, by Sanjula S. Weerasinghe and Andrew I. Schoenholtz, highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

Resources by type: 
Projects: 

Individual Tax Identification Numbers (ITIN): Practical Guidelines for Individuals

What is an ITIN?

ITIN stands for Individual Tax Identification Number. It is a nine-digit number issued by the Internal Revenue Service (IRS) to individuals who do not qualify for a Social Security Number (SSN). The ITIN always begins with the number 9 and has a 7 or 8 in the fourth digit. For example: 9XX-7X-XXXX.

An ITIN permits individuals without a valid Social Security Number (SSN) to:

  • Pay taxes (report their annual earnings to the IRS)
  • Open an interest-bearing bank account.


Can an ITIN be used for work purposes?
No. An ITIN cannot be used to show work authorization. The purpose of the ITIN is to assist individuals without a SSN to pay their taxes and/or open an interest-bearing bank account. Note: ITINs do not entitle the recipient to Social Security benefits or the Earned Income Tax Credit (EITC).

Who needs an ITIN?

  • Individuals that earn income in the U.S. and must file a U.S. tax return but do not have a SSN. (According to U.S. law, unless your income is exceedingly low, you are legally required to file an income tax return.)
  • Spouses and dependents that are listed on a U.S. tax return but do not have a SSN. (Spouses and dependents must fill-out separate Forms W-7 and submit them together with the principal taxpayer.)
  • Individuals that would like to open an interest-bearing bank account but do not have a SSN.


Does the use of an ITIN indicate that the applicant is undocumented?
No. The ITIN is available to a range of foreign-born persons that are not eligible for SSNs. The IRS has stated repeatedly that an ITIN does not create an inference about an individual’s immigration status.

How does an individual apply for an ITIN?
Individuals must complete IRS Form W-7, “Application for IRS Individual Taxpayer
Identification Number.” This Form may be obtained from any IRS office, U.S. consular office aboard, or any Acceptance Agent. It also is available on-line at www.irs.gov, or by calling 1-800-TAX FORM. Form W-7 is available in both English and Spanish.

 

More information in the attachments below.

 

 

Resources by type: 

Family-Based Immigration Training in Mobile Alabama

Family-Based Immigration: An Introduction

Co-Sponsored by:

Catholic Legal Immigration Network, Inc. and
Catholic Social Services, Mobile AL

 

January 6-7, 2009

Location:
Visitation Monastery
2300 Springhill Avenue
Mobile, AL 36607
251-473-2321

This two-day training will provide an introduction to family-based immigration, focusing on basic eligibility criteria and the process of applying for permanent residence through family members. Topics include an overview of the family-based immigration system; filing relative petitions; an overview of the Child Status Protection Act; inadmissibility; adjustment of status; consular processing; affidavits of support; conditional residence and fiancé visas. A summary agenda is available online when registering.

The trainers for this program are CLINIC attorneys Jennie Guilfoyle of New York and Susan Schreiber of Chicago. An application for Alabama CLE credit is pending.

The training is for the staff of Catholic Charities and other community-based organizations with IRS 501(c)(3) status, and attorneys and legal worker staff of private law offices. As a requirement of registration, if you are registering as staff of a community-based organization, fax a copy of your IRS 501(3) letter designating your agency as a nonprofit entity to CLINIC at 415-394-8696 to the attention of Chris Ozaki. Your registration will be confirmed upon receipt of this letter. Payment is by credit card only.

This training is introductory; it is recommended for practitioners who do not have significant experience with family-based immigration.

 

$235 per person for CLINIC affiliate staff; $675 cap
($50 materials fee per person for more than 3)
$260 per person for other non-profit agency staff; $750 cap
($50 materials fee per person for more than 3)
$400 per person for private attorneys and staff.
**Note that registration fees include lunch on both days**


Space is limited. The deadline for registration is December 22nd or sooner if capacity is reached. For more information regarding registration, call Chris Ozaki at (415) 394-9371.

Additional information is available online at http://cliniclegal.org/Trainings/fliers/MobileFamily2008Flier.pdf,

http://cliniclegal.org/Trainings/fliers/MobileFamily2008SuppInfo.pdf and http://cliniclegal.org/Trainings/fliers/MobileFamily2008Agenda.pdf.

 
Location:    Visitation Monastery
     2300 Springhill Avenue
     Mobile, AL  36607